The Human Tissue Act of 2004 regulates the removal, storage and
use of materials that include human cells, including blood or
tissue samples. Not all of the businesses caught by the legislation
are obvious.
One of the Act's provisions, in force since October 2005,
introduced a maximum penalty of a fine and 51 weeks in prison for
anyone who publishes an advert for human organs, blood or tissue
samples.
Websites that allow users to post their own content may be
familiar with the risk of defamation; they may be less familiar
with the risk of users selling a human kidney. One company that is
familiar with that risk is eBay.
Bids on a "fully functioning kidney" at eBay.com reached $5.7
million in 1999 before the company intervened to block the sale. A
similar sale was blocked at eBay.co.uk. Such sales have been
outlawed since 1989, but jail terms are a new deterrent, and the
2004 Act also catches sales outside Britain for the first time.
OUT-LAW asked eBay about its procedures. The company referred us
to its Human Parts
and Remains Policy.
"Humans, the human body or any human body parts may not be
listed on eBay," it states. "Examples of prohibited items include,
but are not limited to: organs, bone, blood, waste, sperm, and
eggs. You may not include such items as a gift, prize or giveaway
in connection with an item listed on eBay. However, items that
contain human hair (e.g., lockets) may be listed on eBay."
A spokesman added, "EBay promptly removes any items listed on
the site that it becomes aware of that may break this policy."
It is understood that the company becomes aware of prohibited
ads by inviting customers to notify policy breaches and also by
using software to monitor for keywords.
Human hair can be sold without breaking eBay's policy and
without breaking the 2004 Act; but buying that hair to perform a
DNA test will soon become an offence unless there is consent.
From September, a maximum three-year prison sentence looms over
anyone holding bodily material with intent to analyse its DNA
without consent. This could apply to directors and managers if
their company performs DNA testing and they neglect to take steps
to ensure consent.
For little more than £100, several companies can determine
whether a child is yours. They offer other services too. Some will
analyse DNA in sperm stains, hair follicles, toothbrushes, chewed
gum, cigarette butts and licked envelopes.
Existing regulation bans paternity testers from advertising
their services on the radio or television but they can be promoted
in print and online. Many offer only a basic service. Some offer
more, including one which offers to help customers in their "own
private detective work" which poses the question, "Has someone been
in your house without your knowledge?"
The Department of Health already offers a
Code of Practice on Genetic Paternity Testing which calls not
only for consent but also for those giving consent to be fully
informed of the consequences of the test – given the irrevocable
circumstances that knowledge of the test results may bring. It also
expects robust measures to ensure that the identity of the provider
of a sample can be established. The Human Tissue Authority also
provides a Code of
Practice on consent. But it is the Human Tissue Act that
introduces the offences and penalties.
OUT-LAW spoke to one DNA testing specialist, Crucial Genetics.
Its labs are part of Glasgow University and its offices are based
in Cheshire.
Business Development Manager Max Hamilton explained that the
effect of the changes in September will be "very, very minor" for
Crucial Genetics, but might be more significant for others. "Some
businesses send DNA collection kits to homes," he said, pointing
out that verifying consent in these circumstances is difficult.
Hamilton explained that the company only sends its kits to
medical professionals and has them take the samples.
If you want Crucial Genetics to identify whether you are the
parent of a child, you will be asked a series of questions about
your motives and, for example, whether the child is old enough to
understand the procedure.
A testing kit can be sent to your GP, if he or she has
known you for three years or more – but it won't be sent to your
home, Hamilton explained. The samples are taken by your GP and
placed in a tamper-evident bag which is returned to the company
with the signed consent forms and a photograph of you that has been
signed by your GP. Hamilton said they also check the authenticity
of the named GPs together with the supplied address details. "We
try as far as we can to eliminate the risk of forgery or tests
being done without appropriate consent," said Hamilton.
He said the company often receives calls from spouses who
request tests on a partner's underwear to detect evidence of
cheating. "Lives are torn apart by that sort of thing," said
Hamilton, also pointing out the difficulty of obtaining consent in
these circumstances. "We're unwilling to do it."
