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IN SEARCH OF A FATHER: LEGAL CHALLENGES SURROUNDING POSTHUMOUS PATERNITY TESTING

IN SEARCH OF A FATHER: LEGAL CHALLENGES SURROUNDING POSTHUMOUS PATERNITY TESTING Abstract This article interrogates the workings of the Human Tissue Act 2004, as it applies to paternity testing by DNA analysis after the death of the putative father. We use a case series methodology more usually seen in medical research, through which we present three real case studies involving posthumous paternity testing of retained tissue. We argue that the criminal offence in section 45 of the Human Tissue Act 2004, which is being used to regulate this activity, is inappropriate and inadequate to do so. The threat of the shadow of the criminal law is too blunt an instrument to address the subtleties of the issues that arise in the context of posthumous paternity testing. We call for reform of the Human Tissue Act 2004 and the creation of a specific exception to properly deal with requests of this nature. This article explores the legal framework that applies where paternity testing is sought after the putative father's death. Drawing on case series methodologies usually seen in medical research, we present three real—anonymized—case studies that we use to interrogate the workings of the Human Tissue Act 2004 (‘the Act’) as it applies to posthumous DNA testing for paternity. This methodology allows us to explore the relationship between law and policy as written, and law and policy in action. These real cases present a series of issues not easily predicted in the more usual hypothetical scenarios used in legal research, highlighting that there is nothing more complicated than real life. This methodology is particularly helpful in considering the Act, where the breadth of its application was not fully worked out prior to its enactment. We argue that the criminal offence in section 45 of the Act that applies to these activities is too blunt an instrument to be useful in this context, since it cannot provide a forum for the factors relevant to paternity testing to be considered before a decision is made. We argue that a law can be constructed to both prohibit DNA analysis without consent and to facilitate DNA analysis after death, but it needs to be done explicitly with core objectives in mind that reveal the contours of legitimate and illegitimate claims. We make recommendations for changes to the law that would address these concerns. We do this as follows: Section I outlines the scale of the problem of posthumous paternity testing. Section II considers some reasons why paternity testing might be sought after death. Section III argues that the applicable legal framework is section 45 of the Act and identifies a small but important conflict between the law and the relevant Human Tissue Authority guidance. In Section IV, we present our case series that exposes the limits and deficiencies in the current framework. Specifically, we show that the law fails to accommodate the realities of family relationships and interconnecting ties. Section V discusses the implications of the conflict found in the framework and the impact on personnel involved in offering DNA tests after death and those seeking these tests. Section VI explores the wider question of whether the criminal law is suitable to provide a legal framework for DNA analysis after death. We conclude with some recommendations for reform of the law. I. MISATTRIBUTED PATERNITY Approximately 30,000 children born in the UK each year will never meet their biological father. Of them, 4,000 will have been adopted1 and 1,300 will have been conceived using donor sperm.2 The remaining 26,000 children are victims of misattributed paternity—the man named on their birth certificate is not their biological father. A systematic review of the evidence has shown that paternity will be misattributed in around 3.7% of births.3 With over 700,000 births each year, this amounts to 26,000 cases of misattributed paternity.4 Adopted children have the right to apply for information that will enable them to obtain a copy of their original birth certificate under schedule 2 of the Adoption and Children Act 2002. The Registrar is required to inform people that counselling services are available for people seeking their biological parents and those adopted prior to 12 November 1975 cannot receive any information until they have discussed their request with a counsellor.5 Research throughout North America has demonstrated that if adoptees wish to identify biological parents, they can gain significantly in the areas of self-concept, self-esteem, emotional outlook and their ability to relate to others.6 Donor-conceived children also have the right to seek information about their biological parents. Once they have reached the age of 16 years, children born between 1991 and 2005 can apply to the Human Fertilisation and Embryology Authority (‘the HFEA’) for anonymized information about their donor and their donor-conceived siblings. At age 18, they can apply for identifying information, which will be made available if the donor has reregistered with and provided the clinic with new contact information.7 Anyone conceived after 1 April 2005 can apply, on their 16th birthday, for anonymized information about their donor, and for the identifying information on their 18th birthday.8 It is recognised that this is important to donor-conceived individuals but also that it is a significant undertaking. The HFEA provides support and recommend counselling before seeking information about donors and donor-conceived siblings.9 The rights of children with misattributed paternity to trace their father are limited to those available in the Human Tissue Act 2004 (‘the Act’). Paternity testing prior to the putative father's death requires his consent, which necessitates some acknowledgement of the possibility of his paternity. After his death, consent can only be given by someone in a qualifying relationship to him, which is usually a family member.10 The decision to permit or refuse paternity testing in the case of a deceased putative father forms part of the remit of the Designated Individual (DI) who is appointed under the Human Tissue Act 2004. Any support available is limited to that which he or she can provide. II. FATHERHOOD, LAW AND POSTHUMOUS PATERNITY TESTING Richard Collier and Sally Sheldon argue that there is an important distinction between fatherhood and paternity.11 Paternity refers to the biological fathering of a child, whereas fatherhood is a much broader notion that can be founded on other connections. It is a ‘social construction through which the law has sought to attach men to children’.12 The legal conception of fatherhood has changed dramatically as families have become more diverse, encompassing formal and informal stepfamilies,13 geographically distant and divorced families,14 and adoptive and donor-conceived families,15 for example. There is, however, a strong focus on the genetic connection between a father and child, and advances in paternity testing have made the courts more open to the notion of testing outside the existing family unit.16 Collier and Sheldon argue that this is in part due to the shift in reasons for requesting paternity testing. Historically, it was sought to secure a financial contribution from a reluctant father, whereas latterly tests are requested by a father to support a claim for paternal rights and responsibilities towards the child.17 In a culture that appears to value social fatherhood, the importance of the genetic connection to the law has continued to grow. Notwithstanding that, there is no necessary link between the two types of connections, a social father does not need to evidence a genetic connection in order to be considered a father nor does the presence of genetic fatherhood guarantee an opportunity to be a social father. This is particularly important in the case of paternity testing occurring after the (putative) father's death. There is very little research addressing the question of why posthumous paternity testing might be sought. However, Heather Draper and Jonathan Ives set out the situations in which paternity testing might be sought while the father is alive,18 and we suggest that these apply, with some modifications, to the case where paternity testing is sought after the father's death. Paternity testing might be sought by, or for, the child in his or her own interests. While there is no chance of forming a relationship with the father, it might be possible for a child to form relationships with any paternal relatives, such as grandparents or aunt and uncles. For a child—or an adult child—seeking testing on their own behalf, it has been shown that there is an important psychological value in knowing one's own genetic heritage. Some individuals report feeling ‘frustration in being thwarted in the search for their biological fathers’.19 It is also important on a practical level since it provides family history information that will be relevant to healthcare and an individual's reproductive choices. Many researchers have concluded that a person has a ‘right to know’, which is justified both on medical20 and psychological grounds.21 Arguably, this right to know is best triggered by a competent child, or adult child, who has a sufficient emotional understanding of what they are seeking. However, a mother or other relative might pursue paternity knowledge on behalf of a child to promote his or her interest in knowing and having the chance to form a relationship with their paternal relatives, and/or in knowing their medical history. Paternity testing might be sought by the mother, guardian or the paternal relatives, without specific reference to the child's interests. For example, where the deceased man is not recorded as the child's father on his or her birth certificate, the paternal relatives might be keen to establish parentage in order to consider whether they wish to start or continue any relationship with the child. The mother might seek testing in order to help her decide whether to try to continue any relationship that the child might already have with the father's relatives. This, of course, implies that the only connection that might lead to a relationship is a biological one. We agree with Draper and Ives that ‘father denotes more than this’,22 and we think that this is equally true of other vertical and horizontal relationships, such as uncles, aunts and grandparents. If a grandparent has already formed a ‘moral’23 relationship with the child, then they should be considered as grandparents, irrespective of whether there is a biological relationship between them. Furthermore, it is important not to ignore the impact of the father's death. Many of these questions will only be raised in the context of a deceased father. Some of them might be raised as a direct result of a grief reaction. Exploring the Kübler-Ross24 model of grief comprising of five stages that can be experienced in any order—denial, anger, bargaining, depression and acceptance—it is possible that a grieving relative might question a child's paternity as part of the denial, anger or bargaining phases of grief. Finally, paternity testing might be sought by the child, other relatives or an administrator in intestacy to resolve questions relating to inheritance. Where the father has died intestate, his ‘issue’ is a category of the ‘statutory next of kin’ who will inherit some of his estate.25 This includes any illegitimate children.26 In this instance, establishing the biological connection is the paramount consideration. We make no comment on whether paternity testing should be offered in any of these cases. Rather, this account demonstrates that posthumous paternity testing is not only a complex and subtle issue but one that requires clarity within the law. The decision to offer paternity testing may need to take account of the reasons for seeking testing, as well as the implications for all parties of performing a test. This is especially important in the context of posthumous tests, since—unless provided for in advance of his death—the father can make no contribution to the decision. As we demonstrate below, the law has thus far failed to contend with the challenges of posthumous paternity testing. III. THE LAW ON PATERNITY TESTING FOR MISATTRIBUTED PATERNITY AFTER THE PUTATIVE FATHER'S DEATH There are two frameworks within the Human Tissue Act 2004 (‘the Act’), which might regulate posthumous paternity testing through DNA analysis. The main provisions of the Act27 set up a consent-based framework, where ‘appropriate consent’28 is needed for the removal, storage and the use of human tissue29 for several purposes including ‘obtaining scientific or medical information about a living or deceased person which may be relevant to any other person’.30 Paternity test results, or results from DNA analysis more generally, could amount to medical information relevant to another person, and thus fall within the purposes found in schedule 1 to the Act. Where the person from whom the tissue has been taken is deceased, the appropriate consent is (a) their consent if they made a decision prior to their death, (b) the consent of their nominated representative31 or (c) in the absence of consents that fulfil a or b, the consent of someone in a qualifying relationship to the deceased person.32 The list of qualifying relationships is found in section 54(9) of the Act, and for the purposes of appropriate consent, the list is strictly hierarchical, which means that a decision must be sought from the person highest up the list, and it stands irrespective of whether it is a consent or a refusal. The hierarchy is as follows: Removal, storage or the use of human tissue for any of the scheduled purposes without appropriate consent is a criminal offence that attracts a penalty of the statutory maximum fine if convicted summarily, and a penalty of 3 years imprisonment and an unlimited fine if convicted on indictment.34 spouse or partner; parent or child; brother or sister; grandparent or grandchild; child of a person falling within paragraph (c); stepfather or stepmother; half-brother or half-sister; friend of longstanding.33 The second framework that is relevant to posthumous paternity testing by DNA analysis is found in section 45 of the Act, which provides: Having tissue, with the intention that DNA will be analysed for the purposes of establishing paternity, is sufficient to constitute the offence. This section has UK-wide application, and it is the only section in the Act to apply in Scotland.35 The offence carries the statutory maximum fine on summary conviction, and if convicted on indictment carries a maximum custodial sentence of 3 years and/or the statutory maximum fine.36 If qualifying consent is in place, then there is no offence. A person commits an offence if— he has any bodily material intending— (i)   that any human DNA in the material be analysed without qualifying consent, and (ii) that the results of the analysis be used otherwise than for an excepted purpose, the material is not of a kind excepted under subsection (2), and he does not reasonably believe the material to be of a kind so excepted. The definition of ‘qualifying consent’ for the purposes of section 45 is contained within schedule 4 to the Act. Paragraph 2(3) provides that where the material to be tested comes from a person who died as an adult, the necessary qualifying consent is that of the person themselves, or the consent of a person who stood ‘in a qualifying relationship to him immediately before he died’.37 The list of qualifying relationships is the same as that which applies where consent is given for removal, storage or the use of human tissue for scheduled purposes, as set out above. In the context of DNA testing, this list is not hierarchical, and qualifying consent can be given by any person on this list. These two separate frameworks, while not in direct conflict with each other, are inconsistent. Where DNA analysis is to be carried out on tissue from a deceased person who made no decision prior to their death, the two frameworks require different actions to be taken. If section 1 and schedule 1 part 1(6) apply, then a decision must be sought from the person highest up the list of qualifying relationships. If that decision is a refusal, it will stand. If section 45 applies, then any person on the list can give consent. This further implies that refusals will not stand if there is someone else who seeks to consent. The two overlap to some extent, in that a consent that meets the requirements for section 1 will also meet the requirements for section 45. However, if the highest qualifying relative refuses to consent, respecting that refusal is sufficient to comply with section 1, but would be non-compliant with section 45. Since non-compliance with both sets of provisions amounts to a criminal offence carrying a significant penalty, it is essential to provide some clarity on this inconsistency. We would argue that the relevant and applicable framework is that contained within section 45 of the Act. It is an accepted rule of statutory interpretation that an Act of Parliament is to be read and understood as a whole. Where there are conflicting provisions within an Act, they are to be read together and a combined understanding of the Act is to be put forward.38 Particularly, according to Bennion, where two provisions appear to conflict, they are to be treated as if one is modifying the other.39 We would argue that there is a straightforward way to read this Act, which removes this apparent inconsistency. The inconsistency hinges solely on whether DNA test results amount to medical information sought for the benefit of another, thus falling within the remit of schedule 1 part 1(6), and section 1. Arguably, they do. However, they are one small subset of a larger category of information, for example, where blood from a deceased person is tested for HIV so as to inform another person about their risk, the results are medical information that have been sought for the benefit of another.40 This would be the case for the results of any test for an infectious disease carried out after death. Section 45 applies only to DNA analysis. It makes no distinctions beyond that, and there is no further restriction on the source of tissue, for example. We would argue that section 45 creates a separate framework dealing exclusively and exhaustively with DNA analysis. The framework in section 1 and schedule 1 part 1(6) can, therefore, be said to apply to all medical information sought for the benefit of another, except DNA analysis, which is addressed by section 45. We argue that reading the Act as a whole in this way removes the inconsistency and appropriately reflects the legislative intention. In addition to this interpretation's preference for section 45, it is apparent that those practising in the area of DNA analysis are practising on the basis of section 45, rather than the provisions in section 1 and schedule 1 part 1(6). The Royal College of Physicians and the Royal College of Pathologists Joint Committee on Medical Genetics Report on Consent and Confidentiality in Clinical Genetic Practice41 advises that ‘special rules’42—those in section 45 of the Act—apply to the tissue held for the purpose of analysing DNA. This tissue is not, in their view, governed by the provisions regulating the ordinary uses of tissue found in section 1 and schedule 1 part 1. The Human Tissue Authority's guidance, discussed below, also works on the basis that DNA analysis is regulated by section 45. This reading of the Act makes a distinction between genetic information and other health information, and the creation of a specific framework to regulate it implies that genetic information is special in some important way.43 There is lively debate in the literature addressing what exactly makes genetic information exceptional; however, the answer is yet to be identified to the satisfaction of commentators.44 It is apparent from the Human Genetics Commission report Inside Information that the prevalent concern justifying the enactment of section 45 was the potential for surreptitious DNA analysis on samples collected without a person's knowledge.45 The ease of collection and the potential for damage to result from the analysis were sufficient to justify a separate regulatory framework. The question of what is special about genetic information is a live one, but a full answer is outside the scope of this article. Arguably, however, there are very specific harms to privacy46 that might arise from non-consensual DNA analysis such that a separate regulatory framework was considered necessary. In addition to the provisions in the Act, the Human Tissue Authority (‘the Authority’) provides some guidance about consent for paternity testing on their website.47 They advise that qualifying consent is necessary, and that in the case of adults this is the consent of the individual whose material is to be tested, and where that adult has died without making a decision, the consent of someone in a qualifying relationship is needed.48 Those seeking further clarification on the meaning of a qualifying relationship are directed to the Authority's Code of Practice on consent.49 They are not directed to the specific sections