A loophole in Spanish law and unsolved ethical issues in paternity testing.

Abstract: Article 18 of the current Spanish Constitution (which came into force in 1978) defends all citizens’ right to privacy. Accordingly, the new Code of Ethics of the Spanish Medical Association includes several articles concerning studies conducted on genetic information and the acceptance of such studies by all individuals involved. As a result, a serious problem arises in paternity testing cases when investigating an alleged father–child relationship when the biological mother has not given consent for access to be gained to her genetic information. When it comes to the laboratory investigating these cases, the problem of lack of permission from a parent is greater when the child is a minor or has a mental or psychological disability because current Spanish legislation calls for informed consent to be given by legal representatives. The law does not specify what happens when one parent (for instance, the putative father) gives consent while the other (the mother) does not. There are currently no Spanish judicial records addressing the issue. Depending on the spirit of the law, it is logical to understand both how a team from a forensic genetics laboratory are likely to be sued for performing a biological paternity test without the mother''s permission and how indeed the lawyer could win the case. The purpose of this study is to provide legal solutions in order to avoid potential problems arising with regard to legislation. [Copyright &y& Elsevier]

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