A (Slightly Muddled) Discussion of the Use of DNA Testing in India

Sorry to be gone so long.  This is a stretch of my life that includes a variety of momentous events (bat mitzvah of daughter, son going off to college, daughter starting high school–and all in three weeks) as well as those that are ordinary in the academic life (starting fall classes) and it is just wildly busy.

Anyway, there’s an article in today’s NYT about the use of DNA testing in India.   Though it’s not perfect, it’s certainly worth a read and it provides some food for thought/discussion.

For the most part, the article looks at how the rise of cheap, easy and accurate DNA testing is playing out in situations where the paternity of married men is questioned.   In this context, perhaps the central observation is that if the DNA of the child does not match that of the husband, then the husband knows that his wife has been unfaithful.  This knowledge brings with it various ramifications.   Notably, it might be grounds for divorce and/or it might be grounds for resisting an order of child support.  

This isn’t a new point on the blog, but it is worth restating.  One of the things about DNA is that it can provide incontrovertible (or near enough to incontrovertible) evidence of past historical facts.    The DNA of the child tell everyone something about events that must have happened in the past.   In this regard, DNA testing is like fingerprinting.   If a fingerprint is found in a location, it allows us to conclude (generally) that a particular person was there.

(I feel compelled to note that there are still areas for dispute.   It’s always possible that the wife was impregnated via insemination, with or without the consent of the husband.  But that’s surely the unusual case.)

The next step in the discussion is familiar terrain for readers here.   The question is from a legal point of view what follows from establishing past historical fact.  It’s here that the article gets a bit muddled, in my view, as the author doesn’t make clear that genetic parenthood and legal parenthood are not identical concepts and that, historically speaking, there has never been a perfect overlap of the two.

One thing that strikes me–though it isn’t mentioned by the author–is how similar the questions in India are to those raised here.  This may well be a commonality you’d find in most legal cultures that trace their origins to English law.

In any event, the problem is the presumption that, as a matter of law, the husband is the legal father of the child born to the wife.   What do we do (and what do the Indian courts do) with the presumption in the fact of historical evidence that he is not the genetic father?    If the presumption of paternity is strong enough, then the DNA test becomes (legally) irrelevant.  And presumably this is the basis on which a man like N.D. Tiwari might resist DNA testing.

The article raises a variety of issues that we’ve discussed here.   For anyone reading the blog regularly the issues ought to be familiar.   Crucially there are a variety of situations in which DNA testing might play a role.   You might have an adult child (like Rohit Shekar) who seeks DNA testing in order to learn something about his own origins and identity.   Or you might have a husband seeking to avoid a child support obligation.   (I assume there is no child support at issue in the case of Rohit Shekar as he is 28.)

If it is a case of a husband attempting to avoid a child support obligation you could still have a variety of situations.   It might be an instance where the child is very young (or even in utero) or it might be an instance where the child is much older–say a teenager.   If the latter, then the man might have performed as the child’s social parent for a long time while the genetic father might be entirely unknown to the child.

It seems to me that a key difference between the Shekar-type case and this latter one is where how the interests of the child comes into the analysis.   The child, of course, is always an innocent party in these cases (having had nothing to do with the circumstances of conception) and we might want to put the well-being of the child first.

If it is the now-adult child seeking the information than obviously the child wants it/feels a need for it and I think we tend to trust that this shows it is in the child’s interest.  By contrast, where the husband seeks to avoid child support it is hardly clear that it is in the child’s interest to allow him to do so.   Indeed, in the last of the circumstances above (where the man has served as social father for a long time) it may well be entirely contrary to the child’s interest.

I would not say that this dictates that we MUST reach a different conclusion in those cases, but it seems to me that we at least ought to think about the different sorts of cases differently.  It seems to me quite possible to think one should order DNA testing where the adult child wants it but not where the long-serving social father wants to evade a support obligation.

In any event, there’s a lot packed into that article and a great deal to think about.

 

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16 responses to “A (Slightly Muddled) Discussion of the Use of DNA Testing in India

  1. On what equitable basis should a man be forced to serve the interests of a child whose very existence is a tort against him? The child’s interests – but that child is his enemy sired by his enemy and linked to him by a perpetuated lie. And it’s a total stranger to the rest of the world. So it seems to me you want the law to impose a parasite on him, in forcing him to provide for a child that only exists with any ties to him because he was betrayed and deceived.

