To know or not to know - that is the question
Commentary on a newspaper article (start)
This is a commentary on an article in the Sunday Telegraph. The text in boxed italics is from the published article, and the rest is my commentary, which follows the text being commented upon. I have included all of the text from the article, but I have little to say here about matters other than paternity testing. This topic must be treated separately in law.
The article is:
Move to outlaw secret DNA testing by fathers
By Martin Bentham and Lorraine Fraser
Sunday Telegraph 19th May 2002
First - a man who wants to use a paternity test may not be a father! He doesn't know if he is the father, or if another man is the father. Only the paternity test will determine that. (Men who know they are the fathers, or who don't want to know, won't want to take a paternity test). Second - "DNA" is misleading here. After all, only junk DNA is used in paternity testing. This is a discussion about any form of reliable paternity testing.
Perhaps the title should have read:
Move to outlaw secret paternity testing by possible fathers
|Fathers who conduct secret paternity tests on their children will face prosecution under new laws to be proposed by a Government watchdog.
Surely the "Inside Information" Report doesn't enable such a statement to be made? It states:
Private paternity testing, such as that commissioned for civil court cases, may fall under a voluntary UK Code of Practice on Genetic Paternity Testing Services. However, the Code of Practice is not legally enforceable and does not apply to paternity testing services offered by overseas providers. We recommend that the effectiveness and relevance of the Code of Practice on DNA Paternity Testing should be considered as part of our review of direct offering to the public of genetic testing services.
The Code of Practice says "Motherless Tests
should only be undertaken where the mother consents to the child being tested or where the putative father has care and control and is able to give consent for the child". (My emphasis). There appears to be no statement that men with parental responsibility need the mother's knowledge or permission.
Paternity testing services in fact were not included in the next round of consultation, and are not in the HGC's work plan for 2002. It would be premature to make such a change to the law before the very broad societal and ethical and practical implications have been analysed.
I am providing input, including this paper, to the future consultation process on "the supply of paternity tests direct to the public", to help make that consultation a success. Only after sufficient consultation can proposals to change the law be made with confidence.
|The Human Genetics Commission will recommend in a report to ministers that the theft of a person's DNA, including the clandestine removal of a child's hair or saliva, should become a criminal offence.
How could such a law be framed, in the specific case of personal knowledge paternity tests? Consider the following places at which legislation could apply:
The supply of the service itself:
It is well within the power of the UK government to legislate for UK-based services. It does not appear possible for the UK government either to control the supply of services elsewhere, or to control their visibility and accessibility from the UK.
The collection of samples from the adult or child:
It is clearly possible to apply the standard laws of assault, theft, privacy, harassment, data protection, and similar. Indeed, I believe that these are precisely the laws that should be used for personal knowledge paternity tests.
But it would surely be impossible to create a new law that makes it a criminal offence to remove a child's hair from a hairbrush, a sticking plaster that has covered a cut finger, chewed gum, a licked envelope, a handkerchief, or an old toothbrush. People have a right to remove such things from their own homes! They typically throw them away, but that is irrelevant when framing a law specifically about collecting the sample.
It is almost impossible to be close to someone and not take away his or her DNA! Obtaining the DNA sample is often a trivial activity that is indistinguishable from activities that cannot possibly be made criminal offences, especially for people who are close.
The commissioning of the test using those samples:
How would this be detected? By banning mail to specific overseas addresses? By asking other nations to monitor the use of their paternity testing services by UK citizens and report them to authorities in the UK?
The latter can work for child pornography services, because there is sufficient international consensus. The FBI has reported UK users of USA child pornography services, identified by their credit card details, to UK authorities. But there are no signs of such international consensus on paternity testing services.
Perhaps the paternity testing services could be persuaded to refuse to accept clients from the UK. But unless the national law where they are based prohibits such trade, why should they turn down business? This sort of agreement would need an international agreement that nations would turn down business because other nations wanted them to. There are few precedents for this!
The use of the information gained from the test:
How would this be detected? Since a personal knowledge paternity test is unofficial, its certificate will typically not be used directly. Instead, the result will often simply become the knowledge of the commissioner of the test, and enable him or her to make informed decisions and actions. Those decisions and actions will typically be similar to those that he or she could have made without that knowledge. It is therefore often impossible to deduce that the person has based the action on a paternity test.
The issue that must be faced by legislators is that the topic of paternity tests is not primarily about the handling of material. The material being discussed (typically body cells) is given away by everyone all the time! This topic is primarily about knowledge. It is a debate about whether people should be allowed to learn facts about themselves and their biological relationships, or whether they must be prevented from doing so.
