I recently had the great opportunity to work with two terrific people, experts in their own right at the Mid-Year Conference in New Orleans, Helping to Healing, sponsored by the National Council for Adoption, the American Academy of Adoption Attorneys and American Academy of Assisted Reproduction Attorneys: Dan Berger an attorney who specializes in immigration and adoption related issues, Kayla Sheets, LCGC, a genetic counselor and researcher and founder of Vibrant Gene and I spoke on: DNA and the LAW.

• DNA use is common in criminal and parentage cases
• How a biological father may be ruled out as the legal parent
• DNA alone may not be enough to resolve a custody dispute.
• DNA testing, pre-birth, in gestational carrier and surrogacy arrangements.

Parentage Cases
When a person executes a Voluntary Acknowledgement of Parentage that person is deemed the legal parent, even if another comes forward, who is a DNA match and seeks to exercise parental rights. Recently, the Nebraska Court confirmed the man who tested positive as the biological father, had no parental rights to that child. Jesse B. v. Tylee H. (In re Adoption of Jaelyn B.), 293 Neb. 917 (2016). No pun intended: a Voluntary Acknowledgment of Paternity trumps the results of the DNA test.

Likewise, the U.S. Supreme Court acknowledged when a child is born to unmarried parents, even if the father’s DNA is a match, that man may not necessarily be deemed the legal father under the law. Or, simply put: DNA does not a parent make.

Custody Disputes
DNA may or may not be helpful in other areas of the law. A parental claim does not require a genetic relationship with the child. The Massachusetts S.J.C. recently recognized the former partner in a same-sex relationship as a legal parent. Partanen v. Gallagher, (MA October 4, 2016). The parties, a same-sex couple, broke up after a committed long term relationship. They never married, the children were conceived through assisted reproduction technology, and the petitioner never adopted the two children conceived and born during their relationship. The Court concluded the lack of a biological relationship did not bar one from being deemed the legal parent, relying upon M.G.L.Ch. 209C § 6(a) (4). (man presumed father of child born out of wedlock if jointly with mother received child into his home and openly held child as their child). The moral of the story: rely upon no one’s word, make it legal: marry or adopt.

It has been suggested that DNA testing would establish whether the placement of a child for adoption, triggers the Indian Child Welfare Act (“ICWA”). Nevertheless, a genetic determination is not enough to establish whether that particular child is an Indian Child subject to ICWA because each tribe has its own set of rules to determine who is an Indian Child. The takeaway: DNA results are not always the answer.

Gestational Carrier and Surrogacy Arrangements
To avert miscalculations and mix-ups, DNA testing prior to the birth of the child as soon as a DNA test may be done, should be mandatory in gestational carrier and surrogacy contracts. If the DNA test comes back negative, the carrier/surrogate misled the intended parents. Any others deceived would be the rest of the story!