Machado and Silva explore the ethical and legal dimensions of the establishment of a national DNA database in Portugal. The similarities and differences between this process and its equivalents in Britain and elsewhere are fascinating – well fascinating if you are a forensic DNA database geek like me. The Portuguese forensic database is going live this year (that’s 15 years on from the beginnings of Britain’s Police National DNA Database). Prior to this there has been substantial and extended legal and policy-making discussion about the database with an open political discussion around issues of inclusion and consent. This is in contrast to the British case where the governance of the NDNAD has developed post-hoc, the scope and use of the database has never been established through parliamentary legislation and the discussion of whose DNA records should be stored or destroyed has taken place with millions of profiles already is police possession.
Interestingly in 2005 the Portuguese government contemplated creating a universal forensic and identification database arguing that such an approach would provide humanitarian benefits and “avoid discrimination”. Instead Portugal has followed the lead of other countries in establishing a database of the ‘criminal population’. The rules for inclusion are in comparison with the British case very strict.
“Nevertheless , there is a widespread belief among politicians and law and science experts that the Portuguese forensic DNA database will ‘inevitably’ increase in breadth and scope over the next few years.” (336)The principle of ‘informed consent’ is a recurring feature of discussions and practice around the collection and use of genetic material in medical and scientific research. The issue of informed consent is not normally considered an issue in discussion of forensic DNA. Machado and Silva do us a service by reminding us that there are significant national variations in this respect. The UK is one of a number of European jurisdictions to stipulate that donor permission is not required when taking samples from people convicted or suspected of a crime. Other countries (such as Belgium, Cyprus, Germany, the Republic of Ireland, Portugal, and Spain) do claim some form of limited informed consent is needed for samples to be collected but it is open to question how ‘informed’ or ‘voluntary’ consent can be in these circumstances. All European Union countries allow ‘coercive sampling’ but Belgium, Cyprus, Germany, the Republic of Ireland, Portugal, and Spain require a court order before biological samples can be taken from suspects.
Machado and Silva’s analysis of proposed consent processes (and associated provision of information to donors) reveals some of the complexities and contradictions of ‘consent’ in this context. Convicted criminals and suspects sign consent forms but these are different to those supplied to those who volunteer samples to the database. There is no guidance currently as to how to proceed if convicts or suspects refuse to collaborate with the consent process. As Machado and Silva point out, the notion that another group of people – ‘volunteers’ – will also donate DNA is built into the legal framework of the Portuguese database despite a lack of clarity about the circumstances and motivations behind volunteering. They make some suggestive links between that idea that people have a right and a desire to have their genetic profile included in the database to a wider discussion of a morality of ‘good’ biological citizenship, and notions of mutual future benefit and of deserving and undeserving citizens in relation to (bio)security.
Another feature of the Portuguese case is that information about a person’s ethnicity (and their parents’ ethnicity) is stored along with their DNA profile. Machado and Silva are vague about the detail of his process (the why and how) and I am unclear about whether this reflects their own uncertainties or the uncertainties within the system. The paper lists a familiar series of concerns about the racialisation of DNA databases but reflects the general confusion about why precisely we should care about this issue (a topic I am planning to write about in the coming months).