N.J. Attorney General’s new directive limits use of baby blood samples

New Jersey Attorney General Matt Platkin issued a new directive Thursday that limits attempts by law enforcement officials to obtain newborn blood samples for criminal investigations.

Every baby born in New Jersey, and in most other states, must have a bloodspot screen taken within 48 hours of birth to test for 61 illnesses and congenital disorders that can cause serious health problems or death.

The New Jersey Monitor and the New Jersey Office of the Public Defender filed a public records lawsuit in 2022 to obtain records that showed that over a period of about five years, four law enforcement agencies issued five grand jury subpoenas to the state’s baby blood spot program to obtain blood samples. Law enforcement officials used years-old blood spots to help them solve criminal investigations without the knowledge or consent of the families.

In 2021, the New Jersey State Police sought access to a blood sample from the New Jersey Department of Health belonging to a child who had been screened nine years earlier as a newborn. They wanted to perform DNA analysis to try to connect the child’s father to a rape committed nearly 25 years earlier. By obtaining the blood spot sample without a warrant, the State Police were able to maneuver around the requirement to establish probable cause before seeking a warrant for a mouth swab from the suspect. The DNA results obtained from the child’s blood were used to submit an affidavit of probable cause, and a warrant was issued for a mouth swab from the father. After the analysis of his swabbed DNA was conducted, he was criminally charged.

Law enforcement agencies will now have to submit written requests to the state’s Division of Criminal Justice to use a blood sample, and officials must explain why an exceptional circumstance exists that justifies using the sample. Law enforcement officials also must obtain blood spots from the state’s newborn screening program through:

• A court-issued subpoena for medical records, rather than a grand jury subpoena
• A search warrant based on probable cause
• An administrative subpoena or appropriate court process issued in a missing-person or unidentified-body case

“Today’s directive adds new limits to ensure law enforcement agencies only seek such information in genuinely exceptional circumstances,” Platkin said.

The directive takes effect immediately.

The New Jersey Department of Health also announced changes Thursday to its retention policy for newborn bloodspots in tandem with Platkin’s announcement. The Department of Health will retain blood spots linked to a child’s identifying information for only two years unless a parent or guardian opts for a greater or lesser retention period. The new policy also contains other limitations on the use and retention of newborn bloodspots, including a restriction on law enforcement access that is consistent with Platkin’s directive.

A class action federal lawsuit challenging the state’s use of baby blood spots for criminal investigations is still moving forward after settlement talks broke down earlier this month. The plaintiffs in the lawsuit are two Boonton parents, Erica and Jeremiah Jedynak, and the Rev. Hannah Lovaglio, a mother of two who lives in Cranbury. 

Critics of the state’s policies on the use of baby blood samples say Platkin’s new directive does not go far enough in protecting the rights of families. Brian Morris, an attorney with the Institute of Justice, a nonprofit law firm that filed the lawsuit on behalf of the parents, told Advance Media Thursday the changes are “a small step in the right direction.” Morris contends that the program is unconstitutional because it does not require informed consent from parents.

In California, researchers can purchase newborn blood spot samples for state-approved studies, and law enforcement officials can access them with a court order. Two new bills have been introduced in California this year to protect family’s rights when it comes to blood spots. One bill would force the state to reveal who is using California’s newborn bloodspots and why. A second bill would amend the state’s Genetic Information Privacy Act to require the state to follow the same rules as consumer genetic testing companies and get consent before using or sharing genetic data.