Requirement of consent for access to biological material in treatment biobank
Supreme Court order 1 July 2021, HR-2021-1436-A, (case no. 21-005349STR-HRET), criminal case, appeal against judgment.
Oslo University Hospital HF (Counsel Rune Ljostad) v. The Public Prosecution Authority (Counsel Trude Elisabeth Sparre)
Justices: Matheson, Noer, Bergsjø, Arntzen og Falch
The police had requested release of a semen sample from a treatment biobank to procure a DNA profile for the search of a missing person. The sample had been given for the purpose of possible future assisted fertilisation. The Supreme Court, having conducted an oral hearing, found unlike the previous instances that the request could not be complied with. It was mentioned that according to section 15 cf. section 13 of the Treatment Biobank Act, a voluntary, express and informed consent from the donor is required in order for release to be executed. This requirement cannot be explained away, and consent cannot be presumed. This interpretation is supported in legal history, and case law favours a strict interpretation of the wording, and the warrant to issue regulations for exceptional circumstances in section 15 subsection 6 the Act has not been exercised.