connection, including through family tracing.188
101.
In deciding whether to grant a child
citizenship or the right to re-enter a country,
States should thus consider their obligations to
respect the rights of the extended family or
community as provided for by local custom,
and to care for and foster the development of a
child.189 Likewise, States considering a solution
for a child who has been permanently deprived
of his or her family environment must give due
regard to continuing a child’s upbringing in their
ethnic, religious, cultural and linguistic background, an evaluation which may call for returning a child to the environment in which he or she
was born or partially raised.190 This is a consideration that must be made in situations when the
child’s parents are detained abroad and a DNA
test does not serve to establish a genetic link to
a suspected country of nationality. As in all decisions concerning a child, the best interests of the
child must be the primary consideration.191
The right to privacy
102.
DNA testing potentially places a child’s
right to privacy at risk.192 The collection of bio-
metric data193 for a specific purpose may be justified if it is in the child’s best interests; however, it
is an activity that must be approached with caution, as there is a general lack of safeguards concerning the future uses of DNA once it has been
collected and stored.194
103.
States collecting DNA for the purpose
of confirming a child’s connection to their
suspected home country should not retain
the child’s genetic record for any other use,
including the development of biometric
databases.195 Instead, a child’s biometric data
should be used only in measures to protect the
child and be destroyed once the child’s identity is
established. States should implement strict rules
on the collection, use, retention of and access
to biometric data, including DNA data.196 Failure
to protect a child’s personal data in this regard
constitutes a violation of the right to privacy set
193 Biometric data is defined as “unique markers that identify or verify the identity of people using intrinsic physical or
behavioral characteristics”, and has been noted to include
DNA. Jennifer Lynch, From Fingerprints to DNA: Biometric Data
Collection in U.S. Immigrant Communities and Beyond (Immigration Policy Center and Electronic Frontier Foundation,
2012), available at www.eff.org/document/fingerprints-dnabiometric-data-collection-us-immigrant-communities-andbeyond , 4.
194 Committee on Assessing Genetic Risks, Assessing Genetic Risks: Implications for Health and Social Policy (National Academy of Science, Washington DC, 1984), available
at www.ncbi.nlm.nih.gov/books/NBK236044/.
188 ICRC, Commentary on the Additional Protocols to the
Geneva Conventions of 1949 (Geneva, 1987), art. 32, para. 1215.
189 Convention on the Rights of the Child (1989), art. 5.
190 Ibid., art. 20(3).
191 Ibid., art. 2.
192 Ibid., art. 16(1) stipulates that no child should be subjected to arbitrary or unlawful interference with his or her
privacy or family.
195 Joint general comment No. 3 (2017) of the Committee
on the Protection of the Rights of All Migrant Workers and
Members of Their Families No. 22 (2017) of the Committee on
the Rights of the Child, para 17.
196 Ibid.; United Nations Office of Counter-Terrorism and
Counter-Terrorism Executive Directorate, United Nations
Compendium of Recommended Practices for the Responsible Use and Sharing of Biometrics in Counter Terrorism
(2018), available at www.un.org/sc/ctc/wp-content/uploads/2018/06/Compendium-biometrics-final-version-LATEST_18_JUNE_2018_optimized.pdf, 31-32.
47.