ABC TV News show 7:30

DNA and paternity case may set mammoth precedent

Transcript 5/3/2001

KERRY O'BRIEN: First, a ticklish issue about DNA and paternity -- one that will exercise the Victorian County Court later this year and could set a precedent in family law around Australia.

A Melbourne man is suing his ex-wife for fraud and damages after he discovered what he will allege she had known all along -- that he was not the father of their two children.

The case highlights the growing role that DNA testing is playing in determining Family Court disputes.

But some people -- including the Federal Government and the Australian Medical Association -- are questioning the ethics and motives of companies that have started offering cheap, quick tests that clients can buy on mail order.

Pip Courtney reports.

LUISA ASHDOWN, GENETIC TECHNOLOGIES: A father passes on part of his DNA to that child.

And if he is not the father, there will be a mismatch.

PIP COURTNEY: DNA testing hasn't just revolutionised medical research and criminal investigation.

Over the last decade, lawyers have increasingly used the new technology to solve paternity cases.

DAVID LARDNER, LAWYER: I'm asked to seek DNA testing in one or two cases a year.

MICHAEL TAUSSIG, LAWYER: I can remember a property settlement case in which we had a DNA test made that proved that the husband was not the father of the child and the ultimate property settlement that the mother got was significantly less than it would have otherwise been.

PIP COURTNEY: In the United States, paternity disputes are big business, with some DNA labs conducting 50,000 tests a year.

Now, several Australian operators are cashing in on the trend.

As an alternative to expensive tests done on referral from a lawyer or doctor, they're offering cheap, quick tests consumers can arrange themselves.

There are late night TV ads for Melbourne company, Gene-E.

Their consultant is none other than Geoffrey Edelsten. Twice deregistered for professional misconduct, Mr Edelsten is awaiting a decision on his application to practise medicine again.

Is it a low rent company?

GEOFFREY EDELSTEN, GENE-E CONSULTANT: If low rent means economical, then yes.

If it means skimping on procedures and so things may not be accurate, absolutely not.

MICHAEL WOOLDRIDGE, HEALTH MINISTER: Look, I wouldn't want to pass a comment on an individual.

Everyone has the chance to be rehabilitated.

I hope though, if he is doing something like this, he understands the full implications and provides an ethical service with full informed consent and proper counselling.

PIP COURTNEY: Geoffrey Edelsten says Gene-E has been surprised by the big response to its commercials.

GEOFFREY EDELSTEN: It is to those men who want to know whether they are the biological father, to the partners of men who may be paying child support for someone else's child.

PIP COURTNEY: Gene-E's office is in suburban Melbourne, but it won't say where.

Customers ring a 1-900 number and the postman does the rest.

VOICE MESSAGE: Hello and welcome to "Who is the Father?", brought to you by Gene-E. This call is charged at $5.50 per minute.

GEOFFREY EDELSTEN: They send out a kit the very next day with a return envelope.

Once it is got back, we have the result back within five working days.

Our best test result has an accurate result of showing that the father 100 per cent is not the father and if there is a match, 99.99999 per cent accuracy.

That is an error rate of less than one in 10 million.

A gentleman who had been married for 14 years, three children, the oldest 14, the other 8, relationship just broke down.

Had the three children tested.

Had some inkling that something was wrong with maybe one.

All three were not his.

LUISA ASHDOWN: I'm concerned for the clients who use them, because I feel they have no guarantee of the results that they're being presented with.

PIP COURTNEY: Melbourne firm Genetic Technologies conducts most of the 3,000 DNA tests done in Australia every year.

It has no intention of following Gene E's marketing strategy.

LUISA ASHDOWN: No, we have never advertised on late-night television.

PIP COURTNEY: Do you think it's the appropriate way to advertise these sorts of services?

LUISA ASHDOWN: I don't think so.

I think that they're probably capturing a very narrow proportion of the market.

PIP COURTNEY: But it's not just the commercial rivals who are critical.

The Australian Medical Association says it's appalled such tests are being done through the post without photos, fingerprints, or personal attendance at the lab to confirm who is being tested.

DR TREVOR MUDGE, AUSTRALIAN MEDICAL ASSOCIATION: Look, we're against the advertising of it.

I think it should be available to people, but it needs to be available with proper counselling, with proper consent, and a proper chain of evidence.

And these mail order paternity testing arrangements don't do any of those things and we don't think they should be legally allowed.

GEOFFREY EDELSTEN: In Gene-E's case and in other lab I know here in Melbourne has to certify that they are legally entitled to take that specimen.

So, it's really up to the person collecting it to make that statement.

PIP COURTNEY: Geoffrey Edelsten says Gene-E offers counselling, but so far, no client has requested it.

As for the chain of evidence, that is only necessary if the test result will be used in court.

Because Gene-E sends most of its samples to US labs for analysis and only results from accredited Australian labs are admissible in courts, divorce lawyers are taking their business elsewhere.

DAVID LARDNER: So much can hang from the decision that I think it's vital they be properly accredited.

MICHAEL TAUSSIG: I would only refer my clients to accredited laboratories.

PIP COURTNEY: Perhaps it's just as well Gene-E's test results are not admissible in Australian courts.

According to Geoffrey Edelsten, in just six months, the company has unearthed a startling social trend.

GEOFFREY EDELSTEN: I had no idea that promiscuity amongst women was as high as the results appear to show.

VOICE MESSAGE: The Gene-E paternity testing kit which will be sent to you contains everything for safe and accurate paternity testing.

GEOFFREY EDELSTEN: The Gene-E results show that of those inquiring about the sorts of test results and who is the father that three-quarters of the men are not the biological father.

MICHAEL WOOLDRIDGE: Well, first of all, it would possibly be an enormously highly selective sample.

Even so I find those figures very hard to believe.

PIP COURTNEY: The Federal Government is so concerned the law is not keeping up with the implications of DNA testing, it's ordered an inquiry into genetic privacy and ethics.

MICHAEL WOOLDRIDGE: It will look at whole area of genetic testing and how we might regulate it.

Regulation is difficult, but we want to keep the good and stop the harm.

PIP COURTNEY: One of the key areas likely to be examined is the issue of consent to a paternity test.

Gene-E and several other labs test samples from a father and a child without the mother's knowledge.

MICHAEL WOOLDRIDGE: But I would question the ethics of having a test done on a child without the consent of all parties involved.

As a doctor myself, I've got to say I find that unethical.

GEOFFREY EDELSTEN: There are ethical considerations and human relationship problems that these results will unmask, but I think the truth is the most important.

PIP COURTNEY: The Government report's due next year.

The next big signpost on the DNA trail, though, is the case of a Melbourne man suing his ex-wife for fraud and damages after a DNA test showed the children he thought were his, weren't.

DAVID LARDNER: It could be that the courts give exemplary or punitive damages to this man of quite some significance.

MICHAEL TAUSSIG: Well, I don't think it will be hard to prove that the man's not the father, but what follows from that, it's uncharted territory.

I'd be really interested to be a fly on the wall to hear how it's run.

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