    I guess I’m saying that while it may be proper for the law to require that man not to handle the child like a lion or a langur would, in my eyes refraining from killing anyone is the only moral obligation he could have in that situation or that the law should recognise.

    Bottom line, faced with the possibility of being stuck in that husband’s situation, why should I favor a law that subordinates his interests to adulterychild’s, knowing in the future that same law would subordinate my (and by extension my actual children’s) interests to the other man’s child if I were the victim of a cheating pregnancy?

    • My parent's donor is my father

      Well, there you go. Thank you Steve for putting this so bluntly. Parasite. These debates have nothing to do with children’s interests, only adult’s interests. This seems to be what the law is about these days. Sigh.

      • MPDIMF – I’m interpreting Steve’s statement to in fact be in favor of our side of the coin. Can you expand on what you take away from his comment? I’m getting that he thinks it is inappropriate for a man to be named as the father of a minor who is in fact the offspring of another man who should be held accountable for support.

        • My parent's donor is my father

          I’m not sure if we are in agreement with that (our side of the coin). Remember, I’m not about “the law”, I’m about doing the right thing. Reproduce with your own sperm, egg and womb where both parties do the right thing by their child. Everything else has huge complications (legally, emotionally, socially, politically) involved and more often than not the child is the one who looses.

          • But you do believe that people should take care of their own offspring right? That people while minors should have the right to be recognized as being children of the men and women who reproduced to create them?

            • My parent's donor is my father

              Yes.

              • Thanks for your reply. MPDIMF, Alana and I and Rickard filmed more of her movie this weekend, missed you and toasted to you because you are so intuitive and are the great match maker of peoples needs and abilities.

                I know you. Law? Who needs the law? We don’t need no stinking badges! Heart and head say whats fair and right, I know I know. But don’t really care if people think it’s right or not at a certain point I think we have to just hold people’s feet to the fire and make them fess up and take responsibility for the people they put on this earth. Sue me. Take away my harp and halo snap the tip off my pitchfork steal the keys to my broom. I’m still saying there ought to be a law.

          • Does this mean you and I are in agreement in disapproving of the existence of ART?

            Anyway, the beliefs of mine most relevant to this post of Julie’s are these:

            1) The only morally valid way for a man to have any sort of obligation to raise or care for another man’s offspring is through his own informed (that the child is not his offspring) and uncoerced consent.
            2) Strangers don’t matter as much as yourself and the people you know and care about; these cases almost always deal with only adults and children who are strangers to you but the law applied to them will be the same law applied to you or the people you care about; you or the people you care about are more likely to be involved in one of these cases as the adults than the child; therefore, supporting a legal focus on the children’s interests doesn’t make sense.

    • I agree, if a husband wants to divorce and not have to support his wife’s child by another man, he should be allowed to do that. The state can step in and provide support just like it does when a child’s parents die or are incarcerated. It’s not in the child’s best interest to have a parent in jail, but that’s what we do when the parent deserves to go to jail. And we support the child with government support, we don’t just let the child starve. Why can’t we do that when the husband has been cheated on?

  2. My parent's donor is my father

    I fully understand where you are coming from and I would not be upset at all if laws were created to hold those feet to the fire. But then again, I don’t want to see good people shamed, fined and arrested because of a child’s conception. So I’m stuck. I think it will require both horns and halos to tame this beast of a practice (and a lot of creativity). It needs to be regulated and should be required to have warning stickers slapped all over it as they do with tobacco products. Right now I think it’s borderline criminal malpractice that the ASRM is dominated by so called “experts” who are really just industry activists with too much power and obvious conflict of interests. Wendy Kramer of the donor sibling registry wrote a great blog post about the conflicts and what needs to happen. Read here: “Evolution of a Donor Parent’s Thought Process” https://www.donorsiblingregistry.com/blog/?p=486
    Cheers to you and Alana!

