Legality Of A Dna Test On A Deceased Person By Deborah Iniye Warrie Esq

WHAT IS DNA?

DNA is an acid in the chromosomes in the center of the cells of living things. DNA determines the particular structure and functions of every cell and is responsible for characteristics being passed on from parents to their children. DNA is an abbreviation for 'deoxyribonucleic acid'. DNA is the chemical name for the molecule that carries genetic instructions in all living things. The DNA molecule consists of two strands that wind around one another to form a shape known as a double helix. NOW, WHAT IS A DNA TEST? It is a test that is used to identify someone or to show that people are relatives.

WHAT IS A DNA PATERNITY TEST?

According to the Wikipedia DNA Paternity testing means:

“The use of DNA profiles to determine whether an individual is the biological parent of another individual. Paternity testing can be especially important when the rights and duties of the father are in issue and a child's paternity is in doubt. Tests can also determine the likelihood of someone being a biological grandparent. Though genetic testing is the most reliable standard, older methods also exist, including ABO blood group typing, analysis of various other proteins and enzymes, or using human leukocyte antigen antigens. The current techniques for paternity testing are using polymerase chain reaction (PCR) and restriction fragment length polymorphism (RFLP). Paternity testing can now also be performed while the woman is still pregnant from a blood draw.”

A DNA paternity test is nearly 100% accurate at determining whether a man is another person’s biological father. DNA tests can use cheek swabs or blood tests. You must have the test done in a medical setting if you need results for legal reasons. See OLAYINKA v. ADEPARUSI & ANOR (2011) LPELR-8691(CA)

"To my mind, the paternity of the disputed res has not been determined, anybody can be awarded custody of a child but the most important thing is that if a party is claiming paternity it is trite that a Court of Law should be allowed to determine same on proof of evidence relating to paternity, which could only be done by referral for a DNA test of the parties involved. After such a test the Court has a duty to declare the actual father of the child in dispute, in consonance with the evidence at its disposal."

Also, Prenatal paternity tests can determine fatherhood during pregnancy. Can scientific DNA testing be conducted on a deceased person in a paternity dispute? YES. Before dealing with the question above, it is necessary to first and foremost indicate what does DNA paternity testing entail? In a DNA paternity test, the result (called the 'probability of parentage), is 0%, when the alleged parent is not biologically related to the child, and the probability of parentage is typically 99.99% when the alleged parent is biologically related to the child.

Now! What is the legal procedure to get a paternity test performed?

Depending on the circumstance of the case, the party involved can file a motion, asking the Court for a DNA test to be conducted. Or the Court can suo motu(on its own accord) order for a DNA case to be conducted. See ANOZIA v. NNANI & ANOR (2015) LPELR-24277(CA) See the case of Olayinka Vs Adeparusi & Anor (2011) LPELR 8691 CA, where this Court, per Denton West JCA, held: "... If a party is claiming paternity, it is trite that a Court of law should be allowed to determine same on proof of evidence relating to paternity, which could only be done by referral for a DNA test of the parties involved. After such test, the Court has a duty to declare, the actual father of the child in dispute in consonance with the evidence at its disposal. DNA, that is, "Deoxyribonucleic acid" is a molecule that contains the genetic code of any organism. It is hereditary and has become a euphemism for scientific analysis of genetic Constitution, to determine one's roots. where one is a minor (not mature adult) and his paternity is in issue, the Court can order the conduct of DNA test, in the overall interest of the child, to ascertain where he belongs."

Medical Procedure

To perform a paternity test at DNA level a blood sample is required from the mother, alleged father, and child. Children of any age can be tested. Unlike the traditional blood tests where the child had to be six months of age, there is no age limit with DNA. Paternity testing can be performed on unborn children. Prenatal paternity testing can be performed with amniotic fluid or a chorionic villus sample collected from the mother’s womb prior to birth or with fetal tissue. Paternity testing can also be performed using post-mortem specimens.

Deceased DNA Testing

It is possible to perform paternity testing by comparing DNA profiles from the child and an alleged father or mother who is deceased. To establish parentage, forensic samples from the deceased individuals are required post mortem for paternity disputes or estate claims. However, prior to commencing testing, you will need to establish whether a sample is available from the deceased party.

Who Collects the Sample from the Deceased?

The sample they collected from the deceased may be a hair follicle, fingernail, or blood sample. Please note that written consent from the deceased party’s family or relative must be first obtained before testing can commence.

What if there isn’t a sample available from the deceased?

