Outside Legal Counsel PLC

Newborns and Parents to Sixth Circuit: We Do Have Constitutional Rights

For Immediate Release | Oct 05, 2018

Since at least the 1980s, the State of Michigan has operated a semi-secret government program which has seized millions of blood samples from its youngest citizens as newborn Michiganders who are less than 48 hours old to screen for various diseases. The parents of these children sued claiming that taking these blood samples, testing them, and then indefinitely storing the excess blood without their prior informed consent violates their and their childrenís rights under the US Constitution.

The local federal judge disagreed concluding neither parents nor children can demand the government to stop undertaking non-consensual blood draws.

The Parents and their children have now appealed.

On October 4, 2018, Philip L. Ellison, as attorney for the parents and the children, filed their over 60 page brief with the United States Circuit Court for the Sixth Circuit sitting in Cincinnati, Ohio. The Sixth Circuit, as one of several high federal appellate courts right below the United States Supreme Court, will consider whether to reverse the local judgeís legal conclusion.

The parents and infants argue that taking blood without the informed consent of parents violates the Fourth Amendmentís protection against unreasonable searches and seizures, and violated the Fourteenth Amendmentís substantive due process right to make their own medical decisions.

"This is going to be a landmark case," states Ellison. "It directly questions whether minor children citizens have a choice before their government takes blood and highly personal medical data without the consent and control of parents, or without a warrant."

At least two other courts, Beleno and Dubbs, have found in favor of parents but both cases were settled (i.e. the state gave up) before a final ruling was made.

Michiganís newborn screening program is unique in that it keeps the excess blood samples or "spots" in a warehouse in Detroit through an entity known as the Michigan Neonatal Biobank. The Biobank then sells those samples to researchers and businesses. Parents were never asked to whether the Biobank could take possession and then sell their childrenís blood samples.

The current lawsuit does not seek to end all newborn testing and screening, but rather have a federal court determine that consent was required before the government can force an infantsí medical team to take blood for testing and the later sell of the samples.

The State of Michigan officials and the Biobank officials sued as part of the case will have the opportunity to file a response to the appeal. They are being represented by the Michigan Attorney Generalís Office and a private law firm.

No court date is yet set.

A copy of the brief can be downloaded here.