Consent to parentage testing

35.113 Two types of consent are at issue in the context of parentage testing: consent to taking the genetic sample and consent to performing a genetic test upon that sample. At present, in parentage testing performed under the family law regime, consent appears to be implied from the act of providing the bodily sample and completion of the prescribed affidavit and declaration. In relation to unregulated parentage testing, there appears to be no specific requirement of consent from the person whose bodily sample is taken and tested. Some non-accredited laboratories seek to avoid potential legal liability for testing mail order samples by requiring the customer to warrant that he or she is legally entitled to possession of the samples.[112]

35.114 Serious privacy concerns arise from taking a bodily sample from a person, or from his or her personal effects, in order to perform a genetic test on the sample without the person’s knowledge or consent.[113] The following sections consider consent in relation to the testing of adults and children, respectively.

Decision making by adults

35.115 Depending on the circumstances, parentage testing may be performed using a genetic sample from one or two adults, together with that of a child. When each adult has made an informed and voluntary decision to submit his or her genetic sample for parentage testing, there is no ethical objection to carrying out a genetic test on that person’s sample. However, ethical concerns do arise where one adult obtains a genetic sample from another adult and submits it for testing surreptitiously.

35.116 Legal protection against the non-consensual collection and use of an adult’s bodily sample for the purpose of parentage testing is currently limited. As discussed in Chapter 12, some protection exists under the common law through the tort of trespass to the person, but this would not apply to the collection of much genetic material—such as hair from combs, saliva from a glass, or cheek cells from a toothbrush.

35.117 Federal privacy legislation also has limited application to the collection of genetic samples by individuals for the purpose of parentage testing.[114] First, the collection and use of personal information is exempt under s 16E of the Privacy Act 1988 (Cth) (Privacy Act) where done for the purpose of, or in connection with, a person’s personal, family or household affairs. Second, s 7B exempts from the Act acts done by a person other than in the course of a business conducted by the person. While certain aspects of parentage testing might fall outside these exemptions, the majority of contexts would be exempt from the protection of the Act.[115]

35.118 For the reasons given in Chapter 12, the Inquiry recommends a new criminal offence that would make it unlawful for a person or corporation, without lawful authority, to submit a sample for genetic testing, or conduct genetic testing on a sample, knowing (or recklessly indifferent to the fact) that the person from whom the sample has been taken did not consent to such testing.[116] This recommendation would apply to samples taken to determine parentage, as it does in other contexts such as where an employer surreptitiously tests an employee.

35.119 The Inquiry notes that circumstances might also arise in which parentage testing involves a genetic sample obtained from a deceased person—whether taken during his or her lifetime or after death. While it has been held that the FLA does not provide for the making of parentage testing orders in relation to human remains,[117] such testing might be conducted pursuant to other lawful authority. In these circumstances, there may be uncertainty as to who has lawful authority to consent to the testing of these human remains.[118]

Submissions and consultations

35.120 In DP 66, the Inquiry expressed the preliminary view that measures are needed to require laboratories conducting parentage testing to be satisfied that the sample of each adult donor has been supplied for that purpose with appropriate consent.

35.121 DP 66 proposed that NATA should develop accreditation requirements that require laboratories to be satisfied that the sample of each adult donor has been supplied for parentage testing with his or her consent; and that the FL Regulations should be amended to require that the prescribed affidavit and declaration submitted to a laboratory in relation to parentage testing include a signed consent form for each adult donor indicating that the sample has been supplied with his or her consent.[119]

35.122 Several submissions supported the proposals.[120] Sydney IVF Limited made a practical suggestion, that:

A signed consent form should require a witness and photographic identification at the time of signing to prevent the likelihood of substitution. The timing of completion of such a consent form, together with the affidavit, requires review ... Sydney IVF re-commends the implementation of a consent form, and a time frame of one week prior to provision of the sample for completion of both a consent form and affidavit.[121]

35.123 In consultations, NATA expressed general support for the proposal, suggesting that one way to ensure that consent has been given would be through the incorporation of prescribed consent forms into the FL Regulations. NATA could review the content of the consent forms held by laboratories during its periodic reviews, but would not have the capacity to review the validity of the consent given.[122] In a subsequent submission, NATA emphasised that it does not have expertise in setting requirements for the content of consent forms or the mechanism for obtaining informed consent from individuals. It noted that it may be beyond the expertise of laboratories to ‘ensure’ that consent had been obtained.[123]

Inquiry’s views

35.124 In order to promote the practice by which laboratories conduct parentage tests only on samples that have been provided with consent, the Inquiry considers that reform of laboratory procedures is warranted. This reform should establish a mechanism by which laboratories can be satisfied that a sample obtained from an adult donor was collected and submitted for testing with the donor’s consent.

35.125 The Inquiry recommends that NATA develop accreditation requirements that require laboratories to be satisfied that the sample of each adult donor has been supplied for parentage testing with his or her consent; and the Commonwealth should amend the FL Regulations to insert a prescribed consent form in relation to parentage testing for each adult donor indicating that the sample has been supplied with his or her consent. In developing the prescribed consent form, the Commonwealth should consider the need for the person providing the bodily sample to show photographic identification to confirm that he or she is the person whose name appears on the consent form. This would minimise the opportunity for sample substitution.

