Relational human rights: Shed-DNA and the identification of the 'Living Disappeared' in Argentina

Journal of Law and Society

Volumn 41, Issue 3, 2014, Pages 391-415

  Vaisman, Noa ^a  

^a DURHAM UNIVERSITY   (United Kingdom)

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EID: 84906727755     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2014.00675.x     Document Type: Article

References (82)

1. R. Arditti, Searching for Life: The Grandmothers of the Plaza de Mayo and the Disappeared Children of Argentina (1999)
2. Corte Suprema de Justicia de la Nación (Argentina's National Supreme Court) 8 November 2009, 'Gualtieri, Rugnone de Prieto, Emma Elidia y otros s/sustracción de menores de 10 años' (11/08/2009 - G. 291http://www.csjn.gov.ar/confal/ConsultaCompletaFallos.do?method=verDocumentos&id=670520
3. All translations from the Court's ruling are my own. The case is a 'sidecase' (incidente) against Guillermo's supposed parents (Guillermo Antonio Prieto and Emma Gualtieri de Prieto). It was an appeal filed by Guillermo against the house search, and its outcome ordered by the First Instance Court was debated in the Court of Appeals and reached the Supreme Court - Argentina's last resort Federal Tribunal - through an 'extraordinary appeal' (recurso extraordinario). The analysis I present here is based on the Court's ruling in Guillermo's appeal. In fact, this was not Guillermo's first appeal; rather, he had appealed to the Supreme Court against the lower court's insistent demand that he undergo a blood test. However, after this first appeal was lodged, a judge at a lower court ordered the house raid where Guillermo's personal objects were collected.
4. Only a few months after this ruling, in November 2009, an amendment to the federal law of criminal procedure was passed. The amendment stipulates that in cases where the identity of an individual is in question or where that identity is significant for the investigation, DNA material can be obtained either by extracting bodily fluids (blood, saliva) or by collecting shed-DNA. The law also states clearly that before blood samples are taken forcibly, all alternative methods must be applied (law 26549). Although to some extent it sidesteps a few of the arguments made by the Supreme Court justices in the G. Prieto case, the law, in effect, has been used in line with that ruling.
5. J. Berg, 'Of Elephants and Embryos: A Proposed Framework for Legal Personhood' (2007 29 Hastings Law J. 369
6. J. Boyle, 'Enclosing the Genome: What the Squabbles Over Genetic Patents Could Teach Us' (2003) (this is a rough draft available under creative commons license, the article was later published in Advances in Genetics)
7. C. Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (2000) 234
8. N. Naffine, 'Who are Law's Persons? From Cheshire Cats to Responsible Subjects' (2003) 66 Modern Law Rev. 346
9. J. Wicke, 'Postmodern Identities and the Politics of the (Legal) Subject' (1992) 19 Boundaries 2
10. K. Abrams, 'The Legal Subject in Exile' (2001) 51 Duke Law J. 27
11. A. Sarat and T. Kearns Identities, Politics and Rights (1995)
12. J. Donnelly, International Human Rights (2007) 21-23
13. A. Yeatman, 'Who is the Subject of Human Rights?' (2000) 43 Am. Behavioral Scientist 1498-1507
14. J. Comaroff, 'The Discourse of Rights in Colonial South Africa: Subjectivity, Sovereignty, Modernity' in Identities, Politics and Rights, eds. A. Sarat and T. Kearns (1995) 193
15. All these recognized rights position the individual squarely within the boundaries of the liberal subject.
16. M. Perry, The Idea of Human Rights: Four Inquiries (1998) 43
17. J. Donnelly, Universal Human Rights in Theory and Practice (1989) 19
18. J. Nedelsky, 'Law, Boundaries and the Bounded Self (1990) 30 Representations 162
19. J. Nedelsky, Law's Relations: A Relational Theory of Self, Autonomy, and the Law (2011) 38
20. J. Richardson, 'The Law and the Sublime: Rethinking the Self and Its Boundaries' (2007) 18 Law Critique 229
21. I. Karpin, 'Genetics and the Legal Conception of Self in Ethics of the Body: Postconventional Challenges, eds. M. Shildrick and R. Mykitiuk (2005) 195
22. D. Dickenson, Property in the Body: Feminist Perspectives (2007)
23. S. Speed, Rights in Rebellion: Indigenous Struggle and Human Rights in Chiapas (2007)
24. M. Strathern, The Gender of the Gift: Problems with Women and Problems with Society in Melanesia (1988)
25. A. Brysk, The Politics of Human Rights in Argentina: Protest, Change and Democratization (1994)
