Genetic tests are now are available directly to consumers for a variety of applications. Genetic testing services offered through the Internet include testing for genetic disorders or risks, parentage determination, and ancestry. The combination of technology that permits the analysis of small amounts of DNA, increased availability of testing services, and lack of regulations to protect genetic privacy create an environment ripe for surreptitious testing — that is, the collection and analysis of DNA without consent, and the disclosure of information derived from such analysis without the permission of the person tested.
It is not known to what extent surreptitious DNA testing currently is taking place. Its practice is most familiar in the law enforcement context. Police have obtained DNA samples surreptitiously from suspects by collecting so-called “abandoned” DNA – i.e., samples left on envelopes or other articles. While some have argued that this practice violates the Constitution’s protection against unlawful searches under the Fourth Amendment, courts that have reviewed the practice have found it acceptable.
Surreptitious DNA testing also can occur outside the law enforcement context for a variety of purposes. While some testing companies request a particular specimen type and amount – such as a vial of saliva or a cheek swab – that may preclude surreptitious sample collection, other companies are willing and able to analyze DNA left on discarded items, such as chewing gum, used Q-tips, cigarette butts, or strands of hair. Assuming DNA can be extracted from the sample, a variety of analyses can be performed, from health-related testing to parentage determination. Such testing could lead to parentage disputes, lawsuits, and other accusations. Further, a person unexpectedly might learn of health risks or family relationships that he or she would prefer remain unknown.
There are limited legal safeguards against surreptitious DNA testing or its potential consequences for those subject to nonconsensual testing. There is no federal law against surreptitious testing and many states have either incomplete laws or none at all. California law prohibits surreptitious genetic testing for health related purposes only and therefore does not prohibit surreptitious testing for paternity, ancestry, identity or other purposes.
California State Senator Padilla has introduced legislation, SB 222, expanding the limited protections of current California law in this area. For more on the bill and its current status see:
For more on California’s surreptitious genetic testing law see: Cal Civ. Code §56.17; Cal Ins. Code §§742.405,742.407, 10123.3,10123.35,10140,10149
Cal.Law 10149.1: (1) “Any person who negligently discloses results of a test for a genetic characteristic to any third party in a manner that identifies or provides identifying characteristics of the person to whom the test result apply, except pursuant to a written authorization…;” (2) “Any person who willfully discloses the results of a test for a genetic characteristic to any third party in a manner that identifies or provides identifying characteristics of the person to whom the test result apply, except pursuant to a written authorization…;” (3) “Any person who willfully or negligently discloses the results of a test for a genetic characteristic to a third party in a manner that identifies or provides identifying characteristics of the person to whom the test results apply, except pursuant to written authorization…that results in economic, bodily, or emotional harm to the subject of the test.