of the Code on DNA testing, and the guidance makes no attempt to link DNA testing to paternity testing. Paragraphs 167–170 outline the guidance on seeking DNA testing. They advise that when someone has died, a person ‘in a qualifying relationship who was close to them at the point of death’50 can give consent for the test. The guidance refers to the list of qualifying relationships as laid out in section 54(9) of the Act and explains that the list is not hierarchical as regards DNA testing, and that anyone on the list can give the relevant consent. This echoes the rule in section 45 of the Act, rather than the provisions found in section 1 and schedule 1 part 1(6). The emphasised words indicate an additional requirement for being able to give consent to paternity testing, in that a person in a qualifying relationship with the deceased has also to have been close to the deceased at the time of their death. No further guidance is given as to the meaning of ‘close to’. The practical ramifications of this additional requirement are explored in detail in the case series presented in Section IV. In addition to the specific rules found in section 45 of the Act, there is a further set of provisions that will be applicable to these cases. DNA testing after death requires the removal of tissue from a body in order to perform the analysis. Any institution dealing with human tissue in this way must be licensed by the Human Tissue Authority.51 The licence authorises a Designated Individual (‘DI’) to carry out specified activities with human tissue, such as post-mortem examinations.52 The DI can designate other persons to whom the licence applies, such as all the other members of a pathology department involved in providing pathological services. These ‘Persons Designate’ (‘PD’) are given authority to act by the licence.53 The DI carries ultimate responsibility for securing the suitability of the PD to carry out the licenced activity, that suitable practices are used in carrying out the relevant activity and that the licence is complied with.54 The DI is personally liable for any breaches of the licence requirements by him or herself and by any PD. Breach is also a criminal offence carrying a penalty of the statutory maximum fine on summary conviction or on indictment a fine and/or imprisonment for up to 3 years.55 Several prosecutions could be brought under the Act in relation to a single instance of posthumous DNA analysis to establish paternity. Anyone involved in the collection or storage of tissue could be prosecuted under section 45 so long as they also had the intention that DNA would be analysed without qualifying consent. If the tissue is collected with the express intention of carrying out DNA analysis, then that would be sufficient to constitute the offence, and the individual who collected the tissue could be prosecuted. However, it is unlikely that any individual pathologist or mortuary technician who collects tissue would have the requisite intention, since they are unlikely to have intended that the DNA would be analysed at the time of collection. Once collected, the DI is the person responsible for holding the tissue. The intention to analyse DNA for paternity testing would be formed at a later date when the test is requested by a person seeking information about paternity. Since these requests are to be handled by the DI, who is responsible for holding the tissue, the offence is committed when the DI forms the intention to analyse the DNA without the necessary qualifying consent. It is most likely that a prosecution would be brought against a DI under section 45. In addition, if the offence is committed, or a DNA test is actually carried out without the necessary qualifying consent, this is likely to amount to a breach of the licence conditions, for which the DI is personally responsible under the criminal law. If non-consensual DNA analysis were carried out in a pathology department, it would likely be in the absence of a proper process, since a proper process would at a minimum have to ensure that there were adequate provisions for seeking consent. As highlighted above, the DI is responsible for ensuring that proper processes are in place, and failure to do so amounts to a breach of the licence conditions. The DI could be prosecuted for those breaches. As indicated, there is a subtle but important difference between the provisions in the Act and the guidance issued by the Authority, on when DNA analysis after death will be appropriate. In the following section, we present three case studies that highlight the significant issues raised by this apparently minor conflict between the Act and the Authority's guidance. We outline each case and the solution that was implemented. We then consider how the case might have been addressed under the Act itself, and then under the Authority's guidance. IV. CASE STUDIES The following case studies were provided to us by the DI from an NHS Foundation Trust in England. We have anonymized them. The relevant NHS Trust had approximately 1,000 acute beds and handled around 3,000 deaths each year. Some of these were deaths in the community referred for autopsy. It provided pathology services to a second local hospital giving a total non-post-mortem workload of about 55,000 samples a year, tissue from all of which were retained for 10 years. This Trust held a large amount of material from local residents which could be used for paternity testing should someone make a request. The DI was an experienced Consultant Pathologist with considerable experience in research ethics. He was appointed to the DI role in 2006 in order to apply for a licence for the NHS Trust under the Act. The licence was granted in September 2006, and the DI had remained in post since that time. A. Case 1: Multiple Partners Mr B was deceased. Miss A approached the DI directly and asked if he would release tissue from Mr B to allow paternity testing to confirm that Mr B was the father of her child, master A/B. The DI ascertained that Miss A and Mr B had been in a relationship for several years before Mr B's untimely death in a road traffic accident; they shared a mortgage on the house, and Mr B was named as the father on master A/B's birth certificate. Miss A wished to organise the testing because Mr B's parents were questioning master A/B's paternity. The DI decided that the relationship satisfied the Authority's definition of a ‘partnership’56 and agreed to the testing. Before the testing took place, a solicitor acting on behalf of Miss C contacted the DI and advised that such testing would, in his opinion, constitute unlawful DNA analysis under section 45 of the Act. The reasoning was that Miss C was in an identical relationship with Mr B and also had a child, master C/B. The solicitor further argued that since Mr B stayed with Miss C four nights a week as opposed to the three nights he spent with Miss A, Miss C's rights took priority. 1. Solution Implemented The solicitor and the DI agreed that the issues raised by Mr B's parents might have represented the anger phase of a grief reaction, and, if master A/B were tested, the focus might have moved onto master C/B; thus, it was in the interests of both the children to be tested. The solicitor approached Miss C with this argument, she agreed and both the children were tested. 2. Solution Based on the Law The deceased had not consented to paternity testing prior to his death. Therefore, to avoid prosecution under section 45 of the Act, consent was needed from someone in a qualifying relationship to the deceased. As explained above, the list of relationships is not hierarchical in the context of DNA analysis. The solicitor's discussion of ‘rights’ is misleading. The Act does not give a ‘right’ to consent. Rather, it is better understood as a situation in which some persons are endowed with legal authority to permit behaviour. Miss C's legal authority to permit DNA analysis has no impact on Miss A's legal authority to permit DNA analysis so long as both of them were in a qualifying relationship with Mr B. They both met the requirement of being in an enduring family relationship with Mr B since they both lived with him, albeit on a part-time basis, and had a child together. Both Miss A and Miss C could give consent for the testing of Mr B in order to confirm the paternity of any children in question, whether that was master A/B, master B/C or another child. There might be some difficulty if one partner were to consent while the other refused. The Act makes no provision for how to deal with conflicting decisions from those in similar relationships, when the list of qualifying relationships is non-hierarchical. However, the question has been addressed in relation to other uses of tissue, when the list of qualifying relationships is to be treated as strictly hierarchical. In these cases, section 27(7) of the Act provides that where there are several people in the highest ranking relationship, the consent of any one of them will be sufficient. On one view, this means that it is not necessary to seek consent from everyone in the relevant relationship with the deceased because a decision from one of the possible candidates will be sufficient. Alternatively, it could be interpreted to mean that so long as one person consents, refusals from the others will not carry legal force. This issue was explicitly considered in the Grand Committee debates about the Human Tissue Bill.57 Lord Warner58 argued on behalf of the government that amending section 27(7) to recognise a person's refusal to consent to the tissue use would amount to providing a power to the refuser to veto the tissue use, even where there were other relatives who were seeking to consent. He argued further that a veto of this sort would hamper medical research, which would undermine the purpose of the Bill itself. The government's view was that the consent of one person would make the human tissue use lawful but would not make it obligatory, and that it would be expected that doctors might hesitate before going ahead. Lord Warner stated that this problem of conflict between relatives was one which would be ‘best managed … by those dealing with families sensitively on the ground, supported by such careful guidance as the Human Tissue Authority can produce’.59 Most importantly, he finished by stating that the government did ‘not want to impose, inadvertently or otherwise, an inappropriate right of veto in this area’.60 Section 27(7) was not amended, and we think that it is clear that Parliament's intention here was for consents to be preferred over refusals, and that refusers should not be able to veto the use of human tissue. This discussion was held in relation to situations in which the list is hierarchical. We would argue that this principle should also apply in the situations where the list is non-hierarchical, such as regarding DNA analysis. The designation of the list as non-hierarchical already prefers consent to refusal, since consent from any person on the list is sufficient to authorise the test. Where the list is hierarchical, a refusal from a person at the top of the list stands, and consent from another cannot change that, except where consent might be provided by someone of the same rank as the refuser. In the context of DNA analysis, this does not apply because there is no ranking. It would be perverse, therefore, if the principle that consents were preferable to refusals did not also apply here, since it would arguably impose an inappropriate right to veto DNA analysis being carried out. It is our view that, if there are several people in the same relationship to the deceased person, the consent from any one of them should be sufficient. We would argue that consent from either Miss A or Miss C would be sufficient to authorise the DNA testing of Mr B for all questions of paternity. 3. Solution Based on the Authority's Guidance An additional level of complexity is added by the requirement for ‘close to’. So long as both Miss A and Miss C were partners of Mr B, consent from either one could suffice for the consent to lawfully authorise the testing. However, the Authority's guidance requires them to show that they were ‘close to’ Mr B at the point of his death. The Authority offers no advice on how they would interpret ‘close to’, but at a minimum we argue that this would require an assessment of the quality of the relationship between the parties. We think this is necessary in order to take this requirement seriously. This does entail a qualitative investigation into the nature of the relationship in question. This will be context specific, and as such it is difficult to create guidance on the criteria that must be met. It is not clear whether ‘close to’ has a relative element, so Miss C might want to argue that she was closer than Miss A to Mr B since he spent more of the week with her. Miss A might argue that despite the shorter amount of time per week, the quality of their relationship was deeper and closer than that between Miss C and Mr B. Further, we argue that any assessment of the quality of a relationship is necessarily subjective, and therefore its application is uncertain. This adds a significant burden on those seeking paternity testing after death. It also adds a significant burden on the DIs responsible for deciding whether to offer the tests. Investigating the nature of a relationship is likely to be outside their usual expertise. It may require a significant time commitment to be done properly. The decision itself carries significant weight since it could be the basis for allowing or refusing to carry out DNA analysis. Thus, the decision could be the subject of challenges from those seeking the tests. Part of the difficulty in discussing the requirement of closeness is that it is not clear how the Authority intends closeness to be used. It may be that it is a way of distinguishing between different parties with the same relationship, such as Miss A and Miss C, so that the person whose relationship is closest has the best legal authority to permit or refuse to permit the test to go ahead. This seems to fit closely with the argument made by Miss C's solicitor in challenging the test. However, if we are correct in our argument, made above, that consent is preferred to refusal, and, as we outline above, we think it is reasonable to extrapolate from the use of the hierarchical list to the use of the non-hierarchical list, then there is no need to find a way to distinguish between people of similar relationships. The consent of one partner is enough, irrespective of whether the other refuses. Alternatively, the closeness requirement could operate as a threshold requirement that would create another non-hierarchical list of persons able to give consent to DNA analysis. So, if Miss A passed the test, and Miss C failed it, then the result would be that Miss A could consent, but that Miss C could not. It would act as a way to narrow down a larger list of those able to consent, giving greater certainty to doctors seeking consent. The best consent, the one that can be safely relied on by doctors offering testing is someone who passes this threshold of closeness. Looking through a legal lens, this is unnecessary, and it purports to add an additional requirement not envisaged or intended by Parliament. This is problematic since it is not clear that the Authority has the power to change the rules in a way contrary to Parliament's intentions. Finally, it could be argued that the list of qualifying relationships approach favoured by the Act takes a narrow view of what is important in a relationship—its label. What the Authority's requirement of closeness attempts to do is challenge the starkness of the list by emphasising looking behind the label to the actual nature of the relationship. If this is the case, then it is to be commended.61 However, irrespective of the intention behind the requirement, its effect is to further complicate an already complex issue. Its impact may be to deny access to DNA analysis in situations where it would be lawful to offer it. Given the importance of the results of DNA analysis to those who have requested it, we would argue that anything that denies access unnecessarily, and without any legal basis, is problematic. B. Case 2: Deathbed Confessions In the final moments of her life, Mrs D confessed to her son (D) that at the time of his conception she was having an extra-marital relationship and thus was uncertain about the identity of his biological father. He was, not surprisingly, affected by the news. He enquired of the DI whether tissue from his also-deceased father (as named on his birth certificate) could be used to establish the truth of his mother's confession. Mrs D had other children who had a poor relationship with their brother, D. Mrs D had told her son that she had kept this secret for his whole life and specifically requested that he did not divulge it to his sisters. 1. Solution Implemented The DI was absent at the time the request was made and a PD62 sought advice from the Authority. Their response was that Mrs D's confession had cast doubt on the relationship between her son and his putative (but legally recognised) father and that the relationship should be considered not to exist. D, therefore, had no qualifying relationship with the person named as father on his birth certificate, and testing would not be possible without a court order. Mr D was advised of this.63 The test was not carried out. 2. Solution Based on the Law If D is considered to be in a qualifying relationship to his father as named on the birth certificate, then his consent would be sufficient to authorise testing. If he is not in a qualifying relationship, then another person who is in a qualifying relationship can give the relevant consent to allow the testing to take place. D did have siblings who would also be in qualifying relationships with the deceased; but in D's case, the poor relationship between him and his sisters raised practical problems. It might not have been possible for him to approach his sisters to ask them to consent to the test, and even if he did approach them, they might not have felt able to do so. We would argue that D's position is very clear. The law presumes that if a man appears on a birth certificate, then he is the father of that child for all purposes, unless and until that presumption is rebutted.64 This question was addressed in the joined cases of S v S and W v Official Solicitor65 where it was confirmed that the presumption was rebuttable in civil proceedings if it can be shown that it is more probable than not that the child is legitimate or illegitimate.66 The effect for D is that he is presumed to be in a father/son relationship until the presumption is successfully challenged and rebutted or confirmed in civil court proceedings. There is no obvious policy or social reason why a different presumption should apply in the context of section 45. It follows, then, that D is, until proved otherwise, presumed to be the son of the man named on his birth certificate and, therefore, is in a qualifying relationship for the purposes of consent to DNA analysis for paternity testing. His consent is sufficient to authorise paternity testing on tissue from his deceased father. Given the strength of this statutory rule and the case law, it seems highly unlikely that a court would overturn its application in these circumstances, especially since doing so would deny D knowledge about his genetic origins. 3. Solution Based on the Authority's Guidance The same argument would apply in relation to the guidance that legally D is presumed to be his father's son, until proved otherwise in a court. He would, therefore, be able to consent to the paternity testing since he was in a qualifying relationship to the deceased. It is not clear whether the requirement that he should show he was ‘close to’ his father adds anything here. If the closeness requirement acts as a threshold test to create a subset of persons able to consent to DNA analysis, as we suggested in relation to multiple partners, then proving his closeness to his father could be the difference between being considered able to provide consent, and not being able to consent to DNA testing. If the Authority were to deny him access to paternity testing on the basis of his failure to meet their non-statutory rule requiring closeness, then D might be able to bring a judicial review claim against them for acting ultra vires. The question would be whether the Authority is going outside of its power by creating an additional rule that purports to change the way in which section 45 of the Act applies. While the Authority is statutorily empowered to prepare codes of practice that offer guidance to those carrying out activities involving human tissue,67 this power does not extend to amending or revoking the consent provisions clearly laid out in the Act itself. In addition, where the Authority is empowered to issue guidance, the Act makes it clear that the effect of that guidance is limited, such that no proceedings can be brought against a person for failure to adhere to the Authority's guidance.68 If the DI were to accept D's consent without addressing the question of whether he was sufficiently close to the deceased at the time of death and testing were to go ahead, there would be no scope for the Authority to bring proceedings against the DI or any PD under the Act so long as the DI and PD had complied with the law, that they had sought consent from a person in a qualifying relationship with the deceased person. This case indicates that the additional requirement of closeness has a negative impact on the individual seeking testing, adds an additional burden on DIs to enquire into the nature of relationships and also undermines the Authority's ability to properly regulate its licence holders. C. Case 3: Friend of Longstanding? Ms E and Ms F approached the DI shortly after the death of Mr G in order to discuss whether it would be possible to establish that Mr G was the biological father of Ms E. At a meeting with the DI, it was established that Ms E had believed that she was Mr G's daughter all her life and that he had acted as her father. He had named both Ms E and Ms F by name as daughters in his will. Ms E had cared for him during his last illness and been with him shortly before his death. Ms E sought a paternity test to establish whether Mr G was her biological father. 