"The truth is out there" - Commentary on "Move to outlaw secret DNA testing by fathers"
by Barry Pearson
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Commentary on a newspaper article (continued)

The law would also prevent private detectives, journalists, employers and others from gaining access to genetic information without the individual's consent, or using DNA left behind by an individual to check for diseases, genetic conditions or unknown relatives.

I have no comment to make about this.

Earlier this week, the television producer Steve Bing - who Elizabeth Hurley, the actress, says is the father of her baby son Damian - was named in court papers as the father of a young girl caught up in the world's most expensive child support case.

Kirk Kerkorian, 84, the Californian billionaire who owns MGM studios and a number of casinos in Las Vegas, is fighting a claim from his divorced wife, the former tennis player Lisa Bonder, for child maintenance payments of £223,000 a month for four-year-old Kira.

He told a Los Angeles court that Mr Bing was the child's true father after private detectives hired by him found a strand of dental floss in Mr Bing's dustbin, DNA samples of which matched those of Kira.

While the commission does not base its recommendation on any specific case, it is concerned that scenarios such as this could become commonplace and has concluded that individual rights of privacy must be protected by criminal law.

These extreme actions would not be necessary in the UK. The UK operates a policy of child support based on biological relationships, and offers official paternity testing to resolve disputes. The UK even refunds payments previously made by non-parents. This case illustrates the superiority of the UK's "strict biological responsibility" approach.

The above description omits many important facts about this case. For example, I understand that Kirk Kerkorian was the victim of fraud. I won't comment on the real world facts of this case. Instead, I'll comment on the text above, because it provides a convenient case study.

Taken at face value, this text suggests that while Lisa and Kirk were in a relationship, Lisa "played away" with Steve, had a resulting child, and kept the truth hidden from Kirk and the child. (It doesn't say whether she kept the truth hidden from Steve).

Then Lisa applied for child support payments from Kirk. (The amount was vastly greater per month than it typically costs to raise a child during its entire childhood). The person who should have responsibility to pay them appears to be Steve. But "the system", apparently including Lisa and Steve, is trying to claim the money from a man (Kirk) who isn't the father instead of the man (Steve) who is the father.

It appears that the only way in California that Kirk can avoid paying child support for a child who isn't his is to identify the real father. In the UK, Kirk would simply have to show he wasn't the father. It wouldn't be his responsibility to identify the real father. The CSA, or in some cases a court, would arrange an official paternity test. But while this would have protected Steve's right to privacy (unless Lisa then applied for child support from Steve), it would still have the same eventual impact on the mother and child.

Once relationships have broken to this extent, it is hard, and typically impossible, to find a just solution that "protects" the child from the truth about its biological parentage. Even without the paternity tests, the court case itself would fuel the child's suspicions as she grows up. And, in later life, the child (Kira) may not want to be so protected - she may want to know about Steve (and vice versa, perhaps).

A man's or a child's quest for knowledge about his or her biological relationships should be private if the man or the child wants it kept private. It is a breach of their privacy to cause a mother to be informed of their quest to identify their biological relationships.

Lady Kennedy, the Labour peer who chairs the commission, confirmed the recommendation last night, saying that children's happiness was being put in jeopardy by unauthorised testing.

"DNA testing is very simple, but there can be very serious repercussions. It is not only terribly difficult for the child and the mother, but also for other siblings, who suddenly find that all the things that they understood about their family become different.

Once again, it is worth repeating that personal knowledge paternity tests do not themselves directly cause serious repercussions. They simply inform the commissioner of the test of a fact that others may already know. It is the informed actions (if any) of the commissioner that changes things for other people. This is in contrast to official paternity tests, such as those used by the CSA, which are intended to inform others concerned and to have far reaching consequences! Yet official paternity tests don't appear to cause the same alarm.

What probably causes alarm is that the man or child is able to gain information, typically already known to others such as the mother, that was previous hidden from them. And they are able to gain this information without others knowing they have gained it. If "knowledge is power", what may alarm people is that the man or child now has the means to equalise the power, instead of being kept in the dark.

Obviously, if the result is negative, the commissioner's subsequent actions may be difficult for the mother. She committed adultery, had a resulting child, and hid this fact from both the child and the husband! While the purpose of this paper is not to punish her for this, she shouldn't expect to escape the consequences of it at the expense of the other stakeholders.

The children's happiness was put in jeopardy long before the paternity test reveals the truth. We need to move towards a society that doesn't jeopardise the future of men, women, and children in this way. Such a society will not arise if repeated attempts are made to paper over the cracks, instead of accepting that society has a serious problem and something positive needs to be done about it.

"We already know that in the United States fathers, on access visits, are taking their children's DNA without consent for testing, and we need to prevent that happening here.

This is because the United States often doesn't operate the "strict biological liability" that the UK operates for child support cases. In the UK, the man would be able to state on the child support enquiry form that he was not the father, and the CSA would arrange an official paternity test. In the UK, the paternity tests that have the most serious consequences, although not the worst press, are official tests. The UK has already solved some of these problems, and can confidently continue with its "strict biological parentage" policy.

In the United States, individual states are only slowly moving towards the UK's position. It is often hard to obtain an official paternity test, hard to make the result have effect, and typically impossible to get a refund of payments made to date. A case was prepared for submission to the Supreme Court (Smith versus Odum) to reform some of these problems, but the Supreme Court has refused to hear it.

Appendix B to this paper summarises the UK's law on who is responsible for child support.

"We will be recommending the creation of a special offence which makes it very clear to people that taking the DNA of someone else without authority, without applying to the courts, without consent, would be an offence."

It is almost impossible to be close to someone and not take away his or her DNA! A kiss, a touch, their head on your shoulder, and you have some of their DNA.

My commentary here is confined to personal knowledge paternity tests - paternity tests that are commissioned by either the man or the child involved. They do require a sample from the other party, but this is in order to gain knowledge about oneself that could not otherwise be freely gained. It would be ethically wrong, and futile in practice, for this to be a criminal offence. Appendix D to this paper clarifies some of the ethical questions.

For a man, this knowledge is not just curiosity. The UK's child support system bases responsibility on biological parentage, so this knowledge can be a vital part of being able to plan one's financial future, (see Appendix B). Would we hide from a man the knowledge of whether he has incurred a debt (of perhaps tens of thousands of pounds) that he will have to repay in future? Yet that is one harsh aspect of paternity.

Every man should have the right to know whether he could possibly be responsible for child support in future, and if so, for how many children.

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Page last updated: 2 July, 2003 © Copyright Barry Pearson 2002