Paternity commentaries - index
There are very many articles published on the web about paternity. Many of these have a naive theme: "stop worrying about biological paternity - what matters is raising children". Many others have a contemptuous theme: "children need money to be raised - find the nearest man with a wallet". This section of Child Support Analysis goes some way to redress the balance by publishing commentaries on several of those papers.
Dr Leslie Cannold, who wrote three of the articles here ("Paternity denied", "Paternal instinct", and "Paternally yours"), is an ethicist. It is not clear whether her articles here were influenced by ethics, and if so, what theory of ethics. It certainly wasn't Kantian Ethics!
Child Support Analysis attempts to analyse issues and make proposals according to ethical principles. The ethical process is somewhat home grown, but may resemble Kantian Ethics. The analysis is based on the assumption that individual people should be respected as rational beings with just one life. Here are some principles that permeate this website:
1. "The primacy of informed rather than uninformed decisions". This applies both at the societal level (see "2") and the individual level (see "4").
2. "The method of the vowels". (This needs a better name!) A baseline of clarified facts and evidence (Information & Explanation) is established and shared, so that everyone concerned has the same opportunity to make rational decisions without being manipulated. Analysis is also shared. Opinions are likely to differ, of course, and therefore so is Understanding. The whole evolves over time.
3. "Balanced Rights and Responsibilities". "Western" societies have tended to emphasise the rights & responsibilities of individuals rather than societies. After all, it is individals who are motivated, and individuals who suffer. It is asserted here, without proof, that societies work better when these rights and responsibilities are balanced for each individual. Identifying the types of people involved, and identifying their relevant rights and responsibilities, should certainly be part of any analysis.
4. "The impact on the individual". The topics covered by this website have distinct groups of people. Mothers, fathers, children, taxpayers, etc. Too often, these groups are studied only in statistical terms, and individuals who don't conform to the group's trends can have their own lives damaged without care. Perhaps 90% or even 99% of a group behave like X, but if all are treated like X, it can be dreadful being in the remaining 1% or 10%. Each of those few has their own one life, and it is wrong to wreck it for expediency. Policies to cater for the majority must still have a sanity check of the impact on individuals.
"In every age and in every place, men behave as if they owned their wives' vaginas"
Any discussion of paternity testing that ignores this concept from chapter 7 of Matt Ridley's book "The Red Queen - Sex and the Evolution of Human Nature" may have lost part of the plot.
Concern about paternity isn't an artifact of DNA paternity testing. It isn't retaliation against wives because of their perceived faults. It isn't simply redressing the balance for disempowered men. It isn't caused by malleable social influence. On the contrary, it is an evolved fundamental human drive that has shaped societies for millennia. It has caused men to practise unacceptable acts against women to ensure that the paternal line is preserved. It continues to do so in some places.
DNA paternity testing emerged into a world that was already long concerned with paternity. The speed with which it has been exploited in several domains is a reflection of how much societies were already grappling with this topic. Paternity testing pushed at an open door, and is now a permanent resident. Instead of only analysing any downside to paternity testing, it would be wise to examine how it can help to make societies better in future. Then we have to manage our way through the current transitional period, which we should try to keep as short and painless as possible.
We are heading inexorably towards general paternity certainty, and it is up to us how hard or how easy we make this journey.
Dr Leslie Cannold contrasts what she calls an "older definition of fatherhood as the man married to a child's mother" with a "new biological definition of fatherhood" arising from DNA paternity testing. She didn't provide adequate references to identify the scope of that older definition. Dr Lyn Turney states "for most of history the role of a father has been primarily a social relationship shaped by customary practices, institutionalised within marriage and proscribed by law". Similarly, Anderlik and Rothstein 2002  cite: "If a husband, not physically incapable, was within the four seas of England during the period of gestation, the courts would not listen to evidence casting doubt on his paternity". But when did that apply? Those "older definitions" were never adequate by themselves, and it didn't operate consistently until the arrival of DNA paternity testing!
This topic needs an acceptance that there are aspects of what may loosely be called "fatherhood" that are sensibly defined by biology, while other aspects are not. Much of this topic, although not all, ultimately reduces to "who pays for the child's upbringing, and how?" That is discussed below. It is asserted here that this matter cannot be determined justly if the definitions are too narrow.