1. Solution Implemented The DI decided that the paternity testing could be carried out and his reasons were laid out in an email to a bereavement officer subsequent to the meeting: The 2 ladies claim to be daughters of the deceased, and have an, albeit unsigned69, will confirming this as it names them as daughters and defines them as the executors. They clearly stated that the deceased had no surviving spouse but did have a surviving sister. My thinking is, I am not sure if the executor of a will is a nominated representative70 which would place the sisters at the top, but if not they have a strong enough set of evidence for me to believe they are most likely to be the daughters, thus as there is no spouse then they still sit at the highest point in the hierarchy71 above the sister.A month later, Ms G, the sister of Mr G, complained to the Trust about the test, in a letter stating …although [Ms E's] birth certificate reflects another man as her father … .I would like some explanation as to how someone with no means of identity can request such a test and without my permission at this stage and it be carried out.Following this complaint, the DI contacted the Authority and was advised by phone that this might have been non-consensual DNA analysis. Their argument followed that provided in relation to Mrs D above, that the request for paternity testing cast doubt on the acknowledged relationship between Mr G and Ms E, and that therefore she was not in a qualifying relationship to Mr G and her consent was not sufficient to authorise the paternity test. The DI supplied full documentation to the Authority who made a final ruling on the case. They held, In the case you described; where DNA testing was carried out on residual surgical tissue following a request made by daughter F (via a solicitor) defined in the gentleman's Will as his daughter—to determine the paternity of daughter E, I can confirm that the testing was done in accordance with the requirements of the HT Act.72The Authority justified its ruling on the basis that the consent was actually provided by Ms F, and not Ms E. Since Ms F was defined in the will as a daughter, and she was not seeking paternity testing for herself, and had therefore not cast doubt on the father/daughter relationship she had with Mr G, she was considered to be in a qualifying relationship and was able to consent to the test. 2. Solution Based on the Law The question here is again whether Ms E is in a qualifying relationship to the deceased Mr G. We know from Ms G's complaint that Ms E's birth certificate named another man as her father and that section 26 of the Family Law Reform Act 1926 provides that the presumption that Mr G is not her father stands until it is rebutted in civil proceedings. Evidence of Mr G acknowledging Ms E as his daughter may have been sufficient to rebut the presumption in court; but until it had done so, the presumption would stand. Ms E would not be considered to be a daughter of Mr G, for the purposes of consent to DNA analysis. If Ms F's claim to being Mr G's daughter were stronger—ie he was named on her birth certificate, or Mr G had acknowledged her and no other man was named on her birth certificate—then she would be in a qualifying relationship to Mr G and could consent to the testing. Ms G cannot prevent the test being carried out. Her refusal would not override the consent from Ms F since the list of qualifying relationships is not hierarchical and anyone in a qualifying relationship could give consent to the test. She would also be entitled to consent to the test since she was in a qualifying relationship to Mr G. It is also arguable that Ms E could consent to the test in her own right. Another relationship on the list of qualifying relationships is ‘friend of longstanding’. The question of who could be a friend of longstanding was considered in the case of CM v the executors of the estate of EJ.73 In this case, CM had offered roadside resuscitation to EJ, who subsequently died. CM had been exposed to EJ's blood and was concerned about the possibility of contracting HIV. CM sought a blood sample for HIV testing. Mr Justice Cobb held that this was lawful under the Human Tissue Act on the basis of consent from EJ's mother's cousin, OP, who was the closest relative available with whom it was reasonably practicable to communicate. Mr Justice Cobb held that OP fell within the definition of friend of longstanding because he was ‘a reasonably close relative’.74 Whether someone can be found to be a friend of longstanding might better be understood as asking whether there is a connection between them and the deceased person, which makes it legitimate for them to made decisions about the person after their death. In CM v EJ, the connection was a direct family connection, a blood link, however weak. We would argue that other links—non-blood links—could also satisfy the friend of longstanding question. In Re Barlow's Will Trust,75 Mr Justice Browne-Wilkinson held that the minimum requirements for friendship were that the relationship was longstanding, social rather than professional, and when circumstances allowed the parties would meet frequently.76 It is certainly a context-specific question and does require an enquiry into the nature of the relationship in question. While Ms E had no confirmed blood tie to the deceased, she had known him for many years, had cared for him during his last illness and had been with him when he passed away. We would argue that she should be found to be a friend of longstanding on the basis of a combination of the positions taken in CM v EJ and Re Barlow's Will Trust. If this were the case, then she would be in a qualifying relationship to Mr G, and she would be able to consent to the testing. 3. Solution Based on the Authority's Guidance The question here is addressed to the requirement that the person in a qualifying relationship must have been ‘close to’ the deceased at the point of death. Ms E perhaps had the strongest claim here, since she cared for Mr G during his last illness and was with him when he passed away. Since there is no guidance as to what constitutes ‘close to’, we will have to come to our own view as to what would be considered, but this seems likely to pass any requirement for closeness. If Ms E is a friend of longstanding on the reasons provided above, then this arguably strengthened her suitability to consent to the paternity test in her own right. It is not clear what the impact is on the validity of consent of not being able to show that a party was close to the deceased at the point of death. If Ms E had been a friend of longstanding according to the legal definitions but had lived away from Mr G at the time of his death due to other family commitments, she may not have necessarily been able to show that she was close to him at the time of his death. If the closeness requirement acts as a threshold test as we suggest above in relation to multiple partners, those who can show they were close to the deceased become part of a subset considered to be better qualified to consent to DNA analysis. Their consent would appear to carry greater weight with the Authority, for the purposes of avoiding prosecutions under section 45 of the Act. It is not clear what the benefit is of having a rule that creates a second set of potential consenters. We would argue that the rule in section 45 is clear and that the closeness requirement simply confuses the issue. There are real concerns that the framework in section 45 does not take into account the reality of relationships and focusses only on the label attached. If the closeness requirement is intended to address these concerns, then it fails. It might allow the investigation of the nature of relationships, but using the information is problematic. V. THE IMPLICATIONS OF THIS CONFLICT Taken together, these case studies provide a stark illustration of the conflict between the strict legal position, the Authority's written guidance and their direct advice. What might have been dismissed as an interesting but ultimately meaningless anomaly has been shown to have a significant impact on two cohorts of people: individuals seeking paternity testing and DIs considering authorising paternity tests. In respect of individuals seeking paternity testing, the law itself is clear. If we use established principles of family law to clarify the existence of the relationships under discussion, then anyone in a qualifying relationship can give consent to paternity testing, and consent from anyone on the list will prevail. As we have argued above in relation to multiple partners, the designation of the list of qualifying relationships as non-hierarchical means that consent carries greater weight than refusal. Consent from any person on the list will be sufficient to authorise the test. Access to paternity testing is, therefore, both extremely broad and legally certain. The complexity comes from the Authority's general and specific guidance. We see from all three cases that the Authority's approach made it significantly more difficult for Miss A and Ms E, and impossible for D, to access paternity testing. The effect on D is the most concerning; since the legal position is very clear, he was entitled to consent to paternity testing. Yet he was denied a paternity test on the basis of what we argue was a flawed legal argument, namely that the doubt cast on his parentage by the request for paternity testing meant that the relationship was considered not to exist. For the other two cases, while it was ultimately possible for the tests to go ahead, there was a considerable level of legal ‘sleight of hand’ needed to authorise the tests. In multiple partners, the DI concluded that testing both children and seeking consent from both partners was the only way to ensure that testing could be carried out. In the event that one partner had refused, it would have been unlikely that the test could have been carried out without further guidance from the Authority or the NHS Trust's own solicitors on the correct legal interpretation. In friend of longstanding, the Authority relied on consent from Ms F, whose relationship with Mr G was identical to that of Ms E; but since she had not cast doubt on the relationship by seeking testing for herself, her consent was sufficient. This is at best an artificial solution to the problem. While it did make the testing available to Ms E, it did so on an entirely arbitrary basis, which would be subject to challenge if it were to set a precedent. Given that many people seeking paternity testing will not have the services of a solicitor who is knowledgeable about this area of law, it imposes an unnecessary burden on individuals seeking testing and is likely to result in people being denied testing where it would be lawful to provide it. The impact on DIs is also of considerable concern. We have identified significant regulatory complexity. The DI involved in these cases, even with several years of experience, made his decision in the friend of longstanding case on the basis of a flawed understanding of the law. He thought that a nominated representative would be the most appropriate person to consent to DNA analysis. In fact, the nominated representative has no role to play here. He acted on the grounds that the list of qualifying relationships was hierarchical. It is not. He considered that the acknowledged daughters were of higher priority than Mr G's sister and that he could, therefore, rely on their consent over her refusal. Since the list is not hierarchical, he needed a different justification to rely on their consent. Although our DI sought to permit the test, misunderstandings of this nature could result in a DI denying paternity testing where it would have been lawful to allow it. The biggest problem is that mistakes of this nature are understandable. Section 45 is a wholly different regime to that in section 1 and schedule 1 to the Act. The vast majority of a DI's work will be other uses of human tissue, and as such we can expect considerable familiarity with the rules that apply to those activities. We cannot expect the same familiarity with the rules in section 45. While there are a significant number of people who could request posthumous paternity testing, there will be very few that actually do. Unless DIs are aware that posthumous paternity testing is caught by section 45 and that it is a different regime from that which applies to the rest of their work, it is very likely that mistakes will be made and testing will be denied even where it would be lawful to permit it. The decision in multiple partners was challenged by a solicitor, who argued that the views of his client took priority over the other partner. This shows a misunderstanding of the legal framework for paternity testing after death, since even our conservative interpretation of the legal framework, laid out above, allows anyone in a qualifying relationship to provide consent, even where there is another person in the same relationship who wishes to refuse. However, since the solicitor has experience in the law, it would have been understandable for the DI to defer to that experience. One conclusion pointed to by our analysis is that some solicitors acting in this area may not understand the subtleties of the legal framework. If neither DIs nor solicitors understand the law in this area, it might indicate a need for reform. The next issue for DIs is the confusion created by the Authority's advice in specific cases. In deathbed confessions, the DI would have offered the test, and in friend of longstanding, the DI did carry out the test on the basis that the requesters were in qualifying relationships with the deceased. The Authority's understanding of the relationships in question was that they were not in qualifying relationships, and thus the tests could not be done. Irrespective of the legal correctness of their interpretation of the existence of the relationships, this puts the DI in a very precarious position. On the one hand, the DI is empowered to oversee the carrying on of activities covered by the licence in the institution. This necessitates making decisions about what services can and cannot be provided. The DI is not expected to seek advice from the Authority every time a decision needs to be made. But, the personal consequences of a wrong decision are significant. If the decision results in a breach of the licence conditions, or in this case amounts to non-consensual DNA analysis, then the DI carries the personal risk of a substantial fine or imprisonment. It is even more of a concern when we recognise that DIs are not usually legally qualified. Some are medically qualified, but increasingly the role is being occupied by staff with management qualifications. Such DIs may have some administrative experience through service on various hospital committees. But very few aspects of hospital administration will be mired in this level of legal complexity. The Authority's guidance seems to have created a perverse situation in that it significantly undermines the DI's ability to perform the role imposed on him, or her, by the Act. The disproportionately burdensome penalty could make a DI risk-averse, which will mean that more queries will be passed to the Authority for advice, or paternity testing is refused in cases where it would be lawful to provide it. The implications of this are also significant. There are 204 hospitals in England with a human tissue licence under the post-mortem sector of the Authority's business. Each institution will have its own DI. The DI in these case studies has received five such requests over 8 years in the role. If that is representative of the frequency of requests of this nature more generally then that amounts to over 100 requests for assistance each year. If these are all referred to the Authority for advice, then this adds a significant burden of additional work. More problematic is the potential consequences of an increasingly widespread restriction on access to paternity testing. If this is on the basis of what we argue to be flawed legal analysis by the Authority, then this leaves open a considerable chance of legal action being brought against DIs, NHS trusts and the Authority themselves. One obvious route is through a judicial review claim on the basis of excess of jurisdiction by the Authority. Arguably, it is now the settled law77 that any decision or policy based on an incorrect interpretation of the law shows that the decision-maker had directed their mind to the wrong question, so that the decision or policy is a nullity. The remedy for this type of claim would most likely be a quashing order with the result that the decision had to be remade, taking into account the correct legal basis. This could mean that the Authority would have to contact everyone who had been refused testing in this situation and advise the DIs that testing could be lawfully carried out. The DIs would then have to arrange the relevant testing should the requester still be interested in having the information. This takes us back to the impact on the cohort of people requesting paternity testing. We have highlighted above the reasons why people might seek paternity testing and the psychological impact that seeking paternity testing might have. To be refused access to testing is likely to be difficult to accept. To receive further communication with no warning that the original advice was wrong and that testing is available adds insult to injury. It may also happen sufficiently far after the death and the original request that people have moved on, and this could open up old wounds. Alternatively, a judicial review claim might result in the Authority having to review the guidance with a view to assessing its reasonableness and logic. If it is found to be both reasonable and logical, on any grounds, then there would be no change for individuals affected by flawed decisions. A successful judicial review does not necessarily have any impact on the individuals involved, or result in any substantive change to the guidance, which arguably is a major source of the problems. VI. THE OFFENCE OF DNA THEFT IN SECTION 45: TOO BLUNT AN INSTRUMENT? Section 45 of the Act is different from the rest of the Act's provisions. It has UK-wide application, while the rest of the Act is limited to England and Wales. It has a stringent penalty attached to it—3 years in prison and an unlimited fine if convicted on indictment. The offence is framed in such a way to include as many potential offenders as possible. While ‘DNA theft’ is a useful shorthand, it does not capture the nature of the offence, which is committed simply by having the tissue, and intending to analyse the DNA without consent.78 There is no requirement that the analysis has actually been carried out. There are some challenges associated with proving that the intention was in place in this sort of offence, since it could amount to speculation about the mind of the person charged. It would be easier to prove the relevant intention if the analysis had actually been carried out, and it was possible to show that there was no consent in place. But that is not necessary for the commission of the offence. Looking to the Hansard debates on the Human Tissue Bill, it becomes clear that the offence in section 45 is one intended to act primarily as a deterrent rather than be in everyday usage. Lord Warner stated explicitly that the offence was ‘deliberately framed’79 to include a situation where the tissue is taken but the analysis is never carried out. The offence has ‘a deterrent purpose’ and was ‘intended to be sufficiently broad to prevent or deter people from obtaining the material in the first place’.80 There was no discussion of a situation in which the material was obtained lawfully and then sought to be used for DNA analysis at a later date. The offence was proposed by the Human Genetics Commission, in Inside Information,81 as a way of addressing concerns about people obtaining samples for DNA analysis in non-medical settings. These concerns may have been brought to the foreground as a result of newspaper allegations in 2002 that a honey trap sting operation had been put into action to obtain a sample of Prince Harry's hair to be used