Social consequences of parentage testing

Potential impact on social relationships

35.20 An underlying theme in the discussion of parentage testing is whether the law should emphasise biological parentage over social parentage in matters of parental responsibility, child support, succession and so on.^[7] Before the availability of serological and DNA parentage testing, it was difficult to determine with scientific accuracy the biological parentage of a particular child. In the absence of scientific proof, parentage usually was accepted on the basis of certain social relationships between adult and child. For legal purposes, greater certainty was provided by common law or statutory presumptions of parentage. For example, a presumption of parentage arose from marriage, cohabitation, registration on a birth certificate, and so on.

35.21 The increased availability of scientific methods for determining biological parentage may result in a new emphasis on biological over social relationships. In the Australian context, this issue may arise where:

• a man seeks to avoid paying child support or maintenance for a child whom he discovers is not his biological child;

• a woman seeks to avoid sharing custody of her child with her former husband or partner, whom she knows is not the child’s biological father;

• a child or adult seeks a share in the deceased estate of his or her biological parent, rather than social parent; or

• an adopted child, or child born as a result of an artificial reproductive technology procedure involving donated gametes, seeks information about his or her biological parents.

35.22 Difficult policy choices necessarily will be involved in deciding whether and how to regulate DNA parentage testing. Underlying these choices is a broad policy issue of the extent to which parent–child relationships should be seen as socially or biologically constructed. These are matters on which reasonable minds may differ. The remainder of this chapter gives further consideration to a number of specific issues that arise in respect of parentage testing.

General comments in the submissions

35.23 A substantial number of submissions responding to DP 66 commented on DNA parentage testing. Many of these submissions were forwarded by what are commonly known as ‘men’s rights’ or ‘fathers’ rights’ groups. Many submissions reflected a strongly biological determinist view of parental responsibility. These submissions expressed several common themes, including:

• Men have a right to test the paternity of a child presumed to be their own.^[8]

• Children have a right to know their biological parents.^[9]

• Paternity testing is in the best interests of the child.^[10]

• Universal paternity testing should be carried out at birth, for example at the time of the newborn screening test.^[11]

• If paternity is not tested at birth, paternity testing should be conducted as a precondition to an application for child support,^[12] or when an existing payer of child support requests such testing, or when proceedings involving children are instituted in the Family Court.^[13]

• Men should not be financially responsible for children with whom they have no biological relationship.^[14]

• Women who knowingly misattribute the paternity of their children are committing ‘paternity fraud’.^[15]

35.24 Several submissions expressed concern about the perceived bias against men within family law legislation and practice. For example, a submission in the form of a petition commented that:

For far too long now there has been a blatant bias against fathers in family law decision‑making. We feel that men have simply become sperm banks with fat wallets and that has led to decisions that are neither in the best interest of the children nor the fathers … No man should be forced to pay to rear and educate another man’s child. As the law operates now, it happens and that constitutes legal fraud.^[16]

35.25 Several submissions expressed substantial discontent with the Family Court due to the cost of court proceedings and the Court’s perceived bias against men in family law matters. The Australian Law Reform Commission heard similar criticisms during its Inquiry into the federal civil justice system.^[17] The Inquiry notes that proceedings in the new Federal Magistrates Service (FMS) are less formal and costly than those in the Family Court, and that the FMS may provide an alternative venue for many proceedings involving parentage testing.

35.26 In addition, several submissions suggested an historic bias of law reform agencies against men in respect of family law matters. For example, the Men’s Confraternity WA Inc commented that:

For decades now [Law Reform Commissions] in all States have in our view encouraged the implementation of legislation for the purpose of advancing women’s rights and their role in Australia … This, in theory, would be good for all if the LRC hadn’t done it in such a manner as to undermine men and their role in society. The LRC in all States have acted with the designed intent to enact legislation to reduce males to the lowest common denominator and reduce them to a position of powerlessness in Australian society.

Many pieces of legislation recommended by the LRC in all States have inevitably been constructed with radical feminist ideology, by feminists and males of the same ilk within the Commission. The fact that many well known feminists have served time on the various LRC’s in the past is not in dispute …

We … believe that our submission enclosed will be ignored by this Australian Law Reform Commission. In doing this, the ALRC will be ensuring the breach of many basic human rights, all for the sake of feminist ideology and protecting mothers from the consequences of their fraudulent actions.^[18]

35.27 Many submissions argued that where a social father discovers he is not the biological father of a child he should never be held financially liable for the child. In addition, several submissions suggested that the Child Support (Assessment) Act 1989 (Cth) (CSAA) should be amended so that a man should not be liable for child support unless the child’s mother produces parentage test results establishing that he is the biological father of the child.

35.28 The CSAA framework is described below. In short, the Act provides that child support is payable by a biological or adoptive parent of a child, and not by a step parent. A man who discovers that he is not the biological father of his social child can apply for a court declaration that he is not liable for child support—but such an action can have significant implications for the child’s financial security and sense of identity. The Human Genetics Society of Australasia (HGSA) emphasised that parentage has a social as well as a biological context:

Where parentage is disputed from the outset, biological evidence of non-paternity may well be grounds for a Court finding that an individual has no financial responsibility for the upbringing of a child, but it would be unfortunate if proof of non-paternity following, for example, the breakdown of a long partnership in which a parental role had been fully undertaken, became grounds for abrogation of all responsibility for the support of a child.^[19]

35.29 The Inquiry also received a number of submissions expressing concerns about alleged paternity testing fraud, by which men procure false paternity test results to avoid legal responsibility for their children.^[20]