DNA concerns

Absence of privacy legislation can create complications

The Cabinet has just cleared the DNA Technology (Use & Application) Regulation Bill, which will be presented to Parliament shortly. The Bill offers a framework that could help shape a key area of research, and enables the use of DNA to solve many criminal cases as well as resolve contentious civil cases, involving biological relationships. However, DNA is the most intrinsic of biological characteristics and extremely stringent privacy safeguards are required to protect this fundamental right. Concerns will remain on the privacy front in the absence of overarching legislation. 

The Bill addresses the use of DNA in criminal matters such as identifying offenders, suspects, victims and undertrials, as well as missing persons and unknown deceased persons. It envisages the establishment of regional and national databanks, where such samples may be stored digitally. It would also enable the creation of a regulatory board comprising domain experts. Laboratories conducting DNA tests or analysis will need accreditation with the regulatory board.

This could be of enormous help in many areas. But extensive reskilling of police forces, fire departments etc, will be required to ensure the sanctity of such samples to prevent contamination, forgery, mislabelling, and other errors. The banks themselves will need the highest possible levels of cyber security to prevent breaches. The Bill also lists civil matters where DNA profiling can be used such as parental disputes, issues relating to immigration and emigration, and the establishment of individual identity. One apparent gap is that it does not cover procedures involved in the commercial use of DNA such as genealogical tests, or medical tests to discover predisposition to disease, or DNA editing.

Where criminal cases are concerned, the Bill states that written consent would be required in cases involving possible sentences of less than seven years, and it also has a provision that samples of victims would be held only for a limited time. But it does not clearly spell out the consent provisions in sensitive civil matters such as paternity/maternity, assisted reproduction, organ transplants, and cases related to immigration. These areas of ambiguity need to be clarified.

Moreover, the use of DNA for determining genealogy is becoming popular with many individuals. Such tests can help individuals identify genetic predisposition to certain diseases and this is, of course, helpful in many ways. But studies have found an unusual aspect of DNA sampling from the databases, which have proliferated. That is, a sample from one individual may impinge on the privacy of others since these databases can be used to identify individuals related to each other. This has been used by the police in several high-profile cases in the US to identify criminals. But it also raises the bar in terms of privacy. This can have explosive consequences in a country like India with its caste barriers and non-consensual revelations of relationships. The Bill is silent on these matters.

It makes a good beginning in terms of providing a framework. But it has many gaps which will need a fresh look. In fact, the legislation, if it is approved by Parliament, will need regular reviews simply to stay in tune with fast-paced technological changes. Ideally, broader privacy legislation should be written into law before this Bill is passed.