On the Edges of Science and Law

CSI Meets PhD: Should Universities Require DNA Testing of Job Applicants?

 By Lori Andrews

If you're applying for a job at the University of Akron, you may have more to worry about than the old adage of publish or perish.  Whether you want to work as a secretary or a tenured professor, a new university policy empowers the college to require job applicants to submit DNA.  Laurie Massie, a spokesperson for the University of Akron, told CBS News that the board decided to include DNA testing in the policy because "there have been national discussions that indicate that in the future, reliance on fingerprinting will diminish and DNA for criminal identification will be the more prominent technology." 

But Massie’s statement obscures the difference between a DNA sample and a fingerprint.  Taking DNA is more intrusive, even if it is just done through a cheek swab.  A recent criminal case, Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), found that police exceeded their authority when they subjected an unwilling suspect to a cheek swab.  Plus, DNA contains far more information than does the fingerprint.  Testing an applicant’s DNA could provide information about whether the applicant, while healthy now, was likely to develop a costly-to-treat genetic disease.  Even if the DNA was only used to see if an applicant’s DNA was in the federal DNA databank because he or she had committed a crime, adding employment searches to the investigative searches of the databank would result in even greater backlogs than currently exist.

Motion to Dismiss Denied in Breast Cancer Case: The USPTO is a Defendant in a Case Challenging the Constitutionality of Patents Granted by the USPTO

 By Jake Meyer

November 1, 2009, Judge Sweet of the United States District Court in the Southern District of New York issued an opinion in Association for Molecular Pathology v. United States Patent and Trademark Office.  The plaintiffs in the case, which were previously blogged about here, challenge the constitutionality and validity of patents on the BRCA1 and BRCA2 breast cancer genes owned by Myriad.  The defendants -- the U.S. Patent and Trademark Office (USPTO), Myriad Genetics, and the Directors of the Utah Research Foundation -- moved to dismiss the case for standing and jurisdictional issues.  Judge Sweet denied all motions to dismiss, finding there was both standing and jurisdiction.

The inclusion of the USPTO as a defendant in this case is unique to this case, as the USPTO has never been a party to a lawsuit in which the constitutionality of patents issued by the USPTO were brought into question.  The USPTO moved to dismiss for lack of subject matter jurisdiction (the USPTO also moved to dismiss for lack of standing) arguing that it had a comprehensive statutory scheme in place to redress violations of the Patent Act.  However, the cases the USPTO cited involved claims that alleged statutory violations that the Patent Act provided a remedy for.  Judge Sweet found that there was no comparable statutory scheme that provided remedies for constitutional violations.  Judge Sweet found that there was subject matter jurisdiction over the USPTO citing the novel circumstances of the action, the absence of any remedy provided in the Patent Act, and the importance of the constitutional rights asserted by the plaintiffs.

The Story of a Sperm with a Bad Heart

  By Keith Syverson

A study published in last week's issue of the Journal of the American Medical Association (JAMA) raises concerns about regulation of sperm banks.  The study describes the case of a 23-year-old man in good health who donated sperm to a U.S. sperm bank almost a hundred times over a two year period.  The sperm bank followed protocols standard in the industry at the time of the donation: doctors gave the donor a comprehensive medical evaluation including a complete personal and family medical history in addition to laboratory testing for communicable diseases. Several years later, a woman inseminated with the donor's sperm gave birth to a child diagnosed with Hypertrophic Cardiomyopathy (HCM) -- a heart disease characterized by the thickening of the heart muscle.  The sperm bank notified the donor and all other recipients of his sperm that their children were at risk for HCM.  Twenty-two children were born using the donor's sperm in addition to two children born to the donor's wife.  Five children showed evidence of HCM including one two and a half year old child who died waiting for a heart transplant.

This case study underscores the need for more stringent testing protocols for gamete donation.  The American Society for Reproductive Medicine has published recommendations on genetic screening for gamete donors, but compliance with these guidelines is voluntary.  Studies have shown that most gamete donor agencies do not follow these protocols.  For sperm banks, only half of programs surveyed performed a chromosome analysis and about a quarter of egg donor agencies reported that they do not screen egg donors.  Moreover, the authors of the JAMA article note that it is a surprise that the sperm bank was able to contact the donor and everyone who received the sperm because this is uncommon in the industry.

