Considerations applying to parentage testing

35.6 Other Parts of this Report have emphasised the very high value placed on protecting the integrity of the person, human dignity, autonomy and the individual’s right to consent. These ethical concerns apply equally in the context of parentage testing.

35.7 Part C of this Report provides important background to the parentage testing issues raised in this chapter. Chapter 11 addresses a number of general concerns in regulating access to genetic testing, whether for identification purposes or for health or medical purposes, and makes recommendations addressing the regulation of genetic testing generally. When one applies these general considerations to the specific context of parentage testing, there may be reasons to take a different approach on some or all issues. There are several factors that call for special consideration in relation to parentage testing.

35.8 First, parentage testing does not take place in a legal vacuum. Existing laws already set out a regulatory framework for testing, at least where the testing is conducted for the purpose of family law proceedings. Those laws provide a benchmark against which ‘unregulated testing’ may be measured.

35.9 Second, the information that is revealed by parentage testing is particularly sensitive. Parentage testing goes beyond the common notion of ‘familial information’—it not only provides information about related persons, but goes to the very nature and identity of the family itself.

35.10 Third, the context in which parentage information is revealed is often highly emotionally charged. Where parentage has been misattributed, perhaps for many years, there may be issues of ‘betrayal, revenge, truth and the search for resolution’.^[3] Parentage testing is not alone in this respect, but it is a prime example of the desirability of making counselling available before and after testing.

35.11 Fourth, DNA parentage testing differs from many other kinds of genetic testing. For many medical purposes, useful information can be obtained by testing the genetic material of a single person, who may be shown to have (or not to have) a particular genetic mutation with potential clinical consequences. Parentage testing, by contrast, is relationship testing and requires the participation of two or more individuals in order to reveal useful information about the biological relationship between those persons.

35.12 Fifth, in most cases (although not invariably) one of the individuals whose genetic sample is required for testing will be a child. In such instances, who should make an informed decision on behalf of the child about whether the child should submit a genetic sample for testing? This question is particularly difficult when those who have parental responsibility for the child (who in other circumstances would make important decisions affecting the child’s welfare) are directly affected by the outcome of the testing procedure.

35.13 A sixth and related point is that this is not an area in which it is especially useful to draw on the language of ‘rights’—whether that be a child’s ‘right’ to know his or her biological parentage, or a man’s ‘right’ to know who are his biological offspring. This is an area that requires a careful balancing of interests of mothers, fathers and children in different biological and social relationships with each other. To privilege the interest of one party by accepting a claim to an absolute right fails to give adequate regard to the interests of others involved in the equation.

35.14 Seventh, the direct accessibility of parentage testing currently surpasses that of many others forms of genetic testing, and this has highlighted practical problems that are yet to be confronted in other fields of genetic testing. Parentage testing does not require the referral of a medical practitioner, and it is often consumer-initiated. Moreover, direct to the public genetic testing kits (or, more accurately, genetic sampling kits) are readily available, and there is widespread advertising of local and offshore testing facilities via the Internet and other media. For these reasons, some of the detriments associated with widespread and unregulated access to genetic testing have become apparent in the particular context of parentage testing. These may provide valuable lessons for other kinds of testing in the future.

35.15 Finally, under existing Australian law, the outcome of parentage testing may have important consequences for the financial obligations of a father or mother to support and maintain a child. In response to financial incentives, fraudulent practices might arise both in seeking to attribute parentage where none exists and in seeking to deny parentage where it does.