    • Oh good this is getting interesting. Why would the law contemplate penalizing or criminalizing people’s conceptions? That is kind of pointless and counterproductive. It’s also pretty hard to manage and there is no framework for a law like that

      I was thinking maybe just making all people responsible for their own offspring. I mean everyone but gamete donors are legally obligated to be recorded as the parents of their own offspring. When someone else is named as a parent outside gamete donation its deceptive all we have to do is tighten up the existing law so that it applies 100% of the time regardless of who your married to or who you’d like to raise children with because it is a matter of public health and safety. If errors are discovered you don’t have to throw anyone in jail just correct the records so that those people are no longer recorded as legal parents. Anyone interfering with accurate identification of people as the parents of their own offspring would be guilty of obstructing justice, try fining them or shutting down their businesses if they are profiting from helping people connect with gamete donors unless all their contracts and paperwork had clauses that said gamete donors are the parents of their own offspring and must be recorded as the parents on their offspring’s birth records same as anyone else. Married people who interfered with recording a person as the offspring of their biological parents could maybe have their marriage revoked so that their marital presumption would fall apart and they would stop getting all the financial benefits of marriage or something. I mean if they think they can just terminate a person’s familial relationships to their blood relatives without getting consent, maybe we can terminate their relationship to their spouse without their permission and see how they like it.

      • My parent's donor is my father

        Getting back to how you think the law should change…you wrote: ” it is inappropriate for a man to be named as the father of a minor who is in fact the offspring of another man who should be held accountable for support.”
        This is technically how the law is currently designed in many states when conception happens outside of a licensed doctor or clinic. That’s what the Jason Patric and the Craigs List “donor” debates are trying to figure out. I think there is a good chance that the Craigs List “donor” will be held financially responsible. The Patric case is more muddled but since he held himself out (and acted) as a responsible bio and social father, I think he has a good chance at winning that case. But the law gets really dicey when it applies to conceptions that happen through a licensed doctor or clinic. How do you see this working in those arrangements. Tell “donors” that there are no laws protecting them from being held financially responsible for any children the clinic conceives with his sperm? Obviously ending anonymity by default and telling “intended parents” that the “donor’s” name will be listed on the birth certificate of any children they give birth to with the “donor’s” sperm (or egg) and that if they find that they can’t afford to raise their child they can sue the “donor” for child support?

        • So much to say here. Thank you for asking because I have put a considerable amount of thought into how the law should change and I think the key is to not come up with new laws banning anything, but rather to correct discrepancies in the law that are unconstitutional (I don’t even know if I’m using that term correctly-someone smart can tell me).
          Gamete donation agreements should state that a person’s body,and personal rights are not property and are non transferable. That is to say the donor retains the right to change their mind and withdraw consent to the use of their gametes for reproduction or research at any point without penalty. The donor is a person with reproductive rights and bodily autonomy that cannot be purchased. Sperm and eggs are not property that when sold become the property of the buyer. They never actually belong to the person making the purchase. If the donor decides they no longer wish to reproduce in that fashion, nobody can force them to do so simply because they bought their gametes. That would be unconstitutional that would be selling yourself into slavery. Courts don’t award damages for breaking a promise to reproduce and create offspring with a person. The 13th amendment abolished slavery and with it contracts for indentured servitude and any claim of ownership over people and their body parts. These gamete donation agreements hang together on the idea that that the sperm and eggs become the property of the buyer and that is not the case. Also the contracts should expressly state that a gamete donor cannot sell their parental obligations and that no other person has the right to name themselves as parent of their offspring. The agreement to donate a gamete should be limited to the gamete and should not extend to control or custody of the donors future offspring if any should result. The donor should be treated as a parent in all regards the same as any other person with offspring and the gamete donation be considered irrelevant as it occurred prior to the birth of their offspring.

          For public health reasons we need to keep track of who does and does not have offspring and the way we do that is by writing people’s names down aas the parents of their own offspring. It is a simplistic system that works really well so long as people tell the truth and take responsibility for the children they create and so long as people tell the truth and don’t claim to be the parents of children they did not create just because they happened to give birth or be married to someone who gave birth.

          People can form whatever version of family they so choose and can arrange a myriad of custodial situations to best suit themselves and the children they are raising but those choices should not impact public health and should not result in people failing to take responsibility for their own actions.

