EXCEPTIONS FOR IDENTIFICATION AND COURT-ORDERED GENETIC ANALYSIS.
Sec. 121. IDENTIFICATION OF DEAD BODIES
Not withstanding any other provisions of this Act, a person may provide access to an individually identifiable DNA sample, or to data derived from DNA typing, to assist in the identification of a dead body, provided further that the analysis of any sample so provided and the analysis of a DNA sample from the dead body is limited to that which is necessary to determine the identity of the dead body.
Sec. 122. IDENTIFICATION FOR LAW ENFORCEMENT PURPOSES.
These sections contain two related exceptions to the general rule which requires written authorization prior to the collection, storage and analysis of DNA. Both exceptions are allowed because of the limitation on the kind of DNA analysis which can be conducted and consequently on the kind of information that is created. The genetic analysis which is permitted is referred to in the statute as "DNA typing" and has been discussed in the comments on the definitions used in this statute. DNA typing is a method used for purposes of identification and should not create any other information about the person who is the source of the DNA. Consequently, the privacy concerns raised by creation and disclosure of other genetic information do not apply to this specific type of analysis and the resultant profile.
Section 121, therefore, permits the performance of DNA typing on samples solely for the purpose of identifying a dead body. Reliance on this exception will rarely be necessary for practical reasons. First, it would only be applicable when there is reason to believe that the sample source is the decedent and a DNA sample had been collected from the suspected individual before discovery of the unidentified body. Secondly, it is likely that currently utilized methods of identification, such as matching of dental records with remains, will continue to be more readily available and cost effective than DNA typing. However, to accommodate those rare instances in which other methods are unavailable, not practicable, or more burdensome than DNA typing, the Act allows DNA typing for this purpose, and permits access to the results of DNA typing without individual authorization.
The second area in which DNA typing is permitted without the authorization of the sample source (or that person's legal representative), is when the analysis is in relation to criminal law enforcement activities. As of the drafting of this Act, 19 states have enacted laws which authorize the creation of forensic DNA banks for storage of DNA samples and data. These laws vary, both in terms of the circumstances under which individuals can be required to submit to the collection of samples, and the evidentiary use of the genetic profiles that result. 
The public benefit versus the threat to individual privacy that will ultimately be realized from creation of DNA banks for such forensic use has been widely argued. Controversy surrounds not only the reliability of the technology involved, and the admissibility of evidence derived from such techniques, but also the erosion of privacy that is seen as the inevitable creation of national DNA databanks. Although such concerns may be well founded, it is not within the scope of this Act to resolve all the legal and policy issues presented by the provisions in a particular state statute or the concept of forensic DNA banking in general. The provisions contained in section 122 are, however, intended to specify when collection and analysis of DNA for forensic use does not implicate privacy interests, and consequently could be conducted without infringing on the individual rights created by this Act. Indeed, the fact that DNA in the custody of forensic DNA databanks cannot be lawfully analyzed except for identification purposes under the provisions of the Act, may make the existence of such forensic DNA data banks less troubling. In addition, the Violent Crime Control and Law Enforcement Act of 1994 (P.L.103-322, sec. 120305) prohibits the disclosure or obtaining of personally identifiable DNA information from samples held for law enforcement purposes, with a fine of up to $100,000 for violations.
Although the word "fingerprinting" is often used in regard to the kind of analysis that is involved in law enforcement, it is misleading to perpetuate the use of this benign term in regard to genetic analysis. Consequently, we have intentionally chosen to use the term DNA typing in these provisions. Traditional fingerprinting consists of copying lines from fingertips and examining them to see if they match another print. There is no other use that can be made of the material that makes up the "print," and no other information except identification can be obtained from it. DNA typing, by contrast, is one of several kinds of analysis or methods for deciphering information encoded in the material that is collected. In regard to the privacy interests of the person whose DNA is collected, this distinction is of extreme significance. Fingerprinting is only useful for identification, whereas DNA can be analyzed for a multitude of purposes.
In recognition of these distinctions, this section states that nothing in the Act shall be construed as prohibiting the collection, storage or typing of DNA samples when three criteria have been met. First, the collection, storage and typing of the DNA samples must be authorized by other federal or state law. This exception would therefore not be applicable to local law enforcement use in the approximately 30 states which have yet to authorize forensic DNA banking. Secondly, the purpose for which the applicable law authorizes such activities is restricted to the matching of samples in criminal investigations. Lastly, the access to collected samples must be limited to authorized law enforcement agencies, prosecutors, defense counsel, defendants, accused individuals, suspects, and their authorized agents.