for DNA testing to ascertain his paternity.82 While it is clearly an egregious violation of a person's privacy to steal some of their tissue for DNA analysis, the Human Genetics Commission argued that the law in existence at the time may not have prevented such actions and would not necessarily offer any remedy had the honey trap been successful.83 Since this was the case, their recommended solution was a criminal offence of ‘non-consensual or deceitful obtaining and/or analysis of personal genetic information for non-medical purposes’.84 Arguably, the offence has been a success. Since its enactment, there has been one prosecution under section 45. It had no connection to the NHS.85 No newspapers have questioned any celebrity's paternity using DNA evidence in support. The only DNA analysis that can be carried out without consent is in the context of forensic investigations on bodily material left behind at a crime scene or in very limited circumstances as provided in part V of the Police and Criminal Evidence Act 1984 (‘PACE’).86 Even where DNA has been analysed without consent under PACE, the information cannot be used except in relation to national security, a terrorist investigation, prevention or detection of crime or the identification of a deceased person.87 It certainly cannot be used to resolve questions of paternity even where a court might be interested in the information.88 Cass Sunstein89 argues that attempting to change social norms might be inherent in the purpose of law. This expressive function allows the law to make pronouncements on the acceptability of particular courses of action. He suggests that they might be particularly effective in doing so where there is a problem of collective action, such as littering, and where there is some sort of discrimination.90 However, he goes on to argue that there might be a fine line between a successful expressive law, and one which is not successful. If a law intended to ‘discourage teenagers from smoking … make[s] smoking seem like a delicious forbidden fruit’,91 it will be considered to be unsuccessful. Another method of ascertaining an expressive law's success is to carry out a consequentialist assessment of the law in question. It must be the case that ‘on balance’92 the (negative) plausible consequences of the law do not outweigh the benefits of the expressive element. Considering section 45, while there is no doubt that the risk of widespread DNA theft is deeply problematic and merits a serious response, there are also concerns about imposing a disproportionate burden on other groups in society. We argue that the burden imposed by section 45, on individuals seeking paternity testing after death, and on DIs is disproportionate. These effects are more than ‘plausible’ since we have provided evidence that they are already occurring. This is even more concerning when we see that requests for posthumous paternity testing are made for legitimate and socially useful reasons. Ultimately, we argue that these problems have arisen because posthumous paternity testing was never the mischief that section 45 was designed to address. The offence is necessarily prohibitory in its seeking to avoid unlawful acquisition of DNA material. But, it is being used in practice to facilitate DNA analysis after death for paternity testing or other purposes such as genetic counselling. Prohibiting DNA theft and facilitating DNA analysis are very different issues that pull the law in different ways. The question of whether DNA analysis is appropriate in any given situation requires consideration of several factors, which must ultimately provide an answer that is in the interests of the child (or adult child) in question. A child might have an interest in having a relationship with the paternal relatives for example, or not having an existing relationship severed, or an interest in having access to family medical history. A competent child or an adult child might also have an interest in knowing their genetic heritage to address questions of self-identity. The question of whether to allow paternity testing after death is a subtle one that is not properly accommodated by the blunt instrument that is section 45. The decision whether to offer DNA analysis in this context is a delicate one that is about more than whether there is a person in a qualifying relationship who can give consent. While it may be possible to create a legal provision that pulls in both directions, it is something that needs to be explicitly considered, rather than left to occur naturally. It is not apparent from the Hansard debates that Parliament knew that these practices occurred or contemplated that they might arise. The case studies discussed above highlight the serious negative implications of section 45 for individuals seeking paternity testing after death, and for the DIs who have to decide whether to offer the test. The framework means that DIs are refusing tests that would be lawful, and that those who are refused tests have no right of appeal, since this is not provided for in section 45, or any real prospect of legal redress. While we suggested that judicial review might be possible, it is an extremely costly and uncertain way of challenging the law, and one that has limited prospects to change the individual's circumstances. What we have not yet explored is the impact on the Authority itself. We have raised significant concerns about the advice given by the Authority, and specifically the flawed legal argument that casting doubt on a relationship means that it should be treated as non-existent, which forms the basis for their assessment of qualifying relationships in the cases we examined. We think that this situation has arisen because section 45 does not enable the Authority to publish guidance on DNA analysis, nor does it facilitate the provision of DNA analysis on tissue covered by the Act. The impact of section 45 is that the questions that are being referred to the Authority are legal questions. They are questions that ask specifically how the law applies, and that require a legal answer. The question about whether someone intended to analyse DNA is a legal question that depends on understanding what is meant by ‘intention’ and answering a factual question about whether that intention is present. The question of whether someone is in a qualifying relationship is a legal question. However, the Authority is very clear that its advice is not ‘legal advice’. If DIs are seeking legal advice, then they need to obtain that from a solicitor. The logical consequence of this is that DIs will seek advice from their solicitors after speaking to the Authority the first time and subsequently will seek advice from their solicitors only, thereby bypassing the Authority. This undermines the Authority's role in regulating the use of tissue for DNA analysis. If they cannot provide the sort of answer necessary to address the questions asked, then they lose control of the regulatory framework. The control moves to the solicitors instructed by the 204 NHS Trusts with post-mortem sector licences, since they are able to provide the legal advice necessary to answer DIs’ questions on this issue. The consequence of this is that there is no central oversight of the practice of DNA analysis for posthumous paternity testing. The Authority cannot ensure that there is a single interpretation of the law, or that the same approach is taken across the whole of the post-mortem sector of NHS Trusts. This means that the law becomes further fragmented and open to the ‘postcode lottery’ criticism. VII. CONCLUSION Prior to the enactment of the Human Tissue Act 2004, there was concern that widespread DNA theft could become a serious risk.93 This has not materialised. It is not clear whether this is due to the success of section 45 or that these concerns were misplaced. We should not dismiss the suggestion that the expressive function of section 45 has been very valuable in that regard. However, it does not provide an adequate framework to facilitate posthumous DNA analysis. Our case studies highlight the disproportionately heavy burden imposed on those seeking DNA testing in these circumstances and those involved in offering DNA analysis after death. This burden is compounded by the confusion evident in the Human Tissue Authority's dealings with these sorts of cases. The criminal law as expressed through section 45 is too blunt an instrument to effectively regulate the provision of posthumous paternity testing. Section 45 means that decisions to offer a test can only be made on the basis of the suitability of the person providing consent. We have argued that there are other considerations that have a direct bearing on the decision to offer a test. These include the child's (or adult child's) interests in forming relationships with paternal relatives, the psychological benefits of having this information, issues relating to grief experiences, the reasons for seeking a test and the views of the father in question. These are not accommodated by the current legal framework, which focusses only on whether the person seeking providing consent is in a qualifying relationship with the deceased person. We think that the disproportionate burden and the failure to take proper account of relevant issues are good reasons to argue for a change to the law in this area. We think that the section 45 offence should remain to address the mischief originally intended, to deter DNA theft. But, there should be a specific framework in place as an exception to section 45, within the Human Tissue Act, which addresses decision-making in the context of paternity testing after the death of the father. We cannot offer a fully worked up legislative proposal here. But at a minimum, we think that the framework needs to make provisions for who should make decisions on whether testing should be offered in specific cases. We think that the complexity of the factors that are necessarily relevant means that the decision should not be left to individual DIs, with or without the support of the NHS trust solicitors. This might be provided through an explicit recognition that the Human Tissue Authority is required to make legally binding decisions, or a requirement that a panel is established to adjudicate these decisions. There should be specific provisions that set out how decisions should be made, and requiring that relevant factors—such as the reasons that the test is being sought, the views of the child and other relatives interested in the information, or any relevant issues of intestacy—should be taken into account. In addition, the framework must provide a right to appeal any decision made about whether to offer a test, whoever is empowered to make that decision. We think that this framework should have some sort of statutory footing within the Human Tissue Act 2004, since it relates to the use of human tissue. There is a distinction in the framework relating to tissue use, in that gametes are regulated by the Human Fertilisation and Embryology Act 2008, and other tissue is covered by the Human Tissue Act 2004. There is no reason to upset this distinction, even though issues to do with paternity and fatherhood might appear to fit more closely in the 2008 Act. The important distinction, in our view, is gamete or tissue. In practical terms then, we recommend changes to the Human Tissue Act 2004. The secretary of state could amend the definition of ‘excepted purpose’ by adding a further category to paragraph 5(1) of schedule 4 to the Act.94 This further category could be ‘paternity testing where the father is deceased’. Further regulations would be needed to establish the decision-making framework and the right of appeal. It is not clear whether the secretary of state is already enabled by paragraph 13 of schedule 4 to the Act to make these sorts of regulations. These recommendations are merely preliminary and can only give a flavour of how we think that the law should change. This issue is sufficiently important that it merits proper consideration and wider consultation by the appropriate body—the Department of Health and/or the Human Tissue Authority. The threat of the shadow of the criminal law creates too blunt an instrument to address the subtleties of this problem, and it should not be left to do so. 1 A total of 4,734 children were adopted in 2011. See ‘Statistical Bulletin, Adoptions in England and Wales, 2011’ <http://www.ons.gov.uk/ons/rel/vsob1/adoptions-in-england-and-wales/2011/sb-adoptions-in-england-and-wales--2011.html> accessed 21 July 2015. 2 Statistics on donor-conceived birth rates between 1992 and 2009 are available on the HFEA's website. The mean birth rate for the period of 1992–2009 is 1,308. See ‘Donor Conception – Births and Children’ <http://www.hfea.gov.uk/donor-conception-births.html> accessed 21 July 2015. 3 MA Bellis, KE Hughes, SK Hughes, and JR Ashton, ‘Measuring Paternal Discrepancy and Its Public Health Consequences’ (2005) 59 J Epidemiol Commun H 749, 754. 4 Data tables available from ‘Live Births and Still Births’ <http://www.ons.gov.uk/ons/taxonomy/index.html?nscl=Live+Births+and+Stillbirths#tab-data-tables> accessed 21 July 2015. 5 Adoption and Children Act 2002, sch 2, paras 2 and 4. 6 F Pacheco and R Eme, ‘An Outcome Study of the Reunion Between Adoptees and Biological Parents’ (1993) 72 Child Welfare: Journal of Policy, Practice, and Program 53–64; M Sobol and J Cardiff, ‘A Sociopsychological Investigation of Adult Adoptees’ Search for Birth Parents’ (1983) 32 Fam Relat 477–483. 7 See ‘If You Were Conceived Between 1 August 1991 and 31 March 2005’ <http://www.hfea.gov.uk/5525.html> accessed 21 July 2015. In this period, donors were not required to provide identifying information to clinics. This information can only be made available to donor-conceived individuals if the donor has contacted the clinic subsequent to the donation and provided contact information. 8 See ‘If You Were Conceived on or after 1 April 2005’ <http://www.hfea.gov.uk/5526.html> accessed 21 July 2015. 9 See ‘Get Support and Advice’ <http://www.hfea.gov.uk/114.html> accessed 21 July 2015. 10 Human Tissue Act 2004, s 45. 11 R Collier and S Sheldon, Fragmenting Fatherhood A Socio-legal Study (Hart: Oxford, 2008) 7. 12 Ibid. 13 W Marsiglio and R Hinojosa, ‘Managing the Multifather Family: Stepfathers as Father Allies’ (2007) 69 J Marriage & Fam 862. 14 B Simpson, J Jessop, and P McCarthy, ‘Fathers after Divorce’ in A Bainham, B Lindley, and M Richards (eds) Children and Their Families: Contact, Rights and Welfare (Hart, Oxford 2003); GB Wilson, ‘The Non-resident Parental Role for Separated Fathers: A Review’ (2006) Int J Law Policy Family 1. 15 There is a raft of case law on these issues, but one pertinent case is The Leeds Teaching Hospitals NHS Trust v Mr A, Mrs A and Others [2003] EWHC 259 (QB); [2003] 1 FLR 1091 in which sperm from two men was mixed up, and Mrs A's eggs were fertilised with Mr B's sperm. The court found that Mr B was the legal father. 16 Collier and Sheldon (n 11), 199. 17 Ibid. 18 H Draper and J Ives, ‘Paternity Testing: A Poor Test of Fatherhood’ (2009) 31 JSWFL 407, 418. 19 V Ravitsky, ‘Conceived and Deceived: The Medical Interests of Donor-Conceived Individuals’ (2012) 42 Hastings Cent Rep 17, 22. 20 J Feast, ‘Using and Not Losing the Messages from the Adoption Experience for Donor-Assisted Conception’ (2003) 6 Hum Fertil 41, 45. 21 N Cahn, ‘No Secrets: Openness and Donor-Conceived “Halfsiblings”’ (2011) 39 Cap U L Rev 329, 339. 22 Draper and Ives (n 18), 408. 23 Ibid. Draper and Ives apply this to fathers and consider the notion of ‘moral fatherhood’. 24 E Kübler-Ross, On Death and Dying (Routledge: London, 1989). 25 Administration of Estates Act 1925, s 46. 26 Family Law Reform Act 1987, s 1. 27 The frameworks are established in Part 1 of the Act. These provisions apply to England and Wales only. 28 Human Tissue Act 2004, s 3. 29 Human Tissue Act 2004, s 1. 30 Human Tissue Act 2004, sch 1, part 1(4). 31 Nominated representatives are appointed under the rules laid out in section 4 of the Act. 32 Human Tissue Act 2004, s 3(6). 33 Human Tissue Act 2004, s 27(4) and s 54(9). 34 Human Tissue Act 2004, s 5. 35 The rest of the human tissue regime in Scotland is found within the Human Tissue (Scotland) Act 2006. This Act has a different framework to that found within the English legislation. Section 45 straddles two regimes that are underpinned by different conceptual frameworks. 36 Human Tissue Act 2004, s 45(3). 37 Human Tissue Act 2004, sch 4, para. 2(3)(b). 38 For further discussion of this point, see Francis Bennion, Statutory Interpretation (Butterworths: London, 2nd edn, 1992), 805. 39 Ibid, 809. 40 See CM v the executors of EJ's estate [2013] EWHC 1680 (Fam). 41 Royal College of Physicians and Royal College of Pathologists Joint Committee on Medical Genetics, Report on Consent and Confidentiality in Clinical Genetic Practice: Guidance on genetic testing and sharing genetic information (2011) <https://www.rcplondon.ac.uk/sites/default/files/consent_and_confidentiality_2011.pdf> accessed 21 July 2015. 42 Ibid, 26. 43 R Wilkinson, ‘Genetic Information: Important But Not Exceptional’ (2010) 3 Identity in the Information Society 457. 44 For example, see A Sarata, Genetic Exceptionalism: Genetic Information and Public Policy (Congressional Research Service Report for Congress 2008); M Richards, ‘How Distinctive Is Genetic Information’ (2001) 32 Stud Hist Philos Biol Biomed Sci 663; M Green and J Botkin, ‘Genetic Exceptionalism in Medicine: Clarifying the Differences Between Genetic and Non-genetic Tests’ (2003) 138 Ann Intern Med 575. 45 Human Genetics Commission, Inside Information (May 2002) [3.50]–[3.61]. 46 See G Laurie, Genetic Privacy: A Challenge to Medico-legal Norms (CUP: Cambridge, 2004) for a more detailed discussion. 47 See ‘Consent and the Use of DNA FAQs’ <http://hta.gov.uk/licensingandinspections/sectorspecificinformation/dna/consentandtheuseofdnafaqs.cfm> accessed 21 July 2015. 48 Ibid, and ‘Flowchart B’ <http://hta.gov.uk/licensingandinspections/sectorspecificinformation/dna/dnaconsentflowcharts.cfm#B> accessed 21 July 2015. 49 Human Tissue Authority, ‘Code of Practice on Consent 1’ (2014) <http://www.hta.gov.uk/_db/_documents/Code_of_practice_1_-_Consent.pdf> accessed 21 July 2015. 50 Ibid, para. 168. Emphasis added. 51 Human Tissue Act 2004, s 16. 52 Human Tissue Act 2004, s 17. 53 Ibid. 54 Human Tissue Act 2004, s 18. 55 Human Tissue Act 2004, s 25. 56 Partners are defined in section 54(8) of the Act as two people, whether same sex or opposite sex, who live together in an enduring family relationship. 57 Human Tissue Bill Deb 11 October 2004, cols 1-56GC. 58 Ibid, col 3-4GC. 59 Ibid, col 3GC. 60 Ibid. 61 Thanks to Gill Haddow and other attendees at the Mason Institute seminar who raised and discussed this point. 62 Person designated under the Act. See above. 63 Personal communication with a person designated under the Act at the Trust. 64 Births and Deaths Registration Act 1953. 65 [1972] AC 24. 66 See also Family Law Reform Act 1926, s 26. 67 Human Tissue Act 2004, s 26. 68 Human Tissue Act 2004, s 28. 69 A signed version of the will became available subsequently. 70 Appointing a nominated representative, Human Tissue Act 2004, s 4. 71 The DI is referring to the list of qualifying relationships as set out in s 54(9) of the Human Tissue Act 2004. His error here is in treating the list as a hierarchical list and seeking a decision from the person highest up the list. This explains his concern about whether there was a nominated representative who would also have a role to play. As we have shown, the list is not hierarchical in relation to DNA analysis, and further, nominated representatives have no role to play. 72 Email to the DI from the Human Tissue Authority. 73 [2013] EWHC 1680 (Fam). 74 Ibid [20]. 75 [1979] 1 WLR 278. 76 ibid, 282. 77 Re Racal [1981] 1 AC 374, 383, per Lord Diplock, interpreting Anisminic v Foreign Compensation Commission [1969] 2 AC 147. 78 See Section III above for the text of section 45. 79 HL Debates 11 October 2004, vol. 665, col1-55GC, 27GC. 80 ibid. 81 Human Genetics Commission (n 45). 82 ‘Prince Harry Honey Trap Allegations’ (BBC News 15 December 2002) <http://news.bbc.co.uk/1/hi/uk/2577539.stm> accessed 21 July 2015. 83 Human Genetics Commission (n 45). 84 Ibid [3.60]. 85 Information received from the CPS in response to requests made on 27 November 2014 and 1 December 2014 under the Freedom of Information Act 2001. The CPS could not release any other details about the case because they were of a sensitive and personal nature. 86 Police and Criminal Evidence Act 1984, pt V. 87 Police and Criminal Evidence Act 1984, s 64ZN. 88 See In the matter of Z (children) [2014] EWHC 1999 (Fam). 89 C Sunstein, ‘On the Expressive Function of Law’ (1995–1996) 144 U PA L Rev 2021, 2053. 90 Ibid, 2044. 91 Ibid, 2050. 92 Ibid, 2045. 93 Human Genetics Commission (n 45). 94 See Human Tissue Act 2004, sch 4 [13], which enables the secretary of state to amend paragraphs 5, 7 and 8 of schedule 4. © The Author 2015. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Medical Law Review Oxford University Press

IN SEARCH OF A FATHER: LEGAL CHALLENGES SURROUNDING POSTHUMOUS PATERNITY TESTING

Medical Law Review , Volume 23 (4) – Oct 1, 2015

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Publisher
