Social and Ethical Issues in the Use of Familial Searching in Forensic Investigations: Insights from Family and Kinship Studies

Jeffreys A. and Wilson V. , “Individual-Specific ‘Fingerprints’ of Human DNA,” Nature 316 (1985): 76–79.

Lynch M. , “God's Signature: DNA Profiling, the New Gold Standard in Forensic Science,” Endeavour 27, no. 2 (2003): 93–97; Lazer D. , ed., DNA and the Criminal Justice System: The Technology of Justice [Hereinafter: Technology of Justice] (Cambridge MA: MIT Press, 2004).

Bieber F. , “Science and Technology of Forensic DNA Profiling,” in Lazer , supra note 2, at 23–62.

Home Office, Entitlement Cards and Identity Fraud: A Consultation Paper (London: Home Office, 2002); Home Office, Police Science and Technology Strategy 2003–2008 (London: Home Office, 2003); Human Genetics Commission, Whose Hands on Your Genes? A Discussion Document on the Storage, Protection and Use of Genetic Information (London: Department of Health, 2001); Human Genetics Commission, Inside Information: Balancing Interests in the Use of Personal Genetic Data (London: Department of Health, 2002); Nuffield Council on Bioethics, Genetics and Human Behaviour: The Ethical Context (London: The Nuffield Foundation, 2002).

Williams R. and Johnson P. , “Inclusiveness, Effectiveness and Intrusiveness: Issues in the Developing Uses of DNA Profiling in Support of Criminal Investigations,” Journal of Law, Medicine & Ethics 33, no 3 (2005): 545–558. Reprinted in this issue, Journal of Law, Medicine & Ethics 34 (2006): 234–247.

Family and kinship studies can be seen as different but overlapping fields, drawing as they do on their core disciplinary roots of sociology and anthropology respectively, but it is their collective insights that are of most value to this article. It should also be noted that though I draw attention in this article to “social and ethical issues” and regard these as interconnected ( Haimes , 2002), the primary focus is on the social.

Williams R. and Johnson P. , Forensic DNA Databasing: A European Perspective, Interim Report, June 2005, available at <http://www.dur.ac.uk/p.j.johnson/> (last visited February 24, 2006).

See Human Fertilisation and Embryology Act, 1990, s. 28,29,31; Mason J. K. Smith McCall R. A. and Laurie G. T. , Law and Medical Ethics 6th ed. (London: Reed Elsevier, 2002).

Although I note Jasanoff's more detailed analysis draws out the differences between the cultures of regulation of biotechnology in the UK, the USA and Germany. See Jasanoff S. , “In the Democracies of DNA: Ontological Uncertainty and Political Order in Three States,” New Genetics and Society 24, no. 2 (2005): 139–155.

Williams and Johnson , supra note 5, at 554; Journal of Law, Medicine & Ethics 34 (2006): 234–247.

Haimes E. , “Embodied Space, Social Places and Habitus,” Body and Society 9, no. 1 (2003): 11–33.

Bieber F. and Lazer D. , “Guilt by Association,” New Scientist (2004): 20.

Rothstein M. A. , (eds.), Genetic Ties and the Family: The Impact of Paternity Testing on Parents and Children (Baltimore: John Hopkins University Press, 2005).

McWhinnie A. , Adopted Children (London: Routledge and Kegan Paul, 1967); Triseliotis J. , In Search of Origins (London: Routledge and Kegan Paul, 1973). The language of the time referred to “natural” or “biological” parents; the language of “genetic” parents was not in common usage in the UK until the 1990s. Each of these terms carries a range of wider cultural and historical associations but there is insufficient space to explore this point in detail here.

This is a very condensed history of UK adoption; see Haimes E. and Timms N. , Access to Birth Records and Counselling of Adopted Persons under Section 26 of the Children Act, 1975, Final report to the Department of Health (May 1983); Haimes E. and Timms N. , Adoption, Identity and Social Policy (Aldershot: Gower, 1985), for further details.

Mason , supra note 8, at 82.

Dyer C. , “Shortage of Sperm Donors Predicted When Anonymity Goes,” British Medical Journal 328, no. 7434 (2004): 244.

This too is a very condensed history; see Daniels K. and Haimes E. , eds., Donor Insemination: International Social Science Perspectives (Cambridge: Cambridge University Press, 1998), for further detail.

M. Humphrey and H. Humphrey, “A Fresh Look at Genealogical Bewilderment,” Journal of Medical Psychology 59 (1986): 133–140.