I.B.M. Seeking to Make Sequencing of Personal Genome Available for the Low Low Price of $1,000 (Plus Millions in Royalties to Patent Holders)

By Jake Meyer

I.B.M. recently announced its plans to join the race to sequence the genome for $1,000.  I.B.M. joins seventeen other companies in the race to sequence the gene.  Currently the cost to sequence the human genome ranges between $5,000 and $50,000, but these companies are yet to successfully sequence the entire genome of an individual.  I.B.M. hopes to ultimately bring the price as low as $100 to sequence an individual's entire genome.  The goal is to build a machine that can sequence an individual's genome – three billion base pairs – in several hours.  This will provide the genetic information needed by an individual for personalized diagnostic and treatment uses. 

I.B.M. is using its expertise in semiconductor manufacturing, computing, and material science to design a gene sequencer with increased speed and accuracy.  I.B.M.'s sequencer revolves around a nanoscale electric device.  The device uses an electric field to pull the DNA strand through a 3 nanometer hole in a surface, at which point the electric field holds the DNA in place for a fraction of a second while the order of the nucleotide bases (adenine, guanine, cytosine, or thymine) is determined.  After the nucleotide bases are determined, the DNA strand is pulled further through the hole and the order of the next nucleotide bases are determined.

DNA Evidence – A Boon to Law Enforcement, but the Start of a Storage Nightmare

by Lori Andrews

When I spoke a national meeting of law enforcement personnel and prosecutors, I was fascinated by the new forensic tools spanning every type of evidence -- from photographs to footprints, from gum to guns.  But, in the hallways, between the scientific and legal presentations, the men and women working in the criminal justice system sounded a lot like 20somethings complaining about their first apartment.  Sure, there were changes in technologies.  But there was a bigger problem:  Where were they going to store all the evidence?
 
With the advent of DNA technologies, forensic officials who had been pack rats were able to convict people of old crimes. This past weekend, for example, a suspect was arrested for the 1989 murder of an elderly woman; modern DNA technology allowed old evidence to be analyzed.   Evidence from decades ago has also been retested through efforts like the Innocence Project, letting many innocent men go free. In fact, yesterday, the Richmond Times Dispatch announced six training sessions for volunteer lawyers on how to contact the 881 Virginia felons whose old cases included evidence ripe for potentially-exculpatory genetic testing.

Michael Jackson's DNA Will Be Used to Make Jewelry

By Lori Andrews

During his life, Michael Jackson's hair was at the center of a legal dispute.  When he filmed a Pepsi commercial, the pyrotechnics on the set set his hair aflame, leading to a lawsuit against the soft drink company.  In that case, Jackson donated his $1.5 million settlement to the burn unit that treated him.

Now, after his death, his hair is raising an issue central to bioethics:  What right do people have to control the use of their tissue?

During the ill-fated commercial--which some commentators think led to the singer's use of painkillers--executive producer Ralph Cohen picked up charred hairs from the floor.  John Reznikoff, a hair collector, purchased the hair and now has an arrangement with an Elk Grove Village, Illinois company, Life Gems, to create man-made diamonds out of the carbon in Jackson's hair.

Did I Say I was 16? I meant 20. The MLB tries DNA Testing to Thwart a New Generation of Cheaters.

GUEST BLOGGER Keith Syverson

Another testing controversy has arisen in the world of baseball.  This time it was not Alex Rodriguez or Roger Clemens testing positive for performance enhancing drugs, but rather it was an amateur baseball player from the Dominic Republic named Damian Arredondo "failing" a DNA test as part of an investigation to confirm his age.  It does not come as a big surprise that in an era where Bud Selig, the Commissioner of Major League Baseball (MLB), is trying to clean up the sport's image and punish cheaters such as those who use performance enhancing drugs, that the MLB is also testing to prevent other forms of cheating such as misrepresenting one's age.  A young prospect is valuable because it gives the potential signing team more time to develop the player and teach him how to be a successful hitter or pitcher in the Major League.  Additionally, as players age, they become more injury prone and are less productive as hitters.  Teams usually take a players age into account when offering a contract extension later in life.  For example, a 30-year-old player will generally be paid more and receive a longer contract then a 34-year-old player.

