Right to privacy is intrinsic to life and personal liberty and is inherently protected under Article 21 of the constitution…

Right to privacy is inherent in Article 21. In Justice K.S. Puttaswamy v. Union of India (2017), the Supreme Court held privacy an intrinsic facet of life and personal liberty, protecting bodily integrity, autonomy and information from intrusion.

This right limits prenatal paternity testing. Under the PCPNDT Act, 1994, prenatal diagnostic procedures are permitted only for detecting genetic or structural abnormalities; sex determination is prohibited. A DNA test of a foetus to establish paternity is not a diagnostic or therapeutic procedure and is therefore not permitted. The MTP Act governs termination of pregnancy only; it does not authorise fetal sampling for paternity. The recognised exception arises in criminal cases: where a rape survivor lawfully terminates a pregnancy, courts have directed that foetal tissue be preserved for DNA analysis as evidence against the accused.

Section 112 of the Indian Evidence Act (now Section 116 of the Bharatiya Sakshya Adhiniyam, 2023) creates a presumption of legitimacy for a child born during valid marriage, conflicting with private paternity testing. Courts have confined DNA evidence: Goutam Kundu v State of West Bengal (1993) rejected routine or roving DNA tests; in Dipanwita Roy v. Ronobroto Roy (2014), DNA testing is not automatic and requires necessity and safeguards; in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014), a scientifically accurate DNA test result was held to prevail over the Section 112 presumption; and Ivan Rathinam v Milan Joseph (2025) reiterated that such tests may be ordered only on an 'eminent need'. These decisions protect the mother’s privacy and family dignity, while allowing paternity disputes to be resolved after birth.

The child’s interest in identity, if raised after birth, is not a pre-birth right recognised by these precedents and must yield to the statutory ban and the mother’s privacy. Since the PCPNDT Act does not specifically address prenatal paternity testing, a legislative or guideline regime is needed to reconcile privacy, legitimacy and identity claims.