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.