On July 1, 2021, the Supreme Court of Norway ruled that assumed consent in the case of a missing person cannot be invoked to collect his DNA from a biological registry, even though the purpose of accessing the DNA is to help find him or his remains. (Supreme Court Case HR-2021-1436-A (sak nr. 21-005349STR-HRET).)
In a unanimous decision, the court held that assumed consent cannot be applied to grant access to DNA (sperm) of a missing person stored by a hospital for the intended purpose of facilitating a future pregnancy when the use does not correspond with the purpose of the original storage. The court thereby overturned an appeals court’s decision which held that consent for the specific novel use of a person’s DNA could be assumed when the intended use was to locate the person to whom the DNA belonged.
Background to the Case
In 2010 a man went missing, and the police and prosecutors believe that he may have been killed. For the purpose of locating the man in foreign registries of unidentified deceased persons, a request was made to access the man’s DNA profile from sperm collected by a hospital in connection with treatment the man previously received at the hospital.
In accordance with the Norwegian Treatment Biobank Act, the collection of DNA from a biobank registry requires the consent of the person. (§ 15 Behandlingsbiobankloven (LOV-2003-02-21-12).)
The hospital refused to provide the DNA sample because of the consent requirement, and the case was brought to court. The district court allowed for the collection without the consent, finding that the consent requirement in § 15 of the Treatment Biobank Act could be used restrictively. (Case ¶ 6.) On appeal, the appeals court found that the consent requirement could not be disregarded but consent could be assumed because the use of the DNA was for the specific purpose of finding the man’s remains. (Case ¶ 8.)
Supreme Court Decision
The Supreme Court heard the case on appeal by the hospital and found that the consent could not be assumed. Under the Criminal Procedural Law (Straffeprosessloven (LOV-1981-05-22-25)), DNA can be collected in a number of instances, but because the appeals court had based its decision on the consent paragraph in § 15 of the Treatment Biobank Act, that provision was the focus of the appeal.
The court noted that the Treatment Biobank Act in § 15, para. 3 provides the opportunity for the legislator to adopt regulations allowing for the collection of DNA without consent “when there is a significant private or public interest.” According to the court, the fact that regulations for the purpose of locating a missing person have not been adopted is not a reason for the courts to find that there is assumed consent for the use but all the more reason to require specific informed consent from the person in question. (Case ¶ 35.)
The court also noted that the language allowing for DNA collection in circumstances when consent was difficult to ascertain (for example, when the person is dead) was removed when the Treatment Biobank Act was overhauled in 2009. Although the removal of the language was not addressed in the legislative history, the court found that the legislator had chosen not to include the language to create an exemption in the amended text when it easily could have done so. (Case ¶ 37.)
The court also differentiated the current situation from a 2013 Supreme Court case concerning a paternity suit in which the court allowed for the collection of a deceased man’s DNA without the consent required in § 15 of the Treatment Biobank Act because the Children’s Act specifically authorizes DNA collection for the purpose of establishing paternity. (Case ¶ 42.)Thus, the court found that assumed consent cannot be used for DNA collection because the Treatment Biobank Act requires the affected individual to give his or her voluntary, express, and informed consent for access to his or her DNA. (Case ¶ 24.) The prosecutor’s request to access the DNA from the sperm biobank at the hospital was therefore denied. (Case ¶ 58.)