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DNA Legislations: Comparative Study Between India And Other Countries

Because of its profound effect on science and medicine, the discovery of DNA is considered one of the most important biological discoveries of the twentieth century. It has recently become a very valuable forensic science tool that not only offers guidance in criminal investigations and civil cases, but also provides reliable information to the courts on all related features of criminal identification.

The method of determining an individual's DNA characteristics is known as DNA profiling. In criminal investigations, DNA profiling is a technique of forensic nature that compares criminal suspects' profiles to DNA evidence to determine the probability of their participation in the crime. It is also used in parentage assessments, visa eligibility determinations, and genealogical and medical studies.

While DNA profiling has been of a great help in various areas of law and medicine, the idea of DNA profiling has several ethical questions regarding consent of an individual whose DNA is to be tested and the violation of a fundamental right as laid down by the Constitution of India. DNA Technology Use and Application Bill, 2018 regulates DNA testing and profiling but still fails to answer some such ethical questions.

This project focuses on identifying what are the probable ethical questions that could arise out of DNA testing and how the legislations of various countries opt to deal with them. It is also a comparative analysis between these legislations of different countries that vehemently uses DNA testing for various reasons of law and medicine.

DNA Technology Use And Application Bill, 2018

Salient Features of the Bill:
  • The Bill governs the use of DNA technology to determine a person's identity in relation to matters specified in a Schedule. That include both criminal (such as crimes under the Indian Penal Code, 1860) and civil (parentage disputes, emigration or immigration, and human organ transplantation).
     
  • A National DNA Data Bank and Regional DNA Data Banks are established by the bill. The following indices will be held in each Data Bank: I crime scene index, (ii) suspects' or undertrials' index, (iii) criminals' index, (iv) missing persons' index, and (v) unknown deceased persons' index.A DNA Regulatory Board is formed by the bill.
     
  • The Board must accredit any DNA laboratory that analyses a DNA sample to determine an individual's identity.
     
  • Individuals must give their written consent before DNA samples can be taken. For crimes punishable with more than seven years in prison or death, consent is not necessary.[1]
     
  • On the filing of a police report or a court order, the Bill allows for the removal of DNA profiles of criminals, as well as those of undertrials. On written request, profiles from the crime scene and the missing persons database will be withdrawn.

Issues not addressed by the Bill:
  • The Schedule includes a list of civil cases in which DNA profiling may be used. "Issues relating to the establishment of individual identity" are included. Individuals may be classified using DNA testing conducted in medical or experimental laboratories. It's unclear if the bill plans to govern these labs.
     
  • When DNA profiling is used in criminal cases or to locate missing people, the Bill requires the individual's consent. In the case of DNA profiling for civil matters, however, no consent provisions have been stated.
     
  • DNA laboratories are necessitated by the Data banks to share the DNA data that's obtained from various tests. It's uncertain if DNA profiles from civil cases would be kept in the Data Banks as well. The Data Banks' storage of these profiles can infringe on the right to privacy.
     
  • DNA labs develop DNA profiles, which are then shared with DNA Data Banks. The bill sets out the procedure for eliminating DNA profiles from the Data Banks. The Bill, on the other hand, makes it clear that DNA laboratories are not obligated to delete DNA profiles.

DNA Technology Use And Application Bill, 2018: Key Issues And Analysis

  • Regulation of DNA Laboratories
    If a laboratory analyses a DNA sample for the purpose of establishing human identity in respect of matters specified in the Schedule, it must obtain accreditation from the DNA Regulatory Board. DNA testing is currently done in laboratories for medical and research purposes. Diagnostic laboratories, for example, use DNA tests to assess whether a person is at risk of developing a disease such as cancer or Alzheimer's.

    The DNA testing that takes place in these labs can also be used to identify a human. Given the Bill's specified intent in the Long Title[2], it's unclear as to whether the Bill aims to regulate DNA laboratories that perform medical and diagnostic DNA research. Further when a DNA test is required for a decision of a civil case, a question arises as to whether the Court has the hierarchy to order a DNA test.

    Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women[3]
    This case was concerned with the issue of when it is appropriate for a court to order a paternity test. The Supreme Court had to determine whether the High Court of Orissa and the State Commission for Women (Orissa) were justified in ordering a DNA test of a child and the Appellant, Bhabhani Prasad, who was the putative father.

    The Court reviewed the provisions of the Orissa (State) Commission for Women Act, 1993 (the Act) empowering the Commission and observed that the Commission was not the competent authority to pass such orders. Regarding the High Court's competence to pass an order for DNA testing, the Supreme Court analysed the facts of this case in light of precedents including Goutam Kundu vs. State of West Bengal[4] and Sharda vs. Dharampal[5].

    It observed that the High Court had exceeded its jurisdiction in passing this order because no prima facie case for DNA testing was made out, and because matrimonial proceedings were still pending before the District Judge. However, should the parties raise the issue of paternity before the matrimonial court, it would be competent to pass an order for DNA test.
     
  • Consent of an individual with respect to civil matters
    When DNA profiling is used in criminal investigations or to identify missing people, the Bill includes an individual's consent. Before a DNA sample is taken from a crime victim or a person arrested for the crime, they must give their written consent. In the case of DNA profiling for civil matters, however, such consent is not necessary. This implies that the Bill has excluded civil matters from its Regulations.
     
  • Storing of DNA profiles related to civil matters in the DNA Data Bank
    DNA laboratories are expected to share with the National and Regional DNA Data Banks, DNA data of individual persons, as mentioned under the Bill. It's uncertain if DNA profiles from civil cases that have been examined by DNA laboratories would be then shared in the DNA Data Banks. It's important to note that the Bill doesn't have any standard procedure for storing DNA profiles of civil cases in the DNA Data Banks. Furthermore, there are no provisions for withdrawing these DNA profiles from the Data Banks.
     
  • There could be a breach of the right to privacy if DNA profiles related to civil matters are kept in the DNA Data Banks. The Constitution has been interpreted by the Supreme Court to include the right to privacy as a constitutional right[6].

    It states that three conditions must be fulfilled in order for this right to be infringed:
    1. There must be a law;
    2. The law must be aimed at achieving a public objective; and
    3. The public objective must be proportionate to the breach of privacy.

    Since the preservation of DNA profiles in the Data Banks for civil matters (such as paternity suits) does not serve a public objective, it may infringe on the right to privacy.

    Details other than identity can be included in a DNA profile. A DNA profile is specified in the Bill as the product of analysing a DNA sample in order to determine a person's identity. A DNA sample can reveal more details about a person than just his identity. The bill does not specify whether or not this set of information other than the identity will be included in the Bill.

    Although DNA may be used to establish a person's identity, it can also disclose information about his medical and physical characteristics, which could compromise his privacy. As a result, DNA profiling is used to determine a person's identity by analyzing a particular portion of the DNA that does not disclose any additional details about the person. It is to be noted that only the section of the DNA that offers details on identity can be used for profiling, according to the Law Commission's report on the draft Bill of 2017. The 2018 Bill, however, makes no mention of this.
     
  • No requirement for DNA laboratories to remove profiles
    Regulations have been left to determine the conditions for removing profiles from DNA Data Banks and laboratories. It could be argued that the Bill should provide provisions for the removal of DNA profiles by DNA laboratories.
     
  • In cases where the DNA profile is not removed from the data banks by the Director of the National DNA Data Bank, the Bill does not have a mechanism for redressing grievances.
     
  • There are no provisions in the bill to ensure that consent is given voluntarily. The Code of Criminal Procedure, 1973, provides a protection in certain procedures, such as extracting a confession for an offense, by requiring that the statement be submitted to a Magistrate[7] (not the police). Similarly the Bill must have included a measure to ensure that the consent was not a result of coercion.
     
  • Photographs or video recordings of body parts are also listed as sources for sample collection in the Bill. Although it is not clear how a DNA sample can be extracted from a photograph or video.