Meryl L. Kovit writes from the USA in January 2003: "This article will explore the decline of the presumption of legitimacy over the course of this past century and address what role, if any, the presumption should hold in the courts of the 21st century". She concludes: "The presumption of legitimacy is no longer part of our culture – it does, however, still exist in our court system. Perhaps it is time for the courts to change their perspective on paternity". She cites:
But long before this, there has been a major problem with a marriage-oriented view! What about unmarried people, in the UK?
Similarly, the need to identify the biological fathers of "bastards" appeared in the "new" Poor Law of 1834, the Poor Law Amendment Act 1844, the Bastardy Act of 1845, the Poor Law Amendment Act 1868, the Bastardy Laws Amendment Act 1873, etc. In each of these cases, paternity tests would have been desirable. They arguably would have avoided a backlash against women because of experience of what we would now call "paternity fraud". From the Finer Report :
DNA paternity tests are not simply a disruption to long-held positions. They are often the much-desired means of resolving long-standing problems. Paternity tests are part of the solution, not part of the problem! But the part of the problem that they are helping to solve needs to be carefully identified. They are primarily helping to solve child support, not parenting.
 "Report of the Committee on One-Parent Families" (aka "The Finer Report"), July 1974, Volume 2, Appendix 5, drawing upon 
 Hargreaves U.R.Q., "Bastardy and the New Poor Law", Past and Present, Number 37, 1967.
 Anderlik, M.R. & Rothstein, M.A. (2002), “DNA-based identity testing and the future of the family: A research agenda”,
Many proposals for "who is the father?" amount to "find the nearest man with a wallet".This is all about "who should pay child support?" (The purpose of the "Fatherhood" subsections below, "Types of father" and "Types of financial support for children", is to identify alternatives to this imperative).
Paying child support is not the only way people pay for children's upbringing, of course! Far better is to bring up children with hands-on parenting, which consumes both time and money. This is still a preferred choice after separation, but many parents, typically men, are excluded from this option, or choose not to exercise it. So we have one parent doing most of the hands-on work, and we need to find a source of money for that parent to use. What is that source?
There is considerable logic and justice in the principle "the biological parents should pay", typically the biological father. The child exists, and consumes resources, because of what they did and didn't do. If it is clear that biological parents have this long-term financial responsibility, then there is a motivation for people to try to avoid creating a child unless they are prepared to support it later. Surely, in future, we will want men to use the next generation of male contraceptives to help reduce the proportion of children who are not wanted by both biological parents?
It is when money isn't obtained from the biological father, perhaps because he is unknown, or (historically) couldn't be identified with certainty, or for "ideological" reasons such as a preference for the previous ways, that authorities turn to the principle "find the nearest man with a wallet". This sometimes results in bizarre, and often unjust, decisions. This policy can lead to "paternity fraud". But sometimes it isn't even fraud, because there is no deception. It is sometimes an almost arbitrary decision that a particular man has been chosen to pay for the upbringing of the child because he was nearby at the time, or was nominated by the mother and never saw the court papers, or some other rationalisation. (And, of course, once it isn't a matter of who supplied the sperm, men and women are interchangeable! It becomes contemptuous sex bias to restrict the search for money to men. Why not "find the nearest women with a purse?").
Claims that this is because "the interests of the child are paramount" are easily refuted. If those interests were indeed paramount, lots of things would be done differently. The state could pay instead. Or a better-earning ex-husband could have custody. Or the child could be forcibly taking into adoption by a wealthy family. But these are not all socially acceptable. So the child's interests are bounded by social rules. Those rules are evolving at the moment, to cater for different frequencies of family structures, and new topics such as paternity fraud.
An example of the worst sort of rationalisation is: "the child has developed a bond with this man, so the man must accept responsibilities after separation, therefore he is liable to pay child support". But a "bond" is a precedent for remaining in proximity, not for paying money from a distance. At a distance, of what relevance is a bond? And would we release a man from paying child support if there was no bond?
But there are other bad sorts of rationalisation too. Simply helping to bring up a child because of the man's desire to live with its mother is sometimes assumed to set a precedent for paying child support after separation. But where is the logic or justice in this? Had he wanted to accept formal responsibility, he could have adopted. His only "crime" was to try to give the child a better life for the years while he partnered the mother.
