Helix Vol. 2:112-115 (2012)
Copyright © 2012 Helix
Alike Kholo v. Thomas Mathew and Anr
held that ―Foetus is no more part of the body of the
petitioner. The petitioner indeed has the right of privacy but it being not an absolute right, thereforewhen a foetus has been preserved in All IndiaInstitute of Medical Sciences, the petitioner who hasalready discharged the same cannot claim that itaffects her right to privacy something that she herself has discharged, probably with her consent, is claimedto be subjected to DNA test. In that view of thematter, in the peculiar facts, it cannot be termed thatthe petitioner has any right of privacy
Ethical, Legal, and Social Concerns about DNAData banking:
The primary concern is privacy. DNA can provideinsights into many intimate aspects of people andtheir families including susceptibility to particulardiseases, legitimacy of birth, and perhapspredispositions to certain behaviors and sexualorientation. This information increases the potentialfor genetic discrimination by government, insurers,employers, schools, banks, and others
In the UK, allarrested persons must submit to a DNA test, On theother hand, in the USA, the individual State decideswho to test and who not to test. A landmark casechanged the practices of the State of New Mexico,regarding DNA testing. The Katie's Bill was passedrequiring DNA testing for almost all felony chargeswhen suspected of a felon.Collected samples are stored, and many state laws donot require the destruction of a DNA record orsample after a conviction has been overturned. Sothere is a chance that a person's entire genome maybe available
regardless of whether they wereconvicted or not. Practicality is also concern for DNAsampling and storage. Who is chosen for samplingalso is a concern. In the United Kingdom, all suspectscan be forced to provide a DNA sample. Thisempowers police officers, rather than judges and juries, to provide the state with intimate evidence thatcould lead to "investigative arrests." In the UnitedStates each state legislature independently decideswhether DNA can be sampled from arrestees orconvicts. In 2006, the New Mexico state legislaturepassed Katie's Bill, a law that requires the police to
2002 (62) DRJ 851
DNA and Forensic Science, Available athttp://www.forensicprofiles.com/dna.html, last visited, 20/2/2012.
take DNA samples from suspects in most felonyarrests.
Two types of privacy interests arise in the context of the collection and use of DNA for Criminal justice.First, raised by the governmental intrusion, whenDNA is collected and used to create DNA profile thatis stored in a database and searched repeatedly
without the Individual‘s knowledge or consent.
Second, privacy concerns are raised by the
Government‘s retention of the biological sample
from which the profile is derived. The FourthAmendment to the U.S. Constitution serves as thelens through which the legal system examines thelegitimacy of government intrusions into the personal
lives of its citizens. It ensures ―the right of people to
be secure in their persons . . . against unreasonable
searches and seizures.‖ The Supreme Court has held
that forcible, physical intrusion into the bodyconstitutes search under the Fourth Amendment. This
is the case with so called ―DNA dragnets
,‖ in which
police seek to collect samples from many individualsmeeting a general description
such as all black males living in a particular geographic area
noneof whom individually is a suspect, but one of whommay have committed the crime. DNA dragnets areostensibly voluntary, but those from whom samplesare requested may fear stigmatization or increasedscrutiny if they refuse to participate. Privacyconcerns are also implicated when police collectD
NA that is no longer on someone‘s person,sometimes termed as ―abandoned DNA.‖
So, issues regarding Privacy from Article 12
of TheUniversal Declaration of human rights, Article 17
of the International Covenant on Civil and Politicalrights (ICCPR1966) and Article-8 of the EuropeanConvention on Human Rights
(1950) come intoconflict with DNA Forensics.
Constitution of India
does not provide explicitly for ‗right to privacy‘ as a
fundamental right or s there expresses provision inany other statute but has been inferred from article 21of the Indian Constitution. In
Gobind v. state of Madhya Pradesh
it was noted that right to privacy
Katie‘s Bill, Available at
http://thenewsherald.com/articles/2010/02/10/life/doc4b7022a1a5d89931782690.txt Last visited 21/2/2012.
DNA Dragnet, Available athttp://www.abajournal.com/magazine/article/dna_dragnet/, Lastvisited 19/2/2012.
Article 12 UDHR 1948
Article 17 ICCPR 1966
Article 8 EUCHR 1950
The Constitution of India, 1950
1975 SC 1378