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Reported DNA Testing on Migrants Raises Questions, Concerns

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NEW YORK (GenomeWeb) – Policy and legal experts are seriously concerned over reports the government has quietly rolled out DNA testing to verify the familial relationships of migrant families separated at the border.

Based on accounts from lawyers representing migrant families who have been detained as a result of the Trump Administration's "zero tolerance policy," CNN reported today that officials from HHS' Office of Refugee Resettlement (ORR) were performing and ordering genetic tests.

HHS did not reply to a request for comment. Based on CNN's report, it's not clear when the government began testing these families, which lab is doing the testing, or whether their test information is being stored in any kind of database.

"It is absolutely essential that the details of how DNA testing is being deployed be disclosed to the public," said Jennifer Wagner, associate director of bioethics research at Geisinger Health and a lawyer specializing in genetics rights. "The type of testing matters greatly in its ability to decipher identity and relationships. Whether DNA or the resulting genetic information is retained and, if so, what the terms are for access and use of them has serious implications for genetic privacy not only for the individuals tested but also those not tested."

The US government has used DNA testing in immigration matters since the 1990s, and its legal authority to use DNA information in this regard has only grown in recent years. Since 2009, the government has had broad authority to collect DNA samples from arrestees and importantly, from non-US persons who are detained, even if they're not arrested. The statute (42 USC 14135a(a)(1)(A)) governing the collection and use of DNA data from federal offenders states:

"The Attorney General may … collect DNA samples from individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States. The Attorney General may delegate this function within the Department of Justice … and may also authorize and direct any other agency of the United States that arrests or detains individuals or supervises individuals facing charges to carry out any function and exercise any power of the Attorney General under this section."

President Trump last year signed into law the Rapid DNA Act aiming to reduce the backlog of forensic DNA tests and to enable police to test arrestees and run their profile against the Federal Bureau of Investigation's Combined DNA Index System (CODIS) in a matter of hours to see if they were wanted for other crimes. In order for an arrestee's profile to end up in CODIS, however, the lab must be accredited for forensics work and approved to upload the data in the National DNA Index System.

ANDE Corporation, in June announced that its ANDE Rapid DNA Identification System was the first and only rapid DNA system to receive NDIS approval from the FBI, which it said allows it to process DNA samples from arrestees and compare their profiles against CODIS. This same system can be used for family reunification purposes, ANDE Founder and CSO Richard Selden said, by testing the parent and child and comparing their DNA IDs, though HHS is not using this platform for this reason at this time

"We hope it will be used, with the goal of reunifying families as quickly and efficiently aspossible, and for protecting children against human trafficking," Selden said. "We think having this FBI approval of our Rapid DNA system is a critical step towards achieving those goals." However, he noted that the government has not approved any rapid DNA testing system used in the field for uploading profiles to CODIS.

Of course, if the government was using an accredited FBI lab to perform this testing, then that data could be uploaded to CODIS. According to the latest reports, however, HHS is doing the DNA testing and not the DOJ.

Sara Katsanis, an instructor within Duke University's Initiative for Science & Society, pointed out that ORR is not an office with a relationship with FBI. "The FBI normally does not permit samples into CODIS that haven't followed [Scientific Working Group on DNA Analysis Methods] and [American Society of Crime Laboratory Directors] guidelines," she explained. "Since neither of those organizations have developed such guidelines yet for rapid DNA testing, I highly doubt that FBI will permit upload of rapid DNA testing profiles from ORR into CODIS."  

It is more likely, according to Katsanis, that ORR officials are performing testing according to AABB guidelines for kinship testing, which is done for family reunification purposes in immigration cases.

There are a number of AABB accredited labs around the country that can perform relationship testing, such as DNA Diagnostics Center and Bode Cellmark Forensics. An accredited state lab could do also the testing.

Amid the present immigration situation and calls for DNA testing, Thermo Fisher Scientific has also announced it would donate $1 million worth of rapid DNA analyzers and related technology to the family reunification cause. The RapidHIT system analyzes cheek swabs in a cartridge in around 90 minutes.

"The donation offer by Thermo Fisher Scientific to provide Rapid DNA analysis has not yet been accepted [by HHS]," said Rosy Lee, vice president and general manager of the human identification business of Thermo Fisher Scientific. "While other technology of ours is likely being used in labs doing the reported testing, the speed and privacy controls of Rapid DNA are ideally suited for reuniting these families."

Last week, before the CNN report came to light, Lee noted that the company has been in discussions with HHS about how rapid DNA testing might be utilized for family reunification purposes. "The important thing in this situation that a lot immigration people are talking about is confirming that this child is related to the person claiming to be the parent or relative of that child," Lee said. In such a scenario, she said that RapidHIT can provide the parent/child match, serving the interests of both family reunification and the government's concerns about trafficking.

