A law that could send eBay directors to prison if they fail to remove listings for body parts will next month extend to anyone holding saliva or hair samples for paternity testing or other DNA analysis if they do not have proper consent.
The Human Tissue Act of 2004 regulates the removal, storage and use of materials that include human cells, including blood or tissue samples. Not all of the businesses caught by the legislation are obvious.
One of the Act's provisions, in force since October 2005, introduced a maximum penalty of a fine and 51 weeks in prison for anyone who publishes an advert for human organs, blood or tissue samples.
Websites that allow users to post their own content may be familiar with the risk of defamation; they may be less familiar with the risk of users selling a human kidney. One company that is familiar with that risk is eBay.
Bids on a "fully functioning kidney" at eBay.com reached $5.7m in 1999 before the company intervened to block the sale. A similar sale was blocked at eBay.co.uk. Such sales have been outlawed since 1989, but jail terms are a new deterrent, and the 2004 Act also catches sales outside Britain for the first time.
OUT-LAW asked eBay about its procedures. The company referred us to its Human Parts and Remains Policy.
"Humans, the human body, or any human body parts may not be listed on eBay," it states. "Examples of prohibited items include, but are not limited to: organs, bone, blood, waste, sperm, and eggs. You may not include such items as a gift, prize or giveaway in connection with an item listed on eBay. However, items that contain human hair (eg, lockets) may be listed on eBay."
A spokesman added, "eBay promptly removes any items listed on the site that it becomes aware of that may break this policy."
It is understood that the company becomes aware of prohibited ads by inviting customers to notify policy breaches and also by using software to monitor for keywords.
Human hair can be sold without breaking eBay's policy and without breaking the 2004 Act; but buying that hair to perform a DNA test will soon become an offence unless there is consent.
From September, a maximum three-year prison sentence looms over anyone holding bodily material with intent to analyse its DNA without consent. This could apply to directors and managers if their company performs DNA testing and they neglect to take steps to ensure consent.
For little more than £100, several companies can determine whether a child is yours. They offer other services too. Some will analyse DNA in sperm stains, hair follicles, toothbrushes, chewed gum, cigarette butts and licked envelopes.
Existing regulation bans paternity testers from advertising their services on the radio or television but they can be promoted in print and online. Many offer only a basic service. Some offer more, including one which offers to help customers in their "own private detective work" which poses the question, "has someone been in your house without your knowledge?"