35.126 The Inquiry recognises that there might be circumstances in which a person might seek to use the bodily sample of a deceased person in relation to parentage testing. In these circumstances, provision should be made for obtaining consent from the deceased’s next-of-kin or other authorised person (such as an executor or legal representative) in relation to the parentage testing.

Recommendation 35–5 NATA should develop accreditation requirements that require laboratories to be satisfied that the sample of each adult donor has been supplied for parentage testing with his or her consent. Provision should also be made for obtaining consent from the deceased’s next-of-kin or other authorised person in relation to a sample from a deceased person.

Recommendation 35–6 The Commonwealth should amend the FL Regulations to insert a prescribed consent form in relation to parentage testing for each adult donor indicating that the sample has been supplied with his or her consent. Provision should also be made for obtaining consent from the deceased’s next-of-kin or other authorised person in relation to a sample from a deceased person.

Decision making by mature children

35.127 Because parentage testing is a form of kinship testing, it necessarily requires a comparison of genetic samples from at least two persons. In most circumstances, one of those persons will be a child, which is taken here to mean a person under the age of 18 years. Where the offspring in question is 18 years or older, the question of consent to sampling and testing must be answered in the same way as for other adults.

35.128 However, where one of the parties to be tested is a minor, how is the consent of the child to be assessed? In this section, the Inquiry examines the position of ‘mature’ children; that is, those of a sufficient age and maturity to be able to make an informed decision about parentage testing on their own behalf. In the next section, the Inquiry examines the position of children who, by reason of their age or mental capacity, lack that degree of maturity.

35.129 The current law draws a bright line between individuals of 18 years of age or more, who are treated as adults, and those under 18 years, for whom decisions are generally made by a parent or guardian. The FLA provides that a parentage testing procedure may be conducted on a child under the age of 18 years with the consent of a parent, guardian or person who, under a specific issues order, is responsible for the child’s long term or day-to-day care, welfare and development.[124] There is no provision for children to consent, and a person who carries out a parentage testing procedure with parental consent will not be liable for any civil or criminal action.[125] Where parentage testing is conducted outside this regulatory framework there is no specific requirement that the child, or his or her parent, consent to the procedure.

35.130 The Inquiry recognises that children develop at different rates in terms of emotional maturity and intellectual understanding. Many children reach a sufficient level of maturity to form their own opinions on important matters affecting their welfare before they reach the age of 18 years.

35.131 Concerns arise where a mature child’s wishes do not accord with those of the parent or other person authorised to give or withhold consent on the child’s behalf.[126] The right of a child with sufficient maturity and understanding to form his or her own views has been recognised in the Convention on the Rights of the Child, to which Australia is a party. Article 12(1) provides that:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.[127]

35.132 This approach is reflected in legislation in several States, and in common law principles regarding a child’s consent to medical treatment.[128] The Inquiry supports the general principle that some minors are capable of making, and should be entitled to make, their own decisions about whether to provide a sample for parentage testing.

Options for reform

35.133 In considering whether children under 18 years of age should be able to make their own decisions regarding parentage testing, two models of reform present themselves:

  • the consent of mature children should be based on the understanding and maturity of the particular child in question; or
  • the consent of mature children should be based them having attainted a specified age at which they are presumed to have capacity, subject to the presumption being rebutted in particular cases.

35.134 The first of these options has the advantage of accounting for differing rates of development among children, but the disadvantage of requiring a potentially time-consuming determination of a child’s capacity on a case-by-case basis. This approach has been adopted in the common law with respect to a child’s consent to medical treatment. Where a child has sufficient understanding and intellectual capacity to enable full comprehension of the nature and purpose of the treatment, he or she may give or withhold consent to that treatment.[129] If a child has such capacity, parental consent is not required. A similar position is adopted in relation to child consent to participation in medical research.[130]

35.135 The second option has the advantage of simplicity—it avoids the need for minors who have attained the specified age to obtain independent assessments of their capacity, which might be costly and time consuming. This approach has been adopted by several Australian States in legislation relating to consent to medical treatment.[131] It has also been adopted in the United Kingdom’s voluntary code of practice on genetic paternity testing services: in England, Wales and Northern Ireland, a child aged 16 years or over may give or withhold consent to paternity testing on his or her own behalf.[132]

35.136 The FLA previously specified a presumed age of capacity in relation to children’s wishes. The now repealed s 64(1)(b) provided that:

where the child has attained the age of 14 years, the Court shall not make an order under this Part contrary to the wishes of the child unless the Court is satisfied that, by reason of special circumstances, it is necessary to do so.