In an interview on Family Research Council President Tony Perkins' radio show Attorney General Jeff Sessions had indicated the government was interested in using DNA testing to confirm the veracity of immigrant families' claims at the border. "We know for a fact that a lot of adults taking children along are not related to them," he said. "[They] could be muggers. They could be human traffickers. It's a very unhealthy dangerous thing and it needs to end."

CNN in its report, quoted an unnamed "federal official with knowledge of the reunifications," who confirmed that saliva based testing is happening, and said that "safety and security is paramount" and that "it is not uncommon for children to be trafficked or smuggled by those claiming to be parents. To our knowledge this is a cheek swab and is being done to expedite parental verification and ensuring reunification with verified parents due to child welfare concerns."

The official mentioned "reunification" but the thrust of the comments suggest that the government is expecting to catch immigration fraudsters or child traffickers in the process. While there isn't a good estimate of how rampant child trafficking or immigration fraud is at the border, it does happen.  

In an editorial in June in The Herald Sun, Katsanis and Wagner wrote how in 2014, during a surge of unaccompanied minors from Central America coming into the US, HHS placed eight teenagers with human traffickers on an egg farm in Ohio. They further noted that Homeland Security claims it has recorded hundreds of cases in 2018 of migrants posing as families to improve their chances of gaining asylum.

"While opportunities for fraud and deception exist and should be taken seriously and mitigated, the bad acts of the few cannot excuse the perpetration of human rights abuses against thousands of children and parents," wrote Katsanis and Wagner in their editorial. While they believe DNA testing to vet family relationship claims at the border is far better than splitting them up at the outset, Katsanis and Wagner urged the government to implement DNA testing responsibly, via appropriate regulatory and legislative channels, by addressing privacy concerns and accounting for non-traditional family structures. They suggested, for example, that samples are disposed after testing and third parties, instead of the government, are in charge of any database housing the data.

The initial push for using genetic testing to aid migrant families reunite started after Congresswoman Jackie Speier (D-CA) called on consumer genomics company 23andMe to step in. The sentiment resulted in multiple companies offering free testing services to aid in the crisis. However, those well-meaning urgings quickly died out as it became increasingly clear that in order to responsibly implement this for the specific goal of family reunification, there would need to be a broader, multi-stakeholder discussions about the technologies used, how consent would be garnered from parents and families, whether the data would be saved for secondary purposes, and who would administer testing.

After talking with other stakeholders and groups on the ground at the border, a staff member of Congresswoman Speier told GenomeWeb that "DNA testing, while it's a tool that could be used [for family reunification] … is not the most helpful given the situation right now."

The HHS has estimated that more than 2,000 migrant children separated from their guardians are in its care, while the adults are detained for legal proceedings for crossing the border illegally (though there have been reports that asylum seekers are also detained). However, after talking with stakeholders, Congresswoman Speier's office noted that these families are more in need of legal representation and translators.

A spokesperson from the legislator's office explained that she had envisioned that DNA testing for family reunification would be administered to families through HHS with oversight from their legal counsel, who could ensure that testing was done with appropriate consent and privacy protections, for example, by ensuring that their samples are destroyed after a positive match is made.

"We don't really see this as something that should be done on a mass, mandatory scale," a spokesperson said. "If folks on the ground find this helpful, it should be in the small instances where it's needed." Her office added that Speier does not support the Department of Justice spearheading DNA testing efforts for reunifying migrant families.

Groups like RAICES and the American College of Medical Genomics and Genetics have issued statements cautioning against the use of DNA testing in this context. "It's a solution in search of a problem," said Jennifer Falcon, communications director for RAICES, a Texas non-profit that provides legal services to immigrants and refugees. "We need to be cautious with seeking quick fixes."

Because genetic data is highly personal information, Falcon noted that it is paramount that the privacy of these vulnerable communities is protected, that their consent is garnered for testing, and that testing is administered through the legal services representing these families.

As the ACMG pointed out in their statement cautioning against DNA testing in this context, it is not possible to garner informed consent from minors separated from their parents. "The ACMG strongly encourages pursuit of other methods for reunification of families separated as a result of recent immigration enforcement policies," the group stated.

However, if the reports are true that HHS officials have already begun DNA testing migrant families, then the government began doing so without publicly discussing how or if it would address these concerns. Given there are no details on how HHS is administering DNA testing for the present immigration situation at the border, it is not clear if the government has heeded the advice of experts like Wagner, Katsanis, and numerous other policy experts and ethicists.

"This tool is not something that should be used without careful deliberation about its limitations and the implications that will undoubtedly follow," Wagner said. "DNA testing done hastily serves no legitimate interests, and the consequences of failing to plan adequately for what happens after DNA samples have been collected in this manner will be significant."

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