The Kerala High Court established guidelines for the collection of DNA from adopted children of rape survivors. These guidelines aim to ensure sensitivity and protection of the emotional well-being of the children, acknowledging the potential impact of such procedures on their psychological state.
KERALA: Last Week(19th April): The Kerala High Court recently established comprehensive guidelines regarding the collection of DNA samples from children who were born to rape survivors and subsequently adopted by other couples. The Court emphasized the significance of upholding the right to privacy of adopted children throughout their growth, irrespective of their origins.
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Justice K Babu expressed concerns over cases where DNA tests were being ordered for adopted children, particularly those born to rape survivors, even when the children were at an age where they could comprehend the purpose of the test. The Court recognized that sudden revelations about adoption and the circumstances of their birth could potentially cause emotional turmoil and behavioral issues in the children, thereby defeating the purpose of adoption.
To safeguard the privacy rights of adopted children, the Kerala High Court issued the following guidelines:
- Courts should refrain from entertaining applications seeking DNA examination of adopted children.
- The Child Welfare Committee must ensure that DNA samples of children given in adoption are collected before the completion of the adoption process.
- All agencies and authorities involved in the adoption process must maintain strict confidentiality of adoption records, except as permitted by applicable laws.
- In cases where the children were not given in adoption, the Court should consider requests for DNA tests of the children of the victim only after evaluating the principle of “eminent need” and the doctrine of proportionality.
This order was passed based on a report filed by the Project Co-ordinator of the Victim Rights Centre, operating under the Kerala State Legal Services Authority. The report highlighted the conflict between court orders to collect DNA samples from children born to rape survivors and Regulation 48 of the Adoption Regulations, 2022, which emphasizes the confidentiality of adoption records under the Juvenile Justice (Care and Protection of Children) Act, 2015.
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Advocate Parvathi Menon A, appointed as amicus curiae by the Court, argued that DNA sample collection could have adverse effects on children and encroached on their right to privacy and personal autonomy. She suggested applying the principle of eminent need, previously utilized by the Supreme Court in cases involving the collection of DNA samples from children born as a result of rape, particularly those subsequently adopted.
“The court highlighted that in certain instances, adopted parents may not have disclosed the adoption to the child. The child could have integrated seamlessly into the adoptive family, and revealing their adopted status, especially as a child of a rape victim, could disrupt their emotional well-being and lead to behavioral issues. Subjecting the child to a DNA test would undermine the sanctity of the adoption process,” the Court emphasized.
The Court acknowledged that establishing the paternity of children born to rape survivors is not a prerequisite for prosecuting the offense, as per the Indian Penal Code and the Protection of Children from Sexual Offences Act (POCSO Act). It also stressed that confidentiality is a statutory obligation for authorities involved in the adoption process and that the Child Welfare Committee must collect DNA samples prior to adoption.
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After reviewing relevant Supreme Court judgments on DNA collection, the Kerala High Court concluded that when the right to privacy conflicts with the duty of the court to ascertain the truth in rape cases, requests for DNA tests should be evaluated based on the principles of “eminent need” and proportionality.
Case Title: Suo Motu v. State of Kerala
