Kerala High Court Directs State To Formulate Comprehensive SOP For Collection Of DNA Samples Of Children Surrendered For Adoption

The matter is related to the privacy of adopted children. The case was taken suo moto by the Court based on the report of Victim Rights Centre under the Kerala State Legal Service Authority. It was submitted that various courts ordered for collection of blood samples of children born to rape victims and given in adoption. This was done on the instance of prosecution to get evidence in the matter of rape and penetrative sexual assault. The report claimed that such acts would violate the privacy of the children and the confidentiality of adoption

The High Court had earlier ordered the lower courts to not entertain any applications seeking DNA examination of children given in adoption.

The Court had asked the amicus curiae the following questions:

1. Whether a blanket ban against DNA test of children born to rape victims would affect the rights of the accused for a fair trial?
2. The Operating Procedure followed by the authorities after collection of DNA samples of children.

The Amicus submitted that there is a long list of judgments of the Kerala High Court which says that DNA test of children is inconsequential in offences of rape. The issue in question is whether the consent of the victim was violated. It is not necessary to show the victim was impregnated by the accused. If the DNA test is negative, it won't be reason enough to hold that the said act has not taken place.

She relied on Subhash v State of Kerala, where the High Court held that seeking DNA test of a child given in adoption amounted to violation of the child's fundamental right to privacy. The report further referred to Lakshmi Kant Pandey v Union Of India (1984), where the Supreme Court held that the child given for adoption should not be traced at any point. The Supreme Court emphasized that not even the adopting parents should be allowed to do this.

The Ministry of Health and Family Welfare Guidelines and Protocols in Medico Legal care of Survivors/ Victims of Sexual Violence, 2013 says that informed consent of victims shall be taken before all medical examination including sample collections. Regulation 39 of Adoptions Regulations 2022 says that DNA sample collection of the child should be completed within the time stipulated for declaring the child free for adoption to avoid harassment to the adopting families. The Amicus Curiae submitted that the regulation does not empower the Child Welfare Committee to collect DNA samples. Therefore, if the biological parent before surrendering the child does not consent to the DNA test, it cannot be done.

The Guidelines recognize consent of everyone above the age of 12. Thus, a child above 12 years can himself can consent to the test.

The Supreme Court had held that paternity tests can lead to identity crisis in child. These tests will not be detrimental to the rights of the accused, but it would violate the fundamental rights of privacy of the child.

The report further said that SARA was not following an SOP as provided under Regulation 39 of Adoption Regulations, 2022. As per the Regulation, the CWC should issue an order declaring the child free for adoption within 2 months and within this period the DNA collection should be completed. The confidential copy of the sample reports shall be with the Specialised Adoption Agency. The Amicus submitted that an effective SOP by the State would ensure uniformity and avoid ambiguity.

Justice K. Babu appointed Adv. John S. Ralph to assist the Court in the matter regarding perspectives of a defence lawyer.

Director General of Prosecution Senior Adv. T. A. Shaji appeared on behalf of the State.

The case is next posted on 1^st August.

Case Title: Suo Motu v State of Kerala

Case Number: Crl. M. C. 5136/ 2023