NJ Keeps ‘Creepy Database’ Of Infant Blood, Parents Say

Law360 (November 3, 2023, 7:55 PM EDT) — Like all U.S. states, New Jersey requires a small blood sample from every newborn, but unlike many other states it keeps that blood for decades in a “creepy database” and uses it in any way it chooses without notice or permission, in violation of the Fourth and Fourteenth Amendments, New Jersey parents claim in a proposed class action.

Since the 1970s, state law has required the collection of the blood samples to screen for various health conditions, including cystic fibrosis, hormonal deficiencies and other immunity and congenital disorders. Parental consent is not required, but parents are given a brochure explaining the screening program. What parents are not told, said the complaint filed Thursday in the U.S. District Court for the District of New Jersey, is that the state keeps the samples for 23 years and uses them for other purposes beyond the health screening.

The parents named in the lawsuit — Hannah Lovaglio and Erica and Jeremiah Jedynak — said they found 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.”

New Jersey has given blood samples to law enforcement officers without a warrant, the proposed class action said.

Other states with similar practices, like Texas, have turned over blood samples to the Pentagon to create a national registry. The New Jersey parents said they believed that their state was also turning over their children’s blood to the Pentagon.

The stockpiling of the blood samples violates the Fourth Amendment rights of children born in New Jersey because it violates their constitutional right against unusual search and seizure, the suit said.

“The right of the people to be secure in their persons includes property and privacy interests in the possession of their blood and genetic information,” the parents said.

Maintaining the samples without the notification or permission of the parents violates their Fourteenth Amendment right to due process, the suit said.

“The due process clause protects against state infringement of, among other things, those fundamental rights and liberties that are deeply rooted in our nation’s history and traditions or are implicit in the concept of ordered liberty,” the complaint said. “State action that infringes on fundamental rights is reviewed under strict judicial scrutiny.”

The suit raises these questions: How is the state using the blood? What third parties have received the blood samples? Does the state make a profit from selling the residual blood samples? Who is allowed access to the blood? How is it stored? What is New Jersey’s justification for keeping the blood? Why is it kept for 23 years? Why doesn’t the state obtain parental consent?

“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, identified purposes,” the suit said.

The parents were very distressed when they learned about the blood samples being kept by the state, the suit said.

“Erica 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,'” adding, “Keeping the blood of an innocent newborn, who has done nothing wrong, is immoral,” the complaint said.

The suit asks the court to hold the state liable for unconstitutional conduct, certification of two classes — parents and children — a judgment that the retention of the blood violates the Fourth and Fourteenth amendments, a permanent injunction prohibiting the state from stockpiling the blood samples, and attorney fees and costs.

Counsel for the plaintiffs and for the New Jersey Department of Health did not immediately respond to requests for comment Friday.

Hannah Lovaglio and her children, J.L. and B.L., and Erica and Jeremiah Jedynak and their son, C.J., are represented by C.J. Griffin of Pashman Stein Walder Hayden PC, and by Robert Frommer, Brian A. Morris and Christen Mason Hebert of the Institute for Justice.

Counsel for the defendants could not immediately be determined Friday.

The case is Hannah Lovaglio et al. v. Kaitlan Baston, acting New Jersey health commissioner, et al., case number 3:23-cv-21803, in the U.S. District Court for the District of New Jersey.

–Editing by Karin Roberts.

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