Could Helping Hurt?
Using DNA Testing to Reunite Families May Backfire
Last week, the public outcry against the Trump administration’s policy of separating children and parents accused of illegally crossing the border between Mexico and the United States reached its apex. Feeling the pressure, President Trump relented and signed an executive order ending the practice.
In the months between the announcement of the “zero-tolerance” policy and its reversal, thousands of children were separated from their parents. The task of reunification will likely be difficult and lengthy. Hoping to assist with this process, two direct-to-consumer DNA testing companies offered to use genetics to match parents and children.
While these offers come from a sincere desire to right these wrongs, they may pose additional privacy dangers to an already vulnerable population. Using DNA testing to reunite families could give the government access to this extremely personal information without adequate oversight of future uses.
Using DNA testing to reunite these families should be done with as little help from government as possible. At the very least, the government should not be able to access the information collected. The testing companies should also quarantine this data and destroy it after a family has been brought back together.
Trump’s Border Policies
In April, the Trump administration announced a “zero-tolerance” policy for all illegal border crossings. According to the administration, this policy necessitated that children be separated from their parents because of a 1997 federal court decision.
Flores v. Reno stipulated that, if possible, the government place children in the care of a relative or family friend rather than keeping them in custody. It also stated that children who cannot be placed with a friend or relative and are in custody must be kept in the least restrictive conditions possible. Flores also set a general rule that the government cannot hold immigrant children in custody for longer than twenty days.
Since the Trump administration intended to prosecute every individual they caught coming across the border illegally, and since prosecutions take longer than twenty days, officials had to place parents and their children in separate facilities.
As pictures and audio of screaming children being taken from their parents circulated, the public reacted with indignation. Republican leaders spoke out against the policy and called on President Trump to reverse his policy. Faith leaders also strongly condemned the policy. Even Former First Lady Laura Bush wrote an opinion piece for the Washington Post calling the policy “immoral.”
The administration, feeling the intense pressure, decided it would stop separating families. Last week, President Trump signed an executive order basically ignoring Flores and stating that families would be detained together indefinitely while the parents were prosecuted.
DNA Testing Companies Offer Help
Even though new families crossing the border will not be separated, there are several thousand children who need to be reunited with their parents. Because the children were under the jurisdiction of the Department of Health and Human Services and the parents under the Department of Homeland Security, bringing them back together will likely be extremely difficult.
Hoping that technology could help, San Francisco-area Congresswoman Jackie Speier approached the CEO of 23andMe and suggested that DNA testing kits could assist in reunification efforts. Anne Wojcicki, the CEO, then tweeted that her company would welcome any opportunity to help. The company needs the approval of the government in order to test the children in detention.
The same day that Wojcicki tweeted, another DNA testing company called MyHeritage also announced that they wanted to offer free testing kits to reunite migrant children with their parents. The company has reached out to the relevant government agencies to determine the feasibility of this offer.
Currently, it is unknown if the government will partner with these companies or not.
Testing Would Be Full of Difficulties
Collecting the DNA of migrant children and their parents could result in future government abuse. MyHeritage promised to process the data collected by the tests itself and not share any of it with third parties. Yet it seems unlikely that the Trump administration would grant the necessary access to the adults and children detained in facilities across the country without conditions requiring some form of data sharing agreement. Even if MyHeritage and 23andMe are able to retain all the data collected, the government could still seek to access it by subpoena in future immigration or criminal proceedings.
If the government was able to obtain access to the collected data, it could be used as a surveillance method, severely intruding on these individuals’ privacy. A colleague of mine also pointed out that such information could be used to deny the DACA eligibility of these migrant children in the future. Additionally, such data has implications for the extended families of each person tested, as evidenced by the Golden State Killer case in California.
It will also be difficult to obtain proper consent from the separated children in order to obtain a sample for testing. Generally, a parent could give informed consent for a child under 18. Obviously, in this case, there are no parents to give consent on behalf of their children. The most likely candidate for these children’s legal guardian, and the entity to give consent on their behalf, is the federal government, since the children are wards of the state. Considering the Trump administration’s strong stance on immigration, it is difficult to see how it could be impartial enough to act in the children’s best interest. As explained above, the government also has reasons to want the children to be tested and their data turned over to government agencies. The government also likely does not have the resources necessary to offer legal representatives and genetic counselors to explain this process to the children who are old enough to deserve an explanation.
Clear Boundaries Should Be Established
If this plan is to move forward, the most important stipulation should be that the government’s involvement is as limited as possible. Under no circumstances should any DNA data be shared with federal agencies.
Perhaps the best way for MyHeritage or 23andMe to structure this program would be to create unique databases for the data collected from the migrants and to destroy both digital data and physical samples as families are reunited. This would prevent government from accessing the data in the future. This arrangement was suggested by Professor Natalie Ram of University of Baltimore School of Law.
It is important to remember that the dysfunction of Congress and the over-the-top policies of President Trump are the primary and secondary causes of these heart wrenching separations. This discussion would be unnecessary apart from those factors. Unfortunately, until Congress settles on a better, more permanent fix, we will be left with a handful of bad choices.
Allowing DNA testing companies to use their technologies may help. But it also poses serious dangers to these individuals’ privacy. Unless clear, strong restrictions are imposed on the government, this program will likely cause more future harm than good. Even with such restrictions it would be a gamble.
The stakes are high. This may offer some of these parents and children their only and best hope to ever see one another again. Under such circumstances, it may be worth it to at least try. I pray we will determine a better solution soon.