35.137 However, the Family Law Council (FLC) recommended in 1978 that the age requirement be removed.[133] In its submission, the FLC explained its reasons, namely, that the presumed age was peremptory and attached too much significance and weight to the wishes of the child; often resulted in parents exerting undue influence on the child; placed the responsibility and burden of an ‘adult’s decision’ onto the shoulders of a child; and legislated for an age of maturity when there appeared to be considerable divergence of opinion on the part of psychiatrists, social workers and psychologists about the age at which a child has the capacity to make such a decision.[134]

Submissions and consultations

35.138 DP 66 proposed a two-tiered approach to the regulation of decision making in relation to children. First, younger children, namely, those under 12 years of age, should be regarded as lacking the capacity to make a free and informed decision in relation to parentage testing. For these children, a decision as to whether they should participate in parentage testing generally should be made by the adults who have parental responsibility in relation to the child, in accordance with the proposals described in the following section. Second, children between the ages of 12 and 18 years should be independently assessed to determine whether they have sufficient maturity to comprehend the nature and purpose of the parentage testing, in order to make a decision on their own behalf.

35.139 In relation to the second tier, DP 66 proposed that the child’s maturity should be assessed by two independent professionals who have known the child for not less than two years. In addition, NATA should develop accreditation requirements to ensure that laboratories conducting DNA parentage tests obtain the required child consent.[135]

35.140 Most of the submissions that addressed these proposals expressed support for them.[136] The Centre for Genetics Education generally supported the proposals but questioned the age being set at 12 years.[137] The Queensland Government noted that children at the proposed minimum age of 12 years might be too young and inexperienced to fully comprehend the implications of genetic testing for parentage.[138] Several submissions emphasised the importance of counselling for children during this process.[139]

35.141 Genetic Technologies suggested that the use of independent professionals may not be appropriate for several reasons. First, it is unlikely that professionals such as teachers would wish to be involved in these matters. Second, involving two external professionals who have known the child for two years may exacerbate the already sensitive nature of the situation, and could potentially breach a family’s privacy or confidentiality. Third, it would be unreasonable to expect the laboratory to verify the competence of the person providing the reference.[140] The Inquiry notes that it did not intend laboratories to have this role.

35.142 The FLC also expressed concerns about the use of independent professionals to assess a child’s maturity:

The strong preference expressed in the [Family Law Council’s 1978] Working Paper to ascertain the child’s wishes was for the use of a welfare report prepared by a Family Court Counsellor. The rationale for this was that lawyers, including judges, ‘do not have the necessary expertise to undertake such a sensitive role’. The Working Paper also urges that steps be taken to ensure that a child, prior to expressing a wish, should understand the meaning and significance of the decision. And this function is seen as being the preserve of lawyers, and complementary to the role of the Court Counsellor.[141]

35.143 The FLC considered that the proposal contained too many hurdles for a mature child to override parental consent and did not assure that the child’s consent was voluntary. The Council suggested that the person conducting the assessment should consider the child’s maturity and genuineness of consent. The Council also noted that:

the proposed procedure requires disclosure of extremely sensitive material to a professional who must have known the child for at least two years (teacher, social worker, doctor, or minister) and who will, it is presumed, have an on-going relationship with the child. This is seen as inappropriate precisely because of the on-going relationship with the child … Council also proposes a narrowing of the proposed qualifications required of the professionals.[142]

35.144 The Victorian Bar considered that the proposal gave insufficient weight to the practical difficulties in assessing the child’s maturity:

the discussion concentrates on the capacity of the child to make the decision at the expense of the more difficult question, i.e. whether the child has the capacity to deal with the possible outcomes of the testing. It is submitted that children should not be in a position to give consent until age 18.[143]

35.145 The Reliable Parents Inc noted the potential for parental pressure to be applied to a child when making his or her decision:

The practical experience of litigants in the Family Court is that in situations where the onus is placed upon the child to express a viewpoint, the child is invariably subjected to pressures from one or both of the parents. Although consent by a child of twelve may seem to be giving the child some responsibility for his or her own genetic information and privacy, this is greatly outweighed by the potential for divisive pressures to be applied to the child. The use of ‘Court Experts’ to determine whether such permission or refusal is freely given is also fraught and expensive …[144]

35.146 The FLC proposed an alternative framework for regulating mature children’s consent to parentage testing, in which every child aged 12 years and over must sign a consent form. Where both parents provide samples and consent forms with the child’s sample and consent form, there should be no need for proof of the child's capacity and understanding. However, where only one parent provides a sample and consent form, then the child’s consent form must be accompanied by an assessment of maturity and informed consent completed by either a family and child counsellor, a social worker or a psychologist. Where the child withholds consent, the parent or parents must seek a court order that the test is in the child’s best interests. Where only one parent’s sample and consent are provided and the child does not have capacity, both parents’ samples and consent should be required—or alternatively, a court order that parentage testing be carried out.[145]

Inquiry’s views

35.147 The Inquiry is of the view that the law should recognise a child’s right to give or withhold consent to the testing of his or her own genetic sample where the child has sufficient maturity and understanding of the process and its implications to safeguard his or her own interests. However, society also has an underlying responsibility to protect children from their own misjudgement where they do not sufficiently comprehend the implications of the testing.[146]

35.148 The Inquiry does not support a presumed age of capacity approach in relation to child consent to parentage testing. In practice, it would be difficult to settle on any particular age at which a child may safely be presumed to have sufficient maturity to make an informed decision in this context. Moreover, this approach appears to be contrary to the family law experience, where an early attempt to use this method was abandoned. On the other hand, no child under the age of 12 years can reasonably be expected to have the capacity to understand the implications of, and make an informed decision about, participation in parentage testing. The Inquiry recommends that all children under 12 years should be dealt with as minors in accordance with the recommendations in the following section of this chapter.

