Shed-DNA, Body Boundaries and Identity Rights for Argentina’s “Living Disappeared”

During Argentina’s “Dirty War,” approximately 500 infants and children were abducted by the regime and given to military families or their associates. In various court cases regarding DNA testing of the “living disappeared,” justices have considered them within the context of “crimes against humanity,” and as such, Argentina has an international obligation to pursue them. However some suspected children of the disappeared - now adults - have not wanted to have their DNA tested, creating a tension between the individual’s rights of identity and privacy, the families’ rights to justice, and the public interest for truth. When recent genetic technologies rendered a compulsory extracting of blood unnecessary, the state began collecting and testing shed-DNA to determine the identity of potential victims. Shed, or abandoned DNA, consists of DNA collected from an environment where the individual had been. By affirming the use of shed-DNA for genetic testing, the Argentine court seemingly has identified the harm of compulsory extraction to be the means (the penetration of the body barrier) rather than the ends (namely, forcing someone to confront a biologic identity.) And yet, subsequent shed-DNA cases have shown that in attempting to prevent the seizure of their biological material, what victims hope to protect is a sense of identity drawn from social relations. This calls to mind the questions of “stable identity” and the sex/gender debate that has evolved through feminist theory. Should an identity created through the unlawful action of the state and embraced/perpetuated by an innocent individual be considered a legitimate identity as recognized under human rights protections? By applying a feminist lens - specifically Toril Moi’s understanding of the “body as a situation” - to these cases I will argue the hypothesis that a state forcing an individual to confront unwanted knowledge of an identity can be seen as part of the feminist ideology of “becoming.” As such, the use of shed-DNA – genetic material – does not necessarily translate into a biologically-essentializing assertion of identity. By addressing the foundational assumptions regarding identity in these cases in this way, I aim to recalibrate the perceived tension of competing rights’ in these cases, and provide a theoretical justification for state intervention.