 Most baseball fans remember when Miguel Tejada, a Dominic Republic native, announced to the Houston Astros that he was in fact 33 years old and not 31, or when investigators discovered that a Washington Nationals prospect assumed an alter ego that was four years younger then his actual age.  In the aftermath of the steroid scandal, the MLB has established an investigative team taking extreme measures to ensure that this does not happen again by subjecting potential players and their family members to bone scans and DNA testing.

Lawsuits in Pink and Blue: Sex Selection Cases Hit the Courts

By Lori Andrews

On-line genetic testing companies offer to provide people with information regarding their family tree; their relative chances of developing a disease, condition, or trait; their nutritional profile; and their response to a particular drug.  For example, at HairDX, individuals can be tested for a susceptibility to hair loss, or their response to a particular hair loss prevention aid.  If a customer wishes to learn whether his Y-chromosome shares any similarity with the Jefferson Y-chromosome, he can visit FamilyTreeDNA.com.

Initially, the testing focused on illness and ancestry.  But now companies are reaching out to pregnant women with promises to predict the sex of their child.  The pregnant woman pricks her finger, then collects three drops of blood on a test card and sends it to the company for testing.  For $275, Acu-Gen Biolab, Inc. offers pregnant women such a test which analyzes fetal cells circulating in maternal blood to make the assessment.

People Always Told Me Be Careful What You Do: The Supreme Court's Refusal to Determine a Constitutional Right to Post-Conviction DNA Testing

GUEST BLOGGER Aaron Midler

Last month, the Supreme Court of the United States decided that convicted prison inmates do not have a constitutional right to post-conviction DNA testing. The Court's decision in District Attorney's Office for the Third Judicial District v. Osborne dealt a significant blow to prisoners in the three states without provisions for post-conviction DNA testing, as well as prisoners who cannot prove conclusively that DNA testing will exonerate them.  Blog entries by Tim Welch, here and here, explore these issues more fully.

Last month's decision is also an interesting example of how the Supreme Court deals with the potential of new technology to upset the established legal system.  Chief Justice Roberts, writing for the majority, framed the problem as "how to harness DNA's power to prove innocence without overthrowing the established system of criminal justice."  The majority's solution to this problem was to not disturb the "prompt and considered" response of state legislatures in drafting post-conviction DNA statutes. The majority reasoned that creating a constitutional right to post-conviction DNA testing would shift the responsibility of adapting the criminal justice system to DNA technology from the legislatures to the courts. If the Court had determined that a constitutional right to post-conviction DNA testing existed, the majority predicted that the Court would soon be required to determine a host of other questions, such as whether the states are constitutionally obligated to preserve DNA evidence for future testing--a result that the majority aimed to avoid.

Texas Families Bring Suit Challenging State Newborn Screening Program

By Tim Welch

Another state's newborn screening program has come under fire recently, highlighting growing concerns about the protection and proper use of human tissue and genetic information. 

On March 12, 2009, five parents filed a lawsuit in the United States District Court for the Western District of Texas in San Antonio against the Texas Department of State Health Services (TDSHS), Texas A&M University, and various Texas A&M University officials (Beleno v. Texas Dept. of State Health Serv.).  The plaintiffs claim that TDSHS violated federal and state law when, as part of the legally-mandated Texas newborn screening program, TDSHS collected blood samples from the plaintiffs' newborn babies, stored the samples indefinitely, and allegedly used the samples for unidentified research purposes, all without the plaintiffs' knowledge or consent.

The Beleno plaintiffs allege that TDSHS has violated their right to be free from unlawful search and seizure, as guaranteed by the Fourth Amendment to the U.S. Constitution and Article I, Section 9 of the Texas Constitution.  The plaintiffs also claim that TDSHS has deprived them of their liberty and privacy interests, as guaranteed by the Fourteenth Amendment to the U.S. Constitution, the Texas Constitution, and Texas common law.