American Journal of Law & Medicine

DNA-based identity testing and the future of the family: a research agenda.

I. INTRODUCTION

Many of the societal challenges associated with the genetic revolution rest on predictions about the effects of the future development and diffusion of technologies for manipulating the human genome. Identity testing is different. Relatively sophisticated techniques for identity testing using DNA currently exist, and these techniques are already creating conflicts and challenges for families and policymakers. More precisely, scientific advances and social trends are raising difficult questions about the source and nature of parental obligation, the steps required to protect the privacy of individuals when suspicion begins to corrode family relationships and the role of attorneys and other professionals in these volatile situations.

The Article discusses the social context for the expansion of identity testing in Part II. Part III addresses the prevalence of misattributed paternity. Part IV explores historical and philosophical perspectives on parentage determination. Part V discusses the relationship between the new wave of identity testing and the law.

This Article concludes in Part VI by setting out a research agenda for assessing and addressing the ethical, legal and policy implications of DNA-based identity testing for the family. By "identity testing," we mean the use of technology to establish or role out a relationship of genetic relatedness between at least two biological samples. The term would include testing to determine the degree of genetic relatedness between two or more persons (e.g., paternity testing) and testing to determine the identity of a person or the remains of a person. Over the next year, we will be working with Thomas H. Murray and Gregory Kaebnick of the Hastings Center, and a group of expert consultants in law, philosophy, the social sciences and social services to advance our understanding of and contribute to a coherent policy response to a range of problems triggered by genetic testing to determine identity.

II. THE SOCIAL CONTEXT FOR THE EXPANSION OF IDENTITY TESTING

In the last several decades, a number of social developments or trends have combined to expand the use of DNA-based identity testing and intensify conflict around applications of this technology within families and, more broadly, intimate relationships. Here we highlight four of these developments: the Human Genome Project (HGP), federal welfare policy, the fathers' rights movement and media interest in domestic drama.

A. THE HUMAN GENOME PROJECT

The HGP has shaped the social impact of testing in at least three ways. First, the HGP has accelerated the development of techniques for cheap, efficient analysis of regions of DNA and comparison of the resulting genetic profiles. Emerging technologies, such as microarrays, are likely to lower cost, speed the process and increase accuracy. (1) Even with existing technologies, analysis can be performed on DNA extracted from almost any biological material, with important implications for privacy. While testing at one time involved a blood draw, many laboratories that offer testing by mail now use cheek swabs. The testing of hair and other materials easily collected without the knowledge or cooperation of the subject is also becoming more common.

Second, the HGP has led to heightened concern about genetic identity as a factor in healthcare. If individuals lack accurate information concerning their ancestry, they may believe they are at a genetically increased risk for an inherited disorder when their risk is in fact no greater than the population-wide risk. On the other hand, other individuals may fail to take appropriate preventive measures because no presumptive parent has or is at risk for an inherited disorder. Diagnostic testing for many conditions produces ambiguous results, and testing of genetic relatives may provide information that is essential for good clinical decision making. (2)

Third, the emphasis on genetic identity and ancestry in the clinical setting has had consequences beyond the clinic. Empirical research shows that, for some adoptees, the quest for birth parents is triggered by questions about family history from a healthcare provider. (3) This trigger effect can occur even where the history-taking is part of a routine examination and there is no urgent medical need for contact. (4) More generally, it is easy to slide from an appreciation of the relevance of genetic identity to healthcare, given the current state of technology, to a belief that genetic identity is one's "true" identity and genetic relationships are more fundamental, enduring or "real" than other kinds of relationships. Social scientists, among others, point out the dangers of genetic essentialism, genetic reductionism and genetic determinism. (5) Although the meanings assigned to these terms vary, they are reminders of three distinctive, but related types of error: the belief that genes are the essence of identity or relationships; the belief that complex phenomena can be explained, or explained away, by reference to genes; and the belief that genes operate in a direct and inexorable way to produce specific states or outcomes. (6) Each error involves a misunderstanding of the science of genetics, a category mistake or both. (7)

