(Dec. 7, 2009) On November 18, 2009, Argentina's Congress passed Law 26549, which adds a provision to the Code of Criminal Procedure to allow the courts to order the compulsory extraction of DNA to determine an individual's identity. (Ley 26.549, Boletin Oficial, Nov. 26, 2009, available at http://www.infoleg.gov.ar/infolegInternet/anexos/160000-164999/160779/no
The Law is mostly aimed at identifying children and grandchildren of those who disappeared during the military dictatorship of 1976-1983; the children might have been born during their parents' political captivity. The new provision was approved by the Senate with 57 votes in favor and only one vote against. The Law authorizes the judges to order that biological samples, such as samples of blood, saliva, or skin, be taken to determine the identity of people in judicial proceedings involving crimes against humanity. A court order for such samples should justify the necessity, reasonability, and proportionality of the measure in each specific case.
At the Courts' discretion, the judge can eventually accept DNA samples extracted by means other than the corporal inspection, that is, samples taken from objects that contain cells already out of the body. To this end, the judge may order the search of a residence or requisition personal belongings that could be used to extract DNA samples.
Opponents of the measure, including constitutional law professor Gregorio Badeni, believe that the right of privacy should prevail over the right to know an identity and that this new process amounts to an unlawful government intrusion on the individual's privacy. Under the new Law, if a person refuses to provide a DNA sample, the judge has the authority to order the extraction of genetic elements from a hairbrush, toothbrush, clothes, or any other object, against the person's will.
The National Constitution of Argentina provides a limit on government intervention in the privacy of individuals, stating that the private actions of individuals that do not offend public morals and order and do not hurt anybody are only reserved to God for judgment and are exempt from the authority of any court. No individual is obliged to do what the law does not mandate nor is he or she to be deprived of what the law does not prohibit. (Art. 19, National Constitution, http://www.senado.gov.ar/web/interes/constitucion/capitulo1.php (last visited Nov. 30, 2009).)
According to Rodolfo Barrutti, another lawyer, if there is government coercion to extract genetic material when dealing with adults who are not charged with any crime and who refuse to voluntarily give a DNA sample, the law might be subject to challenges to its constitutionality. (Es Ley La Extraccion Compulsiva de ADN, Diario La Nacion, Nov. 18, 2009, available at http://www.lanacion.com.ar/nota.asp?nota_id=1201552; Rodolfo Barrutti, Identidad vs. Intimidad, Diario Judicial, Nov. 26, 2009, available at http://www.diariojudicial.com/nota.asp?IDNoticia=39098.)