35.149 In relation to the testing of children between the ages of 12 and 18 years, the Inquiry continues to support the general approach that was canvassed in DP 66, but subject to some modifications. Children within this age band should be assessed by an independent professional for their maturity to make an informed decision about their participation in parentage testing. Several submissions criticised the original proposal regarding independent assessment on the basis that some of the named professionals might not wish to be involved in these matters, and that utilising professionals who have known the child for at least two years could have significant privacy implications for the child and the family. With these considerations in mind, the Inquiry supports the views of the FLC that the persons who are most appropriately qualified to undertake this assessment are family and child counsellors (as defined under the FLA), social workers and psychologists.

35.150 In addition, the Inquiry recognises the importance of ensuring that the child’s consent is freely given, particularly within the context of family law matters where undue emotional pressure could be placed on the child by one or both parents. The Inquiry thus recommends that the independent professional who assesses the child must assess not only his or her maturity to consent, but the voluntariness of the child’s decision to give or withhold consent in the circumstances of the particular case.

35.151 Where a child between the ages of 12 and 18 years is independently assessed to be sufficiently mature to make a free and informed decision, the child may give or withhold consent to participation. However, in the event that the child withholds consent, there should be a safety valve to avoid an unreasonable veto by the child. For this reason, the Inquiry considers that the person seeking testing should be able to apply to a court for an order granting consent on behalf of the child. Persons seeking such court orders could apply to the Family Court or Federal Magistrates Service (where parentage is an issue in proceedings pursuant to the FLA or CSAA), or to a state or territory Supreme Court in other cases. In deciding whether to grant the order, the court should consider, amongst other things, whether parentage testing would be in the child’s interests.

35.152 Where a child between the ages of 12 and 18 years is independently assessed to lack insufficient maturity to make a free and informed decision, consent to the child’s participation must be given in accordance with the recommendations in the following section of this chapter.

35.153 The Inquiry notes that the FLC had proposed an alternative model by which parentage testing could proceed where samples of both putative parents and the child were submitted with signed consent forms. On this model, the child’s maturity to consent would not be independently assessed unless his or her sample was submitted with the sample of only one parent. However, the Inquiry considers that this model does not adequately protect a child against parental pressure to consent to testing where both parents wish to proceed with it. This additional protection for the child is unlikely to create any difficulties in practice: as the data quoted below indicates, parentage testing of 12–18 year olds is uncommon, and testing of such children where both parents agree is even more so.

35.154 Finally, the Inquiry recommends that NATA develop accreditation requirements to ensure that laboratories conducting DNA parentage tests obtain the written consent of each mature child.

Recommendation 35–7 The Commonwealth should enact legislation to provide that where a child: (a) has attained 12 years of age; and (b) has sufficient maturity to make a free and informed decision, testing of the child’s genetic sample can be performed only with the written consent of the child or pursuant to a court order. The child’s maturity, and the voluntariness of the child’s consent, should be assessed by an independent professional, being a family and child counsellor as defined under the FLA, a social worker or a psychologist.

Recommendation 35–8 NATA should develop accreditation requirements to ensure that laboratories conducting DNA parentage tests obtain the written consent of each mature child in accordance with Recommendation 35–7.

Decision making on behalf of immature children

35.155 Many minors will not have the capacity to make an informed decision on their own behalf about submitting a genetic sample for parentage testing. This may arise because, under the Inquiry’s recommendations, they are under 12 years of age or because they have attained 12 years but lack the maturity necessary to make an informed decision. In these circumstances it is necessary to consider who should be authorised to make a decision on behalf of the child.

35.156 Genetic Technologies advised the Inquiry that the average age of a child undergoing parentage testing at its laboratories is below school age.[147] Sydney IVF Limited provided the Inquiry with statistics regarding parentage testing conducted at its laboratory over a period of 18 months. According to their data, the age of children undergoing paternity testing ranged from birth to 54.5 years; the average age of a child was 6.3 years, and the median age was 2.5 years. Moreover, 84% of children tested were 12 years or younger, while 12% were one year or younger.[148] Extrapolating from the data provided by these two large laboratories, it is safe to assume that the overwhelming majority of children undergoing parentage testing will not have sufficient maturity or understanding to make the decision on their own behalf.

Regulation and practice regarding parental consent

35.157 The FLA currently requires the consent of only one parent, guardian or carer in relation to the conduct of a parentage testing procedure on a child under 18 years. There is no specification about which parent must give consent. Where parentage testing is conducted outside the family law framework, there is no formal regulation of parental consent.