Ethical Considerations In The Use Of DNA

  • Autonomy
    Self-determination, self-rule, and self-governance are all examples of autonomy. Personal autonomy means that agents have the right or power to rule and direct themselves without the intervention of others. Respect for autonomy in the sense of genetic testing and screening refers to a person's right to make an informed, autonomous decision on whether or not they want to be tested and then whether or not they want to know the specifics of the results.

    Respect for autonomy also includes the right of individuals to determine how genetic material submitted for study for a particular reason will be used in the future (including when genetic material and data derived from it are preserved for potential research, such as in a DNA bank or registry file). While respect for autonomy is necessary in the community, it is not absolute.
     
  • Privacy
    People have privacy if they don't suffer from unauthorized intrusion by others in any given aspect. Privacy includes the right to make an informed, autonomous decision about whether a third party can know details of one's genome after they have undergone genetic testing and if yes, who would be entitled for such information[8]. An approach establishes the foundation for privacy rights in the context of personal autonomy.

    Personal autonomy and decisional privacy are frequently related[9]. Personal autonomy's terminology represents the concept of a jurisdiction or territory of self-rule, and thus overlaps with decisional privacy zones. Privacy rights are subject to ongoing controversy regarding their context and value, regardless of their rationale or justification. However, their range is limited, and they do not always take precedence over other competing interests, such as those of others.

    Ram Jethmalani v. Union of India [10]
    The Supreme Court elaborated on the right to privacy, concluding that:
    The right to privacy is an integral part of the right to life.

    This is a strongly held constitutional principle, and it is vital that human beings be given spheres of freedom that are untouched by public scrutiny unless they participate in unlawful conduct. The definition of fundamental rights, such as the right to privacy as part of the right to life, is more than just preventing the state from violating them. It also encompasses the state's duty to defend them against the acts of those in society, even though those others are exercising fundamental rights.
     
  • Confidentiality
    As a principle, confidentiality means that certain information is sensitive, and thus access to it must be regulated and restricted to those who are authorised to access it. Moral, social, or legal principles and laws, which can be articulated in terms of rights or obligations, may protect the state or condition of nondisclosure or restricted disclosure.

    We give others access to our bodies in health care. Touching, observing, listening, palpating, and even physically invading are all possibilities in the area of health care. They may analyse our bodies as a whole or in sections, and they may extract parts, such as tissue, for further analysis, as in some types of research.

    When others have such access to us, our privacy is inevitably compromised; confidentiality rules allow us to monitor and thereby restrict further access to the information produced in that relationship. Rules of confidentiality, for example, can prevent a physician from revealing such details to an insurance provider or an employer without the patient's permission.

    If prospective patients can't trust health-care providers to keep their information private, they'll be hesitant to give them the full and total access they need for diagnosis and treatment. As a result, confidentiality laws are critical for patient and social welfare; without them, people who need medical, mental, or other care will refuse to pursue it or actively participate" in it[11].

    The above-mentioned concepts of autonomy and privacy provide another basis for confidentiality rules. Respecting people entails respecting their personal space and acknowledging their choices about how data about them is shared. When people give health-care providers access to them, they should be able to choose who else has access to the information, created as a result of that connection[12]. Therefore it is clear that, the reasons for autonomy and privacy support confidentiality laws.
     
  • Equity
    Several acts, procedures, and policies related to genetic testing pose issues of justice, fairness, and equality. Formal justice necessitates a consistent approach to similar cases. The identity of the related similarities and differences, as well as the necessary responses to those similarities and differences, are established by substantive or material justice standards.

    For example, a society must decide whether to allocate a scarce resource like health care based on disparities in need, social value, or financial capacity. "Medical underwriting practises in health insurance represent what is known as "actuarial fairness," or grouping people with similar risks together so insurers can reliably estimate costs and set reasonable premium rates.

    While actuarial fairness may seem appealing on the surface, critics argue that it does not represent moral or social justice. Medical underwriting practises in health insurance represent what is known as "actuarial fairness", or grouping people with similar risks together so insurers can reliably estimate costs and set reasonable premium rates. While actuarial fairness may seem appealing on the surface, critics argue that it does not represent moral or social justice.

