Q.12. Right to privacy is intrinsic to life and personal liberty and is inherently protected under Article 21 of the constitution. Explain. In this reference discuss the law relating to DNA testing of child in the womb to establish its paternity. [UPSC 2024 GS P-2]

Right to Privacy and Article 21 of the Constitution

The Right to Privacy is recognized as an essential part of the Right to Life and Personal Liberty under Article 21 of the Indian Constitution. This landmark principle was affirmed in the K.S. Puttaswamy vs. Union of India (2017) case, where the Supreme Court of India ruled that the right to privacy is an intrinsic part of life and liberty and is inherently protected under Article 21.

Key Points of the Right to Privacy Under Article 21:

1. Life and Personal Liberty: Article 21 guarantees that no person shall be deprived of their life or personal liberty except according to the procedure established by law. The right to privacy is a fundamental aspect of personal liberty.
2. Autonomy Over Personal Choices: The right to privacy includes personal autonomy, bodily integrity, and the right to make choices regarding one’s body, health, and life decisions.
3. Reasonable Restrictions: The right to privacy is not absolute and is subject to reasonable restrictions, particularly in the interest of national security, public order, or protecting other people’s rights.

DNA Testing of Child in the Womb to Establish Paternity

In the context of DNA testing to establish paternity, the right to privacy plays a crucial role in balancing the rights of the individual and the need for legal and medical procedures. The issue of conducting DNA tests on an unborn child (fetus) for paternity raises questions of privacy, bodily autonomy, and potential harm to the unborn child and mother.

Legal Framework:

1. Personal Autonomy and Consent: Forcing a mother to undergo a DNA test or prenatal paternity test without her consent may violate her right to privacy and bodily autonomy under Article 21. The Supreme Court has emphasized that such tests must only be conducted with the consent of the parties involved.
2. Legal Precedents: In cases like Goutam Kundu vs. State of West Bengal (1993), the Supreme Court held that no one can be compelled to undergo a DNA test unless there is sufficient cause or legal requirement. The court has also been cautious in balancing the right to privacy with the need for justice in paternity cases.
3. Use of DNA Testing: While DNA testing is a reliable method for determining paternity, courts have emphasized the need for careful consideration. The Indian Evidence Act (Section 112) establishes the presumption of legitimacy of a child born during a lawful marriage, but DNA testing may be permitted when this presumption is contested.
4. The Medical Termination of Pregnancy (MTP) Act, 1971: The Act provides a legal framework for abortions but does not specifically address DNA testing for paternity. However, the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 regulates diagnostic procedures, including those that can reveal the genetic makeup of the fetus, in an effort to prevent sex determination and female feticide.

Balancing Privacy with Legal Rights:

• Father’s Rights vs. Privacy: In paternity disputes, while the alleged father may have the right to establish paternity, the right to privacy of the mother and the unborn child must be respected. Courts usually order DNA testing only when the interests of justice demand it, and it must be weighed against the potential invasion of privacy.
• Protection of the Unborn Child: Conducting invasive tests, such as DNA tests on an unborn child, also raises concerns about the safety and well-being of the fetus. The right to privacy in this context extends to ensuring that the mother and child are not exposed to unnecessary risks.

Conclusion:

The right to privacy is a fundamental right under Article 21, and it extends to personal autonomy, including decisions regarding one’s body and reproductive choices. In the case of DNA testing to establish paternity, courts must strike a balance between the privacy rights of individuals and the legal need to determine paternity, ensuring that tests are conducted only with due consent and careful legal consideration.