35.158 In practice, these permissive rules may be supplemented by the ethical policies developed by individual testing laboratories. Current practice reveals widespread variations among laboratories (whether accredited or non-accredited) as to which parents must be tested, and who may give parental consent on behalf of a child. Several laboratories require evidence of the mother’s consent in all cases. Some accredited laboratories require the bodily samples of a mother, putative father and child (if under 18 years) for paternity testing. Some accredited laboratories conduct ‘motherless’ paternity testing provided they receive evidence of the mother’s consent; other laboratories conduct ‘motherless’ testing without requiring evidence of the mother’s consent to, or knowledge of, the testing.

35.159 A Sydney Morning Herald article in 2000 reported that ‘paternity testing laboratories in Australia are routinely analysing children’s DNA without their mothers’ knowledge or approval’. The article reported that at least 80% of one non-accredited laboratory’s paternity tests were requested by the father and conducted without the mother’s permission.[149]

35.160 Genetic Technologies advised that it currently offers the following types of parentage tests without the consent of all persons with parental responsibility for a child:

  • ‘motherless’ testing, where a father tests only samples from himself and his child, without the mother’s involvement;
  • ‘fatherless’ testing, where a mother commissions a test using samples from herself, her child and a man who is not the child’s social father; or where a pregnant woman commissions a pre-natal parentage test without informing her partner, instead involving a third party; and
  • testing in immigration situations and for other government departments where one parent cannot be located, or due to logistical reasons cannot provide a sample.[150]

Issues and problems

35.161 A central question is whether the consent of an immature child may be given on his or her behalf by one parent or carer, or whether the consent of both parents or carers should be required. One of the principles underlying the FLA is that, except when it would be contrary to a child’s best interests, parents share duties and responsibilities concerning the care, welfare and development of their children. However, s 61C(1) provides that, subject to a court order, each of the parents of a child under 18 years has parental responsibility for the child. This leads to uncertainty about whether parental responsibilities for children should be exercised jointly or independently.[151]

35.162 In October 2000, the Chief Justice of the Family Court, Alastair Nicholson, expressed concerns that current practice may not reflect the joint nature of parental responsibility for a child. In an interview on the ABC program Lateline, he stated that:

The law is pretty clear that both parents, unless the court otherwise orders, are entitled to take part in decisions relating to children, such as long term decisions such as medical treatment as so on. And it seems to me that for one parent to in effect go off and supply a piece of the child’s DNA to a laboratory without regard to the other is probably in breach of the Act, and it’s certainly in breach of the other parent’s rights in relation to the child, or really the child’s rights.[152]

Submissions and consultations

35.163 DP 66 proposed that legislation should require that, where a child does not have sufficient maturity to make a free and informed decision whether to submit a genetic sample for parentage testing, such testing can be performed only with the written consent of all persons with parental responsibility for the child, or pursuant to other lawful authority. Where one person with parental responsibility withholds consent or cannot reasonably be contacted, a court should be authorised to make a decision on behalf of the child. In addition, NATA should develop accreditation requirements to ensure that laboratories conducting DNA parentage tests obtain the required parental consents.[153]

35.164 The Inquiry received many submissions that, although not specifically addressing these proposals, strongly asserted a man’s right to test the parentage of his presumed child without obtaining the mother or child’s consent.[154] These submissions suggested that a man has an inherent right to test the biological paternity of his presumed child, particularly where he is financially liable for the child through child support or other arrangements. A recurrent theme was that in most cases a woman knows that she is the biological mother of her child, while a man cannot be certain that he is the biological father unless this is scientifically confirmed.

35.165 Many submissions argued that a woman who knowingly has misattributed her child’s paternity would be unwilling to consent to parentage testing; and a man would be unwilling to go to court for an order that the child be tested due to personal reasons, the cost involved, or the Family Court’s perceived bias against men in family law matters.[155] DNA Solutions Pty Ltd, a company that offers non-accredited DNA parentage testing, submitted:

We have evidence to illustrate that many people avoid courts due to cost and fear of ‘losing’ or fear or resentments or humiliation by the opposing party. We know that many persons will avoid DNA testing if forced to move through these channels … Enforcing fathers to front the court is certainly not always the most sensitive method, and not always in the best interests of the child.[156]

35.166 Several submissions suggested that the Inquiry’s proposal would encourage consumers to seek offshore parentage testing services.[157] Several submissions suggested that the Inquiry’s proposal might lead to an alternative harm, being the potential disruption of family life or relationships where partners must disclose their suspicions about parentage. For example, Genetic Technologies commented that:

Fathers usually undertake testing with the presumption that the child is theirs, and in 9 out of every 10 cases, this presumption is confirmed—notably a much lower rate of non-paternity than we observe with parentage tests where all family members are involved. … the rates of non-paternity in tests without the involvement of all parties are significantly less (around half) than those observed in testing where both parents have given consent. Our experience has shown that requests for father/child testing are more likely to be used to reassure fathers with nagging doubts, rather than being indicative of families where a relationship has already broken down.[158]

35.167 The differential rates of non-paternity were confirmed by a submission received from Ainsley Newson. Her research indicated that a large provider of parentage testing services reported that its rate of non-paternity in motherless tests was 10%, whereas the rate for tests involving all parties was 22%; and a smaller accredited laboratory reported that its rate of non-paternity for motherless tests was 11%, while its rate with traditional testing was 31.6%.[159]