It has been said that we shouldn't use the language of the criminal system to decide issues in families. The argument is that we shouldn't release a man from child support liabilities as a result of DNA evidence in the way we would find a man not guilty of a crime as a result of DNA evidence. The reason given is that there is a child involved, and its interests must be taken into account, so there isn't a close enough correspondence with the criminal system. But are we inhibited about finding a man guilty of a crime with a custodial sentence even though a child depends on him? We don't let the child's interests override justice, just as in fact we don't actually treat the child's interests as paramount in family cases. For a man to pay X% of income for perhaps 18 years appears to him indistinguishable from punishment for something! And a key feature about child support is that it is money! If there isn't enough, in principle the state or someone else can pay. There is no need to wreck the life of an "innocent" man.
An extra term introduced below is the "contractual father". This is most obvious when talking about an adoptive father, or the husband who agrees to his wife's artificial insemination using donated sperm. But it could be extended to satisfy some of the needs here. Some consider that signing a birth certificate amounts to a contract. Some see a sort of "contract by estoppel", if a man didn't refute his fatherhood. These have problems. The birth certificate comes at an emotional time, is open to abuse, and there are different matters riding on the same document; it is primarily a registration of birth. Sometimes "estoppel" and other such legal devices appear to be used only retrospectively. However, as long as a contract is not retrospective, its implications are clear, and he is not deceived, for example by misattributed paternity, into accepting it, a contract signed by the man may be a good approach.
Any policy should be tested against an important question: "can a man safely journey through life without becoming liable for child support, if he doesn't become a biological father?" He shouldn't be inhibited from partnering a mother (or mother-to-be). Or be inhibited from helping to bring up another man's children. These are socially good things to do. He may want to accept responsibility at some point, but if he doesn't, he shouldn't have it thrust upon him. Any coercive technique is likely to be a policy of "find the nearest man with a wallet", and is to be condemned.
Dr Leslie Cannold poses the vitally important question "Who's the real father?". But she then imposes artificial and unrealistic limits on the answer. She assumes that there is a unitary concept of "a real father", with the rights and responsibilities of "real fatherhood", and she then proposes how to identify that "real father". This introduces quandries and dilemmas. Whatever the chosen definition, many fathers won't recognise themselves as that type of father.
A simple adjustment to Leslie Cannold's assumption eliminates these quandries, and enables credible solutions to be discussed. Quite simply, all of the types of father she identifies are real fathers! All of these types of father should have their own distinct set of rights and responsibilities. Any given man can be a combination of these types of father. He should then has the sum of the relevant rights and responsibilities. (In other words, Leslie Cannold was talking about roles, not about people). Any man is a combination of zero or more of the following proposed types of father:
Biological father, identified as such by a paternity test, with financial responsibilities as a result of helping cause a child to be brought into the world, unless his rights and responsibilities are superceded by a contractual father. Since this man may have child support responsibilities in future, he should at an early stage also have the right to become the bond father. Mothers and courts should not force him against his will to become merely an unofficial sperm donor.
Bond father, with an emotional linkage to the child, probably both ways, as a result of proximity and interaction with the child, and therefore parenting rights and responsibilities. This role can be difficult to detect, and will continue to cause conflict in broken families. But bond fathers should be seen as men who parent, rather than men who pay child support. (Those who want to "find the nearest man with a wallet" may assert a bond that doesn't exist, perhaps failing to distinguish between a functional father and a bond father. Should a man whose primary intention was to partner the mother, and who accepted the child as a necessary accompanyment to the mother, be responsible for paying child support after separation from the mother? The answer should be "no", but some people want the contents of his wallet).
Contractual father, identified as such by a legal device such as adoption, or being a partner who agrees to a woman's use of IVF. The rights and responsibilities are similar to those of the biological father he superceded. There is debate about whether simply helping to bring up a child for a while implies a contract. Another debate is the status of a name on the birth certificate. The rules must be clearly defined, because a man needs to be able to avoid an "accidental contract" if he chooses, and not have one thrust upon him because he is "the nearest man with a wallet".
It costs money to bring up children. The state plays its part, but so must individual parents. This is the reason for discussing the "types of father" above. Here are the main categories of individual financial support after separation, each the concern of just certain types of father:
Parenting, which is largely hands-on, with proximity and interaction, and includes such things as establishing a roof over the child's head, and getting meals onto the table, and doing all the things that parents do for decades. Parents in a intact family do this. Ideally, so should bond parents (including bond fathers) after separation. Being just a bond parent is a precedent for parenting, not for child support.
