Federal Appeals Court rules to send state to court over infant blood testing

A federal appeals court this week revived part of a federal lawsuit over a state program that tests and stores newborns' blood samples.

Plaintiffs say a baby's blood should not be collected, tested or stored without its parents' consent. A lower court dismissed the case last August — citing the importance of testing newborns for diseases. But the appeals court said there's a plausible claim that storing the blood or using it for medical research without consent violates the constitution.

Philip Ellison is the plaintiffs' attorney.

"It's not the whole game, but it means that I'm really, clearly in the ballpark," Ellison says. "And it's very likely based on the standards that have been set for what the state has to prove to prove its constructional will be very very difficult for them to meet." 

Newborn screening is a public health program required by state law. It uses tiny samples of blood to screen for about 50 genetic diseases. If a condition is detected, the parents are notified. The Michigan Department of Health and Human Services says each year more than 250 Michigan babies are found to have a disorder detected by newborn bloodspot screening.

"I think it's very likely that the parents and the children in this case are going to cause a substantial change to the way blood samples are being secretly kept, utilized, stored, and possibly even sold," Ellison says.

The MDHHS did not respond to a request for comment.