Oxford University Press
Copyright
© The Author 2015. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oup.com
ISSN
0967-0742
eISSN
1464-3790
DOI
10.1093/medlaw/fwv032
pmid
26547085
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Abstract

Abstract This article interrogates the workings of the Human Tissue Act 2004, as it applies to paternity testing by DNA analysis after the death of the putative father. We use a case series methodology more usually seen in medical research, through which we present three real case studies involving posthumous paternity testing of retained tissue. We argue that the criminal offence in section 45 of the Human Tissue Act 2004, which is being used to regulate this activity, is inappropriate and inadequate to do so. The threat of the shadow of the criminal law is too blunt an instrument to address the subtleties of the issues that arise in the context of posthumous paternity testing. We call for reform of the Human Tissue Act 2004 and the creation of a specific exception to properly deal with requests of this nature. This article explores the legal framework that applies where paternity testing is sought after the putative father's death. Drawing on case series methodologies usually seen in medical research, we present three real—anonymized—case studies that we use to interrogate the workings of the Human Tissue Act 2004 (‘the Act’) as it applies to posthumous DNA testing for paternity. This methodology allows us to explore the relationship between law and policy as written, and law and policy in action. These real cases present a series of issues not easily predicted in the more usual hypothetical scenarios used in legal research, highlighting that there is nothing more complicated than real life. This methodology is particularly helpful in considering the Act, where the breadth of its application was not fully worked out prior to its enactment. We argue that the criminal offence in section 45 of the Act that applies to these activities is too blunt an instrument to be useful in this context, since it cannot provide a forum for the factors relevant to paternity testing to be considered before a decision is made. We argue that a law can be constructed to both prohibit DNA analysis without consent and to facilitate DNA analysis after death, but it needs to be done explicitly with core objectives in mind that reveal the contours of legitimate and illegitimate claims. We make recommendations for changes to the law that would address these concerns. We do this as follows: Section I outlines the scale of the problem of posthumous paternity testing. Section II considers some reasons why paternity testing might be sought after death. Section III argues that the applicable legal framework is section 45 of the Act and identifies a small but important conflict between the law and the relevant Human Tissue Authority guidance. In Section IV, we present our case series that exposes the limits and deficiencies in the current framework. Specifically, we show that the law fails to accommodate the realities of family relationships and interconnecting ties. Section V discusses the implications of the conflict found in the framework and the impact on personnel involved in offering DNA tests after death and those seeking these tests. Section VI explores the wider question of whether the criminal law is suitable to provide a legal framework for DNA analysis after death. We conclude with some recommendations for reform of the law. I. MISATTRIBUTED PATERNITY Approximately 30,000 children born in the UK each year will never meet their biological father. Of them, 4,000 will have been adopted1 and 1,300 will have been conceived using donor sperm.2 The remaining 26,000 children are victims of misattributed paternity—the man named on their birth certificate is not their biological father. A systematic review of the evidence has shown that paternity will be misattributed in around 3.7% of births.3 With over 700,000 births each year, this amounts to 26,000 cases of misattributed paternity.4 Adopted children have the right to apply for information that will enable them to obtain a copy of their original birth certificate under schedule 2 of the Adoption and Children Act 2002. The Registrar is required to inform people that counselling services are available for people seeking their biological parents and those adopted prior to 12 November 1975 cannot receive any information until they have discussed their request with a counsellor.5 Research throughout North America has demonstrated that if adoptees wish to identify biological parents, they can gain significantly in the areas of self-concept, self-esteem, emotional outlook and their ability to relate to others.6 Donor-conceived children also have the right to seek information about their biological parents. Once they have reached the age of 16 years, children born between 1991 and 2005 can apply to the Human Fertilisation and Embryology Authority (‘the HFEA’) for anonymized information about their donor and their donor-conceived siblings. At age 18, they can apply for identifying information, which will be made available if the donor has reregistered with and provided the clinic with new contact information.7 Anyone conceived after 1 April 2005 can apply, on their 16th birthday, for anonymized information about their donor, and for the identifying information on their 18th birthday.8 It is recognised that this is important to donor-conceived individuals but also that it is a significant undertaking. The HFEA provides support and recommend counselling before seeking information about donors and donor-conceived siblings.9 The rights of children with misattributed paternity to trace their father are limited to those available in the Human Tissue Act 2004 (‘the Act’). Paternity testing prior to the putative father's death requires his consent, which necessitates some acknowledgement of the possibility of his paternity. After his death, consent can only be given by someone in a qualifying relationship to him, which is usually a family member.10 The decision to permit or refuse paternity testing in the case of a deceased putative father forms part of the remit of the Designated Individual (DI) who is appointed under the Human Tissue Act 2004. Any support available is limited to that which he or she can provide. II. FATHERHOOD, LAW AND POSTHUMOUS PATERNITY TESTING Richard Collier and Sally Sheldon argue that there is an important distinction between fatherhood and paternity.11 Paternity refers to the biological fathering of a child, whereas fatherhood is a much broader notion that can be founded on other connections. It is a ‘social construction through which the law has sought to attach men to children’.12 The legal conception of fatherhood has changed dramatically as families have become more diverse, encompassing formal and informal stepfamilies,13 geographically distant and divorced families,14 and adoptive and donor-conceived families,15 for example. There is, however, a strong focus on the genetic connection between a father and child, and advances in paternity testing have made the courts more open to the notion of testing outside the existing family unit.16 Collier and Sheldon argue that this is in part due to the shift in reasons for requesting paternity testing. Historically, it was sought to secure a financial contribution from a reluctant father, whereas latterly tests are requested by a father to support a claim for paternal rights and responsibilities towards the child.17 In a culture that appears to value social fatherhood, the importance of the genetic connection to the law has continued to grow. Notwithstanding that, there is no necessary link between the two types of connections, a social father does not need to evidence a genetic connection in order to be considered a father nor does the presence of genetic fatherhood guarantee an opportunity to be a social father. This is particularly important in the case of paternity testing occurring after the (putative) father's death. There is very little research addressing the question of why posthumous paternity testing might be sought. However, Heather Draper and Jonathan Ives set out the situations in which paternity testing might be sought while the father is alive,18 and we suggest that these apply, with some modifications, to the case where paternity testing is sought after the father's death. Paternity testing might be sought by, or for, the child in his or her own interests. While there is no chance of forming a relationship with the father, it might be possible for a child to form relationships with any paternal relatives, such as grandparents or aunt and uncles. For a child—or an adult child—seeking testing on their own behalf, it has been shown that there is an important psychological value in knowing one's own genetic heritage. Some individuals report feeling ‘frustration in being thwarted in the search for their biological fathers’.19 It is also important on a practical level since it provides family history information that will be relevant to healthcare and an individual's reproductive choices. Many researchers have concluded that a person has a ‘right to know’, which is justified both on medical20 and psychological grounds.21 Arguably, this right to know is best triggered by a competent child, or adult child, who has a sufficient emotional understanding of what they are seeking. However, a mother or other relative might pursue paternity knowledge on behalf of a child to promote his or her interest in knowing and having the chance to form a relationship with their paternal relatives, and/or in knowing their medical history. Paternity testing might be sought by the mother, guardian or the paternal relatives, without specific reference to the child's interests. For example, where the deceased man is not recorded as the child's father on his or her birth certificate, the paternal relatives might be keen to establish parentage in order to consider whether they wish to start or continue any relationship with the child. The mother might seek testing in order to help her decide whether to try to continue any relationship that the child might already have with the father's relatives. This, of course, implies that the only connection that might lead to a relationship is a biological one. We agree with Draper and Ives that ‘father denotes more than this’,22 and we think that this is equally true of other vertical and horizontal relationships, such as uncles, aunts and grandparents. If a grandparent has already formed a ‘moral’23 relationship with the child, then they should be considered as grandparents, irrespective of whether there is a biological relationship between them. Furthermore, it is important not to ignore the impact of the father's death. Many of these questions will only be raised in the context of a deceased father. Some of them might be raised as a direct result of a grief reaction. Exploring the Kübler-Ross24 model of grief comprising of five stages that can be experienced in any order—denial, anger, bargaining, depression and acceptance—it is possible that a grieving relative might question a child's paternity as part of the denial, anger or bargaining phases of grief. Finally, paternity testing might be sought by the child, other relatives or an administrator in intestacy to resolve questions relating to inheritance. Where the father has died intestate, his ‘issue’ is a category of the ‘statutory next of kin’ who will inherit some of his estate.25 This includes any illegitimate children.26 In this instance, establishing the biological connection is the paramount consideration. We make no comment on whether paternity testing should be offered in any of these cases. Rather, this account demonstrates that posthumous paternity testing is not only a complex and subtle issue but one that requires clarity within the law. The decision to offer paternity testing may need to take account of the reasons for seeking testing, as well as the implications for all parties of performing a test. This is especially important in the context of posthumous tests, since—unless provided for in advance of his death—the father can make no contribution to the decision. As we demonstrate below, the law has thus far failed to contend with the challenges of posthumous paternity testing. III. THE LAW ON PATERNITY TESTING FOR MISATTRIBUTED PATERNITY AFTER THE PUTATIVE FATHER'S DEATH There are two frameworks within the Human Tissue Act 2004 (‘the Act’), which might regulate posthumous paternity testing through DNA analysis. The main provisions of the Act27 set up a consent-based framework, where ‘appropriate consent’28 is needed for the removal, storage and the use of human tissue29 for several purposes including ‘obtaining scientific or medical information about a living or deceased person which may be relevant to any other person’.30 Paternity test results, or results from DNA analysis more generally, could amount to medical information relevant to another person, and thus fall within the purposes found in schedule 1 to the Act. Where the person from whom the tissue has been taken is deceased, the appropriate consent is (a) their consent if they made a decision prior to their death, (b) the consent of their nominated representative31 or (c) in the absence of consents that fulfil a or b, the consent of someone in a qualifying relationship to the deceased person.32 The list of qualifying relationships is found in section 54(9) of the Act, and for the purposes of appropriate consent, the list is strictly hierarchical, which means that a decision must be sought from the person highest up the list, and it stands irrespective of whether it is a consent or a refusal. The hierarchy is as follows: Removal, storage or the use of human tissue for any of the scheduled purposes without appropriate consent is a criminal offence that attracts a penalty of the statutory maximum fine if convicted summarily, and a penalty of 3 years imprisonment and an unlimited fine if convicted on indictment.34 spouse or partner; parent or child; brother or sister; grandparent or grandchild; child of a person falling within paragraph (c); stepfather or stepmother; half-brother or half-sister; friend of longstanding.33 The second framework that is relevant to posthumous paternity testing by DNA analysis is found in section 45 of the Act, which provides: Having tissue, with the intention that DNA will be analysed for the purposes of establishing paternity, is sufficient to constitute the offence. This section has UK-wide application, and it is the only section in the Act to apply in Scotland.35 The offence carries the statutory maximum fine on summary conviction, and if convicted on indictment carries a maximum custodial sentence of 3 years and/or the statutory maximum fine.36 If qualifying consent is in place, then there is no offence. A person commits an offence if— he has any bodily material intending— (i)   that any human DNA in the material be analysed without qualifying consent, and (ii) that the results of the analysis be used otherwise than for an excepted purpose, the material is not of a kind excepted under subsection (2), and he does not reasonably believe the material to be of a kind so excepted. The definition of ‘qualifying consent’ for the purposes of section 45 is contained within schedule 4 to the Act. Paragraph 2(3) provides that where the material to be tested comes from a person who died as an adult, the necessary qualifying consent is that of the person themselves, or the consent of a person who stood ‘in a qualifying relationship to him immediately before he died’.37 The list of qualifying relationships is the same as that which applies where consent is given for removal, storage or the use of human tissue for scheduled purposes, as set out above. In the context of DNA testing, this list is not hierarchical, and qualifying consent can be given by any person on this list. These two separate frameworks, while not in direct conflict with each other, are inconsistent. Where DNA analysis is to be carried out on tissue from a deceased person who made no decision prior to their death, the two frameworks require different actions to be taken. If section 1 and schedule 1 part 1(6) apply, then a decision must be sought from the person highest up the list of qualifying relationships. If that decision is a refusal, it will stand. If section 45 applies, then any person on the list can give consent. This further implies that refusals will not stand if there is someone else who seeks to consent. The two overlap to some extent, in that a consent that meets the requirements for section 1 will also meet the requirements for section 45. However, if the highest qualifying relative refuses to consent, respecting that refusal is sufficient to comply with section 1, but would be non-compliant with section 45. Since non-compliance with both sets of provisions amounts to a criminal offence carrying a significant penalty, it is essential to provide some clarity on this inconsistency. We would argue that the relevant and applicable framework is that contained within section 45 of the Act. It is an accepted rule of statutory interpretation that an Act of Parliament is to be read and understood as a whole. Where there are conflicting provisions within an Act, they are to be read together and a combined understanding of the Act is to be put forward.38 Particularly, according to Bennion, where two provisions appear to conflict, they are to be treated as if one is modifying the other.39 We would argue that there is a straightforward way to read this Act, which removes this apparent inconsistency. The inconsistency hinges solely on whether DNA test results amount to medical information sought for the benefit of another, thus falling within the remit of schedule 1 part 1(6), and section 1. Arguably, they do. However, they are one small subset of a larger category of information, for example, where blood from a deceased person is tested for HIV so as to inform another person about their risk, the results are medical information that have been sought for the benefit of another.40 This would be the case for the results of any test for an infectious disease carried out after death. Section 45 applies only to DNA analysis. It makes no distinctions beyond that, and there is no further restriction on the source of tissue, for example. We would argue that section 45 creates a separate framework dealing exclusively and exhaustively with DNA analysis. The framework in section 1 and schedule 1 part 1(6) can, therefore, be said to apply to all medical information sought for the benefit of another, except DNA analysis, which is addressed by section 45. We argue that reading the Act as a whole in this way removes the inconsistency and appropriately reflects the legislative intention. In addition to this interpretation's preference for section 45, it is apparent that those practising in the area of DNA analysis are practising on the basis of section 45, rather than the provisions in section 1 and schedule 1 part 1(6). The Royal College of Physicians and the Royal College of Pathologists Joint Committee on Medical Genetics Report on Consent and Confidentiality in Clinical Genetic Practice41 advises that ‘special rules’42—those in section 45 of the Act—apply to the tissue held for the purpose of analysing DNA. This tissue is not, in their view, governed by the provisions regulating the ordinary uses of tissue found in section 1 and schedule 1 part 1. The Human Tissue Authority's guidance, discussed below, also works on the basis that DNA analysis is regulated by section 45. This reading of the Act makes a distinction between genetic information and other health information, and the creation of a specific framework to regulate it implies that genetic information is special in some important way.43 There is lively debate in the literature addressing what exactly makes genetic information exceptional; however, the answer is yet to be identified to the satisfaction of commentators.44 It is apparent from the Human Genetics Commission report Inside Information that the prevalent concern justifying the enactment of section 45 was the potential for surreptitious DNA analysis on samples collected without a person's knowledge.45 The ease of collection and the potential for damage to result from the analysis were sufficient to justify a separate regulatory framework. The question of what is special about genetic information is a live one, but a full answer is outside the scope of this article. Arguably, however, there are very specific harms to privacy46 that might arise from non-consensual DNA analysis such that a separate regulatory framework was considered necessary. In addition to the provisions in the Act, the Human Tissue Authority (‘the Authority’) provides some guidance about consent for paternity testing on their website.47 They advise that qualifying consent is necessary, and that in the case of adults this is the consent of the individual whose material is to be tested, and where that adult has died without making a decision, the consent of someone in a qualifying relationship is needed.48 Those seeking further clarification on the meaning of a qualifying relationship are directed to the Authority's Code of Practice on consent.49 They