    Person or social compassion can be necessary if health needs are unfortunate but not unjust. Compassion can inspire others, charitable organisations, and even society to try to meet those needs. If, on the other hand, the needs are seen as both unjust and unfortunate, society may have a duty of justice to try to satisfy them[13]. One of the most compelling reasons for societal provision of a reasonable minimum of health care is that, in general, health needs are erratic and unpredictable, as well as daunting when health emergencies arise[14].

    Some claim that health care should not be distributed based on merit, social contribution, or even willingness to pay because of these attributes of health needs." The claim that society should guarantee or offer a reasonable minimum of health coverage for both people and residents points in the right direction for health policy, but it does not specify how much health care should be provided in relation to other products that society wants.

    There will also be complex allocation issues within the health-care budget, such as how much can be used for specific illnesses and therapies for those illnesses. Allocation issues cannot be resolved in the abstract. They should be resolved in democratic societies by political processes that reflect the will of the people.

Prevailing DNA Laws In Other Countries And Their Conformity With The Human Rights

The provisions of the DNA Technology (Use and Application) Regulation Bill, 2018 are compared to DNA laws in other countries in the table below:
Particulars USA[15] UK[16] South Africa[17] Ireland[18] India[19]
Purpose of collecting DNA Criminal investigations.
Identification of deceased and missing persons
Criminal investigations.
Identification of deceased and missing persons
Criminal investigations.
Identification of deceased and missing persons
Criminal investigations.
Identification of deceased and missing persons
Criminal investigations.
Identification of deceased and missing persons
Civil cases
DNA Sample Process When an individual is charged with a federal crime, a sample may be taken.

The procedure differs depending on the state.
When charged with a felony, a cheek swab may be taken.
 
Consent and permission are required for intimate samples.
On detention, a cheek swab may be taken.
 
Only a medical professional has the authority to take an intimate sample.
On the inspector's order, a cheek swab may be taken.
 
Consent is needed for intimate samples.
The selection of a sample necessitates written permission.
 
The magistrate has the power to order the collection of samples.
 
For offences with a sentence of more than seven years, consent is not necessary.
Removal of Profiles Individuals whose sentences are dismissed will have their profiles deleted.
 
When charges are dropped, the arrestees' profiles are deleted.
 
Various states have different laws.
Profiles of people who haven't been charged can be kept for up to three years. In the event of acquittal, profiles must be deleted.
 
Profiles can't be held for more than three years.
In the event of acquittal, the profiles will be deleted in three months. Suspect or undertrial profiles will be deleted if a court order or police report is issued.
 
On written request, profiles in crime scene or missing persons databases will be deleted.
Information contained in DNA apart from identity No available provision No available provision Physical or medical details cannot be included in a profile. The identity-related portion of DNA will be used to build a profile No available provision
Regulation of the DNA Database The Federal Bureau of Investigation maintains a DNA database.
Forensic lab specifications are recommended by the DNA Advisory Board.
The National DNA Database is regulated by the Forensic Information Database Strategy Board.
The Forensic Science Regulator ensures that forensic science facilities are of high quality.
A licenced officer maintains the database.

The DNA Database and procedures related to DNA profiling are overseen by the National Forensic Oversight and Ethics Board.
The DNA Database System is managed by the Director of Forensic Science Ireland (FSI).
The FSI is in charge of DNA profiling processes.
The DNA Database System Oversight Committee is in charge of overseeing the database's operation.
The National DNA Data Bank will be maintained by the Director.

A DNA Regulatory Board will oversee laboratories and offer advice on DNA Data Banks.

"The laws of nations and the issue of universal human rights have largely clashed in the case of DNA technology. Many international documents have proclaimed the right to privacy to be a fundamental human right. 'No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, attacks on his honour or reputation,' says the Universal Declaration of Human Rights, which was adopted in 1948. Everyone has a legal right to be protected from such intrusion or attacks.' Furthermore, under Article 14(3)(g) of the ICCPR's 'minimum guarantees,' everyone has the right not to be forced to testify against himself or admit guilt."