Child support, (financial support), which is hands-off, and means paying someone else to do the parenting. This applies to biological parents (including biological fathers), unless superceded by contractual parents, (including contractual fathers). Being just a biological parent (or a contractual parent) is a precedent for paying child support, not for parenting.
Voluntary payments, where a person chooses to contribute financially. The reason for including this method is to emphasise that if a man wants to contribute financially to a child's upbringing, he can do so formally, by adopting, or informally, by voluntary payments. If he does neither, it should be assumed that he doesn't want to contribute. So if he isn't a biological father, why should he ever be forced to?
The simple idea "find the nearest man with a wallet" has no logical part to play in the 21st Century.
If it becomes irrelevant who delivered the sperm that helped result in the conception of the child, then men and women are interchangeable. Any assumption that the person paying child support need not be the biological father, but must be a man, is contemptuous sex bias.
Logically, if biological fatherhood is not relevant, that "nearest person with a purse or wallet", perhaps determined by estoppel, could be the child's aunt, or grandmother, or even next door neighbour!
Two concepts compete and overlap here: the concept of "contractual father", and the concept of "fatherhood by estoppel".
Estoppel is a legal principle that precludes a person asserting something that is contrary to what is implied by that person's previous actions or statements.
Proponents of "fatherhood by estoppel" assert that if a man has implied by his statements and/or actions that he is the supportive father of a child, he cannot deny this later, for example by means of a paternity test. In other words, if a man acts as though he is the supportive father of a child for a few years, typically while living with the mother of the child, then if he separates from the mother, he should pay child support for the child, even if he is not the biological father of the child. Proponents differ in the degree to which they accept the relevance of the knowledge of the man about his non-paternity, or the length of time they believe is necessary to establish the implication, or the age of the child and its relevance to "bonding", etc. (These differences indicate how fragile this concept is).
By itself, "fatherhood by estoppel" is open to the claim that it is simply another term for "find the nearest man with a wallet", which is basically what it is! To be credible, something else is needed. If it is accepted that the concept of a "contractual father" is relevant for determining child support responsibility, an important question is "at what point does a man's 'actions or statements' become an informed contract?" Here are three principles:
1. The full implications, and the point at which the contract is deemed to come into existence, must be known at the time to the man. It must not be judged retrospectively, nor can it only be judged solely by those whose agenda extends beyond objectively judging the man's own intentions. (For example, it must not be judged solely by people who are also concerned with competing claims on the man's resources, such as those representing mothers and/or children).
2. Where the "contract" is implied by "actions or statements" made in haste or under stressful circumstances, or in the absence of adequate understanding, there must be an adequate "cooling off period". An obvious example is anything placed on a birth certificate within hours or even days of birth.
3. Any implied contract that resulted largely from deceit, or by "economy with the truth", by someone who stands to gain from the contract, is nullified. The test should be: "would this person have made this contract had he known what the others knew?"
It is often stated that "the interests of the child are paramount". Typically this is a precursor to ruining an adult's life by taking money off him. (Or, rarely, her). But in all cases where this is stated, if it were true, the state itself would pay! After all, the state has lots more money than individuals. In fact, it really means "the interests of the child are paramount, as long as the state doesn't have to pay; but if the state might have to pay, the principle will be to find the nearest man with a wallet, else let the child suffer". (It is unlikely that people in the USA, which is probably unique in the Western world in not having universal child payments from government, will fully understand this logic).
Here is a fourth principle, which may be more important than all the others:
4. Principles that are likely to result in a better society should take precedence over principles that simply continue the current society, or, even worse, result in a poorer society.
Men should be encouraged to help bring up other men's children, without worrying that they may become liable for child support later. Men should be discouraged from bringing children into the world that were not wanted, or at least accepted, at time of sex. Child support responsibility should be determined accordingly.
Dr Lyn Turney's paper arrives at a significant conclusion: "In conclusion, exposing the social and human networks within which paternity testing technology is embedded enables us to make a distinction between what the technology can tell us and what we do with that knowledge. Human beings are makers of meaning. It is at the level of interpreting the meaning of the test and what it reveals that we stand capable of making a change to how we use paternity testing technology in a way that does justice to children, as well as women and men. At a broader level though, we need to engage in open public debate about family policy, parenthood, identity and exactly how we want to use this technology and what meaning we want to affix to what it reveals."
