Dogs and Law: Legal Significance of DNA Testing
DNA testing in dogs is performed in the Czech Republic by LABOKLIN or GENOMIA for example and can be used for a wide range of outcomes. Some clubs have a discount on specific types of genetic tests in the laboratories.
Determination of Parentage
The DNA testing enables to determine one of the most important characteristics of a dog – which it is a confirmation of its origin – that the dog’s father and mother are those animals claimed by the breeder. Of course, for this purpose, it is necessary to have samples of the genetic material from the tested animal and then also from both claimed parents. The DNA test is performed from a cell swab from the dog’s mouth or from the blood. The blood test is somewhat more expensive, but more conclusive (for example a swab from a suckling pup can be devalued by cells from the mother’s teat). It is recommended to prove the match with each parent, not just with the father (as done in humans). We must not forget that every puppy should be tested separately because they can all potentially have different fathers. The tested puppy must also be micro chipped so that it cannot be confused with another.
From the law point of view, parentage is guaranteed by the breeder at the level of “honourable word”. The breeder declares to the new owner that the parents of a particular puppy are that particular dog and that particular bitch that have fulfilled breeding conditions set by the breed club (for example under the name Breeding Rules). The mating certificate is issued by the advisor for breeding and is usually signed by the owner of the bitch and the owner of the stud dog. This formally proves that these two breeding individuals are the parents. On the basis of this, a pedigree for the puppy is issued. Obviously, this process has no objective control, only by a DNA test. There may be a possibility that the parents are deliberately different to those on the mating certificate (there is a question of who knows about it and who doesn’t), or the bitch gets mated again by another dog without the owner knowing. That’s how it goes – the bitch is brought over to mate, the owner claims that she is Karlička von Bahnhof, and you just believe it. Just as the owner of Karlička believes that your dog is YOUR dog and then you both sign for it. In an ideal world of law, everyone has a chip reader and pedigree with them, so you can check on the spot who is who. In the real world, however, it may happen that the participants may be different from those listed in the mating certificate.
The individual breeding clubs are looking at DNA testing differently and they have started doing it at different times. Whereas for the German Shepherd Dogs, the DNA test for dogs going into the breeding programs in the Czech Republic is mandatory from 2009 (for individuals born after 1st of July, 2013 the test must be evaluated in Germany), Belgian Shepherds are tested in the Czech Republic since 2011.
For many breeds, testing for parentage is not compulsory. Respectively, they are tested only for a specific genetic defect, but not for parentage.
In DNA testing it is clear. If you want to invest in it, you can test the dog for all sorts of things (coat colour, curly coat…). It is necessary to know that there is a number of tests that are appropriate only for a specific breed, or for a specific fault that typically occurs with that particular breed. Using such test on another breed may give a false negative result (the test is negative, but it is a mistake because the test is for Saint Bernard and you have a Dachshund).
The Importance of a Genetic Test for Parentage in the Context of a Puppy Sales Contract
In the previous article about the contract of sale for a dog, I stated that the buyer may in some cases withdraw from the sales contract. In the eyes of a lawyer it is simple – you return the dog and you get the purchase price back, or other additional costs incurred for tests or spent in vain (unnecessary), because the dog can only be used for one thing and that is to lay on the sofa while you can forget about the competition field. (I understand that not everyone has the “balls” to return a dog with which you have a relationship after six or twelve months, but legally it is amazingly black and white.)
A definite reason for withdrawing from a sales contract is when a dog bought is not THAT dog – one or both parents are different. If it is a different puppy, then that is of course a fundamental problem and so-called contradiction of the subject of the purchase with the purchase contract – for example, you wanted an Australian Shepherd and you got a Border Collie. Maybe you wanted a German Shepherd and you got a German Shepherd, “just” his/her father is a different dog to the one you wanted.
Another clear case for withdrawal from the contract is a proven genetic defect of the puppy – if the genetic test proves that the puppy has a specific genetic defect. From the legal point of view, this has fundamental importance. There is no doubt that the genetic defect was present when the puppy was handed over (i.e. the puppy “appeared to be healthy” but wasn’t) and it was discovered later, either by test or by clinical signs. This is again the reason for withdrawal from the purchase contract and refund of money, at least within period of 6 months from the purchase.
However, the “view from the legal office” is fantastic, assuming you have a written contract and everyone faces up to the issues. But as you will read bellow it can all be very different…
A STORY FROM LIFE: Mongrel at the Gateway to the WUSV World Championship
Based on our previous articles about the Purchase Agreement, where we have already come across the DNA problem, we have been contacted by one of our ProfiDOG.cz readers. He told us a story that happened at a time when DNA testing still wasn’t a standard (testing in German Shepherds is mandatory in the Czech Republic since 1st of January 2009). So, here is the story based on the actual events that we are publishing with the consent of the owner of the dog, let’s call him Mr. X.
Mr. X bought a young working breed dog from a promising litter where stud dog was foreign. He was carefully preparing the dog for the competition career, passed IPO3 many times and participated in selection trials with very good results. Then a big shock came – a sibling in Germany where it is mandatory to test DNA was tested, and he did not have the declared parents! DNA did not match – the sire was not the father. Mr. X did not have a written contract. The ČKS took away the pedigree. The dream of competing at the WUSV World Championship disappeared. A dog without a pedigree has the door to the competition closed.