26. M. Novaro, and V. Palermo, La Dictatura Militar 1976/1983 Del Golpe de Estado a la Restauración Democrática (2003)
27. M. Novaro, Historia de la Argentina Contemporánea (2006).
28. Abuelas de Plaza de Mayo, Las Abuelas y la Genética: El Aporte de la Ciencia en la Búsqueda de los Chicos Desaparecidos (2008). Recently a dramatic controversy regarding the location and political use of the Bank erupted. While an interesting and important topic for discussion, it is beyond the scope of this article.
29. Two examples will illustrate this strategy: the case of Evelyn Vázquez Ferrá, adjudicated in 2003 by the Supreme Court (Vázquez Ferrá, Evelin Karina s/ incidente de apelación (c. 356
30. Emiliano Prieto - Guillermo's brother, whose case was decided on the same day as Guillermo's (Gualtieri Rugnone de Prieto, Emma Elidia y otros s/ sustracción de menores de 10 años (causa n° 46/85A)). In Evelyn's case, the Court sided with the plaintiff and did not require her to undergo a blood test to verify her genetic identity, arguing that if an adult is not interested in learning her 'true identity', the Argentine legal system cannot force her to do so. Her case was considered a watershed event in the struggle to identify the 'living disappeared' but the decision was reversed when, based on a test of her shed-DNA, Evelyn was identified a few years later. Emiliano Prieto also appealed to the Court against the required blood test. Although his request was similar to Evelyn's, his case was discussed in different terms. In all likelihood there are two reasons for the differences in the deliberations: first, by 2009 the use of alternative methods for verifying identity had become commonplace, and the Court instructed that these should be used instead of forcibly extracting blood from the appellant; second, the Supreme Court's composition had changed dramatically from the time of the Vázquez Ferrá ruling. Only two of the judges who had been on the Court in 2003 took part in adjudicating on the Prieto cases. Moreover, Emiliano's case, although different from Guillermo's, most notably because it dealt with blood tests rather than shed-DNA tests, was argued in very similar terms. The judges repeatedly use the same wording and replicate their assertions in both cases.
31. The source is not as reliable as blood samples because there is less biological material in which 'usable' DNA can be found although, using STR (Short Tandem Repeats) and PCR (Polymerase Chain Reaction) methods it is relatively simple to replicate enough material to be used for identity tests
32. S. Cole and M. Lynch, 'The Social and Legal Construction of Suspects' (2006) 2 Annual Rev. of Law and Social Science 39
33. P. Rabinow, Making PCR: A Story of Biotechnology (1996)
34. It was suspected that there was no genetic relation between Guillermo and Emiliano as each was assumed to be the child of a different disappeared couple
35. A. Ventura, 'Inminente fallo de la Corte en un caso de apropiación de menores' La Nación, 5 May 2008
36. Ideological alteration refers to the fact that the identity documents are valid although their content has been tampered with. By classifying the documents in this way, the justices recognize that although the information had been manipulated by the appropriators and their accomplices, the documents themselves were still officially binding (for a discussion of the crimes committed in the case of the 'living disappeared
37. CELS (Centro de Estudios Legales y Sociales), Informe Anual Derechos Humanos en Argentina (1998)
38. Human Rights Committee Principles E/CN.4/1999/62, Official Records of the General Assembly, Fifty-first Session, Supplement No. 40 (A/51/40).
39. Article 19 of the Argentine Constitution states that:
40. The private actions of men which in no way offend public order or morality, nor injure a third party, are only reserved to God and are exempt from the authority of Justices. No inhabitant of the nation shall be obliged to perform what the law does not demand nor deprived of what it does not prohibit.
41. It is interesting to note that the verb sustraer (the infinitive form of sustrajo) can mean extract, remove or steal.
42. Universal Declaration on the Human Genome and Human Rights, UNESCO Gen. Conf. Res. 29 C/Res.16, reprinted in UNESCO, Records of the General Conference, 29th Sess., 29 C/Resolution 19, at 41 (1997) (adopted by the UN General Assembly, G.A. res. 152, U.N. GAOR, 53rd Sess., U.N. Doc. A/RES/53/152 (1999)).