35.168 Many submissions supported the Inquiry’s proposals.[160] The Centre for Law and Genetics commented that the consent framework is consistent with the current development of family law towards openness, parental responsibility and the interests of the child.[161] The Human Genetics Society of Australasia generally supported the proposals but commented that:

With reference to parentage testing involving the collection of a sample from a child, this may present some problems to accredited laboratories. Ascertaining who are ‘all persons with parental responsibilities’ … should not be the responsibility of the laboratory. Should there be additional criminal liability for falsely representing who are ‘all persons with parental responsibilities’?[162]

35.169 The Commonwealth Attorney-General’s Department commented that it would need to consider in more detail the basis upon which the court might grant an order—that is, whether the ‘best interests of the child’ should be the paramount consideration or whether the court should assess the interests of all the affected parties.[163] The FLC also commented on the potential application of the ‘best interests’ principle in relation to parentage testing.[164]

Inquiry’s views

35.170 The Inquiry is of the view that all those with parental responsibility for a child should be required to give consent to parentage testing on behalf of the child. This recognises that parents share duties and responsibilities concerning the care, welfare and development of children.

35.171 This approach would protect children against testing by one parent, without the knowledge or consent of the other parent. This is particularly important because the implications of parentage testing for the whole family may make it difficult for parents to approach the question of the child’s interests with impartiality. This approach would also eliminate the perceived disparity in access to accredited testing by ensuring that one parent is not favoured as a primary carer, for the purposes of consent, over another parent.[165]

35.172 One argument raised against the Inquiry’s proposal was that ‘motherless testing’ allows a man to confirm his child’s paternity for reasons of ‘peace of mind’. If the man were to alert his partner or child to his doubts about paternity, this could create tension, potentially destroying family relationships. According to this argument, it is better for the man to obtain testing without notifying other family members, and in the majority of cases (where paternity is confirmed), no harm would be done.

35.173 The Inquiry accepts there is some force to this argument but ultimately cannot accept it as a matter of principle. In essence, the argument suggests that the father’s curiosity about biological paternity is a more important interest than the child’s right to the integrity of his or her person. A similar argument might be made by an employer wishing to conduct secret genetic testing on its workforce to identify those workers with a susceptibility to a disease that might manifest during their term of employment. The employer might do so due to nagging doubts about the impact of its workers’ ill health on their future well being or on the company’s future costs. For the great majority of workers who are found to have no relevant genetic susceptibility, the employer might argue that ‘no harm was done’.

35.174 This form of non-consensual testing breaches the workers’ basic privacy rights and personal autonomy. The same applies to a child in relation to parentage testing, whether or not the child understands these implications at the time. In addition, such testing deprives the other parent of his or her right to make important decisions affecting the child’s development.[166]

35.175 The Inquiry recognises that in practice situations may arise in which one person with parental responsibility for an immature child will refuse consent to the child’s involvement in parentage testing, despite the other parent’s consent. Situations may also arise in which one person with parental responsibility cannot be contacted despite reasonable efforts to do so.

35.176 In each of these circumstances, the consenting parent should have the right to apply to a court for determination of the issue through an order granting consent on behalf of the child; and in making this determination, the court should have regard to the interests of the child. One of those interests, as recognised by the FLA, is the child’s right to know both parents, except when it would be contrary to a child’s best interests.[167] However, consistent with existing family law, the child’s interests need not be ‘paramount’ in the sense of trumping all other considerations in the context of parentage testing.[168]

35.177 The requirement of court intervention to resolve a stalemate between parents might be thought by some to be too bureaucratic and to impose unnecessary hurdles in the path of an adult who seeks to have a paternity issue resolved. However, where agreement is not possible, a court provides a neutral arbiter, which is able to assess the interests of all the affected parties.

35.178 Several submissions suggested that the cost of court proceedings would constitute a significant deterrence to obtaining parentage testing. The Australian Law Reform Commission expressed concerns about the Family Court’s processes in its report on the federal civil justice system.[169] However, the establishment of the Federal Magistrates Service in 1999 now provides an alternative forum for cases to proceed with less cost and formality than the Family Court.

35.179 Some submissions suggested that the Family Court has at times exercised its discretion against making parentage testing orders. After reviewing the relevant case law, the Inquiry considers that the test applied by the courts in exercising this discretion is a fair one. If an applicant does not have an ‘honest, bona fide and reasonable doubt’ as to the child’s parentage, the Inquiry believes the test should not be ordered. Indeed, if it is true that only about 10% of ‘motherless’ tests disclose misattributed paternity, a significant number of men might be seeking such testing without any reasonable grounds to doubt their paternity.

35.180 The Inquiry recommends that the Commonwealth should enact legislation to require that, where a child does not have sufficient maturity to make a free and informed decision whether to submit a genetic sample for parentage testing, such testing can be performed only with the written consent of all persons with parental responsibility for the child, or pursuant to a court order. Where one person with parental responsibility withholds consent or cannot reasonably be contacted, a court should be authorised to make a decision on behalf of the child.

35.181 In addition, the Inquiry recommends that NATA develop accreditation requirements to ensure that laboratories conducting parentage tests obtain, in relation to each child’s sample, the written consent of all persons with parental responsibility for the child.