          I think the fix is very simple. We never should have tried to say that some people are not parents of the children they create because it’s a lie and results in all kinds of confusion and problems and violations of people’s human rights. It’s simple to fix just hold people accountable for their own actions. No you cannot buy someone else’s body or the right to reproduce their body. No you can’t get your money back if a sperm donor asks for his junk back because you can’t buy someone else’s reproductive freedom their free choice you can’t buy the right to reproduce with a person so your an idiot if you paid for sperm thinking you owned part of his body and free will. Too bad for you. Your also out to lunch if you thought you could buy the right to strip him of parental title over his own offspring because you can’t do that either.

          So that is all it – just make people realize that gamete donation won’t buy them control of the donor and won’t buy them possession and control of his or her offspring either. The donor contract should expressly forbid anyone from attempting to conceal the identity of a person as the parent of their own offspring and should forbid the naming of any other individual as a parent in their place. It should be stated that doctors could loose their medical licenses for failing to disclose the identity of a person as the parent of their own offspring. People purchasing gametes should have to agree to be maternity/paternity tested and that anyone claiming to be a parent to their child be maternity/paternity tested tp prevent fraudulent misrepresentatin as parents of a donors offspring.

          • Why not just ban intentional conception of children by unmarried people? The word “intentional” would mean that it would only shut down sperm banks and craigslist sellers. I don’t see why you think it is good to continue to let people conceive children with someone they aren’t in love with and committed to.

            • Because such a law would restrict bodily autonomy and personal freedom of human beings. That is the freedom to have control over what does and does not happen to your own body. It puts someone else in control of a person’s physical freedom instead of following the legal premise of personal responsibility for your own actions.

              Most of us that fall into that category of wanting to ban ART (I count myself in that category), want to ban it because of the various injustices suffered by what people like to refer to as “the children”. Those injustices revolve around what is for all intents and purposes a black market adoption scheme that exempts some people from parental responsibility for their own offspring.

              If we just eliminate the exemption some people have from parental responsibility for their offspring we are doing something to equalize the treatment of all adults with offspring and all people at birth. Your correcting a law that allowed for differential treatment of both children and adults that resulted in discrimitory policies and a loss of rights for millions of people so that all people are equally treated.

              You want to ban some conceptions. There will be the argument that you think some people don’t deserve to live. This is a favorite argument of the opposition. This is BS. Whoever is alive deserves to live regardless of their parents intentions and regardless of any third parties who might have influenced their parents actions or intentions. Responding to that kind of argument by saying that you don’t want to ban anyones conception and you think everyone born deserves not only to live but to be treated equally and fairly from birth forward, diffuses their argument that you are trying to restrict their rights or their perceived rights (I threw that perceived in because I know you’ll bang the gong of there being no right to unmarried conception). If you stick to holding people that reproduce accountable for the results of their reproduction all those people and their perceived rights become inconsequential, irrellevant. The only people impacted by the discussion are people with offspring and everyone else is just perriferal white noise. No matter how important they may think they are or how parent-like they may feel their intentions made them, they are irrellevent. You don’t want to restrict their right to reproduce and have children, they can go ahead and try and if they end up having offspring, they should be fully accountable for them. Otherwise they loose nothing by holding people responsibile for their offspring because other people’s offspring are not and should not be their concenrn. prevent certain people from existing. Eliminating the exemption from parental responsibility

              • But people don’t autonomously reproduce. Saying that people autonomously reproduce with their own body actually puts someone else in control of someone, or two people actually: the child and the sperm donor or rape victim or whoever the third party is when one person decides they want to autonomously reproduce with their own body. You just have a distorted view of marriage as inherently abusive and controlling when it should be cooperative and caring and loving. Yes, spouses give up control and autonomy, but not to the other person, to the marriage. It is the marriage that is a single legal entity defined by the right to reproduce autonomously. Individuals are not fully human beings to be autonomous, they are more half human half individuals with a right to become fully human in marriage to someone of the other sex. Once married, they have every right to reproduce and have sex, “the marriage bed is undefiled” in every religion and civil law in the world. But it is threatened now when people say that the right to reproduce is an individual right. Not all rights are held by individuals. Only a marriage has a right to have sex and reproduce and IVF clinics should only join married couple’s unmodified gametes, and sperm banks should be shut down. That doesn’t mean we have to change how we handle unmarried sex and unmarried childbearing or parenting, other than to remind people that there is no right to do it, it is something people do even though they don’t have the right to.

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