Why Kerala HC order staying DNA testing of kids of rape victims is being cheered

‘At the end of the day, it’s about the best interest of the child.’

– Marlee Matlin

For Sister Shaigy, adoption in-charge at the Infant Jesus Sisu Bhavan, Kottayam, truer words have never been spoken.

On July 5, the Kerala High Court stayed the orders passed by various criminal courts in the state directing the collection of DNA samples of adopted children of rape survivors and POCSO victims — a move widely welcomed by adoption agencies, child care and protection workers and scores of adoptive parents who couldn’t care less for the circumstances that begot their new child.

“How does one tell an adopted child basking in the love of his new family that he was born as a result of the most gruesome act? Or that only by taking his blood can his biological father be convicted for making his mother pregnant,” Sister Shaigy said.

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The Infant Jesus Sisu Bhavan, Kottayam, is a government-recognised Specialised Adoption Agency that works under the aegis of SARA (State Adoption Resource Agency). During her last seven years as the in-charge, Sister Shaigy has processed umpteen adoptions, of children born out of extramarital affairs, unwed teen pregnancies, sexual abuse and rape (POCSO and otherwise).

“I strongly believe that one must never reveal too much about the origins of the child because it will influence the nurturing aspect of his new parents. Especially during adolescence, the tendency to criticise the origins of the adopted child is very common.”

According to SARA’s Adoption Regulations (2022), the process form has a column titled ‘Social Background’ wherein the agency must declare ‘a brief background of the birth parents and circumstances necessitating the child’s surrender or abandonment’.

“All I write,” says Sister Shaigy, “in circumstances of rape or sexual abuse, is that unwed mother surrendered the child. If it is a POCSO case, then I tell them that the mother was a minor. That’s all.” In the best interests of the child, Sister Shaigy says, only positive details should be shared with the prospective parents.

In some cases, the medical history of the child is also shared with adoptive parents.

“If the child has any congenital defects, history of mental illness, health complications arising out of a difficult pregnancy or delivery, we volunteer the information to the adoptive parents, under the advisement of the paediatrician involved. But we rarely disclose any details if a crime is involved. The most humane option is to maintain absolute confidentiality,” says Jerly James, social worker with the Holy Angels Foundling Home, Trichur.

Some parents who come to adopt insist on knowing the religion of the biological mother, sometimes even the place of birth. “Can you then imagine the consequences when the police call them up for DNA?”

Abusing the biological parent when the child acts up is also a recurring anomaly in adoptive parenthood. “It is cruel and sets a dangerous precedent.” If the new parents know too much, it can only end up damaging their relationship with the child.

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Advocate Parvathy Menon, project coordinator of Victim Rights Centre (KELSA), in her report that triggered the suo motu case upon which this order was passed, very clearly states that collecting the DNA samples of the adopted children is not only a violation of their rights, but “proof of paternity, positive or negative, would not help in deciding rape cases. In fact, it is relevant only in maintenance and matrimonial disputes where paternity has to be proved by scientific method”.

“Once the child is adopted, it does not need a penny from its biological parents,” says Sr Shaigy. “All the new family craves for is privacy.”

Sister Shaigy recalls two incidents of badgering for the adopted child’s DNA — one by the police related to a POCSO case, and the other by a biological mother who wanted to “teach her former lover a lesson” by demanding money for child maintenance. In the former, the police called the adoptive parents directly because someone leaked their contact address. “The parents were distraught and asked us for help. Once the child has been declared Legally Free for Adoption, no one can come claiming for it. We assured them repeatedly that there was nothing to worry, but they got their phone numbers changed and re-located elsewhere.” The biological mother, on the other hand, was told to “let her child live in peace”.

In every crime committed, says Premnath P, secretary general of VISWAS India, an NGO for Victims of Crime, there is both direct and indirect evidence. “The DNA probing is indirect evidence. It’s not even conclusive proof. At the most, it can be corroborative evidence. It is so because a woman can have sexual relations with many.”

In any case, be it to prove that a crime has taken place in order to award compensation or to convict the rape-accused, the entire process of evidence collection should ideally be completed while the child is still in hospital or at the adoption agency prior to processing its application for adoption.

“Babies born to victims of POCSO have been brought to us after their DNA was collected in the hospital,” says Sr Shaigy. “Which means, given the need, the prosecution and the police can act swiftly,” she adds.

Moreover, she says, a period of 60 days called ‘re-consideration period’ is given to the biological mother who has surrendered the child at the hospital. Add to that, the paper trail of the adoption process — which never takes less than 10 to 15 days — the State has plenty of time to collect evidence from the child.

The problems are multi-fold, says Premnath. One, most sitting judges are unaware of past judgements made in specific cases. Very strict guidelines on DNA collection from children have been declared as far back as the 1980s by courts acting upon PILs.

Two, there is hardly ever a discussion between the prosecution and the police. In most countries, the prosecution team decides on how the protocol for evidence collection should happen. In India, even a civil police officer can conduct an investigation, which means he is either unaware of the law, or even if he is aware, he doesn’t mention it.

Third, POCSO cases are tried by the Special Public Prosecutor, who is always a tenure-appointed advocate. His term is only for three years, rendering both his expertise and experience inept and just not enough.

Birthing a child is a natural act, but adopting one is a noble deed. “As far as we are concerned, we will never encourage any kind of second-guessing,” says Sr Shaigy.

At the end of the day, it’s all about the best interest of the child.