A relationship DNA test can be used in cases where an alleged parent is not available for the testing of a direct parent-child relationship. Extended relationship DNA testing can be carried out to determine whether there is a relation between the persons being DNA testing. Testing can be performed between individuals who may share common relatives, such as siblings, aunts, uncles, nieces, nephews, grandparents, cousins, etc.

MOST PROMINENT CASES WHEREIN DECEASED DNA TESTING WAS USED BY THE COURT.

In the matter between D v M and two others, Held in the High Court of South Africa, Gauteng Division, Johannesburg, under case number: 30619/2015, the Court after considering the application brought by an executor of the estate of a deceased person, in terms of which the executor request that the High Court ordered the mother of a minor child as well as a minor child to subject themselves to a DNA test, in order to establish whether another minor child of the deceased was, in fact, the biological child of the deceased. In this matter and various other matters before it was established that a High Court with the necessary jurisdiction may be approached as in the matter of D v M and two others to force the parties to subject them to DNA testing and even to exhume remains of a deceased person to enable DNA test to be done.

Nield-Moir v Freeman [2018] EWHC 299 (Ch) - the Family Law

In this case, Colin Birtles died intestate leaving two daughters Janice and Lorraine. In accordance with the statutory intestacy provisions, they stood to inherit the estate equally between them. However, Janice alleged that Lorraine was not the deceased’s biological daughter which, if correct, would have meant that she inherited the whole of the estate herself.

She told the court that her father had told her this was the case during his lifetime, producing various witness statements from others in support. Lorraine defended, stating that she was born during the period of the deceased’s marriage to her mother (raising the common law presumption of parentage) and he was named as her father on her birth certificate. After their parents’ divorce, he also paid maintenance for her until she was 16 years old. She said the allegations were ‘nothing but gossip and hearsay. She refused to consent to DNA testing. The court had to decide whether they had the authority to order that DNA testing should be carried out. There was no clear legal authority. The judge did not go so far as to compel it but made an ‘unless’ order requiring her to either submit to the test or the court would draw inferences from her refusal.

Other cases

DNA testing can be useful in other ways and not just to resolve estate disputes after death. In the case of Anderson v Spencer [2018], EWCA Civ 100 in 2018 the deceased had had bowel cancer, which could be hereditary. Therefore, the applicant wanted to establish his parentage as he was advised that if the deceased was his father, he should undergo a colonoscopy every two years. The Court of Appeal agreed with the High Court that it could. In 2016, the Privy Council in the case of Re Baronetcy of Pringle of Stichill 2016 GWD 20-360 held that DNA evidence collected for a family research project could be used to resolve a Scottish succession dispute.

DNA TESTING CAN ALSO BE USED IN RESOLVING CRIMINAL CASES

State v. Williams, 458 So. 2d 1315 a Locus Classicus.

On August 22, 2007, a state appeals court in Baton Rouge the capital city of the U.S. state of Louisiana, ruled that Archie Williams (an accused wrongfully incarcerated for 37 years in prison and released on March 21, 2019) had a legal right to DNA testing that could prove his innocence in rape and attempted murder for which he was convicted in 1983. The ruling came nearly a quarter-century after Williams was convicted and 11 years after attorneys for Williams filed the first legal motion seeking DNA testing in the case.

The case stems from a December 1982 attack at a woman’s Baton Rouge home. An unknown assailant pushed his way into her house, raped her, and then stabbed her. The victim and a friend (who entered the home during the attack) were both asked to identify the perpetrator in lineups. In a live lineup that included Williams, the victim’s friend identified another man. The victim was shown in 17 different photo arrays. In the first two, she did not identify Williams, but his photo was in the last three consecutive photo arrays, and she identified him in the last one (Williams’s was the only photo shown in more than one photo array). He was convicted in April 1983 based on the victim’s identification, even though he did not match her initial description of the perpetrator (among other factors, Williams is about a half-foot shorter than the perpetrator as described by the victim). Years after he was convicted, the analysis showed that Williams was not the source of bloody fingerprints that the perpetrator left at the crime scene after stabbing the victim.

In December 1996 after unsuccessfully trying to persuade the Baton Rouge District Attorney to agree to DNA testing without a court order, Williams’s attorneys filed a motion in state court asking for DNA testing. That motion was denied, as were at least nine others over the next 11 years that were filed in state and federal courts. Even after the Louisiana Legislature passed a law in 2001 explicitly granting access to post-conviction DNA testing, prosecutors opposed Williams’s motions seeking testing, and courts denied testing.

