TribBlog: Baby Blood Battle Continues [Updated]

The baby blood battle continues with a second lawsuit against the Department of State Health Services for not only storing, but allegedly unlawfully distributing, baby blood samples. With the help of the Texas Civil Rights Project, two parents have filed a new class action lawsuit against DSHS and Commissioner David Lakey for allegedly selling, distributing and bartering blood samples collected from their children and others as part of the mandatory newborn screening program.

At a press conference in Austin today, plaintiff John Higgins and his attorney, Jim Harrington, accused DSHS of deception in selling blood samples to commercial pharmaceutical companies and sending blood samples to the Armed Forces DNA Identification laboratory. “My wife and I both were extremely upset when we found out about the data bank and the potential that [my daughter’s] DNA was going to be used or stored in some police, or military or Interpol, eventually, data bank,” Higgins said.

Carrie Williams, a spokeswoman with DSHS, said the agency has not yet seen the lawsuit. But based on what they're hearing, she said, the lawsuit is nothing new. "The Texas Civil Rights Project sued us before about bloodspot storage and use, and that issue was resolved and settled last year, with the Texas Civil Rights Project receiving funds for legal fees," she said. "...Unfortunately, based on media reports, it appears they have decided they want to double dip back into this issue with baseless assertions, including the false assertion that there is DNA in a federal database."

Plaintiffs have asked a San Antonio judge to issue an injunction against DSHS to account for and destroy all blood samples distributed without parents' consent, whether or not they are in the agency's possession. Lakey is also being asked to disclose all financial transactions involved with the blood samples. Harrington says the purpose of the lawsuit is "to make sure that in the future there is total transparency about what they’re doing."

In 2009, five parents sued DSHS for unlawfully keeping baby blood samples and using them for research without the consent of parents. DSHS settled the 2009 suit, agreeing to destroy 4 million baby blood samples it was storing.

Unbeknownst to plaintiffs at the time, at least 8,800 samples could not be destroyed because they were not in the possession of DSHS. Following the settlement of Beleno v. Texas Department of State Health Services, The Texas Tribune reported that DSHS had given hundreds of blood samples to the federal government to help create a mitochondrial DNA database designed to someday identify missing persons and crack cold cases. KXAN-TV in Austin also discovered that the state profited from trading blood spots for half a million dollars in lab supplies and services from a private company. “During [the 2009] settlement we repeatedly asked them did any of these spots go to commercial entities, did any of these go to police or security organizations? They repeatedly denied that that was going on. They told the Legislature the same thing,” Harrington said.

In response to the first lawsuit, the Texas Legislature created a law in May 2009 giving parents the ability to opt out of the DSHS research program at the time of their child’s birth. Harrington said the purpose of the new lawsuit is to create transparency about how DSHS is using newborns’ blood samples and to change the law to give parents the option to opt in to DSHS research programs, as opposed to opting out. “It’s one thing to opt in to a research program that’s non-profit; it’s another thing to have your DNA or your kid’s DNA used by a company to make millions of millions of dollars,” Harrington said. “The problem is, we can’t trust anything they’re saying so we really don’t have a clue how much more extensive this is, but we will find out in this lawsuit.”