are not directed to the specific sections of the Code on DNA testing, and the guidance makes no attempt to link DNA testing to paternity testing. Paragraphs 167–170 outline the guidance on seeking DNA testing. They advise that when someone has died, a person ‘in a qualifying relationship who was close to them at the point of death’50 can give consent for the test. The guidance refers to the list of qualifying relationships as laid out in section 54(9) of the Act and explains that the list is not hierarchical as regards DNA testing, and that anyone on the list can give the relevant consent. This echoes the rule in section 45 of the Act, rather than the provisions found in section 1 and schedule 1 part 1(6). The emphasised words indicate an additional requirement for being able to give consent to paternity testing, in that a person in a qualifying relationship with the deceased has also to have been close to the deceased at the time of their death. No further guidance is given as to the meaning of ‘close to’. The practical ramifications of this additional requirement are explored in detail in the case series presented in Section IV. In addition to the specific rules found in section 45 of the Act, there is a further set of provisions that will be applicable to these cases. DNA testing after death requires the removal of tissue from a body in order to perform the analysis. Any institution dealing with human tissue in this way must be licensed by the Human Tissue Authority.51 The licence authorises a Designated Individual (‘DI’) to carry out specified activities with human tissue, such as post-mortem examinations.52 The DI can designate other persons to whom the licence applies, such as all the other members of a pathology department involved in providing pathological services. These ‘Persons Designate’ (‘PD’) are given authority to act by the licence.53 The DI carries ultimate responsibility for securing the suitability of the PD to carry out the licenced activity, that suitable practices are used in carrying out the relevant activity and that the licence is complied with.54 The DI is personally liable for any breaches of the licence requirements by him or herself and by any PD. Breach is also a criminal offence carrying a penalty of the statutory maximum fine on summary conviction or on indictment a fine and/or imprisonment for up to 3 years.55 Several prosecutions could be brought under the Act in relation to a single instance of posthumous DNA analysis to establish paternity. Anyone involved in the collection or storage of tissue could be prosecuted under section 45 so long as they also had the intention that DNA would be analysed without qualifying consent. If the tissue is collected with the express intention of carrying out DNA analysis, then that would be sufficient to constitute the offence, and the individual who collected the tissue could be prosecuted. However, it is unlikely that any individual pathologist or mortuary technician who collects tissue would have the requisite intention, since they are unlikely to have intended that the DNA would be analysed at the time of collection. Once collected, the DI is the person responsible for holding the tissue. The intention to analyse DNA for paternity testing would be formed at a later date when the test is requested by a person seeking information about paternity. Since these requests are to be handled by the DI, who is responsible for holding the tissue, the offence is committed when the DI forms the intention to analyse the DNA without the necessary qualifying consent. It is most likely that a prosecution would be brought against a DI under section 45. In addition, if the offence is committed, or a DNA test is actually carried out without the necessary qualifying consent, this is likely to amount to a breach of the licence conditions, for which the DI is personally responsible under the criminal law. If non-consensual DNA analysis were carried out in a pathology department, it would likely be in the absence of a proper process, since a proper process would at a minimum have to ensure that there were adequate provisions for seeking consent. As highlighted above, the DI is responsible for ensuring that proper processes are in place, and failure to do so amounts to a breach of the licence conditions. The DI could be prosecuted for those breaches. As indicated, there is a subtle but important difference between the provisions in the Act and the guidance issued by the Authority, on when DNA analysis after death will be appropriate. In the following section, we present three case studies that highlight the significant issues raised by this apparently minor conflict between the Act and the Authority's guidance. We outline each case and the solution that was implemented. We then consider how the case might have been addressed under the Act itself, and then under the Authority's guidance. IV. CASE STUDIES The following case studies were provided to us by the DI from an NHS Foundation Trust in England. We have anonymized them. The relevant NHS Trust had approximately 1,000 acute beds and handled around 3,000 deaths each year. Some of these were deaths in the community referred for autopsy. It provided pathology services to a second local hospital giving a total non-post-mortem workload of about 55,000 samples a year, tissue from all of which were retained for 10 years. This Trust held a large amount of material from local residents which could be used for paternity testing should someone make a request. The DI was an experienced Consultant Pathologist with considerable experience in research ethics. He was appointed to the DI role in 2006 in order to apply for a licence for the NHS Trust under the Act. The licence was granted in September 2006, and the DI had remained in post since that time. A. Case 1: Multiple Partners Mr B was deceased. Miss A approached the DI directly and asked if he would release tissue from Mr B to allow paternity testing to confirm that Mr B was the father of her child, master A/B. The DI ascertained that Miss A and Mr B had been in a relationship for several years before Mr B's untimely death in a road traffic accident; they shared a mortgage on the house, and Mr B was named as the father on master A/B's birth certificate. Miss A wished to organise the testing because Mr B's parents were questioning master A/B's paternity. The DI decided that the relationship satisfied the Authority's definition of a ‘partnership’56 and agreed to the testing. Before the testing took place, a solicitor acting on behalf of Miss C contacted the DI and advised that such testing would, in his opinion, constitute unlawful DNA analysis under section 45 of the Act. The reasoning was that Miss C was in an identical relationship with Mr B and also had a child, master C/B. The solicitor further argued that since Mr B stayed with Miss C four nights a week as opposed to the three nights he spent with Miss A, Miss C's rights took priority. 1. Solution Implemented The solicitor and the DI agreed that the issues raised by Mr B's parents might have represented the anger phase of a grief reaction, and, if master A/B were tested, the focus might have moved onto master C/B; thus, it was in the interests of both the children to be tested. The solicitor approached Miss C with this argument, she agreed and both the children were tested. 2. Solution Based on the Law The deceased had not consented to paternity testing prior to his death. Therefore, to avoid prosecution under section 45 of the Act, consent was needed from someone in a qualifying relationship to the deceased. As explained above, the list of relationships is not hierarchical in the context of DNA analysis. The solicitor's discussion of ‘rights’ is misleading. The Act does not give a ‘right’ to consent. Rather, it is better understood as a situation in which some persons are endowed with legal authority to permit behaviour. Miss C's legal authority to permit DNA analysis has no impact on Miss A's legal authority to permit DNA analysis so long as both of them were in a qualifying relationship with Mr B. They both met the requirement of being in an enduring family relationship with Mr B since they both lived with him, albeit on a part-time basis, and had a child together. Both Miss A and Miss C could give consent for the testing of Mr B in order to confirm the paternity of any children in question, whether that was master A/B, master B/C or another child. There might be some difficulty if one partner were to consent while the other refused. The Act makes no provision for how to deal with conflicting decisions from those in similar relationships, when the list of qualifying relationships is non-hierarchical. However, the question has been addressed in relation to other uses of tissue, when the list of qualifying relationships is to be treated as strictly hierarchical. In these cases, section 27(7) of the Act provides that where there are several people in the highest ranking relationship, the consent of any one of them will be sufficient. On one view, this means that it is not necessary to seek consent from everyone in the relevant relationship with the deceased because a decision from one of the possible candidates will be sufficient. Alternatively, it could be interpreted to mean that so long as one person consents, refusals from the others will not carry legal force. This issue was explicitly considered in the Grand Committee debates about the Human Tissue Bill.57 Lord Warner58 argued on behalf of the government that amending section 27(7) to recognise a person's refusal to consent to the tissue use would amount to providing a power to the refuser to veto the tissue use, even where there were other relatives who were seeking to consent. He argued further that a veto of this sort would hamper medical research, which would undermine the purpose of the Bill itself. The government's view was that the consent of one person would make the human tissue use lawful but would not make it obligatory, and that it would be expected that doctors might hesitate before going ahead. Lord Warner stated that this problem of conflict between relatives was one which would be ‘best managed … by those dealing with families sensitively on the ground, supported by such careful guidance as the Human Tissue Authority can produce’.59 Most importantly, he finished by stating that the government did ‘not want to impose, inadvertently or otherwise, an inappropriate right of veto in this area’.60 Section 27(7) was not amended, and we think that it is clear that Parliament's intention here was for consents to be preferred over refusals, and that refusers should not be able to veto the use of human tissue. This discussion was held in relation to situations in which the list is hierarchical. We would argue that this principle should also apply in the situations where the list is non-hierarchical, such as regarding DNA analysis. The designation of the list as non-hierarchical already prefers consent to refusal, since consent from any person on the list is sufficient to authorise the test. Where the list is hierarchical, a refusal from a person at the top of the list stands, and consent from another cannot change that, except where consent might be provided by someone of the same rank as the refuser. In the context of DNA analysis, this does not apply because there is no ranking. It would be perverse, therefore, if the principle that consents were preferable to refusals did not also apply here, since it would arguably impose an inappropriate right to veto DNA analysis being carried out. It is our view that, if there are several people in the same relationship to the deceased person, the consent from any one of them should be sufficient. We would argue that consent from either Miss A or Miss C would be sufficient to authorise the DNA testing of Mr B for all questions of paternity. 3. Solution Based on the Authority's Guidance An additional level of complexity is added by the requirement for ‘close to’. So long as both Miss A and Miss C were partners of Mr B, consent from either one could suffice for the consent to lawfully authorise the testing. However, the Authority's guidance requires them to show that they were ‘close to’ Mr B at the point of his death. The Authority offers no advice on how they would interpret ‘close to’, but at a minimum we argue that this would require an assessment of the quality of the relationship between the parties. We think this is necessary in order to take this requirement seriously. This does entail a qualitative investigation into the nature of the relationship in question. This will be context specific, and as such it is difficult to create guidance on the criteria that must be met. It is not clear whether ‘close to’ has a relative element, so Miss C might want to argue that she was closer than Miss A to Mr B since he spent more of the week with her. Miss A might argue that despite the shorter amount of time per week, the quality of their relationship was deeper and closer than that between Miss C and Mr B. Further, we argue that any assessment of the quality of a relationship is necessarily subjective, and therefore its application is uncertain. This adds a significant burden on those seeking paternity testing after death. It also adds a significant burden on the DIs responsible for deciding whether to offer the tests. Investigating the nature of a relationship is likely to be outside their usual expertise. It may require a significant time commitment to be done properly. The decision itself carries significant weight since it could be the basis for allowing or refusing to carry out DNA analysis. Thus, the decision could be the subject of challenges from those seeking the tests. Part of the difficulty in discussing the requirement of closeness is that it is not clear how the Authority intends closeness to be used. It may be that it is a way of distinguishing between different parties with the same relationship, such as Miss A and Miss C, so that the person whose relationship is closest has the best legal authority to permit or refuse to permit the test to go ahead. This seems to fit closely with the argument made by Miss C's solicitor in challenging the test. However, if we are correct in our argument, made above, that consent is preferred to refusal, and, as we outline above, we think it is reasonable to extrapolate from the use of the hierarchical list to the use of the non-hierarchical list, then there is no need to find a way to distinguish between people of similar relationships. The consent of one partner is enough, irrespective of whether the other refuses. Alternatively, the closeness requirement could operate as a threshold requirement that would create another non-hierarchical list of persons able to give consent to DNA analysis. So, if Miss A passed the test, and Miss C failed it, then the result would be that Miss A could consent, but that Miss C could not. It would act as a way to narrow down a larger list of those able to consent, giving greater certainty to doctors seeking consent. The best consent, the one that can be safely relied on by doctors offering testing is someone who passes this threshold of closeness. Looking through a legal lens, this is unnecessary, and it purports to add an additional requirement not envisaged or intended by Parliament. This is problematic since it is not clear that the Authority has the power to change the rules in a way contrary to Parliament's intentions. Finally, it could be argued that the list of qualifying relationships approach favoured by the Act takes a narrow view of what is important in a relationship—its label. What the Authority's requirement of closeness attempts to do is challenge the starkness of the list by emphasising looking behind the label to the actual nature of the relationship. If this is the case, then it is to be commended.61 However, irrespective of the intention behind the requirement, its effect is to further complicate an already complex issue. Its impact may be to deny access to DNA analysis in situations where it would be lawful to offer it. Given the importance of the results of DNA analysis to those who have requested it, we would argue that anything that denies access unnecessarily, and without any legal basis, is problematic. B. Case 2: Deathbed Confessions In the final moments of her life, Mrs D confessed to her son (D) that at the time of his conception she was having an extra-marital relationship and thus was uncertain about the identity of his biological father. He was, not surprisingly, affected by the news. He enquired of the DI whether tissue from his also-deceased father (as named on his birth certificate) could be used to establish the truth of his mother's confession. Mrs D had other children who had a poor relationship with their brother, D. Mrs D had told her son that she had kept this secret for his whole life and specifically requested that he did not divulge it to his sisters. 1. Solution Implemented The DI was absent at the time the request was made and a PD62 sought advice from the Authority. Their response was that Mrs D's confession had cast doubt on the relationship between her son and his putative (but legally recognised) father and that the relationship should be considered not to exist. D, therefore, had no qualifying relationship with the person named as father on his birth certificate, and testing would not be possible without a court order. Mr D was advised of this.63 The test was not carried out. 2. Solution Based on the Law If D is considered to be in a qualifying relationship to his father as named on the birth certificate, then his consent would be sufficient to authorise testing. If he is not in a qualifying relationship, then another person who is in a qualifying relationship can give the relevant consent to allow the testing to take place. D did have siblings who would also be in qualifying relationships with the deceased; but in D's case, the poor relationship between him and his sisters raised practical problems. It might not have been possible for him to approach his sisters to ask them to consent to the test, and even if he did approach them, they might not have felt able to do so. We would argue that D's position is very clear. The law presumes that if a man appears on a birth certificate, then he is the father of that child for all purposes, unless and until that presumption is rebutted.64 This question was addressed in the joined cases of S v S and W v Official Solicitor65 where it was confirmed that the presumption was rebuttable in civil proceedings if it can be shown that it is more probable than not that the child is legitimate or illegitimate.66 The effect for D is that he is presumed to be in a father/son relationship until the presumption is successfully challenged and rebutted or confirmed in civil court proceedings. There is no obvious policy or social reason why a different presumption should apply in the context of section 45. It follows, then, that D is, until proved otherwise, presumed to be the son of the man named on his birth certificate and, therefore, is in a qualifying relationship for the purposes of consent to DNA analysis for paternity testing. His consent is sufficient to authorise paternity testing on tissue from his deceased father. Given the strength of this statutory rule and the case law, it seems highly unlikely that a court would overturn its application in these circumstances, especially since doing so would deny D knowledge about his genetic origins. 3. Solution Based on the Authority's Guidance The same argument would apply in relation to the guidance that legally D is presumed to be his father's son, until proved otherwise in a court. He would, therefore, be able to consent to the paternity testing since he was in a qualifying relationship to the deceased. It is not clear whether the requirement that he should show he was ‘close to’ his father adds anything here. If the closeness requirement acts as a threshold test to create a subset of persons able to consent to DNA analysis, as we suggested in relation to multiple partners, then proving his closeness to his father could be the difference between being considered able to provide consent, and not being able to consent to DNA testing. If the Authority were to deny him access to paternity testing on the basis of his failure to meet their non-statutory rule requiring closeness, then D might be able to bring a judicial review claim against them for acting ultra vires. The question would be whether the Authority is going outside of its power by creating an additional rule that purports to change the way in which section 45 of the Act applies. While the Authority is statutorily empowered to prepare codes of practice that offer guidance to those carrying out activities involving human tissue,67 this power does not extend to amending or revoking the consent provisions clearly laid out in the Act itself. In addition, where the Authority is empowered to issue guidance, the Act makes it clear that the effect of that guidance is limited, such that no proceedings can be brought against a person for failure to adhere to the Authority's guidance.68 If the DI were to accept D's consent without addressing the question of whether he was sufficiently close to the deceased at the time of death and testing were to go ahead, there would be no scope for the Authority to bring proceedings against the DI or any PD under the Act so long as the DI and PD had complied with the law, that they had sought consent from a person in a qualifying relationship with the deceased person. This case indicates that the additional requirement of closeness has a negative impact on the individual seeking testing, adds an additional burden on DIs to enquire into the nature of relationships and also undermines the Authority's ability to properly regulate its licence holders. C. Case 3: Friend of Longstanding? Ms E and Ms F approached the DI shortly after the death of Mr G in order to discuss whether it would be possible to establish that Mr G was the biological father of Ms E. At a meeting with the DI, it was established that Ms E had believed that she was Mr G's daughter all her life and that he had acted as her father. He had named both Ms E and Ms F by name as daughters in his will. Ms E had cared for him during his last illness and been with him shortly before his death. Ms E sought a paternity test to establish whether Mr G was her biological father. 