Relational Human Rights: Shed‐DNA and the Identification of the ‘Living Disappeared’ in Argentina

Publication Date01 September 2014
AuthorNoa Vaisman
DOIhttp://doi.org/10.1111/j.1467-6478.2014.00675.x
JOURNAL OF LAW AND SOCIETY
VOLUME 41, NUMBER 3, SEPTEMBER 2014
ISSN: 0263-323X, pp. 391±415
Relational Human Rights: Shed-DNA and the
Identification of the `Living Disappeared' in Argentina
Noa Vaisman*
Through an ethnographic reading of an Argentine Supreme Court
decision I explore the changing nature of the legal subject of human
rights in light of emerging technologies. Guillermo Gabriel Prieto was
suspected of being a `living disappeared', one of the estimated 500
infants or young children forcibly abducted by the last military
dictatorship in Argentina. They were raised by the perpetrators of the
crime or their accomplices and kept unaware of their birth origins. The
Court's deliberations focused on Guillermo's appeal of a lower-court
decision to carry out an identity test based on his shed-DNA. The
decision demonstrates that while the subject of human rights has often
been equated with the bounded individual, new technologies challenge
us to reconsider the subject's core characteristics: physical bounded-
ness, autonomy, and individuality. I argue that the ruling offers us an
alternative conception of the subject that could become the foundation
for a new vision of human rights
INTRODUCTION
During the last dictatorial rule in Argentina (1976±1983) an estimated 500
infants and young children were abducted by the regime. Born to leftist
activists and guerilla militants, these individuals were taken from their birth
parents and given as `war booty' to members of the Armed Forces, police or
their political supporters. To cover up the crime, the infants' dates of birth
and names were changed and their identity documents altered so that, in
many cases, they appeared as the `natural' (birth) children of the people who
391
*Law School, Durham University, Palatine Centre, Stockton Rd, Durham
DH1 3LE, England
noa.vaisman@durham.ac.uk
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
raised them.
1
Today these individuals are considered the `living disappeared'
of Argentina.
2
Over the years 113 cases of `living disappeared' have been revealed and
the (genetic) identity of those who were found was resolved. Identification in
this case implies the tracing of biological ties between a `living disappeared'
and a family that is looking for a disappeared relative. Over the years the
process of identification has taken various forms and employed a variety of
techniques. Today, along with other techniques, the primary method used is
DNA identity tests. In these tests, segments of DNA from an individual
suspected of being a `living disappeared' are compared with the DNA of all
the families whose genetic material is stored in the National Bank of Genetic
Data (BNDG). If the person is found to be related to a family in the Bank,
these relations are expressed as statistical percentages of the chances of
inclusion in a specific familial group. Until a few years ago DNA tests were
based on blood samples, but more recently the methods for obtaining
biological material to conduct the DNA test have evolved. The tests can now
be performed on shed-DNA, that is, DNA collected from the environment
where the individual had been. Circumventing the need to collect live
biological material directly from the person (through a blood sample, for
example), DNA is sometimes collected without the direct participation of the
individual in question and, at times, against his or her wishes. This situation
raises many difficult questions regarding human rights and the right to
identity and embodied personhood and has given rise to the Argentine
Supreme Court case I analyse in this article.
Guillermo Gabriel Prieto's case opposing the use of his shed-DNA is the
first shed-DNA identity test case to have reached the Argentine Supreme
Court.
3
Brought to the Court by Guillermo himself, the case deliberated the
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1 The adoption laws both before and during the last dictatorial rule enabled the
adoption of minors without the provision of any information about their biological
parents. These adoption methods facilitated the appropriation of infants during
military rule (C. Villalta, `Uno de los escenarios de la tragedia: el campo de la
minoridad y la apropiacioÂn criminal de nin
Äos' in Infancia, Justicia y Derechos
Humanos, ed. C. Villata (2010) 199). Reguiero notes that, of 96 known cases, 40
children were registered as the biological offspring of their appropriators (S.
Regueiro, `Inscripciones como hijos propios en la administracioÂn pu
Âblica: la
consumacioÂn burocra tica de la desaparicioÂn de nin
Äos' in Villata, id., p. 245).
2 R. Arditti, Searching for Life: The Grandmothers of the Plaza de Mayo and the
Disappeared Children of Argentina (1999).
3 Corte Suprema de Justicia de la Nacio n (Argentina's National Supreme Court) 8
November 2009, `Gualtieri, Rugnone de Prieto, Emma Elidia y otros s/sustraccioÂn de
menores de 10 an
Äos' (11/08/2009 ± G. 291. XLIII), at
ConsultaCompletaFallos.do?method=verDocumento s&id=670520>. 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
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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