Privacy | Kerala High Court Lays Down Guidelines For DNA Test Of Children Born To Rape Victims And Given In Adoption

Justice K Babu stated that DNA examination of adopted children would also defeat the sanctity of adoption and thus laid down the following guidelines:

“(i) The Courts shall not entertain applications seeking DNA examination of children given in adoption.
(ii) 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.
(iii) 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.
(iv) 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.”

Background

The Victim Rights Centre under the Kerala State Legal Services Authority submitted a report stating that orders issued by various Courts directing blood sample collection of children given in adoption would violate their right to privacy and confidentiality of adoption. The report stated that various Courts had passed orders at the instance of the prosecution to strengthen their case of rape and penetrative sexual assault to take DNA samples of children born to rape victims who were given in adoption. The report stated that such orders are contrary to Regulation 48 of the Adoption Regulations, 2022 which deals with the confidentiality of adoption records.

Based on the report by the Victim Rights Centre, the High Court suo moto registered this case to protect the privacy of adopted children.

Advocate Parvathi Menon A who was appointed as the amicus curiae by the Court submitted DNA sample collection of children born to rape victims especially those who were given in adoption would adversely impact their privacy and personal autonomy.  It was also submitted that DNA tests on adopted children would not aid the prosecution case to prove the offence of rape.

Court Observations

The Court noted that Regulation 48 of the Adoption Regulations issued under the Juvenile Justice (Care and Protection of Children) Act, 2015 aims to protect the confidentiality of the adoption records. It stated that the intent of the JJ Act was to ensure the welfare of adopted children and to maintain the divine concept of adoption. It stated that in many cases adopted children might not be aware they were adopted from rape victims and such sudden revelation of information divulged due to DNA sample collection could cause emotional disbalance in children.

The Court referred to Bhabani Prasad Jena v. Orissa State Commission for Women (2010) where the Apex Court laid down the 'eminent need' test before ordering DNA tests of children. Relying upon K.S. Puttaswamy v. Union of India (2017), the Court stated that the Right to Privacy was protected as a fundamental right under Article 21 of the Constitution of India by laying down a three-fold test of reasonableness and principles of proportionality. 

The Court stated that the Apex Court in Ashok Kumar v. Raj Gupta (2021) stated that courts should  refrain from ordering blood tests that violate the right to privacy and cause social repercussions. Relying upon the Apex Court decision in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023), the Court stated that DNA tests should only be ordered in exceptional and deserving cases.

Relying upon various other precedents, the Court went on to state that a paternity test of the victim's child was not required for proving an offence of rape or cases under the POCSO Act.

Conclusion

Based on the analysis, the Court stated that DNA sample collection of adopted children would cause emotional imbalance and would defeat the divinity of adoption protected under the JJ Act.

The Court further observed paternity test of a child born out of rape was not required to prove an offence of rape and penetrative sexual assault. It stated that Courts must exercise their discretion to order DNA tests only if it was essentially needed after due consideration of balancing the interest of all the concerned parties.

It further directed that adoption orders shall not be displayed on any public portal and to ensure that all authorities maintain the confidentiality of adoption records as per law.

The Court stated that as per Regulation 39 of the Adoption Regulations, the Child Welfare Committee must collect DNA samples of children given in adoption before the completion of the adoption process.

Even in cases where no adoption was made, DNA tests of children of victims for proving rape or POCSO cases shall only be done in case of eminent need and on the touchstone of the doctrine of proportionality.

Accordingly, the Court set aside various orders passed by the Special Courts for collecting blood samples of adopted children for trying offence of rape and other cases under the POCSO Act.

The matter has been posted for further hearing on May 27, 2024.

Case Title: Suo Moto v State of Kerala

Case Number: CRL.MC No. 5136 OF 2023

Click here to read/download Order