In a ground-breaking decision that prioritised the rights of the living over those of the dead, the Court of Appeal has opened the way for genetic testing of DNA extracted from a sample taken from a cancer victim before his death in order to clarify the paternity of a man who claims to be his son.

The deceased was said to have had a brief relationship with the man’s mother that ended when she was three months pregnant with him. The man claimed that his mother had only revealed his father’s true identity to him after his father’s death. In those circumstances, he sought an order requiring DNA testing of the sample stored at an NHS hospital.

The issue was of particular importance to the man because the deceased had been diagnosed with Lynch Syndrome – a rare form of bowel cancer – before his death. His father and grandfather had also suffered from the disease. If the man was indeed the son of the deceased, there was a 50 per cent chance that he had inherited defective genes that cause the disease and would develop it himself.

The trust that ran the hospital took a neutral stance, but the mother of the dead man opposed the proposed tests. She argued that a ruling in the man’s favour would undermine patient confidence in the confidentiality of samples provided in the context of medical treatment and that the tests would violate her human right to respect for her family life.

However, in a decision that he acknowledged was unprecedented, a family judge exercised his inherent jurisdiction to enable the tests to go ahead. He noted that knowledge of biological identity is a central component of everyone’s existence and that the establishment of truth is a goal in itself. There was nothing speculative or opportunistic about the man’s natural desire to find out for sure if the deceased was his father.

The mother of the deceased lodged an appeal against the judge’s decision, but subsequently withdrew it. However, given the novel legal issues raised, the Court of Appeal made an authoritative decision on the case. Emphasising the interests of the living in knowing their biological identity, the Court found that it was inevitable and right that the tests should proceed. The judge had carefully considered all the legal and ethical factors and there was no basis for overturning his decision.


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