43. It is important to note that the Argentine state has been taken by its citizens to higher courts, such as the Inter-American Court of Human Rights, to settle similar conflicts in cases of human rights violations such as those produced by the last civico-military rule.
44. This shift in responsibility from the victim to the state is particularly significant because, as claimed by many 'living disappeared' who have argued against compulsory blood samples for the purpose of identity verification, by voluntarily giving blood they would also be actively aiding in the incrimination of the individuals who raised them and whom they view as their parents.
45. Many human rights documents, among them the UDHR, were incorporated into the 1994 rewriting of the Argentine Constitution and now have the same legal standing as all other parts of the constitution (K. Sikknik, 'From Pariah State to Global Human Rights Protagonist: Argentina and the Struggle for International Human Rights' (2008) 50 Latin American Politics and Society 1).
46. J. Collier, B. Maurer, and L. Suárez-Navaz, 'Sanctioned Identities: Legal Constructions of Modern Personhood' (1995) 2 Identities 1, at 5.
47. According to Macpherson, at the core of liberalism since the seventeenth century is the individual who is free 'inasmuch as he is proprietor of his person and capacities. The human essence is freedom ... and freedom is a function of possession' (C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (1962)
48. For a number of emblematic cases of the way genetics has been used to define collective and individual identity, see special issue (2005) 29(2) Culture, Medicine and Psychiatry, ed. P. Brodwin.
49. It is universal individuality that is constituted in human rights discourse because it is all human individuals to an equal degree, and regardless of differences between them, who become the bearers of human rights' (p. 1498
50. Moreover, she explains that the unique bounded individual is 'free to be his or her own person' (p. 1509
51. Their use of the term 'true identity' is revealing of the significance genetic patrimony has for their understanding of the subject. In other words, the Court views the individual's genetic identity and his identity in the social world as the same. This conflation is not limited to the Court's ruling; rather, it is today a common assumption in the practice of law enforcement, for example, the identification of perpetrators of crimes using their genetic profile:
52. M. Lynch, et al. Truth Machine: The Contentious History of DNA Fingerprinting (2008)
53. R. Leckey, Contextual Subjects: Family, State and Relational Theory (2008)
54. It is interesting to note that in both Court cases, that of Emiliano Prieto and that of Guillermo Gabriel Prieto, the physical body appears to belong to the person. The person has rights over his bounded physical being and any violation of these boundaries would imply a violation to basic rights.
55. J. Carsten, After Kinship (2004)
56. S. Franklin, Embodied Progress: A Cultural Account of Assisted Conception (1997)
57. A. Pottage, 'Introduction: The Fabrication of Persons and Things' in Law, Anthropology and the Constitution of the Social: Making Persons and Things, eds. A. Pottage and M. Mundy (2004)
58. M.J. Radin, 'Property and Personhood' (1982) 34 Stanford Law Rev. 957
59. M. Strathern, Property, Substance and Effect (1999)
60. E. Joh, 'Reclaiming "abandoned" DNA: The Fourth Amendment and Genetic Privacy' (2006) 100 Northwestern University Law Rev. 857
61. M. Davies and N. Naffine, Are Persons Property? Legal Debates about Property and Personality (2001)
62. C. Fabre, Whose Body is it Anyway? Justice and the Integrity of the Person (2006)
63. R. Gold, 'Owning Our Bodies: An Examination of Property Law and Biotechnology' (1995) 32 San Diego Law Rev. 1167
64. C. Waldby and R. Mitchell, Tissue Economies: Blood, Organs and Cell Lines in Late Capitalism (2006)
65. E. Joh, 'DNA Theft: Recognizing the Crime in Nonconsensual Genetic Collection and Testing' (2011) 91 Boston University Law Rev. 665
66. R. Rao, 'Genes and Spleens: Property, Contract, or Privacy Rights in the Human Body' (2007) 35 J. of Law, Medicine and Ethics 371
67. M. Davies, 'Queer Property, Queer Persons: Self-Ownership and Beyond,' (1999) 8 Social Legal Studies 327
68. E. Balibar, ' "Possessive Individualism" Reversed: From Locke to Derrida' (2002) 9 Constellation 299-300
