DNA TESTING AND GENETIC PRIVACY

Constitutional right of privacy issues in the context of genetic testing may arise as federal, state, and local governments engage in the collection of DNA samples for DNA identification testing. These tests produce patterns of DNA banding that are highly specific to each individual. Such DNA banding patterns are useful for determining disputed paternity and for matching suspects to forensic samples in either criminal or military settings, among others. To facilitate such genetic identification, both law enforcement agencies and the military have begun assembling databases of DNA patterns. Additionally, many states have enacted laws requiring compulsory DNA sampling of convicted criminals. In analyzing the privacy implications of such testing, it is important to bear in mind that the patterns themselves contain essentially no information related to genetic disease or other expressed physical or behavioral genetic traits, only a highly individualized pattern of DNA fragments.

The federal Constitution contains no explicit right of privacy, but privacy is implicated in the constitutional restrictions on search and seizure under the fourth amendment, and the right against self-incrimination under the Fifth Amendment. In schmerber v. california (1966), the Supreme Court held that warrantless removal of a blood sample from a suspect for purposes of blood alcohol testing constitutes a search under the Fourth Amendment. However, the Court held that because blood drawing is a safe, routine, and minimally invasive medical procedure, such a search did not intrude on the suspect's privacy, and was permissible with probable cause. The Court also held that the taking of such evidence did not implicate the Fifth Amendment right against self-incrimination, as this right extends only to compelled oral testimony.

From this precedent, courts have more recently held that taking forensic DNA samples is not a form of compelled "self-incrimination," and is a permissible government search. Indeed, some forms of DNA identification tests can be done with a hair root or other bodily samples obtained by even less invasive procedures than drawing blood. Additionally, where compulsory testing of convicted criminals is concerned, the required showing of probable cause is much lower because convicts, having forfeited many of their civil rights, have diminished privacy interests.

An additional important source of constitutional privacy arises from the line of reproductive rights cases including roe v. wade (1973). These cases establish a constitutional right against governmental intrusion into aspects of reproductive privacy. Despite the conceptual relationship between genetics and procreation, reproductive privacy does not appear to be implicated by DNA identification tests. The Supreme Court has stressed that these cases deal only with direct governmental intrusion into "protected decisionmaking" related to procreation, child-bearing, and related familial choices. DNA identification testing does not impede or directly burden an individual's ability to beget, bear, or rear a child.

An additional aspect of constitutional privacy arises from a right of informational privacy found by the Supreme Court in whalen v. roe (1977). This constitutional right restricts the ability of the government to compile personal information about individuals. However, the courts have held this right to be sharply limited. Government collection of such information is usually permissible when the government can show a legitimate reason for doing so, and takes some steps to restrict access to the information. Because DNA identification patterns contain little personal information, and governmental need for such information is compelling, collection of such patterns is probably permissible under Whalen, particularly since Congress has enacted some statutory protections against unauthorized disclosure or use of information in law enforcement DNA collection.

Dan l. burk
(2000)