By Martin Bentham and Lorraine Fraser

(Filed: 19/05/2002)

Fathers who conduct secret paternity tests on their children will face prosecution under new laws to be proposed by a Government watchdog.

The Human Genetics Commission will recommend in a report to ministers that the theft of a person's DNA, including the clandestine removal of a child's hair or saliva, should become a criminal offence.

The proposal has come out of fears that increasing numbers of fathers are exploiting the growth of internet DNA testing services to undertake paternity checks without the consent of the child or its mother, with potentially traumatic consequences for all involved.

The law would also prevent private detectives, journalists, employers and others from gaining access to genetic information without the individual's consent, or using DNA left behind by an individual to check for diseases, genetic conditions or unknown relatives.

Earlier this week, the television producer Steve Bing - who Elizabeth Hurley, the actress, says is the father of her baby son Damian - was named in court papers as the father of a young girl caught up in the world's most expensive child support case.

Kirk Kerkorian, 84, the Californian billionaire who owns MGM studios and a number of casinos in Las Vegas, is fighting a claim from his divorced wife, the former tennis player Lisa Bonder, for child maintenance payments of £223,000 a month for four-year-old Kira.

He told a Los Angeles court that Mr Bing was the child's true father after private detectives hired by him found a strand of dental floss in Mr Bing's dustbin, DNA samples of which matched those of Kira.

While the commission does not base its recommendation on any specific case, it is concerned that scenarios such as this could become commonplace and has concluded that individual rights of privacy must be protected by criminal law.

Lady Kennedy, the Labour peer who chairs the commission, confirmed the recommendation last night, saying that children's happiness was being put in jeopardy by unauthorised testing.

"DNA testing is very simple, but there can be very serious repercussions. It is not only terribly difficult for the child and the mother, but also for other siblings, who suddenly find that all the things that they understood about their family become different.

"We already know that in the United States fathers, on access visits, are taking their children's DNA without consent for testing, and we need to prevent that happening here.

"We will be recommending the creation of a special offence which makes it very clear to people that taking the DNA of someone else without authority, without applying to the courts, without consent, would be an offence."

She added: "Personal genetic information is special and people are entitled to feel that it is particular to them and the use of it should require consent, or should be done with the authority of the police, or the courts."

An estimated 10,000 paternity tests are now carried out each year. Many of the checks are conducted under the scrutiny of the Child Support Agency or the courts, but there are an increasing number of internet DNA testing services available for private use.

A Government code of conduct published last year stipulates that for children, the consent of both mother and father should be obtained.

The code is, however, voluntary and there are fears that some internet companies, particularly those based overseas, might be allowing tests to be carried out without the proper parental consent.

Under the Human Genetics Commission's recommendations, which are expected to be accepted by ministers, a father seeking a paternity test would have to obtain the consent of the mother, or gain a court order.

Lady Kennedy said that making the theft of DNA illegal would also protect adults who might be the subject of clandestine testing by others seeking to identify the presence of a genetic condition, disease or previously unknown family connection.

"We all leave a trail of DNA behind. People could want to obtain someone's DNA to prove things, or disprove things, to show that some high-profile person had fathered a child, or had not fathered a child, or that somebody carried a gene for a particular disease," Lady Kennedy said.

The commission, which will publish its report this week, wants to increase the public's trust of genetics and genetic testing with new protections for individuals, while at the same time enabling advances in medicine and science to progress.

The new law on DNA privacy would mean that organisations planning to set up genetic databases for research purposes would be able to include samples only from people who had given their consent. Researchers would not be able to use the information for any purpose other than that originally described.

The commission is also expected to argue that the police should not be allowed access to these databases, as it could discourage people from taking part.

Acknowledgement : The Sunday Telegraph, 19 May 2002