The ethical questions (see Appendix D to this paper) include: is this man allowed to know if he is the biological father of that child; should anyone have the veto on his knowing this; should he have to tell anyone else that he is seeking this knowledge, and if so whom; is a child allowed to know if that man is his or her father; should the mother have a say?
|The proposal has come out of fears that increasing numbers of fathers are exploiting the growth of internet DNA testing services to undertake paternity checks without the consent of the child or its mother, with potentially traumatic consequences for all involved.
It must be recognised that a personal knowledge paternity test does nothing by itself except provide a man or a child commissioning the test with some (hopefully) accurate information. Any consequences arise from any informed actions that the commissioner then takes. Since the results of such a paternity test have no official status, the actions the commissioner takes are typically those that he or she could have taken even without that information.
The statement about increasing numbers of fathers should demonstrate just how important the truth about genetic relationships matters to many people, men, women, and children. Women typically (although not always) already have such knowledge. The discussion here is about the ability of men and children to catch up with this level of knowledge.
It is vitally important to consider all the stakeholders in such cases. Here are two examples, to illustrate some of the factors involved. (Other cases can be more complicated). Situations like Case 1 are far more common than situations like Case 2.
Case 1: the husband suspects that a child of the family is not his, but in this case it is his. Here are some views of each of the stakeholders:
The husband / father. If he commissions a personal knowledge paternity test, his doubts (at least about paternity) are put to rest. If the doubt was gnawing at his marriage, his marriage should be strengthened. If he was testing the water to see whether he would not have to pay child support if he separated from his wife and didn't have residence of the child, he will now know that he would be responsible for paying child support. This may be a disincentive to separate.
Tests such as these are often called "peace of mind" tests, and in most cases they do in fact confirm the presumed parentage. In such cases, the relationship is strengthened.
The mother. In this case, she has nothing to fear from a personal knowledge paternity test, and probably benefits from it. But if the father needs to ask her permission for this test, this recognition of suspicion and the need to decide whether or not to give permission would surely put a severe strain on the relationship.
The child. The child probably benefits from the father's extra confidence in the true relationship between father and child, and from any improvement in family stability.
Case 2: the husband suspects that a child of the family is not his, and in this case it is not his. Here are some views of each of the stakeholders:
The husband. The first thing to note is that this marriage is probably already on the rocks. The wife committed adultery, had a resulting child, and hid this from both the child and the husband. The husband has become suspicious (which is why he wants the paternity test). There is a lack of the trust and respect that is needed for a successful marriage. The problem here is not the paternity test! The paternity test result may simply cause a necessary and honest resolution of a broken relationship.
The biological father. Perhaps the biological father doesn't know he has a child. In which case, he may be missing out on an experience he actually wants. Or perhaps he is planning his life, unaware that he may soon be required to pay a total of tens of thousands of pounds of child support over many years. If in fact he does know that he has a child, his own integrity is in question.
The mother. The mother knows what a paternity test will reveal. She knows it may be the final straw for the marriage, and that if she has residence of the child, she will not be able to claim child support from her ex-husband. She cannot be relied upon or expected to act in the best interests of the child or of either of the men involved. She must not be allowed a veto, or be required to be involved in the decision for the husband or the child to learn the truth about themselves.
The child. Children, at least when they get older, sometimes want to know about their biological parents, and increasingly this position is becoming respected. This is clear from changes to the laws on adoption, and from the pursuit through the courts by children of sperm donors to obtain more information about the donor, even as far as his identity. Sweden has changed its laws on sperm donation to cater for this desire for self-knowledge, and a child in the United States has recently been able to meet the sperm donor. It is increasingly becoming recognised that hiding the knowledge of biological parentage from children is not always in their best interests.
The discussion of (and disquiet about) personal knowledge paternity tests tends to concentrate on cases such as "Case 2". But if, as research suggests, perhaps about 1 in 10 children have surprising paternity, then perhaps 9 in 10 don't have surprising paternity, and this suggests that the overwhelming majority of cases are more like "Case 1".
"Peace of mind" in the majority of cases is in danger of being sacrificed on the grounds that in a minority of cases children need to be protected from the implications of knowledge about adultery and deceit. Yet the latter children are also being "protected" from knowledge that they may later desire themselves.
It is not true that the "interests of the child" always favour the lack of clarity that exists if a paternity test is not performed. In some cases, this will become the mother's interests versus the interest of the child and the men concerned. Children have their own interests, rights and needs that will often be in conflict with the mother's own interests.