Baby DNA Court Ruling Disregards Constitutional Rights

(St. Paul/Minneapolis) - Yesterday, the Minnesota Court of Appeals ruled to affirm the lower court's dismissal of the 9-parent lawsuit against the Minnesota Department of Health (MDH). The parents had challenged the collection, retention, use, and dissemination of newborn DNA by MDH as unconstitutional and in violation of the Minnesota Genetic Privacy Act.

"The Judges dismissed consent rights under the state genetic privacy law and found retention and use law in the newborn screening statute where there is none," said Twila Brase, president of the Citizens' Council on Health Care (CCHC).

"As was underscored by the recent Texas Court's decision on newborn DNA lawsuit, the Minnesota Department of Health's taking, retention and use of newborn citizen DNA without informed written parental consent is an unprecedented and unconstitutional seizure of the individual's secret self," she said.

"The judges' decision is a temporary loss for parents and children. But it's not the end of the road. We expect more court action on this case," Brase concluded.

CCHC releases the following seven concerns regarding the judges' ruling.

• FALSE CLAIM: Without showing clear evidence of "express authority," the Court claims that the power to retain and use newborn DNA was (and is) expressly authorized in the newborn screening statute before the privacy law passed in 2006. (p 9 & 14) Using this claim, they dismiss the parent's claims under the Minnesota Genetic Privacy Act. However, the authority to retain and use is not expressly written in the newborn screening statute, evidenced by the fact that the MDH has attempted unsuccessfully for three years in a row at the Minnesota state legislature to obtain an exemption of the screening program from the Genetic Privacy Act's consent requirements.

• SWEEPING CLAIM: The Judges admit that the newborn screening statute "does not directly address" the health department's authority to conduct research using the newborn baby's DNA, but then state that the commissioner's general powers to "conduct studies and investigations, collect and analyze health and vital data, and identify and describe health problems" are sufficient authority to "retain blood specimens after testing to be used for further newborn screening-related research...or to otherwise refine the newborn screening program for public health purposes. (pp. 9-10)

• DISREGARDS CONSTITUTIONAL PROTECTIONS: Asserting such broad general authority to conduct public health research on the public from the moment of birth asserts a broad public health exemption from the "search and seizure" prohibitions of the Fourth Amendment of the United States Constitution