69. In her discussion of legal self-ownership, Naffine develops the claim that 'property in oneself is an assertion of self-possession and self-control, of fundamental rights to exclude others from one's very being. It is a means of individuating my person, of establishing a limit between the one and the other' (N. Naffine, 'The Legal Structure of Self-Ownership Or the Self-Possessed Man and the Woman Possessed' (1998) 25 J. of Law and Society 193
70. But this self-possession implies a division between the material body and the self: 'The body is that which is owned by this nonmaterial subject' (p. 201
71. Richardson, Reading Balibar on Locke, offers a different view: according to Balibar, the self that Locke envisioned was split in two - the self that was able to reflect on his thoughts and action and the self that was able to experience those thoughts and actions (J. Richardson, 'Feminism, Property in the Person and Concepts of Self' (2010) 12
72. Brit. J. of Politics and International Relations 56). Ownership was based on what the self identified as not separate from itself; that is, the self reflected on, identified and recognized its responsibility for itself. My argument is somewhat different from both readings for two reasons: first because Guillermo Prieto's case raises the question of whether the self can be detached from the body if that same self can be 'detected' or recognized using the individual body's 'codes' (his DNA); second, the use of shed-DNA in the case raises questions about the discrete and physically bounded subject which is implicit in Naffine's reading of Locke's Cartesian dualism.
73. A. Pottage, 'Persons and Things: an Ethnographic Analogy' (2001) 30 Economy and Society 112
74. If we follow the logic of the non-Cartesian self, then not having property in the body also implies that we do not have property in the self. In other words, we lose our freedom and become slaves. A similar point is developed by Dickenson when she explains that in that case 'there can be no distinction between the person as rights-holding subject and the body as the object of rights' (D. Dickenson, Property in the Body: Feminist Perspectives (2007) 5). Dickenson develops this argument further in her book, explaining that innovations in biotechnology make it hard to conceive of the body as a unified whole it makes bodies more feminized and as a consequence less like subjects.
75. J. Kahn, 'Privacy as a Legal Principle of Identity Maintenance' 33 Seton Hall Law Rev. 371
76. Kahn shows that privacy has received various and sometimes very different definitions in the legal, sociopolitical, and philosophical texts, implicating on the one end of the continuum dignity, autonomy, and the integrity of the self and on the other, matters of control over information.
77. J. Kahn, 'Biotechnology and the Legal Constitution of the Self: Managing Identity in Science, the Market, and Society' 2000 51 Hastings Law J. 909
78. Mariana, http://www.youtube.com/watch?v=MBeLo2vrJjo
79. In analysing a legal case from Papua New Guinea (PNG), where human rights were used to argue against traditions and relational obligations embedded in a ritual exchange of a woman, Strathern shows that through 'politico-ritual fabrications' the person comes to embody the idea or concept of the relationship
80. Having the capacity to be 'seen by others as an embodiment of one particular relationship', persons can also be conceived of as things which can be owned by others (p. 218
81. In other words, what is owned in PGN is the relationship, which is in the person. Strathern concludes with a plea to consider relationships as a complex field that interacts with and plays a role in human rights debates, another order which gives us a different perspective altogether and informs human rights. While sympathetic to her view of relationships and persons, I am not certain that it sits well or helps us solve the problems raised by the Guillermo Prieto case. In effect, the shed-DNA test posits one set of relationships against the other - those created through everyday historically grounded interactions between Guillermo and his appropriators, and those created through the uncovering of genetic relations embedded in his DNA. In my reading, the 'visibility' of these competing relations does not contribute to a better understanding of the human rights debates in the case.
82. J. Nedelsky, 'Property in Potential Life? A Relational Approach to Choosing Legal Categories' (1993) 5 Canadian J. of Law and Jurisprudence 343