At Williams’s trial, prosecutors noted that motile sperm were collected in the victim’s rape kit. DNA testing was not available at the time, but prosecutors said the sperm came from the perpetrator and that Williams had the same blood type as the perpetrator. In court filings in recent years, the Baton Rouge District Attorney’s office had switched course and said DNA testing on the sperm would not prove Williams’s guilt or innocence, since the victim might have had consensual sex with her husband. Motile sperm, like that collected from the victim immediately after the attack, is only present for a few hours after it is deposited. In court filings, the Innocence Project has said that if the victim had consensual sex shortly before the rape, there could be two men’s DNA present (the victim’s husband and the perpetrator), and DNA testing could reveal both profiles – still proving whether or not Williams is innocent.

On March 21, 2019, the prosecution joined Williams’s attorneys in requesting that his convictions be vacated. The motion was granted, the charges were dismissed and Williams was released—36 years after his arrest. East Baton Rouge Parish District Attorney Hillar C. Moore III, told Williams in court: “As a representative of the state, I apologize.”

In March 2020, Williams filed a federal civil rights lawsuit seeking damages for his wrongful conviction.

DNA testing exonerated nine people in Louisiana in the last eight years. In four of those nine cases, DNA didn’t just prove that wrongfully convicted people were innocent – it helped identify and apprehend the true perpetrators of the crimes. In nearly 40% of the 206 wrongful convictions overturned through DNA testing nationwide, DNA also helped identify the true perpetrators of crimes. It has been shown that DNA can exonerate the innocent while also helping identify and apprehend the guilty. In the interests of justice, public safety, and confidence in the criminal justice system.

CONCLUSION FOR LITIGANTS

Conclusively, although a Court of Law can be approached in order to either force compliance from a person who refuses to provide a DNA sample or even to exhume the body of the deceased person to enable DNA testing to be done, DNA sample obtained from siblings, Grandparents and Uncle/Aunts can also provide a report to prove paternity, and the results from such testing will be admissible in a court of law. See ROYORK (NIG) LTD v. A.G & CJ, SOKOTO STATE & ANOR (2017) LPELR-42506(CA)

"The position of the law is that evidence is admissible when it is relevant to the issues and when it is also competent. The usual catchphrase is: "that admissibility of evidence is governed by relevance".

What makes a piece of evidence relevant is when sufficient facts relating to the piece of evidence or documentary evidence are copiously pleaded. This goes to show its relevancy to the case of the party in question and once the piece of evidence is competent, that is to say, that there is no legal bar to its admissibility, then the document is admissible. " Per FREDERICK OZIAKPONO OHO, JCA (Pp 23 - 24 Paras A -

However, , it is advised that you approach the office of a legal representative, should you have the need to establish paternity in any case, to ensure that the correct process is followed this is because, under the Human Tissue Act 2004, DNA is considered a ‘designated material’ and as such, DNA can only be collected from the deceased by an authorized person in a Human Tissue Authority (HTA) licensed premises.

Also, there are human rights issues in all of these cases. Article 8 of the Human Rights Act 1998 protects our privacy and our family life. Does this extend to privacy over parentage? There is not much Strasbourg case law on the point. A case in Switzerland in which the Swiss Supreme Court had ordered that the body of a deceased person was to be exhumed for DNA testing was challenged and the court held that the right to privacy under Article 8 could not prevent DNA testing of a deceased person to establish parentage. (The Estate of Kresten Filtenborg Mortensen v Denmark (dec.), no. 1338/03,§ ECHR 2006-V Estate).

This was also considered in Nield-Moir v Freeman and interference with Lorraine’s human rights was considered justified as a ‘means of protecting the public interest in the accurate resolution of resolving inheritance disputes.

CONCLUSION FOR LEGAL PRACTITIONERS

There is an abundance of developing case law in this area both in the context of the Court of Protection and estate disputes generally. Therefore DNA testing is likely to become more and more commonplace and the courts appear to be more readily inclined to order where consent is not forthcoming. With increasingly complex family structures, the propensity for these sorts of cases is only set to continue.

Reference List:

https://primsol.lawpavilion.com

https://en.wikipedia.org/wiki/DNA_paternity_testing;

http://unistelmedical.co.za/paternity-parentage-testing

https://www.collinsdictionary.com/dictionary/english/dna

https://www.nvrlaw.co.za/NewsResources/NewsArticle.aspx...

https://www.paternityforlife.co.uk/

https://en.wikipedia.org/wiki/DNA_paternity_testing;

http://unistelmedical.co.za/paternity-parentage-testing

https://dnaq.com.au/https://dnaq.com.au/deceased-dna-testing

https://my.clevelandclinic.org/.../10119-dna-paternity-test

https://www.merriam-webster.com/dictionary/DNA%20test