1. Solution Implemented The DI decided that the paternity testing could be carried out and his reasons were laid out in an email to a bereavement officer subsequent to the meeting: The 2 ladies claim to be daughters of the deceased, and have an, albeit unsigned69, will confirming this as it names them as daughters and defines them as the executors. They clearly stated that the deceased had no surviving spouse but did have a surviving sister. My thinking is, I am not sure if the executor of a will is a nominated representative70 which would place the sisters at the top, but if not they have a strong enough set of evidence for me to believe they are most likely to be the daughters, thus as there is no spouse then they still sit at the highest point in the hierarchy71 above the sister.A month later, Ms G, the sister of Mr G, complained to the Trust about the test, in a letter stating …although [Ms E's] birth certificate reflects another man as her father … .I would like some explanation as to how someone with no means of identity can request such a test and without my permission at this stage and it be carried out.Following this complaint, the DI contacted the Authority and was advised by phone that this might have been non-consensual DNA analysis. Their argument followed that provided in relation to Mrs D above, that the request for paternity testing cast doubt on the acknowledged relationship between Mr G and Ms E, and that therefore she was not in a qualifying relationship to Mr G and her consent was not sufficient to authorise the paternity test. The DI supplied full documentation to the Authority who made a final ruling on the case. They held, In the case you described; where DNA testing was carried out on residual surgical tissue following a request made by daughter F (via a solicitor) defined in the gentleman's Will as his daughter—to determine the paternity of daughter E, I can confirm that the testing was done in accordance with the requirements of the HT Act.72The Authority justified its ruling on the basis that the consent was actually provided by Ms F, and not Ms E. Since Ms F was defined in the will as a daughter, and she was not seeking paternity testing for herself, and had therefore not cast doubt on the father/daughter relationship she had with Mr G, she was considered to be in a qualifying relationship and was able to consent to the test. 2. Solution Based on the Law The question here is again whether Ms E is in a qualifying relationship to the deceased Mr G. We know from Ms G's complaint that Ms E's birth certificate named another man as her father and that section 26 of the Family Law Reform Act 1926 provides that the presumption that Mr G is not her father stands until it is rebutted in civil proceedings. Evidence of Mr G acknowledging Ms E as his daughter may have been sufficient to rebut the presumption in court; but until it had done so, the presumption would stand. Ms E would not be considered to be a daughter of Mr G, for the purposes of consent to DNA analysis. If Ms F's claim to being Mr G's daughter were stronger—ie he was named on her birth certificate, or Mr G had acknowledged her and no other man was named on her birth certificate—then she would be in a qualifying relationship to Mr G and could consent to the testing. Ms G cannot prevent the test being carried out. Her refusal would not override the consent from Ms F since the list of qualifying relationships is not hierarchical and anyone in a qualifying relationship could give consent to the test. She would also be entitled to consent to the test since she was in a qualifying relationship to Mr G. It is also arguable that Ms E could consent to the test in her own right. Another relationship on the list of qualifying relationships is ‘friend of longstanding’. The question of who could be a friend of longstanding was considered in the case of CM v the executors of the estate of EJ.73 In this case, CM had offered roadside resuscitation to EJ, who subsequently died. CM had been exposed to EJ's blood and was concerned about the possibility of contracting HIV. CM sought a blood sample for HIV testing. Mr Justice Cobb held that this was lawful under the Human Tissue Act on the basis of consent from EJ's mother's cousin, OP, who was the closest relative available with whom it was reasonably practicable to communicate. Mr Justice Cobb held that OP fell within the definition of friend of longstanding because he was ‘a reasonably close relative’.74 Whether someone can be found to be a friend of longstanding might better be understood as asking whether there is a connection between them and the deceased person, which makes it legitimate for them to made decisions about the person after their death. In CM v EJ, the connection was a direct family connection, a blood link, however weak. We would argue that other links—non-blood links—could also satisfy the friend of longstanding question. In Re Barlow's Will Trust,75 Mr Justice Browne-Wilkinson held that the minimum requirements for friendship were that the relationship was longstanding, social rather than professional, and when circumstances allowed the parties would meet frequently.76 It is certainly a context-specific question and does require an enquiry into the nature of the relationship in question. While Ms E had no confirmed blood tie to the deceased, she had known him for many years, had cared for him during his last illness and had been with him when he passed away. We would argue that she should be found to be a friend of longstanding on the basis of a combination of the positions taken in CM v EJ and Re Barlow's Will Trust. If this were the case, then she would be in a qualifying relationship to Mr G, and she would be able to consent to the testing. 3. Solution Based on the Authority's Guidance The question here is addressed to the requirement that the person in a qualifying relationship must have been ‘close to’ the deceased at the point of death. Ms E perhaps had the strongest claim here, since she cared for Mr G during his last illness and was with him when he passed away. Since there is no guidance as to what constitutes ‘close to’, we will have to come to our own view as to what would be considered, but this seems likely to pass any requirement for closeness. If Ms E is a friend of longstanding on the reasons provided above, then this arguably strengthened her suitability to consent to the paternity test in her own right. It is not clear what the impact is on the validity of consent of not being able to show that a party was close to the deceased at the point of death. If Ms E had been a friend of longstanding according to the legal definitions but had lived away from Mr G at the time of his death due to other family commitments, she may not have necessarily been able to show that she was close to him at the time of his death. If the closeness requirement acts as a threshold test as we suggest above in relation to multiple partners, those who can show they were close to the deceased become part of a subset considered to be better qualified to consent to DNA analysis. Their consent would appear to carry greater weight with the Authority, for the purposes of avoiding prosecutions under section 45 of the Act. It is not clear what the benefit is of having a rule that creates a second set of potential consenters. We would argue that the rule in section 45 is clear and that the closeness requirement simply confuses the issue. There are real concerns that the framework in section 45 does not take into account the reality of relationships and focusses only on the label attached. If the closeness requirement is intended to address these concerns, then it fails. It might allow the investigation of the nature of relationships, but using the information is problematic. V. THE IMPLICATIONS OF THIS CONFLICT Taken together, these case studies provide a stark illustration of the conflict between the strict legal position, the Authority's written guidance and their direct advice. What might have been dismissed as an interesting but ultimately meaningless anomaly has been shown to have a significant impact on two cohorts of people: individuals seeking paternity testing and DIs considering authorising paternity tests. In respect of individuals seeking paternity testing, the law itself is clear. If we use established principles of family law to clarify the existence of the relationships under discussion, then anyone in a qualifying relationship can give consent to paternity testing, and consent from anyone on the list will prevail. As we have argued above in relation to multiple partners, the designation of the list of qualifying relationships as non-hierarchical means that consent carries greater weight than refusal. Consent from any person on the list will be sufficient to authorise the test. Access to paternity testing is, therefore, both extremely broad and legally certain. The complexity comes from the Authority's general and specific guidance. We see from all three cases that the Authority's approach made it significantly more difficult for Miss A and Ms E, and impossible for D, to access paternity testing. The effect on D is the most concerning; since the legal position is very clear, he was entitled to consent to paternity testing. Yet he was denied a paternity test on the basis of what we argue was a flawed legal argument, namely that the doubt cast on his parentage by the request for paternity testing meant that the relationship was considered not to exist. For the other two cases, while it was ultimately possible for the tests to go ahead, there was a considerable level of legal ‘sleight of hand’ needed to authorise the tests. In multiple partners, the DI concluded that testing both children and seeking consent from both partners was the only way to ensure that testing could be carried out. In the event that one partner had refused, it would have been unlikely that the test could have been carried out without further guidance from the Authority or the NHS Trust's own solicitors on the correct legal interpretation. In friend of longstanding, the Authority relied on consent from Ms F, whose relationship with Mr G was identical to that of Ms E; but since she had not cast doubt on the relationship by seeking testing for herself, her consent was sufficient. This is at best an artificial solution to the problem. While it did make the testing available to Ms E, it did so on an entirely arbitrary basis, which would be subject to challenge if it were to set a precedent. Given that many people seeking paternity testing will not have the services of a solicitor who is knowledgeable about this area of law, it imposes an unnecessary burden on individuals seeking testing and is likely to result in people being denied testing where it would be lawful to provide it. The impact on DIs is also of considerable concern. We have identified significant regulatory complexity. The DI involved in these cases, even with several years of experience, made his decision in the friend of longstanding case on the basis of a flawed understanding of the law. He thought that a nominated representative would be the most appropriate person to consent to DNA analysis. In fact, the nominated representative has no role to play here. He acted on the grounds that the list of qualifying relationships was hierarchical. It is not. He considered that the acknowledged daughters were of higher priority than Mr G's sister and that he could, therefore, rely on their consent over her refusal. Since the list is not hierarchical, he needed a different justification to rely on their consent. Although our DI sought to permit the test, misunderstandings of this nature could result in a DI denying paternity testing where it would have been lawful to allow it. The biggest problem is that mistakes of this nature are understandable. Section 45 is a wholly different regime to that in section 1 and schedule 1 to the Act. The vast majority of a DI's work will be other uses of human tissue, and as such we can expect considerable familiarity with the rules that apply to those activities. We cannot expect the same familiarity with the rules in section 45. While there are a significant number of people who could request posthumous paternity testing, there will be very few that actually do. Unless DIs are aware that posthumous paternity testing is caught by section 45 and that it is a different regime from that which applies to the rest of their work, it is very likely that mistakes will be made and testing will be denied even where it would be lawful to permit it. The decision in multiple partners was challenged by a solicitor, who argued that the views of his client took priority over the other partner. This shows a misunderstanding of the legal framework for paternity testing after death, since even our conservative interpretation of the legal framework, laid out above, allows anyone in a qualifying relationship to provide consent, even where there is another person in the same relationship who wishes to refuse. However, since the solicitor has experience in the law, it would have been understandable for the DI to defer to that experience. One conclusion pointed to by our analysis is that some solicitors acting in this area may not understand the subtleties of the legal framework. If neither DIs nor solicitors understand the law in this area, it might indicate a need for reform. The next issue for DIs is the confusion created by the Authority's advice in specific cases. In deathbed confessions, the DI would have offered the test, and in friend of longstanding, the DI did carry out the test on the basis that the requesters were in qualifying relationships with the deceased. The Authority's understanding of the relationships in question was that they were not in qualifying relationships, and thus the tests could not be done. Irrespective of the legal correctness of their interpretation of the existence of the relationships, this puts the DI in a very precarious position. On the one hand, the DI is empowered to oversee the carrying on of activities covered by the licence in the institution. This necessitates making decisions about what services can and cannot be provided. The DI is not expected to seek advice from the Authority every time a decision needs to be made. But, the personal consequences of a wrong decision are significant. If the decision results in a breach of the licence conditions, or in this case amounts to non-consensual DNA analysis, then the DI carries the personal risk of a substantial fine or imprisonment. It is even more of a concern when we recognise that DIs are not usually legally qualified. Some are medically qualified, but increasingly the role is being occupied by staff with management qualifications. Such DIs may have some administrative experience through service on various hospital committees. But very few aspects of hospital administration will be mired in this level of legal complexity. The Authority's guidance seems to have created a perverse situation in that it significantly undermines the DI's ability to perform the role imposed on him, or her, by the Act. The disproportionately burdensome penalty could make a DI risk-averse, which will mean that more queries will be passed to the Authority for advice, or paternity testing is refused in cases where it would be lawful to provide it. The implications of this are also significant. There are 204 hospitals in England with a human tissue licence under the post-mortem sector of the Authority's business. Each institution will have its own DI. The DI in these case studies has received five such requests over 8 years in the role. If that is representative of the frequency of requests of this nature more generally then that amounts to over 100 requests for assistance each year. If these are all referred to the Authority for advice, then this adds a significant burden of additional work. More problematic is the potential consequences of an increasingly widespread restriction on access to paternity testing. If this is on the basis of what we argue to be flawed legal analysis by the Authority, then this leaves open a considerable chance of legal action being brought against DIs, NHS trusts and the Authority themselves. One obvious route is through a judicial review claim on the basis of excess of jurisdiction by the Authority. Arguably, it is now the settled law77 that any decision or policy based on an incorrect interpretation of the law shows that the decision-maker had directed their mind to the wrong question, so that the decision or policy is a nullity. The remedy for this type of claim would most likely be a quashing order with the result that the decision had to be remade, taking into account the correct legal basis. This could mean that the Authority would have to contact everyone who had been refused testing in this situation and advise the DIs that testing could be lawfully carried out. The DIs would then have to arrange the relevant testing should the requester still be interested in having the information. This takes us back to the impact on the cohort of people requesting paternity testing. We have highlighted above the reasons why people might seek paternity testing and the psychological impact that seeking paternity testing might have. To be refused access to testing is likely to be difficult to accept. To receive further communication with no warning that the original advice was wrong and that testing is available adds insult to injury. It may also happen sufficiently far after the death and the original request that people have moved on, and this could open up old wounds. Alternatively, a judicial review claim might result in the Authority having to review the guidance with a view to assessing its reasonableness and logic. If it is found to be both reasonable and logical, on any grounds, then there would be no change for individuals affected by flawed decisions. A successful judicial review does not necessarily have any impact on the individuals involved, or result in any substantive change to the guidance, which arguably is a major source of the problems. VI. THE OFFENCE OF DNA THEFT IN SECTION 45: TOO BLUNT AN INSTRUMENT? Section 45 of the Act is different from the rest of the Act's provisions. It has UK-wide application, while the rest of the Act is limited to England and Wales. It has a stringent penalty attached to it—3 years in prison and an unlimited fine if convicted on indictment. The offence is framed in such a way to include as many potential offenders as possible. While ‘DNA theft’ is a useful shorthand, it does not capture the nature of the offence, which is committed simply by having the tissue, and intending to analyse the DNA without consent.78 There is no requirement that the analysis has actually been carried out. There are some challenges associated with proving that the intention was in place in this sort of offence, since it could amount to speculation about the mind of the person charged. It would be easier to prove the relevant intention if the analysis had actually been carried out, and it was possible to show that there was no consent in place. But that is not necessary for the commission of the offence. Looking to the Hansard debates on the Human Tissue Bill, it becomes clear that the offence in section 45 is one intended to act primarily as a deterrent rather than be in everyday usage. Lord Warner stated explicitly that the offence was ‘deliberately framed’79 to include a situation where the tissue is taken but the analysis is never carried out. The offence has ‘a deterrent purpose’ and was ‘intended to be sufficiently broad to prevent or deter people from obtaining the material in the first place’.80 There was no discussion of a situation in which the material was obtained lawfully and then sought to be used for DNA analysis at a later date. The offence was proposed by the Human Genetics Commission, in Inside Information,81 as a way of addressing concerns about people obtaining samples for DNA analysis in non-medical settings. These concerns may have been brought to the foreground as a result of newspaper allegations in 2002 that a honey trap sting operation had been put into action to obtain