Golombok S. and Murray C. , “Social Versus Biological Parenting: Family Functioning and the Socioemotional Development of Children Conceived by Egg or Sperm Donation,” Journal of Child Psychology and Psychiatry 40, no. 4 (1999): 519–527.

Haimes and Timms (1985), supra note 16.

Williams R. , Making Identity Matter: Identity, Society and Social Interaction (Durham: Sociologypress, 2000).

MacIntyre A. , After Virtue (London: Duckworth, 1981).

Bellis M. , “Measuring Paternal Discrepancy and Its Public Health Consequences,” Journal of Epidemiology and Community Health 59 (2005): 749–754.

Human Genetics Commission, Profiling the Newborn: A Prospective Gene Technology? (London: Department of Health, 2005): at 7.

Haimes E. , “Recreating the Family? Policy Considerations Relating to the New Reproductive Technologies,” in McNeil M. , ed., The New Reproductive Technologies (London: Macmillan, 1990): 154–172.

Hargreaves K. , Constructing Families and Kinship through Donor Insemination (Unpublished PhD thesis, University of Canterbury; New Zealand, 2001).

Anderlik M. and Rothstein M. , “DNA Based Identity Testing and the Future of the Family: A Research Agenda,” American Journal of Law & Medicine 28 (2002): 215–232, at 221.

Id., at 225.

Bellis , supra note 25, at 750.

Human Genetics Commission (2002), supra note 4, at 16.

Child Support Agency, Child Support: Disputed Parentage and DNA Testing (London: CSA, 2004).

Kaebnick G. , “The Natural Father: Genetic Paternity, Marriage and Fatherhood,” Cambridge Quarterly of Healthcare Ethics 13 (2004): 49–60.

Human Genetics Commission (2002), supra note 4.

Richards M. , “DNA Families,” Biological Science Review 16 (2004): 8–11.

Lucassen A. and Parker M. , “Revealing False Paternity: Some Ethical Considerations,” Lancet 357 (2001): 1033–1035.

Bieber , supra note 3.

I'm grateful to one of the anonymous reviewers for this last example.

Anderlik and Rothstein , supra note 30, at 229–232.

Kaebnick , supra note 34.

Human Genetics Commission (2002), supra note 4, at 165; Taitz J. , “The Last Resort: Exploring the Use of DNA Testing for Family Reunification,” Health and Human Rights 6 (2002): 21–34.

Anderlik and Rothstein , supra note 30.

Human Genetics Commission (2002), supra note 4, at 170.

Kaebnik , supra note 34, at 49.

Albrecht K. and Schultheiss D. , “Proof of Paternity: Historical Reflections on an Andrological Forensic Challenge,” Andrologia 36, no. 1 (2004): 31–37.

Rothstein M. A. , “Translating Values and Interests into the Law of Parentage Determination,” in Rothstein M. A. Murray T. H. Kaebnick G. E. and Majumder Anderlik M. , eds., Genetic Ties and the Family (Baltimore, MD: John Hopkins University Press, 2005): 213–238, 213.

Cho M. and Sankar P. “Forensic Genetics and Ethical, Legal and Social Implications beyond the Clinic,” Nature Genetics Supplement 36, no. 11 (2004): S8–s12.

Brodwin P. , “Genetics, Identity and the Anthropology of Essentialism,” Anthropological Quarterly 75 (2002): 323–330, at 323.

Strathern M. , “Enabling Identity? Biology, Choice and the New Reproductive Technologies,” in Hall S. and du Gay P. , eds., Quesitons of Cultural Identity (London: Sage, 1996): 37–52.

Id., at 48.

Id., at 48–49.

Edwards J. , “Donor Insemination and ‘Public Opinion,’” in Daniels K. and Haimes E. , eds., Donor Insemination: International Social Science Perspectives (Cambridge: Cambridge University Press, 1998): 151–172; Scott-Jones D. “Paternity Testing, Family Relationships and Child Well-Being,” in Rothstein M. A. , supra note 14.

Daniels and Haimes , supra note 19; Human Genetics Commission (2002): 168; Andrews L. , “Assisted Reproductive Technology and the Challenge for Paternity Laws,” in Rothstein M. A. , supra note 14, at 187–212.

I'm grateful to one of the anonymous reviewers for drawing this point to my attention.

Franklin S. , “Rethinking Nature-Culture: Anthropology and the New Genetics,” Anthropological Theory 3 (2003): 65–85, at 80–81, citing Schneider D. M. , American Kinship: A Cultural Account. 2nd ed. (Chicago: University of Chicago Press, 1980).

Brodwin , supra note 49, at 323.

Id., at 325.