Recommendation 35–9 The Commonwealth should enact legislation to provide that where a child is:

  1. under 12 years of age; or
  2. 12 years of age or over but less than 18 years of age and does not have sufficient maturity to make a free and informed decision whether to submit a genetic sample for parentage testing;

such testing can be performed only with the written consent of all persons with parental responsibility for the child, or pursuant to a court order. Where one person with parental responsibility withholds consent or cannot reasonably be contacted, a court should be authorised to make a decision on behalf of the child.

Recommendation 35–10 NATA should develop accreditation requirements to ensure that laboratories conducting DNA parentage tests obtain, in relation to each child’s sample, the written consent of all persons with parental responsibility for the child, in accordance with Recommendation 35–9.

 

[112] For example, DNA Solutions, which markets its parentage testing on the Internet: DNA Solutions Pty Ltd, DNAnow.com, <www.dnanow.com/ausssheet.html>, 20 February 2003.

[113] See Ch 11 and Ch 12 for more detail.

[114] The question whether genetic samples are ‘personal information’ for the purposes of the Privacy Act 1988 (Cth) is discussed in Ch 8.

[115] However, once the bodily sample has been forwarded to a private laboratory, the NPPs would apply. See Ch 8 for a full discussion.

[116] Recommendation 12–1.

[117]McK v O (2001) FLC 93.

[118] See Sydney IVF Limited, Submission G246, 19 December 2002.

[119] Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney, Proposals 31–6, 31–7.

[120] Centre for Law and Genetics, Submission G255, 21 December 2002; Centre for Genetics Education, Submission G232, 18 December 2002; Human Genetics Society of Australasia, Submission G267, 20 December 2002; Association of Genetic Support of Australasia, Submission G284, 25 December 2002; Genetic Technologies generally supported the proposals: Genetic Technologies Corporation Pty Ltd, Submission G245, 19 December 2002.

[121] Sydney IVF Limited, Submission G246, 19 December 2002.

[122] National Association of Testing Authorities Australia, Consultation, Melbourne, 21 October 2002.

[123] National Association of Testing Authorities Australia, Submission G273, 18 December 2002.

[124]Family Law Act 1975 (Cth) s 69Z(2). See also Family Law Regulations 1984 (Cth) r 21F(3)(a), which provides that the prescribed donor affidavit and declaration may be completed only by a person responsible for the long term care, welfare and development of the child.

[125]Family Law Act 1975 (Cth) s 69ZA(1).

[126] For example, see In the Marriage of F and R (1992) 15 Fam LR 533.

[127]Convention on the Rights of the Child, opened for signature 20 November 1989, UNTS 1588, (entered into force on 16 January 1991).

[128] See Secretary, Department of Health & Community Services v JWB (Marion’s Case) (1992) 175 CLR 218. While the Privacy Act does not specify an age at which young persons can make their own privacy decisions, the Guidelines to the National Privacy Principles reflect a similar approach to that in the Convention on the Rights of the Child: Office of the Federal Privacy Commissioner, Guidelines to the National Privacy Principles (2001), OFPC, Sydney, 15.

[129] Secretary, Department of Health & Community Services v JWB (Marion’s Case) (1992) 175 CLR 218.

[130] National Health and Medical Research Council, National Statement on Ethical Conduct in Research Involving Humans (1999), NHMRC, Canberra cl 4.2. In addition, a Human Research Ethics Committee must not approve, and consent cannot be given for, research which is contrary to the child or young person’s best interests: cl 4.3.

[131] Minors Property and Contracts Act 1970 (NSW) s 49; Consent to Medical Treatment and Palliative Care Act 1995 (SA) ss 6, 12. See also NSW Commission for Children & Young People, Consent by Minors to Medical Treatment (2001) unpublished [19.01], [25.07]. In August 2002 the NSW Law Reform Commission received terms of reference to inquire into the laws relating to the consent of minors to medical treatment.

[132] Group on Genetic Paternity Testing Services, Code of Practice and Guidance on Genetic Paternity Testing Services, (2001) Department of Health, <www.doh.gov.uk/genetics/paternity.htm>, 19 February 2003.

[133] Family Law Council, Children’s Wishes: Section 64(1)(b) of the Family Law Act 1975 — Working Paper No 2 (1978) Commonwealth of Australia, 10–11, 14.

[134] Family Law Council, Submission G202, 28 November 2002.

[135] Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney, Proposals 31–8, 31–9.

[136] Department of Health Western Australia, Submission G271, 23 December 2002; Centre for Law and Genetics, Submission G255, 21 December 2002; Human Genetics Society of Australasia, Submission G267, 20 December 2002; Association of Genetic Support of Australasia, Submission G284, 25 December 2002; Centre for Genetics Education, Submission G232, 18 December 2002. Privacy NSW commented that it ‘supports the general intent of these recommendations to the extent that they recognise children’s right to privacy and their right to be consulted as far as reasonably practicable’: Office of the Privacy Commissioner (NSW), Submission G257, 20 December 2002.

[137] Centre for Genetics Education, Submission G232, 18 December 2002.