a sample of Prince Harry's hair to be used for DNA testing to ascertain his paternity.82 While it is clearly an egregious violation of a person's privacy to steal some of their tissue for DNA analysis, the Human Genetics Commission argued that the law in existence at the time may not have prevented such actions and would not necessarily offer any remedy had the honey trap been successful.83 Since this was the case, their recommended solution was a criminal offence of ‘non-consensual or deceitful obtaining and/or analysis of personal genetic information for non-medical purposes’.84 Arguably, the offence has been a success. Since its enactment, there has been one prosecution under section 45. It had no connection to the NHS.85 No newspapers have questioned any celebrity's paternity using DNA evidence in support. The only DNA analysis that can be carried out without consent is in the context of forensic investigations on bodily material left behind at a crime scene or in very limited circumstances as provided in part V of the Police and Criminal Evidence Act 1984 (‘PACE’).86 Even where DNA has been analysed without consent under PACE, the information cannot be used except in relation to national security, a terrorist investigation, prevention or detection of crime or the identification of a deceased person.87 It certainly cannot be used to resolve questions of paternity even where a court might be interested in the information.88 Cass Sunstein89 argues that attempting to change social norms might be inherent in the purpose of law. This expressive function allows the law to make pronouncements on the acceptability of particular courses of action. He suggests that they might be particularly effective in doing so where there is a problem of collective action, such as littering, and where there is some sort of discrimination.90 However, he goes on to argue that there might be a fine line between a successful expressive law, and one which is not successful. If a law intended to ‘discourage teenagers from smoking … make[s] smoking seem like a delicious forbidden fruit’,91 it will be considered to be unsuccessful. Another method of ascertaining an expressive law's success is to carry out a consequentialist assessment of the law in question. It must be the case that ‘on balance’92 the (negative) plausible consequences of the law do not outweigh the benefits of the expressive element. Considering section 45, while there is no doubt that the risk of widespread DNA theft is deeply problematic and merits a serious response, there are also concerns about imposing a disproportionate burden on other groups in society. We argue that the burden imposed by section 45, on individuals seeking paternity testing after death, and on DIs is disproportionate. These effects are more than ‘plausible’ since we have provided evidence that they are already occurring. This is even more concerning when we see that requests for posthumous paternity testing are made for legitimate and socially useful reasons. Ultimately, we argue that these problems have arisen because posthumous paternity testing was never the mischief that section 45 was designed to address. The offence is necessarily prohibitory in its seeking to avoid unlawful acquisition of DNA material. But, it is being used in practice to facilitate DNA analysis after death for paternity testing or other purposes such as genetic counselling. Prohibiting DNA theft and facilitating DNA analysis are very different issues that pull the law in different ways. The question of whether DNA analysis is appropriate in any given situation requires consideration of several factors, which must ultimately provide an answer that is in the interests of the child (or adult child) in question. A child might have an interest in having a relationship with the paternal relatives for example, or not having an existing relationship severed, or an interest in having access to family medical history. A competent child or an adult child might also have an interest in knowing their genetic heritage to address questions of self-identity. The question of whether to allow paternity testing after death is a subtle one that is not properly accommodated by the blunt instrument that is section 45. The decision whether to offer DNA analysis in this context is a delicate one that is about more than whether there is a person in a qualifying relationship who can give consent. While it may be possible to create a legal provision that pulls in both directions, it is something that needs to be explicitly considered, rather than left to occur naturally. It is not apparent from the Hansard debates that Parliament knew that these practices occurred or contemplated that they might arise. The case studies discussed above highlight the serious negative implications of section 45 for individuals seeking paternity testing after death, and for the DIs who have to decide whether to offer the test. The framework means that DIs are refusing tests that would be lawful, and that those who are refused tests have no right of appeal, since this is not provided for in section 45, or any real prospect of legal redress. While we suggested that judicial review might be possible, it is an extremely costly and uncertain way of challenging the law, and one that has limited prospects to change the individual's circumstances. What we have not yet explored is the impact on the Authority itself. We have raised significant concerns about the advice given by the Authority, and specifically the flawed legal argument that casting doubt on a relationship means that it should be treated as non-existent, which forms the basis for their assessment of qualifying relationships in the cases we examined. We think that this situation has arisen because section 45 does not enable the Authority to publish guidance on DNA analysis, nor does it facilitate the provision of DNA analysis on tissue covered by the Act. The impact of section 45 is that the questions that are being referred to the Authority are legal questions. They are questions that ask specifically how the law applies, and that require a legal answer. The question about whether someone intended to analyse DNA is a legal question that depends on understanding what is meant by ‘intention’ and answering a factual question about whether that intention is present. The question of whether someone is in a qualifying relationship is a legal question. However, the Authority is very clear that its advice is not ‘legal advice’. If DIs are seeking legal advice, then they need to obtain that from a solicitor. The logical consequence of this is that DIs will seek advice from their solicitors after speaking to the Authority the first time and subsequently will seek advice from their solicitors only, thereby bypassing the Authority. This undermines the Authority's role in regulating the use of tissue for DNA analysis. If they cannot provide the sort of answer necessary to address the questions asked, then they lose control of the regulatory framework. The control moves to the solicitors instructed by the 204 NHS Trusts with post-mortem sector licences, since they are able to provide the legal advice necessary to answer DIs’ questions on this issue. The consequence of this is that there is no central oversight of the practice of DNA analysis for posthumous paternity testing. The Authority cannot ensure that there is a single interpretation of the law, or that the same approach is taken across the whole of the post-mortem sector of NHS Trusts. This means that the law becomes further fragmented and open to the ‘postcode lottery’ criticism. VII. CONCLUSION Prior to the enactment of the Human Tissue Act 2004, there was concern that widespread DNA theft could become a serious risk.93 This has not materialised. It is not clear whether this is due to the success of section 45 or that these concerns were misplaced. We should not dismiss the suggestion that the expressive function of section 45 has been very valuable in that regard. However, it does not provide an adequate framework to facilitate posthumous DNA analysis. Our case studies highlight the disproportionately heavy burden imposed on those seeking DNA testing in these circumstances and those involved in offering DNA analysis after death. This burden is compounded by the confusion evident in the Human Tissue Authority's dealings with these sorts of cases. The criminal law as expressed through section 45 is too blunt an instrument to effectively regulate the provision of posthumous paternity testing. Section 45 means that decisions to offer a test can only be made on the basis of the suitability of the person providing consent. We have argued that there are other considerations that have a direct bearing on the decision to offer a test. These include the child's (or adult child's) interests in forming relationships with paternal relatives, the psychological benefits of having this information, issues relating to grief experiences, the reasons for seeking a test and the views of the father in question. These are not accommodated by the current legal framework, which focusses only on whether the person seeking providing consent is in a qualifying relationship with the deceased person. We think that the disproportionate burden and the failure to take proper account of relevant issues are good reasons to argue for a change to the law in this area. We think that the section 45 offence should remain to address the mischief originally intended, to deter DNA theft. But, there should be a specific framework in place as an exception to section 45, within the Human Tissue Act, which addresses decision-making in the context of paternity testing after the death of the father. We cannot offer a fully worked up legislative proposal here. But at a minimum, we think that the framework needs to make provisions for who should make decisions on whether testing should be offered in specific cases. We think that the complexity of the factors that are necessarily relevant means that the decision should not be left to individual DIs, with or without the support of the NHS trust solicitors. This might be provided through an explicit recognition that the Human Tissue Authority is required to make legally binding decisions, or a requirement that a panel is established to adjudicate these decisions. There should be specific provisions that set out how decisions should be made, and requiring that relevant factors—such as the reasons that the test is being sought, the views of the child and other relatives interested in the information, or any relevant issues of intestacy—should be taken into account. In addition, the framework must provide a right to appeal any decision made about whether to offer a test, whoever is empowered to make that decision. We think that this framework should have some sort of statutory footing within the Human Tissue Act 2004, since it relates to the use of human tissue. There is a distinction in the framework relating to tissue use, in that gametes are regulated by the Human Fertilisation and Embryology Act 2008, and other tissue is covered by the Human Tissue Act 2004. There is no reason to upset this distinction, even though issues to do with paternity and fatherhood might appear to fit more closely in the 2008 Act. The important distinction, in our view, is gamete or tissue. In practical terms then, we recommend changes to the Human Tissue Act 2004. The secretary of state could amend the definition of ‘excepted purpose’ by adding a further category to paragraph 5(1) of schedule 4 to the Act.94 This further category could be ‘paternity testing where the father is deceased’. Further regulations would be needed to establish the decision-making framework and the right of appeal. It is not clear whether the secretary of state is already enabled by paragraph 13 of schedule 4 to the Act to make these sorts of regulations. These recommendations are merely preliminary and can only give a flavour of how we think that the law should change. This issue is sufficiently important that it merits proper consideration and wider consultation by the appropriate body—the Department of Health and/or the Human Tissue Authority. The threat of the shadow of the criminal law creates too blunt an instrument to address the subtleties of this problem, and it should not be left to do so. 1 A total of 4,734 children were adopted in 2011. See ‘Statistical Bulletin, Adoptions in England and Wales, 2011’ <http://www.ons.gov.uk/ons/rel/vsob1/adoptions-in-england-and-wales/2011/sb-adoptions-in-england-and-wales--2011.html> accessed 21 July 2015. 2 Statistics on donor-conceived birth rates between 1992 and 2009 are available on the HFEA's website. The mean birth rate for the period of 1992–2009 is 1,308. See ‘Donor Conception – Births and Children’ <http://www.hfea.gov.uk/donor-conception-births.html> accessed 21 July 2015. 3 MA Bellis, KE Hughes, SK Hughes, and JR Ashton, ‘Measuring Paternal Discrepancy and Its Public Health Consequences’ (2005) 59 J Epidemiol Commun H 749, 754. 4 Data tables available from ‘Live Births and Still Births’ <http://www.ons.gov.uk/ons/taxonomy/index.html?nscl=Live+Births+and+Stillbirths#tab-data-tables> accessed 21 July 2015. 5 Adoption and Children Act 2002, sch 2, paras 2 and 4. 6 F Pacheco and R Eme, ‘An Outcome Study of the Reunion Between Adoptees and Biological Parents’ (1993) 72 Child Welfare: Journal of Policy, Practice, and Program 53–64; M Sobol and J Cardiff, ‘A Sociopsychological Investigation of Adult Adoptees’ Search for Birth Parents’ (1983) 32 Fam Relat 477–483. 7 See ‘If You Were Conceived Between 1 August 1991 and 31 March 2005’ <http://www.hfea.gov.uk/5525.html> accessed 21 July 2015. In this period, donors were not required to provide identifying information to clinics. This information can only be made available to donor-conceived individuals if the donor has contacted the clinic subsequent to the donation and provided contact information. 8 See ‘If You Were Conceived on or after 1 April 2005’ <http://www.hfea.gov.uk/5526.html> accessed 21 July 2015. 9 See ‘Get Support and Advice’ <http://www.hfea.gov.uk/114.html> accessed 21 July 2015. 10 Human Tissue Act 2004, s 45. 11 R Collier and S Sheldon, Fragmenting Fatherhood A Socio-legal Study (Hart: Oxford, 2008) 7. 12 Ibid. 13 W Marsiglio and R Hinojosa, ‘Managing the Multifather Family: Stepfathers as Father Allies’ (2007) 69 J Marriage & Fam 862. 14 B Simpson, J Jessop, and P McCarthy, ‘Fathers after Divorce’ in A Bainham, B Lindley, and M Richards (eds) Children and Their Families: Contact, Rights and Welfare (Hart, Oxford 2003); GB Wilson, ‘The Non-resident Parental Role for Separated Fathers: A Review’ (2006) Int J Law Policy Family 1. 15 There is a raft of case law on these issues, but one pertinent case is The Leeds Teaching Hospitals NHS Trust v Mr A, Mrs A and Others [2003] EWHC 259 (QB); [2003] 1 FLR 1091 in which sperm from two men was mixed up, and Mrs A's eggs were fertilised with Mr B's sperm. The court found that Mr B was the legal father. 16 Collier and Sheldon (n 11), 199. 17 Ibid. 18 H Draper and J Ives, ‘Paternity Testing: A Poor Test of Fatherhood’ (2009) 31 JSWFL 407, 418. 19 V Ravitsky, ‘Conceived and Deceived: The Medical Interests of Donor-Conceived Individuals’ (2012) 42 Hastings Cent Rep 17, 22. 20 J Feast, ‘Using and Not Losing the Messages from the Adoption Experience for Donor-Assisted Conception’ (2003) 6 Hum Fertil 41, 45. 21 N Cahn, ‘No Secrets: Openness and Donor-Conceived “Halfsiblings”’ (2011) 39 Cap U L Rev 329, 339. 22 Draper and Ives (n 18), 408. 23 Ibid. Draper and Ives apply this to fathers and consider the notion of ‘moral fatherhood’. 24 E Kübler-Ross, On Death and Dying (Routledge: London, 1989). 25 Administration of Estates Act 1925, s 46. 26 Family Law Reform Act 1987, s 1. 27 The frameworks are established in Part 1 of the Act. These provisions apply to England and Wales only. 28 Human Tissue Act 2004, s 3. 29 Human Tissue Act 2004, s 1. 30 Human Tissue Act 2004, sch 1, part 1(4). 31 Nominated representatives are appointed under the rules laid out in section 4 of the Act. 32 Human Tissue Act 2004, s 3(6). 33 Human Tissue Act 2004, s 27(4) and s 54(9). 34 Human Tissue Act 2004, s 5. 35 The rest of the human tissue regime in Scotland is found within the Human Tissue (Scotland) Act 2006. This Act has a different framework to that found within the English legislation. Section 45 straddles two regimes that are underpinned by different conceptual frameworks. 36 Human Tissue Act 2004, s 45(3). 37 Human Tissue Act 2004, sch 4, para. 2(3)(b). 38 For further discussion of this point, see Francis Bennion, Statutory Interpretation (Butterworths: London, 2nd edn, 1992), 805. 39 Ibid, 809. 40 See CM v the executors of EJ's estate [2013] EWHC 1680 (Fam). 41 Royal College of Physicians and Royal College of Pathologists Joint Committee on Medical Genetics, Report on Consent and Confidentiality in Clinical Genetic Practice: Guidance on genetic testing and sharing genetic information (2011) <https://www.rcplondon.ac.uk/sites/default/files/consent_and_confidentiality_2011.pdf> accessed 21 July 2015. 42 Ibid, 26. 43 R Wilkinson, ‘Genetic Information: Important But Not Exceptional’ (2010) 3 Identity in the Information Society 457. 44 For example, see A Sarata, Genetic Exceptionalism: Genetic Information and Public Policy (Congressional Research Service Report for Congress 2008); M Richards, ‘How Distinctive Is Genetic Information’ (2001) 32 Stud Hist Philos Biol Biomed Sci 663; M Green and J Botkin, ‘Genetic Exceptionalism in Medicine: Clarifying the Differences Between Genetic and Non-genetic Tests’ (2003) 138 Ann Intern Med 575. 45 Human Genetics Commission, Inside Information (May 2002) [3.50]–[3.61]. 46 See G Laurie, Genetic Privacy: A Challenge to Medico-legal Norms (CUP: Cambridge, 2004) for a more detailed discussion. 47 See ‘Consent and the Use of DNA FAQs’ <http://hta.gov.uk/licensingandinspections/sectorspecificinformation/dna/consentandtheuseofdnafaqs.cfm> accessed 21 July 2015. 48 Ibid, and ‘Flowchart B’ <http://hta.gov.uk/licensingandinspections/sectorspecificinformation/dna/dnaconsentflowcharts.cfm#B> accessed 21 July 2015. 49 Human Tissue Authority, ‘Code of Practice on Consent 1’ (2014) <http://www.hta.gov.uk/_db/_documents/Code_of_practice_1_-_Consent.pdf> accessed 21 July 2015. 50 Ibid, para. 168. Emphasis added. 51 Human Tissue Act 2004, s 16. 52 Human Tissue Act 2004, s 17. 53 Ibid. 54 Human Tissue Act 2004, s 18. 55 Human Tissue Act 2004, s 25. 56 Partners are defined in section 54(8) of the Act as two people, whether same sex or opposite sex, who live together in an enduring family relationship. 57 Human Tissue Bill Deb 11 October 2004, cols 1-56GC. 58 Ibid, col 3-4GC. 59 Ibid, col 3GC. 60 Ibid. 61 Thanks to Gill Haddow and other attendees at the Mason Institute seminar who raised and discussed this point. 62 Person designated under the Act. See above. 63 Personal communication with a person designated under the Act at the Trust. 64 Births and Deaths Registration Act 1953. 65 [1972] AC 24. 66 See also Family Law Reform Act 1926, s 26. 67 Human Tissue Act 2004, s 26. 68 Human Tissue Act 2004, s 28. 69 A signed version of the will became available subsequently. 70 Appointing a nominated representative, Human Tissue Act 2004, s 4. 71 The DI is referring to the list of qualifying relationships as set out in s 54(9) of the Human Tissue Act 2004. His error here is in treating the list as a hierarchical list and seeking a decision from the person highest up the list. This explains his concern about whether there was a nominated representative who would also have a role to play. As we have shown, the list is not hierarchical in relation to DNA analysis, and further, nominated representatives have no role to play. 72 Email to the DI from the Human Tissue Authority. 73 [2013] EWHC 1680 (Fam). 74 Ibid [20]. 75 [1979] 1 WLR 278. 76 ibid, 282. 77 Re Racal [1981] 1 AC 374, 383, per Lord Diplock, interpreting Anisminic v Foreign Compensation Commission [1969] 2 AC 147. 78 See Section III above for the text of section 45. 79 HL Debates 11 October 2004, vol. 665, col1-55GC, 27GC. 80 ibid. 81 Human Genetics Commission (n 45). 82 ‘Prince Harry Honey Trap Allegations’ (BBC News 15 December 2002) <http://news.bbc.co.uk/1/hi/uk/2577539.stm> accessed 21 July 2015. 83 Human Genetics Commission (n 45). 84 Ibid [3.60]. 85 Information received from the CPS in response to requests made on 27 November 2014 and 1 December 2014 under the Freedom of Information Act 2001. The CPS could not release any other details about the case because they were of a sensitive and personal nature. 86 Police and Criminal Evidence Act 1984, pt V. 87 Police and Criminal Evidence Act 1984, s 64ZN. 88 See In the matter of Z (children) [2014] EWHC 1999 (Fam). 89 C Sunstein, ‘On the Expressive Function of Law’ (1995–1996) 144 U PA L Rev 2021, 2053. 90 Ibid, 2044. 91 Ibid, 2050. 92 Ibid, 2045. 93 Human Genetics Commission (n 45). 94 See Human Tissue Act 2004, sch 4 [13], which enables the secretary of state to amend paragraphs 5, 7 and 8 of schedule 4. © The Author 2015. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oup.com

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Medical Law ReviewOxford University Press

Published: Oct 1, 2015

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