Who Owns Children’s DNA?

Authors

Nila Bala, UC Davis School of Law

Abstract

In recent years, DNA has become increasingly easy to collect, test, and sequence, making it far more accessible to law enforcement. While legal scholars have examined this phenomenon generally, this Article examines the control and use of children’s DNA, asking who ultimately owns children’s DNA. I explore two common ways parents—currently considered “owners” of children’s DNA— might turn over children’s DNA to law enforcement: (1) “consensual” searches and (2) direct-to-consumer testing. My fundamental thesis is that parental consent is an insufficient safeguard to protect a child’s DNA from law enforcement. At present, the law leaves parents in complete control of children’s DNA, with parents’ and children’s interests viewed as totally unified. This Article is the first to argue that parents might have serious conflicts of interest and even encourage (or be the ones) sharing DNA with law enforcement.

This Article contributes to the literature by using the functional logic of a property rights framework, including property law’s rare virtue of historically recognizing children’s and parents’ interests as separate. A property-like interest in one’s DNA leads to solutions that create safeguards beyond parental consent. Ultimately, I advocate for moving from a framework of parents-as-owners to parents-as-fiduciaries—of both children’s DNA and of children themselves.

Recommended Citation

Nila Bala, Who Owns Children’s DNA?, 122 Mich. L. Rev. 457 (2023).
Available at: https://repository.law.umich.edu/mlr/vol122/iss3/2