Precisely! This paper lifts the discussion from concerns about technology, to recognition that this topic is really about knowledge. Therefore the important issues are about who is allowed to have which knowledge, what they should be able to do with it, and what impact there is from merely having the knowledge. All important social and ethical issues about paternity testing arise from the knowledge, not from the technology.
What motivates a man to have an "only man and child" paternity test?
It is important to identify men's motives. Are these socially tolerable motives? Are they plausibly legitimate? Can they be satisfied by some other means? Can they be suppressed?
Men's motives are linked to what they can do differently once they know the results. The more things they can do differently, the wider the range of motives will be. It is only things that can be done differently afterwards that can become problems. If there is little that a man can do differently as a result of the test, then his motives must be simple ones, and there are likely to be few problems.
It is informative to examine the use of these tests in different countries. This helps identify any special motives arising from a particular country's laws. For example, an Australian court may refuse to order an official paternity test unless a man has "an honest, bona fide and reasonable belief that there is a doubt as to the child's parentage". (ALRC 96 35.33). So perhaps a man may use an unofficial test as evidence of that belief to persuade a court to order an official test. But in the UK, it is typically easier to get an official paternity test without having to accumulate such evidence, so this is not a motivation for men in the UK. So, there are core motivations that appear in all countries, because they are inherent in the nature of these tests. Then there are extra motivations that arise because of special features of some countries.
The primary core motive is that many men seek private knowledge about something important to them, namely, whether they are the biological father of a particular child. These have been called "personal knowledge paternity tests" for this reason. An additional core motive for some of those men is that they are then able to make informed decisions rather than uninformed decisions. But the core motives do not include having extra things they can do, because generally there are no such things. Whatever he can do after the paternity test, he could do before it.
Many men (and women) believe that these core motives are: socially tolerable; plausibly legitimate; cannot be satisfied by some other means; and cannot be suppressed. They believe this has never been satisfactorily refuted. On the latter point, they are probably correct. To the men involved, it should be no one else's business that they want this personal knowledge. Why is private knowledge about oneself of such interest to others that they feel the law has to be invoked? This is equivalent to "thought policing".
(If a man finds out some other way, should he have that knowledge deleted from his brain? Or is it OK to have the knowledge, and only wrong to seek the knowledge? Or even, only wrong to seek the knowledge via one particular method, DNA paternity tests? It is about time that opponents of paternity tests explicity identified whether their objections are to the tests, or the knowledge, or the seeking of the knowledge).
What doesn't motivate a man to have an "only man and child" paternity test?
It is typically not to find out if his partner had an affair. He may already know, or strongly suspect, the answer to that! And a paternity test has "low sensitivity" for the detection of affairs. About 90% of the time it is positive, and then he learns nothing about any affair. (If a man really is trying to find out if his partner had an affair, the other things he does are likely to be more intrusive than a motherless paternity test!)
It is typically not to find out who the biological father of the child is. If it is negative, he does not learn this, yet he is unlikely to continue in order to find out. Besides, many already know, or strongly suspect, the answer!
It is typically not to escape from child support obligations, or to fight custody battles, if the country has sensible paternity testing laws for this purpose. When paternity is a factor in any case, it should be easy to have an official paternity test to decide the matter. If obstacles are put in the way of getting an official test, for example by requiring him to provide evidence of the need for such a test before it will be provided, then that obstacle is the real problem. Only a silly system forces a man to use secret tests in order to accumulate evidence before getting an official test!
What are the policy requirements for "only man and child" paternity tests?
Use of these paternity tests, and any disruptions caused by their results, are symptoms of problems in society and in families. The tests are only the messengers, not the real problems. The real problems should be addressed, not covered up. The policy requirements are inherent in the above discussion:
1. There should be no legal or procedural need for a man to have one of these paternity tests other than for the core motives. If men feel they need to use one of these tests to overcome an obstacle in "the system", that obstacle should be removed.
2. If "1" is achieved, then it should be made impossible to use such a test for anything other than personal knowledge. For example, the certificate should not identify any person whose involvement is not proved by a chain of custody. That means that no name should appear simply because the paternity testing services was given the name by the commissioner.
|Half of divorces happen because of bad sex.
Mine was because of good sex - with someone else.
|Page last updated: 27 August, 2005||© Copyright Barry Pearson 2005|