This article is published courtesy of the April 2009 edition of Children and the Law News, published by the State Bar’s Children and the Law Section. The State Bar offers its members the opportunity to network with other lawyers who share a common interest through its 26 sections. Section membership includes access to newsletters, email lists to facilitate information sharing, and other resources.

May 6, 2009 – Imagine this scenario: Child is diagnosed with multiple disabilities. Doctors find a variant on one of the child’s chromosomes and wonder if the disabilities are linked to the variant. Neither parent has the same disabilities, but doctors would like to know if either parent has the same genetic variant. If one of the parents has the same variant, it would imply there is no link to the disabilities. But if neither parent has the same chromosomal variant then it may be significant in understanding the cause of the child’s disability. Father of the child submits to DNA testing to determine paternity and to have his chromosomal microarray analyzed for the variant. Mother refuses to be tested.

Does the court have the authority to compel mother to submit to a DNA test?

The courts have a long history of ordering genetic testing in actions affecting the family or in criminal cases for identification purposes. In 1979, the procedure was codified in Wisconsin Statute §767.84, and was titled “Blood Tests in Paternity Actions.”¹

At that time, the test administered was a court ordered “blood test,” although now, most DNA samples are taken with a mouth swab. In Wisconsin, blood tests have been used and ordered by the courts in family matters since 1960, whether or not the parties consent.² As well, Wisconsin Statutes §885.23, Genetic Tests in Civil Actions,³ permits the court to order genetic tests to determine parentage or identity. This statute also commenced as “Blood Tests in Civil Actions.”

Similarly, in criminal procedure, DNA samples are routinely taken pursuant to a valid search warrant. Since the procedure is considered a search under the Fourth Amendment, to obtain the DNA of a suspect, a search warrant based on probable cause must be signed by a judge.⁴

Using genetic testing to map chromosomal variants to confirm or predict genetic disorders or conditions is not commonly requested of the courts. DNA tests to look for chromosomal variants are referred to as a second generation DNA testing.⁵ Wisconsin statute specifically prohibits the use of genetic testing as a condition of employment.⁶

But the law is silent, thus far, as to whether second generation DNA mapping may be compelled by the court in family matters distinct from paternity.⁷

A survey completed in the State of Maryland found that judges are more likely to order genetic testing if “good cause” exists for the examination.⁸ The authors note “courts may compel a genetic test pursuant to Rule 35 of the Federal Rules of Civil Procedure or comparable state law.”⁹

Comparable Wisconsin state law is Wisconsin Statute § 804.10, Physical and Mental Examination of Parties. As in Rule 35, the Wisconsin law requires there be ‘cause shown’ for the examination in addition to the threshold condition that the party's physical condition be ‘in issue.’ This means that there must be some further showing that the examination is necessary.¹⁰ Rule 804.10 grants the trial court discretion as to whether or not an examination is warranted, and that discretionary determination must be rationally based on the facts of record.¹¹

The courts could reasonably determine that parties who have a child with serious disabilities should do all they can to assist physicians in understanding the cause of those disabilities. A reasonable inference may be made that a request for a blood test in which the result is purely for the best interest of a child falls within the “good cause” category and the request could be considered within the rules of discovery.

Now that the complete human genome has been mapped and the genetic basis of human diseases is being pinpointed through chromosomal analysis, we should expect a rapid growth in the request of DNA tests through the courts to gain insight into genetic related diseases of children.¹²

Stella Pagonis is a sole practitioner in Eau Claire

¹Previously Wisconsin Statutes § 767.48. The statute was drafted in 1979 Wis. Laws 352, when the legislature added the paternity section to Chapter 767.

²See generally Limberg v. Limberg, 10 Wis. 2d 63 (1960). Another case, Prochnow v. Prochnow, 274 Wis. 491 (1957), represented one of the earliest uses of blood tests for identification of paternity, but in that case the tests were voluntary.

³In 1960, the statute was numbered §325.23.

⁴Wis. Stat. § 968.12(1).

⁵Diane Hoffmann and Karen Rothenberg, Judging Genes: Implications of the Second Generation of Genetic Tests in the Courtroom, 66 MARYLAND LAW REVIEW, 857 (2007) (reviewing the history and use of genetic testing in the courtroom in family, criminal and tort law and reporting on a survey of judges attitudes towards compelling the tests.)

⁶Wis. Stat. § 111.372.

⁷Chromosome mapping has become a controversial topic in torts law as well. See Hoffman and Rothenberg, supra at pp. 866-870.

⁸Diane Hoffman and Karen Rothenberg. When Should Judges Admit or Compel Genetic Tests? 310 SCIENCE 241-242 (October 14, 2005).

⁹ Id. at 241.

¹⁰Ranft v. Lyons, 163 Wis. 2d 282, 293, 471 N.W.2d 254, 258 (Wis. Ct. App. 1991) (citing Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964).

¹¹Ranft at 293.

¹²Chromosomal Microarray Analysis Proves Accurate. SCIENCE DAILY. (March 30, 2007).