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Blood Samples Protected by State Genetic Privacy Law

Written by Dianne Bourque and Thomas Williams

On November 16th, the Minnesota State Supreme Court held that a blood sample itself is protected information under the  Minnesota Genetic Privacy Act  (the“GPA”). The decision arose out of a suit brought by nine families of newborns’ whose blood had been collected, tested, and retained by the state under its newborn screening statutes.  Those statutes allow the Commissioner of the Department of Health to collect blood samples from newborns for testing for genetic and metabolic disorders.  The statutes also permit the Commissioner to retain samples for certain purposes, which may include further research uses. 

The decision turned in large part on the definition of “genetic information” protected under the GPA.  Agreeing with the plaintiffs, the majority held that the blood samples were subject to the GPA simply because they contained genetic information.  In doing so, they relied upon the GPA language that defines genetic information as “medical or biological information…that is or might be used to provide medical care.” (Emphasis added.)  The court used this language coupled with the “common understanding” that biological information is contained in the DNA found in blood samples to reach the conclusion that the blood samples, alone, are biological information and subject to the provisions of the GPA.

In his dissent, Justice Paul H. Anderson skewered the majority’s interpretation of the term “genetic information,” honing in on the over-inclusiveness of their interpretation.  He notes that the legislature consciously omitted the term “biological specimen” in the definition the majority relied upon when the full text of the GPA was considered in context.  While agreeing that the test results obtained were covered by the GPA, he did not agree that the samples, themselves, were covered by the GPA because they had undergone no analysis.

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M. Daria Niewenhous is a Mintz Member with a well-established health care practice. National and local providers rely on Daria’s experience to navigate capital projects, mergers & acquisitions, integration, and other strategic initiatives; adverse events; and licensing, contracting, patient care/risk management, and other complex legal matters.