Companies that wish to sell paternity tests in Switzerland must take steps to ensure that they have the written consent of all the parties affected by the test. They must confirm the legal validity of the consents provided using an effective procedure. This is the only way to prevent tissue samples being taken secretly from children and paternity tests being carried out without the knowledge of a spouse or partner.
In the past year, private companies have begun to offer extra-judicial paternity testing in Switzerland. The conduct of such tests is not for the time being subject to any authorisation or to any official conditions. Statutory regulation will come only with the introduction of the Federal Act on the Genetic Testing of Human Beings (HGTA).
The way in which these paternity tests are offered does not fulfil data protection requirements. The conduct of a paternity test constitutes the processing of personal data in terms of the Data Protection Act. Unless a test of this nature is ordered by a court, it may only be carried out if the persons affected give their written consent. If companies that offer paternity tests do not check whether the required consents have been obtained and do in fact come from the persons affected, it is a simple matter for "secret" paternity tests to be carried out. Secret tests not only infringe the personal rights of the child in question, but also the rights of the person behind whose back the test is carried out.
Between October 2002 and January 2003, we issued recommendations to three companies (see Section 13.7.2), in which we requested the companies to comply with the provisions of the Data Protection Act and to confirm the legal validity of the consents provided by the person instructing the test. In particular, companies must ensure that the consent of a guardian is given in the case of children. Normally this means that both parents must give their written consent to the test. Furthermore, for the consent to be legally valid, those affected must be clearly informed of the full implications of the test. Here the companies have a special duty to provide information. They must offer their customers specialist clarification and counselling. As paternity tests involve the processing of particularly sensitive personal data, it goes without saying that effective data security procedures must also be put in place.