These restrictions will prevent law enforcement authorities from obtaining private genetic information about individuals. A state law which is invoked as the basis for this exception cannot authorize a DNA analysis which reveals the presence of disease genes or markers associated with a disease. Nor could it permit use of DNA samples to create suspect profiles through use of probes for any other genetic characteristic.
Sec. 123. COLLECTION AND ANALYSIS OF DNA SAMPLES PURSUANT TO COURT ORDERED ANALYSIS
(a) IN GENERAL.-- Nothing in this Act shall be construed to prohibit the collection or analysis of an individually identifiable DNA sample pursuant to Rule 35 of the Federal Rules of Civil Procedure or comparable rules of other courts or administrative agencies in connection with litigation or proceeding to which the sample source is a party and in which the genetic condition of the sample source has been placed at issue, provided that the conditions in section (b) have been met.
This section applies to situations in which the genetic condition of an individual has been raised as an issue in a court proceeding and the individual, who is a party to the proceeding, will not voluntarily submit to genetic analysis to resolve the disputed facts. When the physical or mental condition of a party to a proceeding is at issue, the authority of the court to order the individual to submit to an examination is governed by Rule 35 of the Federal Rules of Civil Procedure or a comparable state procedural rule. This section restates the provisions of the federal rule with some modification to accommodate the special privacy concerns that are raised by DNA analysis regardless of whether or not it is voluntarily undertaken.
A special section regarding paternity cases and court ordered genetic tests to determine paternity is unnecessary because section 123 applies to all cases in which the genetic condition of a party is at issue. If one or more of the parties to the action does not voluntarily submit to testing, then in the language of section 123 (a), "nothing in this Act shall be construed to prohibit the collection or analysis of an individually identifiable DNA sample pursuant to Rule 35 or the Federal Rules of Civil Procedure or comparable rules of other courts or administrative agencies... provided the conditions in section (b) have been met."
Section 123(a) clarifies that genetic analysis can be ordered by a court in circumstances similar to those in which a physical examination can be ordered. However, an order that issues under this rule must be specific in regard to the manner of collection of the DNA sample, the person who is authorized to collect and analyze the sample, and the purpose of the genetic analysis. [section 123(b)(2)(A)-(C)] Additionally, to prevent creation and disclosure of irrelevant genetic information, the analysis that is ordered must be limited to that which is necessary to fulfill the purpose of the order [section 123(b)(2)(D)] and the person who is conducting the analysis must destroy the DNA sample at the earliest possible opportunity consistent with the purpose of the order.
It should be noted that these provisions do not authorize compulsory collection and analysis of DNA. Rather, failure to comply with court mandated DNA testing would lead to the dismissal of the lawsuit of the plaintiff who refuses testing or a finding against the defendant based on other available evidence and inference drawn from the refusal to comply.
A recent example of a case in which this section would have applied, if it had already been enacted, arose in California. A woman filed suit against a former employer claiming that her son's developmental disability stems from her workplace exposure during pregnancy to a solvent called methylethylketone (MEK). The defense has contended that a genetic condition, Fragile X syndrome, and not the exposure, is the cause of his difficulties, and the judge has ordered that the son undergo genetic tests to determine whether an inherited gene or her exposure to the solvent, caused his disability. If the order had issued pursuant to section 123 of the Act, it would have specified that the purpose of the analysis was to determine the presence of Fragile X, and the analysis itself would have been limited to that which is necessary to determine the presence of the gene or gene markers responsible for Fragile X. The analysis could not, for example, have utilized any multiplex test which would produce information on any other gene or genetic condition. In addition, if the determination could have been made by chromosomal examination, without an actual DNA analysis, then it would have been limited to that process.
This is probably the first personal injury case in which a court has ordered genetic analysis. It is, however, likely that as more is known about the genetic component of diseases, particularly cancers that are also associated with exposure to toxic substances, more defendants will seek genetic analysis of plaintiffs.
Proceed to next section.
File posted May 1995.
Return to Home Page.