B. FEDERAL WELFARE POLICY

Federal welfare policy has also shaped the social impact of DNA-based identity testing in at least three ways. First, the growth of a commercial identity testing industry has undoubtedly been spurred by federal welfare policy. The federal Child Support Enforcement and Paternity Establishment Program was created in 1975 to promote state efforts to establish paternity for nonmarital children and to collect child support payments. (8) The Family Support Act of 1988, (9) among other things, set state standards for establishment of paternity, requiring states to have all parties in a contested paternity case take a genetic test upon the request of any party, and obligating the federal government to pay ninety percent of the costs for testing. The Omnibus Budget Reconciliation Act of 1993 (10) was even more prescriptive, requiring states receiving federal funds for enforcement to have a number of laws in place, including a law creating a rebuttable or conclusive presumption of paternity based upon genetic testing results, and a law creating a simple civil process for voluntary acknowledgement of paternity, as the basis for a rebuttable or conclusive presumption of paternity. The Personal Responsibility and Work Opportunity Act of 1996 (11) required states to adopt procedures giving child support enforcement agencies authority to order genetic testing without prior judicial consent. In 1998, the last year for which final figures are available, the states spent $31,511,137 on laboratory testing for paternity. (12)

Second, the emphasis on genetic testing has reinforced the view that biological or genetic relationship and parental status are tightly coupled. Although the expansion of testing was initially in the service of the mission of finding legal fathers for children who had none, the technology is in no way restricted to that mission. The tests used to prove genetic paternity can also be used to disprove genetic paternity. Current law sends the message that genetic contribution to the creation of a child through sexual intercourse, without any other kind of connection to the child or mother, is a sufficient basis for legal fatherhood, with the attendant duty to provide financial support to the child up to the age of eighteen, and possibly beyond. (13) With genetic essentialism part of the cultural atmosphere, it is easy to slide into the view that the genetic contribution is the essence of fatherhood. And if proof of paternity by means of genetic testing establishes a duty of support, then, logically, should not exclusion through testing end such a duty, or even unravel it back to its origin in mistake or deception?

Third, federal welfare policy has fueled anger and resentment and the cynical belief that "it's all about the money." (14) Clearly, government actors are promoting testing in order to increase private financial support for children, which will reduce public spending on child welfare programs. At the same time, determining paternity and enforcing child support obligations may also promote paternal involvement in child-rearing and thereby increase a sense of security for children. (15) Requests for increased child support are not infrequently the trigger for suits to disestablish paternity and legal fatherhood. (16) The reasons for this phenomenon likely include the legal father's financial self-interest and his resistance to what may be regarded as "bullying" behavior by the mother, the state or the courts.

C. THE FATHERS' RIGHTS MOVEMENT

In the 1970s, the perception, if not the reality, of bias against fathers in child custody disputes led to the creation of organizations to promote "fathers' rights." (17) Organizations identified with the fathers' rights movement include the American Coalition for Fathers and Children and Dads Against Discrimination. Although the movement was, and to some extent remains, focused on strengthening fathers' rights to parent children, the broader agenda of men's rights and the rhetoric of male victimization may lead in other directions. Fathers' rights organizations now support efforts to change laws that prevent men from using genetic test results to end their legal obligations to children who lack a genetic relationship to them. Some men believe that DNA testing stacks the deck against them--a positive DNA test will establish support obligations, but a negative test will not eliminate such obligations.

The cynicism of fathers' rights activists often includes the view that federal welfare policy, and family law concerning parentage determination and parental duties, may amount to nothing more than the search for the deepest pocket. The "best interests of the child" argument for suppressing information about genetic identity is seen as a cover for the financial interests of the state and bureaucratic interests in finality and efficiency. (18) Men such as Gerald Miscovitch, Dennis Caron and Morgan Wise have become celebrities, doing battle in the courts, state legislatures and media against laws that hold husbands and ex-husbands responsible for support of marital children regardless of genetic relationship. Miscovich appealed a Pennsylvania court order to continue payment of child support in the face of genetic evidence of nonpaternity all the way to the U.S. Supreme Court. The Court denied certiorari, allowing the Pennsylvania court's ruling against Miscovich, and the Pennsylvania law on which it was based, to stand. (19) Another man received significant media attention when the Supreme Judicial Court of Massachusetts denied his motion to overturn a voluntary acknowledgment of paternity he made at the age of nineteen. …

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