Lawsuit seeks to stop NJ from saving newborn's blood for years, sharing it with third parties

TRENTON - Upon the birth of her two children, Hannah Lovaglio knew blood samples were taken from her newborns to test for 62 different diseases and disorders.

She didn't know the state Department of Health planned to keep those blood samples for 23 years.

Now, after learning that, the Cranbury mother is left to wonder why the state is holding onto her children's biological material and what the government plans to do with it.

Lovaglio is a plaintiff in a federal class action lawsuit that alleges the health department's retention of her children's blood samples, and those of all the other babies born in New Jersey since the 1970s, violates constitutional protections against unreasonable searches and seizures and infringes on parental rights.

See the full lawsuit at the end of this story.

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The lawsuit claims the health department doesn't inform parents it will hold onto their babies' blood after the health screenings are completed, even though it has been known to give or even sell the retained blood to third parties, including police for use in criminal investigations.

"Following a lawsuit filed by New Jersey public defenders, it was revealed that New Jersey gave unused blood from its baby blood stockpile to law enforcement on multiple occasions," the class action suit alleges.

On one of those occasions, DNA analysis of a baby's blood sample from the stockpile implicated the child's father in a 1996 sexual assault, according to the public defender's office.

"The officers did not have a warrant to take the blood," the class action suit said.

"On information and belief, New Jersey also gives or sells blood from its baby blood stockpile to other third parties," the suit said. "This could include, but is not limited to, researchers, companies or other government agencies. New Jersey does not tell parents when — or to whom — it gives away or sells their children's blood."

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Lack of informed consent

The class action suit, brought on behalf of Lovaglio, her children and others, seeks to bar the health department from keeping the blood of newborns without parental consent after the health screening tests are complete.

"Plaintiffs bring this class action to declare unconstitutional New Jersey's retention of blood from the newborn screening program after testing is complete, and to enjoin New Jersey from retaining that blood unless and until it first obtains informed consent to retain the blood for specific purposes," the suit said.

The lawsuit was filed Nov. 2 in Trenton by lawyers from the Institute for Justice, a nonprofit public interest law firm based in Arlington, Virginia, and the New Jersey-based Stein Public Interest Center.

Named as defendants in the suit are acting Health Commissioner Kaitlan Baston and Nancy Scotto-Rosato, assistant commissioner of the health department's Division of Family Health Services.

Nancy Kearny, health department spokeswoman, said the department does not comment on pending litigation.

The health department has not yet filed a response to the suit.

Lovaglio and her two sons, ages 5 and 1½, are named plaintiffs in the suit, along with a Boonton couple, Erica and Jeremiah Jedynak, and their son, who will turn 2 in December.

When Lovaglio's children were born, the state took blood from both of them through its newborn screening program, and then retained the blood after the tests were complete and still has it, the suit said.

"New Jersey never asked Hannah whether it could keep her children's unused blood after the testing was completed," the suit said. "Nor did New Jersey ask Hannah whether it could use her children's blood for other purposes, such as giving or selling the blood to third parties."

The lawsuit said Lovaglio "was appalled" to learn that the state has secretly retained her children's blood.

"So while Hannah would have consented to the initial drawing of her children's blood to test for the 62 diseases in the newborn screening program, she would not have agreed to allow New Jersey to keep her children's blood to use however it wants," the suit said.

The lawsuit alleges the state takes the blood from every baby born in New Jersey without the informed consent of the parents and then keeps it for 23 years, without the parents' knowledge.

"Not only does New Jersey secretly hold onto the blood for decades, it can use the blood however it wants," the suit said

"These plaintiff parents find it wildly distressing to have no idea where their child's blood may be or end up, what it is being used for and whether it can be used against their child in the future," the suit said. "Their concerns are not hypothetical. New Jersey has already given some blood to law enforcement officers without a warrant."

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Different states, different rules

The New Jersey Public Defender's Office, in a lawsuit filed last year, said it learned State Police had successfully subpoenaed a blood sample from the state's Newborn Screening Laboratory to be used in a cold-case investigation into a 1996 sexual assault. The person whose blood sample was subpoenaed was about 9 years old at the time, the public defender's lawsuit said.

The State Police, by obtaining the child's blood sample, sidestepped its constitutional obligation to develop probable cause to apply for a warrant to obtain a DNA sample from the child's father, who was a suspect in the sexual assault, the public defender asserted in the lawsuit.

The ensuing analysis of the child's blood sample was subsequently used to form the basis for an affidavit of probable cause to obtain DNA from the father, who was later charged in the case, the public defender's suit said.

After learning of the case, the public defender sued the state health department to force it to turn over information on the number of grand jury subpoenas it received for blood samples from the newborn screening laboratory. The health department refused, citing grand jury secrecy. A judge earlier this year ruled against the health department and ordered it to turn over the information to the public defender.

All 50 states and the District of Columbia require blood screening for newborns, but what is done with the blood after the testing varies from state to state, according to the Institute for Justice.

Some states have schemes similar to New Jersey and also have been sued.

In Texas, for example, a lawsuit there revealed the state was turning over blood from the newborn screening program to the Pentagon to create a national registry, the class action lawsuit said.

"On information and belief, plaintiff parents expect that New Jersey is likewise turning over their children's blood from its newborn blood stockpile to third parties, including the Pentagon," the suit said.

One of the plaintiffs, Erica Jedynak, was "horrified and disgusted when she learned that New Jersey was keeping her son's blood in a state facility for what she describes as 'a creepy database,'" the suit said.

The Fourth Amendment to the U.S. Constitution guarantees the right of persons to be secure against unreasonable searches and seizures.

"The retention of the blood from the newborn screening program absent a warrant or informed consent violates the Fourth Amendment rights of Hannah, Erica and Jeremiah's children," as well as violating the fundamental due process rights of the parents, the suit said.

"New Jersey's program does not just impact plaintiffs: It likewise violates the constitutional rights of every parent and of every child born in New Jersey since the newborn screening program began in the 1970s," the suit said.

The blood draw and testing are mandatory in New Jersey unless a parent or guardian objects to it on religious grounds, although New Jersey has no requirement that parents be informed of their right to object on religious grounds, the suit said.

"New Jersey never tells parents that it will keep their baby's blood after the newborn screening testing is completed," it said.

In addition to Texas, Minnesota and Michigan also have been sued over their practices of holding onto blood of newborns without informed consent of parents, according to the Institute for Justice.

As a result of lawsuits, Texas destroyed 5.3 million blood samples and Minnesota destroyed 1.1 million, according to the Institute. Michigan agreed to discard 3 million samples while a lawsuit against the state proceeds, it said.

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Kathleen Hopkins, a reporter in New Jersey since 1985, covers crime, court cases, legal issues and just about every major murder trial to hit Monmouth and Ocean counties. Contact her at khopkins@app.com.

This article originally appeared on Asbury Park Press: NJ newborn's blood saved for years; suit says it is shared without consent