General Analysis And Conclusion
In terms of legality, it is contended that the Bill, in its current form, fails the legality test because it violates Article 20(3)[20] of the Indian Constitution which states that "No person shall be forced to bear witness against himself". Since fingerprint evidence counts as a physical fact, similar to a handwriting sample, it is a well-established legal position that collecting fingerprint evidence does not make an individual a "witness against himself."

Physical facts are not known to be in the convicted person's knowledge, and therefore do not breach Article 20(3) of the Constitution. As a consequence, it is simple to argue that DNA, as a biological and physical reality (as a fingerprint), does not violate Article 20(3) of the Constitution.

A strand of DNA, as the most fundamental and private element of an individual containing determinative biological information about the person, has the potential to be grossly mishandled. With the advancement of technology and the proliferation of new technologies, there is a possibility that such knowledge will be mishandled by law enforcement officials.

For example, the bill is vague on whether or not samples obtained in civil proceedings would be held in data banks, posing significant privacy concerns. Also unanswered is the issue of whether DNA technology is foolproof, and whether the proposed legislation sufficiently addresses the risk of violence.

There's always a possibility that a bad match or a mix-up happens when processing the DNA, resulting in a clear violation of the person's rights and liberties, and in that situation, making it a legislative position may be a huge risk. While it reiterates full confidence in DNA technology, the current draught Bill aims to resolve some of these concerns.

According to the Law Commission study that introduced the new draught, DNA profiling is "an effective and well known scientific technique." Questions such as whose DNA may be collected and in what circumstances, how important is the individual's consent, who can access the database, and when a record can be deleted have been raised numerous times. But, as with every new piece of legislation, there are several uncertainties and reservations, and how it evolves is a matter of great anticipation."

Bibliography:
Primary Sources:
  1. DNA Technology Use and Application Bill, 2018
  2. The Indian Evidence Act, 1872
  3. The Indian Constitution, 1950
Secondary Sources:
  1. Andrei Semikhodskii, Dealing with DNA Evidence: A Legal Guide Hardcover
  2. JE McEwen, PR Reilly, A review of state legislation on DNA forensic data banking
  3. Annas GJ, Privacy rules for DNA databanks. Protecting coded 'future diaries'
  4. Ferdinand D. Schoeman, "Privacy: Philosophical Dimensions of the Literature," in Philosophical Dimensions of Privacy
  5. Judith Jarvis Thomson, "The Right to Privacy," Philosophy and Public Affairs
End-Notes:
  1. K.S. Puttaswamy v. Union of India
  2. Long Title, DNA Technology (Use and Application) Regulation Bill, 2018
  3. (2010) 8 SCC 633, (2010) 9 SCR 457
  4. (1993) 3 SCC 418
  5. (2003) 4 SCC 493
  6. Justice K. S. Puttaswamy and Ors. vs Union of India and Ors, AIR 2017 SC 4161.
  7. Section 164, Code of Criminal Procedure, 1973.
  8. Ferdinand D. Schoeman, "Privacy: Philosophical Dimensions of the Literature," in Philosophical Dimensions of Privacy: An Anthology, ed., Ferdinand D. Schoeman (New York: Cambridge University Press, 1984).
  9. Judith Jarvis Thomson, "The Right to Privacy," Philosophy and Public Affairs
  10. (2011) 8 SCC 1
  11. Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 3rd ed. (New York: Oxford University Press, 1989
  12. Mark Siegler, "Confidentiality in Medicine´┐ŻA Decrepit Concept," N. Engl. J. Med
  13. H. Tristram Engelhardt, Jr., Foundations of Bioethics
  14. Norman Daniels, "Insurability and the HIV Epidemic: Ethical Issues in Underwriting
  15. United States: DNA Identification Act, 1994
  16. Police and Criminal Evidence Act, 1984
  17. Police Service Act, 1995
  18. Criminal Justice (Forensic Evidence and DNA Database System) Act, 2014
  19. DNA Technology (Use and Application) Regulation Bill, 2018
  20. The Constitution of India [India], 26 January 1950

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