PRODUCTION OF BIOBANK DATA FOR THE NEEDS OF CIVIL AND CRIMINAL PROCEEDINGS: JURISPRUDENCE FROM THE EU STATES

Abstract

The purposes of retaining biological material may be diverse. Biorepositories, which are containers of biological materials, are referred to as biobanks in English-language scholarship or biotheques in French. There is no uniform agreement in legal and medical scholarship as to the scope of biological material to be maintained in order for an institution to be called a “biobank”, or the actual aim of such maintenance. At present, special techniques are already able to determine the identity of the individual whose biological material is retained; thus, in case such data is identifiable using various techniques, they should be considered as personal data in accordance with the recent judgment of the Latvian Senate, No. SKA-166/2020. Such an inference is quite apparent, but this issue requires the resolution of the situation whereby biobank data could legitimately be produced for the necessity of administering justice, and whether this would be possible in principle. The court practice of the Nordic States already holds that a court may allow the production of biobank records, but this heavily depends upon the circumstances of the case: such situations may arise in civil litigation relating to paternity claims or to the right to know one’s origin, and prosecution offices may opt to request biobank data for investigating suspicious deaths. In some other instances, biobanks, cryobanks, and medical institutions governing biobanks may be sued for illegitimate collection and maintenance of biological samples without the notification of the party involved – which are known in the United States of America, as well as one outstanding case in Iceland. The current situation concerning litigation relating to legitimate biobank data disclosure is evolving, and the legislation relating to it is either frequently absent, or lacks clarification. In this paper, the author calls for the clarification of legitimate instances where biobank data could be disclosed for the needs of court proceedings upon the examples of Latvian law, and highlights the current jurisprudential developments in respect to litigation against biobanks and the institutions governing them in respect to an alleged privacy violation.