New Jersey’s decision to continue retaining baby blood samples is perplexing

“Ummmm WHAT?!”

That’s from a social media post responding to this recent headline in the Asbury Park Press: “NJ cuts easy police access to baby blood.”

A completely reasonable reaction for someone who has not followed this story as closely as we have at the New Jersey Monitor. The thought of a government-controlled cache of baby’s blood, accessible to law enforcement, sounds like something Philip K. Dick dreamed up as a warning about surveillance state creep.

Alas, it’s the reality here in New Jersey. In July 2022, we reported that the state holds onto blood samples taken as part of a mandatory newborn health screening program, and provided some samples to police. In one case, the State Police used DNA taken from a nine-year-old when he was born so they could charge his father in a sexual assault case.

New Jersey officials took a step in the right direction last month when they announced they are making changes on this front. Health officials said they would store baby blood samples for a maximum of 10 years now instead of 23, and Attorney General Matt Platkin said he will limit when authorities can access the samples.

The timing of the announcements was not random. Some parents are suing the state over the practice — they say, rightly, that it’s a violation of the Fourth Amendment ban on unreasonable seizures — and settlement talks broke down a few weeks ago. The same day the state announced its new policies on storing baby blood samples, Platkin’s office told the judge overseeing the case that the newly announced policy changes mean the parents have no case.

Hardly. I’m heartened by Platkin’s directive that limits when police can access baby blood samples — but that practice should be banned entirely. Forcing parents to provide a sample of their baby’s blood to test for diseases is one thing; allowing police to use the blood sample later to charge one of the baby’s parents with a crime is an outrageous violation.

In fact, the state should not be storing baby blood samples for any significant period of time.

New Jersey health officials inadvertently gave away that they don’t need to retain these samples in their announcement that they will keep them for only between two and 10 years from now on, depending on test results.

“Under the new policy, the Department will retain identified bloodspots for only two years, unless a parent or legal guardian expressly requests a shorter or longer retention period as described below,” the announcement reads.

Brian Morris, a lawyer representing the parents suing the state over this policy, said this means the state has no good reason to retain the samples at all.

“If they needed it, they wouldn’t let people give the permission to destroy it,” Morris said

I asked a Department of Health spokeswoman if she would comment on this and she declined. The department’s announcement of its new retention policy says it deidentifies samples it holds onto for “routine laboratory quality assurance and quality control” and “the development of new tests for disorders.”

As for cops’ involvement, Platkin’s order stresses that law enforcement has “almost never” sought to use DNA collected from baby blood samples in criminal investigations. Our lawsuit to compel records in the case does indeed confirm this, finding just five subpoenas over the course of five years (we don’t know much about the cases, because the subpoenas were heavily redacted).

But if storing baby blood samples for years is neither a public health priority — it can’t be, because now parents will be allowed to force them to be destroyed — nor a public safety priority — evident by the minuscule amount of times cops have been able to access baby blood DNA — then the whole thing leaves me perplexed. Why do it at all?

I posed this question to Morris.

“I’m just as perplexed as you,” he said.