The legal trial went on for several years, cost tens of thousands, expert reports and translations of foreign breeder stance were elaborated. The nerves were working… The result was that Mr. X received compensation based on the value of the dog, the costs of his training and the costs of the court dispute were also paid. However, both humanly and cynologically it was “all for nothing”. All the work with the dog was done in vain. When you see yourself at the WUSV, you probably won’t go to a fun competition for dogs without a pedigree. It was not possible to include the dog in the breeding program and get a puppy. Just a bad dream really!
The dog was not the only one in the litter, so the whole affair also affected his siblings in the Czech Republic and abroad, with the consequences depending on how the individuals dealt with it – both clubs and owners. The Czech breeder was banned from breeding for one year.
And now imagine that most breeds do not have to do a mandatory DNA testing to prove the parentage and many dogs are sold without a written contract! Check your breeders, demand a contract! Good breeder will certainly not oppose and keep away from the others…
Autosomal Recessive Inheritance – Demonstration on the Merle Colour
Merle colour is one of the colour variants of, for example, Border Collies, Australian Shepherds and Louisiana Leopard Dogs. I admit these are not working breeds, but they can be used for work. They can also be used as an example in a legal lecture on “why to write the test results of the parents in the contract”.
The thing is that if a dog carries the merle gene, it is not a problem. The dog may have a colour that somebody likes (but do not rely on “what you see” as there can also be “hidden merle” – a dog has the gene, but it did not show on the colour). It does not bring any negative consequences or health risks with it.
The merle gene (just as, for example, serious neurodegenerative disease in Belgian Shepherds Malinois) is inherited by the so-called autosomal recessive mode of inheritance. If the presence of this gene can be tested for, common sense says that we will mate only two clear individuals or carriers to the clear ones. Certainly not two carriers or carriers and affected, because then the offspring can be affected with all the consequences.
See the illustration below as an example, source: GENOMIA.CZ:
Unfortunately, if both parents are carrying the merle gene (which ideally does not happen at all and in a less ideal legal world it will be at least written in a contract), statistically 25 % of puppies are so called recessive homozygotes. This means that they have a merle gene from both parents (are double merle) and the problems are already here. For example, there is a very high probability of dog being deaf.
Sure, we have a test (Baer test) for testing deafness. But why all this, if it were enough not to pair two dogs together who might potentially have troubled offspring? What are we going to do with a deaf puppy?
In addition, merle colour is not “life-threatening”, unlike the neurodegenerative disease (Spongy Cerebellar Degeneration with Cerebellar Ataxia, specifically the SDCA2 subtype) typical for Belgian Shepherds Malinos. However, the principle of inheritance is the same – it is appropriate to only pair individuals where one is clear and the other is carrier at most, but never two carriers! Individuals affected by the SDCA2 do not get to the breeding programs naturally, because the diagnosis is so fatal that death occurs at puppy age (i.e. before the reproductive maturity). However, two carriers cannot be combined, because there is a possibility of some puppies being affected.
The process may not be so fatal for other genetic defects. That’s why it is necessary to test the individuals so that two carriers or carriers and affected are not paired together.
From a legal point of view, it is essential that if you state in the contract, that one parent is clear and the second one is a carrier, then you cannot “file a complaint” that the puppy is a carrier, because it simply can happen.
These conclusions mentioned above apply only to autosomal recessive mode of inheritance! I am aware that there are genetically detectable defects, where we do not know how they are inherited or are inherited differently. In which case, this relatively simple principle described above does not apply.
The Advantage of Genetically Detectable Defects
From the law point of view, the defects whose presence or absence can be clearly detected by a genetic test in dogs are absolutely fantastic – it is again a black/white, a clear thing. The dog either has or hasn’t got the defect. We withdraw from the contract or not, or a discount on the purchase price is agreed or the court decides about it.
Unfortunately, a large number of problems that dogs can objectively have do not have clear genetic evidence – typically hip dysplasia which gets checked for breeding in almost all working breeds. It is known that there is a certain genetic predisposition (therefore animals with higher scores for dysplasia are eliminated from breeding), but dysplasia is not clearly genetically conditioned. This is also because a number of joint defects is included under the term dysplasia, some of which may be genetically conditioned and some may be due to overworking, injury and poor nutrition.
Thus, if the problem is inherited, i.e. conditioned genetically and we can even test for it, that is a dream for the lawyer. Unfortunately for lawyers, genetics is evolving. What is valid today may not be valid tomorrow and worse, it’s all about living organisms. A particular individual may have utterly atypical manifestations of a problem in which case the lawyer is waking up during the night covered in sweat…
When you hear someone saying “dog like a dog”, remember these articles and you can think what you like about it. Just like when someone buys a dog without a written purchase contract, because “you don’t need the paper, what for anyway”. When you go to buy your dog, do not download the purchase contract from the internet. Get it be tailored considering the breed and also the problems that a particular breed may have… It pays off.
At the end of this chapter… Since I am a lawyer and with this article I am stepping on vet’s toes a little bit, I have to explicitly state that I have asked the vets from the veterinary ABClinic in Brno for help not to make a fool of myself. I would like to thank them for the willingness.
We will be discussing responsibility for a dog in the sense of the damage caused by the dog in the next article.
Mgr. Jana Krouman, a lawyer in Brno, Czech Republic
Translation: Markéta Braierová