[138] Queensland Government, Submission G274, 18 December 2002.

[139] Association of Genetic Support of Australasia, Submission G284, 25 December 2002; Sydney IVF Limited, Submission G246, 19 December 2002; Centre for Genetics Education, Submission G232, 18 December 2002.

[140] Genetic Technologies Corporation Pty Ltd, Submission G245, 19 December 2002.

[141] Family Law Council, Submission G202, 28 November 2002.

[142] Ibid.

[143] Victorian Bar, Submission G261, 20 December 2002.

[144] Reliable Parents Inc, Submission G204, 27 November 2002.

[145] Family Law Council, Submission G202, 28 November 2002.

[146] NSW Commission for Children & Young People, Consent by Minors to Medical Treatment (2001) unpublished [15.01].

[147] Genetic Technologies Corporation Pty Ltd, Consultation, Melbourne, 21 October 2002.

[148] Sydney IVF, Correspondence, 12 December 2002.

[149] D Smith, ‘Mothers Kept in the Dark on Paternity Tests’, The Sydney Morning Herald, 27 March 2000.

[150] Genetic Technologies Corporation Pty Ltd, Submission G245, 19 December 2002.

[151] See generally the discussion in H Finlay, R Bailey-Harris and M Otlowski, Family Law in Australia (5th ed, 1997) Butterworths, Sydney [7.58]–[7.60]. The Family Court has provided some guidance on this point. In B and B, the Full Court commented that where parents have separated, as a matter of practical necessity either parent will have to make individual decisions when they have sole care of the children. However, both parents should consult in relation to major issues such as major surgery and place of education: B and B (1997) 21 Fam LR 676.

[152] Lateline, DNA Testing and the Family Court: Transcript, ABC TV, <www.abc.net.au/lateline/
s200192.htm>, 18 February 2003.

[153] Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney, Proposals 31–10, 31–11.

[154] For example, DNA Solutions, Submission G162, 30 May 2002; G Edelsten, Submission G117, 14 March 2002; Confidential Submission G163CON, 27 May 2002; C Andersen, Submission G002, 14 January 2002; J Baxter, Submission G280, 27 December 2002; Men’s Rights Agency, Submission G213, 29 November 2002; Reliable Parents Inc, Submission G204, 27 November 2002; Men’s Confraternity WA Inc, Submission G234, 17 December 2002; Family Law Reform Association of NSW, Submission G205, 27 November 2002.

[155] For example, Genetic Technologies Corporation Pty Ltd, Submission G245, 19 December 2002; Men’s Rights Agency, Submission G213, 29 November 2002; NT Office Status of Family, Submission G229, 12 December 2002.

[156] DNA Solutions, Submission G162, 30 May 2002. See also Genetic Technologies Corporation Pty Ltd, Submission G245, 19 December 2002; A Newson, Submission G283, 23 December 2002.

[157] For example, see Genetic Technologies Corporation Pty Ltd, Submission G245, 19 December 2002; A Newson, Submission G283, 23 December 2002.

[158] Genetic Technologies Corporation Pty Ltd, Submission G245, 19 December 2002.

[159] A Newson, Submission G283, 23 December 2002.

[160] Centre for Law and Genetics, Submission G255, 21 December 2002; Office of the Privacy Commissioner (NSW), Submission G257, 20 December 2002; Human Genetics Society of Australasia, Submission G267, 20 December 2002; New South Wales Legal Aid Commission, Submission G282, 24 December 2002; Association of Genetic Support of Australasia, Submission G284, 25 December 2002; NSW Health Department, Submission G303, 13 January 2003; Department of Health Western Australia, Submission G271, 23 December 2002; Institute of Actuaries of Australia, Submission G224, 29 November 2002.

[161] Centre for Law and Genetics, Submission G255, 21 December 2002.

[162] Human Genetics Society of Australasia, Submission G267, 20 December 2002.

[163] Commonwealth Attorney-General’s Department, Submission G228, 12 December 2002.

[164] Family Law Council, Submission G202, 28 November 2002.

[165] This approach is also consistent with current practice in relation to a child’s participation in medical research. The National Health and Medical Research Council’s National Statement on Ethical Conduct in Research Involving Humans provides that consent to participation in research is necessary from both parents, other than in exceptional circumstances (or any organisation or person required by law): National Health and Medical Research Council, National Statement on Ethical Conduct in Research Involving Humans (1999), NHMRC, Canberra cl 4.2. In addition, the consent of the child is required where he or she has sufficient competence to make this decision.

[166] See Ch 11 and Ch 12 for more discussion of the implications of nonconsensual genetic testing.

[167] Family Law Act 1975 (Cth) s 60B(2)(a).

[168] The ‘best interests of the child’ principle is the paramount concern in a number of contexts arising under the FLA, but this does not include parentage testing. While the paramount welfare principle did apply to all proceedings under Pt VII of the FLA for several years, the principle has had more limited application since 1991: A Dickey, ‘The Paramount Welfare Principle and Parentage Tests’ (1993) 67 Australian Law Journal 47, 49.

[169] See Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report 89 (2000), ALRC, Sydney.