Push for jail terms for theft of DNA

The Australian, Leigh Dayton, Science writer, November 11, 2008

A HUSBAND who suspects he is not the father of his children could be jailed for two years if he steals hair or saliva for DNA testing, under legal changes being proposed by the Rudd Government.

Similarly, a private investigator would not be able to obtain a sample of someone's DNA for testing without their permission.

If adopted, the DNA theft laws would also make it illegal to conduct a genetic test on a sample obtained without consent and to disclose the results of any such test.

The proposed changes to the criminal code are contained in a discussion paper released by Home Affairs Minister Bob Debus yesterday.

However, Mr Debus, who has portfolio responsibility for criminal law within the Attorney-General's Department, said: "The proposed new offences don't interfere with the use of DNA testing by the police or courts or lawful access to private paternity testing by parents and guardians."

The proposed laws would not cover overseas online genetic testing services such as 23andMe and deCODEme.

The Australian Law Reform Commission's David Weisbrot said multinational protocols and strategies -- such as those adopted for child abuse and sex crimes -- must be set up to handle DNA theft laws.

The discussion paper on DNA theft was based on recommendations of the ALRC's 2003 report Essentially Yours: The Protection of Human Genetic Information in Australia, which highlighted the need to tighten laws in response to advances in human genetic technology.

The recommendations were accepted in December 2005 by the Howard government, but not acted on. In 2004, the British Human Tissue Act was amended to make DNA theft a criminal offence. The UN's Educational, Scientific and Cultural Organisation in 2003 adopted the International Declaration on Human Genetic Data.

Professor Weisbrot said that, during the ALRC's public hearings, people were most concerned about the misuse of personal genetic information by insurers, employers, angry spouses and journalists tracking down "famous DNA".

"At the time, there were stories about US president Bill Clinton who had his bodyguards collect a pint glass after he had drunk from it in a British pub," he said.

Professor Weisbrot noted that newspapers also reported a plot by "genetic trophy hunters" to acquire a sample of Prince Harry's DNA.

Central to the new discussion paper is the notion -- detailed in the ALRC report -- that non-consensual genetic testing can cause many types of harm, including physical harm if a person is assaulted in order to obtain a sample.

People can also be harmed emotionally if, for instance, their kinship or identity is questioned.

Men's Rights Agency co-director Sue Price said any decision to criminalise non-consensual genetic testing would be "well over the top".

"I had hoped that this had died a normal death, but it seems there are still people looking to prevent DNA testing," Ms Pryce said.

Liam Magill, who was awarded damages of $70,000 in 2001 after DNA paternity testing proved a family friend was the biological father of his two youngest children, agreed.

"The introduction of legislation that looked like this would be a total farce," he said.