Kerala High Court lays down guidelines for DNA testing of adopted children born to rape survivors

The Kerala High Court recently laid down guidelines for the collection of DNA samples from children who were born to rape survivors and were subsequently adopted by other couples [Suo Motu v. State of Kerala].Justice K Babu said that he has come across many cases where DNA tests are ordered to be collected from adopted children, especially those who are born to rape survivors, even when the children are of an age where they might understand why it was being done. "In some cases, adopted parents would not have even divulged the fact of adoption to the child. The child would have blended so well with the adopted family that a sudden revelation that he/she is an adopted child and that too of a rape victim can imbalance his/her emotional status and can result in them exhibiting behavioural disorders and aberrations. This exercise of subjecting the child to DNA test will only defeat the purpose of the divine concept of adoption," the Court said. .The right to privacy of adopted children cannot be violated at any stage of their growth regardless of whether they were born to rape survivors, the Court said while issuing the following guidelines:Courts shall not entertain applications seeking DNA examination of children given in adoption;The Child Welfare Committee shall see that the DNA samples of children given in adoption are taken before the completion of the process of adoption. All agencies or authorities involved in the adoption process shall ensure that the confidentiality of adoption records is maintained except as permitted under any other law for the time being in force.Even in cases where the children were not given in adoption the Court shall consider the request for a DNA test of the children of the victim only after assessing the principle of “eminent need” and doctrine of proportionality..The order was passed in a case taken up by the Court suo motu based on a report filed by the Project Co-ordinator of the Victim Rights Centre which functions under the aegis of the Kerala State Legal Services Authority.The report pointed out that court orders to collect the DNA of children born to rape survivors were in conflict with Regulation 48 of the Adoption Regulations, 2022 issued in exercise of the powers conferred under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). This Regulation deals with the confidentiality of records to be maintained in the case of adopted children by all agencies and authorities involved..Advocate Parvathi Menon A, who was appointed as amicus curiae by the Court, argued that collection of DNA samples may have an adverse impact on a child and that it encroaches on their right to privacy and personal autonomy. She suggested the application of the principle of eminent need which has been used by the Supreme Court in cases where the prosecution sought permission to collect DNA samples of children born of rape, especially in the case of those who are subsequently adopted. .The Court observed that the provisions dealing with rape in the Indian Penal Code and the Protection of Children from Sexual Offences Act (POCSO Act) do not demand that the paternity of children born to rape survivors be proved to establish the offence.It also noted that authorities involved in the adoption process are required to ensure complete confidentiality and that the Child Welfare Committee has a statutory duty to collect DNA samples of children before they are adopted. After going through a catena of Supreme Court judgments regarding collection of DNA, the Court concluded that when there is a conflict between the right to privacy of a person and the duty of a court to arrive at the truth in rape cases, the request for DNA tests must be considered on the touchstone of the principle of "eminent need" and he doctrine of proportionality.In view of these conclusions, the Court issued the guidelines. .[Read Order]