Lawmakers in New Jersey have introduced a bill that would prevent police from using newborn bloodspots for anything other than detecting disease.
The bill, Bill A4642, is a direct response from lawmakers regarding a 2021 rape case. Last year, New Jersey State Police subpoenaed the New Jersey Department of Health in order to obtain the dried bloodspot card of a 9-year-old child. They then used genetic genealogy to identify the child’s father and arrest him for the rape of a 10-year-old girl in 1996 and a five-year-old girl in 2003.
Subsequently, the Office of the Public Defender and the New Jersey Monitor filed an Open Public Records Act request to see how many more, if any, subpoenas have been served on the state public laboratory, but it was denied. Both parties are now suing the laboratory, are the Office of the Public Defender has taken the arrested man on as a client.
“By serving a subpoena upon the Newborn Screening Laboratory, the State Police sidestepped its constitutional obligation to develop probable cause and obtain a warrant so that it could obtain a buccal swab from OPD’s client to perform an analysis of his DNA,” the lawsuit reads.
According to the Office of the Public Defender, the state police used the DNA results to form the basis of an affidavit of probable cause to obtain a warrant for a buccal swab for the suspect—rather than the other way around, which is typical.
Dried bloodspot cards
As part of the Newborn Genetic Screening program, almost all 4 million babies born in the U.S. receive a heel prick 24 to 48 hours after birth. The program then tests newborns’ blood for between 17 and 60 genetic diseases.
The controversary over the program comes after the initial genetic analysis. In most states, the card with the newborn’s blood becomes property of the state—and state laws vary on storage time.
In Texas, the dried blood spots (DPS) were stored indefinitely until a 2009 lawsuit changed that and required the state to destroy over 5 million that were collected prior to that year. Now, DBS are stored for only two years—during which they can be used for research.
It was much the same way in Michigan before a 2018 lawsuit. After agreeing to destroy over 3 million DBS cards in response to the lawsuit, the Michigan Department of Health and Human Services released new Guidelines for Research Use of Dried Blood Spots. The guidelines state that parents can opt in to research when the DBS is used, rather than immediately after birth. The guidelines specifically prohibit the DBS for “whole genome or whole exome sequencing.”
In New Jersey, dried blood spot cards are retained for 23 years—and those safeguards do not exist. At least not yet.
NJ Bill A642
Bill A4642 states that a DNA sample taken from a newborn may only be used for the purpose of detecting disorders or conditions for which newborn screening is explicitly authorized.
The bill also prevents law enforcement from using DNA collected from crime victims or witnesses to later link them to other unrelated crimes.
“A DNA sample from a victim of or witness to a crime is only to be used to establish the identity of a person who is the subject of the criminal investigation or prosecution for which the sample was obtained,” reads a portion of the bill.
This section is also a direct response to a previous case—this one in San Francisco. Police there used DNA evidence collected from a sexual assault kit to tie the victim to an unrelated retail theft six years later. Then-district attorney Chesa Boudin quickly denounced the “legally and ethically wrong” practice, and lawmakers introduced a bill to prohibit the move just one month later.
While not in the original version, New Jersey’s Bill A4642 has been amended to allow DBS cards to be used for law enforcement purposes if a valid warrant is issued beforehand.
Unidentified remains
In 2019, DNA from a newborn blood spot card was used to identify the remains of a deceased infant found in 2007 in Yolo County, California.
In 2018, the Yolo County Sheriff, prosecutor, and California State Police developed a first-ever proposal for familial search to identify human remains against the California criminal DNA database—and the state government approved it. The familial search hit to the infant’s father, Paul Allen Perez, who was about to be released from prison for an unrelated offense, but he refused to confirm the identity of the infant. That’s when investigators turned to the infant’s newborn blood card.
The blood card confirmed the infant’s identity as Nikko Lee Perez. Investigators then sketched out a family tree that included four additional siblings. One sibling was born in 1992 and known to be deceased. Three other siblings—who were never reported missing and were thus unknown to law enforcement—are now also believed to be deceased. The remains of these three victims have not yet been located, but are believed to have been murdered by their father when they were younger than 6-months-old. On January 27, 2020, Paul Allen Perez was charged with five counts of murder.
According to the California Department of Public Health (CDPH), after newborn screening, what is left of the blood spots is stored in a secure facility and labeled with a unique bar code, rather than identifying information. The CDPH says the blood may be used for research purposes, but insurance companies, employers, etc., do not have access. However, there is an exception for law enforcement.
“Law enforcement officials can only obtain access to the specimens with a court order signed by a judge, but court orders are rarely granted,” reads a handout from CDPH. “They are limited to special circumstances, such as in cases of a missing child. In the 30-year history of the program, only a few court orders have been received.”
Advancing technology
Most states launched their Newborn Genetic Screening program in the late 1960s, when DNA technology was nowhere near as advanced as it is today. The controversary, proposed laws and related guidelines are likely to continue to develop in the ensuring years—especially given the number of times newborn bloodspot cards have been used by law enforcement in the last three years compared with the prior 50+ years. Advancing technology like investigative genetic genealogy and next-generation sequencing will also likely play a role in the conversation.