Haimes E. , “Gamete Donation and the Social Management of Genetic Origins,” in Stacey M. , ed., Changing Human Reproduction (London: Sage, 1992): 119–147.

Kaebnick G. and Murray T. , “Introduction,” in Rothstein M. A. Murray T. H. Kaebnick G. E. and Majumder Anderlik M. , eds., Genetic Ties and the Family (Baltimore: John Hopkins University Press, 2005): xiii–xx.

Bramley B. , “Summary of the presentation from Dr. Bob Bramley, Custodian, National DNA Database,” Minutes of the Human Genetics Commission Plenary Meeting, February 11th, 2004 at <www.hgc.gov.uk> (last visited February 24, 2006).

I'm grateful to Robin Williams for this phrase.

There are parallels here with the position of the proband in clinical investigations: that is, the person who is the starting point for the genetic investigation of a family, usually because s/he has been diagnosed with an inherited disease, from which other family members might be at risk.

In theory that should not happen at all since the police would expect to approach the person on the database, get his/her relative's names, approach those relatives for a DNA sample and then, if the samples do not match the crime scene sample, those relatives are eliminated from the investigation. Therefore although the scientists might discover an unexpected genetic relationship, the sample providers and the person on the database are not told this directly, though it could be argued that they should be told: this is currently being debated in the medical context (Lucassen and Parker, 2001). However, the very nature of the approach to the person on the database might cause him/her to raise questions (for example, if an only child is asked about possible siblings) or the police might need to return to the person on the database or the sample provider and that might also raise questions and, finally, in any of these approaches, information might slip out about the nature of the relationships being investigated, whether this is supposed to happen or not.

Unless of course the revelation of a presence of a link to one person also necessarily entails the revelation of an absence of a link to another known person.

Annas G. , “Genetic Privacy,” in Lazer D. , ed., DNA and the Criminal Justice System (Cambridge: MIT Press, 2004): 135–146, at 145.

Bramley , supra note 62.

McWinnie , supra note 15; Triseliotis J. , In Search of Origins (London: Routledge and Kegan Paul, 1973).

Morgan D. H. J. , Family Connections (Cambridge: Polity Press, 1996).

Williams and Johnson , supra note 5, at 554.

Bramley , supra note 62.

Haimes and Timms , supra note 16, at 72.

Williams R. and Johnson P. “‘Wonderment and Dread’: Representations of DNA in Ethical Disputes about Forensic DNA Databases,” New Genetics and Society 23, no. 2 (2004): 205–223.

Williams and Johnson , supra note 5.

Bramley , supra note 62, at para. 2.4.

Parker M. and Lucassen A. , “Concern for Families and Individuals in Clinical Genetics,” Journal of Medical Ethics 29 (2003): 70–73

Williams and Johnson , supra note 5.

Bramley , supra note 62.

Rothstein , supra note 47, at 230.

Parker and Lucassen , supra note 77, at 73.

I'm grateful to one of the anonymous reviewers for this suggestion.

This could include cases of immigration eligibility, family murder, family rape, incest, baby abduction and identity theft. One particular case has drawn much attention in the UK in 2005: The Times headlined it as, “Lost baby finally laid to rest with love,” with a sub-heading of “as a funeral goes ahead for mystery baby found buried in concrete, village families have been challenging police version of events that began with a love affair,” The Times, September 12, 2005, at 21. A detailed analysis of this case is forthcoming.

Williams and Johnson , supra note 5.

Bellis , supra note 25, at 754; Department of Health, 2001, Providing Information about Gamete or Embryo Donors (London: Department of Health 2001); Mason , supra note 8, at 83.

Dyer , supra note 18.

The recent case of a DI-conceived teenager tracking down his anonymous sperm donor through a combination of DNA analysis and internet searches of a number of publicly available databases indicates the accessibility of much personal information, Motluk A. , “Anonymous Sperm Donor Traced on Internet,” at <www.newscientist.com> newservice November 3, 2005 (last accessed November 6th, 2005). This case also reflects concerns expressed by a growing number of commentators about the social, legal and ethical consequences of the growing number of health and research genetic databases ( Knoppers B. , ed., Populations and Genetics: Legal and Socio-Ethical Perspectives (Leiden: Brill Academic Publishers, 2003).

Bellis , supra note 25, at 753.

Id., at 752.

Knoppers B. , ed., Populations and Genetics: Legal and Socio-Ethical Perspectives (Leiden: Brill Academic Publishers, 2003).

The above case of the DI teenager shows a partial move in this direction, though that case also indicates that DNA databases in themselves are not very useful without access to other databases too.

Human Genetics Commission, supra note 26.

Williams and Johnson , supra note 74.