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Commentary: Leslie Cannold &
"Paternal instinct - Who's the real father?"

"Paternal instinct - Who's the real father? Men's rights, women's quandaries and the truth about misattributed biological paternity"
by Dr Leslie Cannold, Eureka Street magazine, June 2005

The commentary on the article follows the preliminary comments by Child Support Analysis. The whole of the original paper is quoted in sequence in the left hand column.

Preliminary comments by Child Support Analysis

Different people have different motives for trying to answer "who is the real father", because they intend to use the answer in different ways. Some may want to identify who should help to bring up a child. Others may want to identify who should pay child support to help someone else bring up the child. Some people simply want to know! Here are some discussions:

Leslie Cannold Commentary by Child Support Analysis

Who's the real father? Men's rights, women's quandaries and the truth about misattributed biological paternity.

The truth about misattributed biological paternity is: "The mother had an affair and had a child as a result. She then lied or concealed doubt about the child's origins to the male partner, and probably to the child, and perhaps to everyone else".

Paternity fraud has become the rallying cry of the Fathers' Rights Movement. Utilising the radical feminist insight of the 1960s that the personal is political, Fathers' Rights activists have seized on the experience of a small group of men, who discover through genetic testing that they are biologically unrelated to the children they are parenting, as a paradigm through which we should understand the power balance between the sexes on critical issues of sexuality, reproduction, marriage and divorce. Denied, deceived, humiliated, cheated and used: paternity 'defrauded' dads are poster-children for how the Fathers' Rights Movement sees men in the post-patriarchal world. They are the cause célèbre for men who feel disempowered by current social and legal norms and practice concerning marriage, divorce, sex and reproduction, and want to reassert control.

"Paternity fraud" is a term normally used when men are forced to pay child support for children they are not biologically related to. "Fathers' Rights" is a term normally used for "desired rights post-separation". It is important for all concerned to keep these cases separate from cases of misattributed paternity in the general population, which are rarely called "paternity fraud".

If a man didn't help bring a child into the world, why should he pay child support for it? Many children came into the world today, and vast numbers of men didn't help bring them into the world. But should they pay for them? Why shouldn't all the women who didn't help to bring today's children into the world pay for them? Once it isn't a matter of biological parentage, (hence who supplied the eggs and who supplied the sperm), woman and men are interchangeable.

Most such arguments are really "find the nearest man with a wallet". All such arguments are contemptible travesties of justice. This is obvious to anyone who ponders the proposal: "find the nearest woman with a purse".

At the heart of the paternity fraud story are radical - though poorly understood - changes to law and practice governing child support and access arrangements after divorce. The 1970s saw a steep rise in divorce rates and numbers of single women opting to keep their children rather than adopt them out. By 1988 the growth in households headed by single mothers had left large numbers of children living in poverty and the government with a spiralling welfare bill.

Enter the Child Support (Assessment) Act and the Child Support Agency, whose role it was to use freshly minted DNA testing technology to match every child to its biological father's wallet, thereby ending what one family law specialist called the 'happy-go-lucky days' when Australian men could boast that they didn't even know how many children they had. With power to deduct payments from men's wages and via the tax system, the Child Support Agency also ended the optional nature of child-support payments by divorced dads. At the heart of the Act was a radical reconfiguration of how Australian society defined fatherhood. With the stroke of a pen - and with only the best interests of 'taxpayers' in mind - lawmakers had transformed the age-old definition of father as the mother's husband to the man whose sperm was implicated in conception. The only exceptions are state and federal laws that exempt sperm donors from the legal rights and responsibilities of parenthood, and allocate it instead to the husband of the woman undertaking IVF.

For more than 400 years, the UK has been struggling with these issues. For more than four centuries it has been the responsibility of fathers, in various circumstances, including non-marriage, to provide support for their children. Typically, the aim has been to reduce the burden on those who would otherwise have to provide for the children. Initially, this was the parishes, later (especially after the National Assistance Act 1948) it was "the state". At first, the father would be required to reimburse the community. Then, later, he could be required to pay the mother (or sometimes third parties) directly:

"In 1732-3, a woman pregnant with a bastard was required to declare the fact and to name the father. In 1733, the putative father became responsible for maintaining his illegitimate child; failing to do so could result in gaol".

Child support isn't a radical new concept. It is an old concept, brought up to date, and potentially benefiting from what was always desirable, but never available before - confirmation of paternity. But if the CSA truly "matches every child to its biological father's wallet", there is no paternity fraud"!

Cases of misattributed biological paternity - where a man is shown to be biologically unrelated to the child he parents - are an artefact of DNA testing and the new legal arrangements that drive and justify it. The new world order in which dads have been reduced to sperm donors provides motives for both mothers and fathers to test - motives that would not exist if social rather than biological definitions of fatherhood ruled.

Mothers sometimes test in the hope that a 'negative' result will prevent their ex-partners having further contact with the child. They may even, according to researcher Dr Lyn Turney, of Swinburne University of Technology, enlist the assistance of the biological father in the process, 'despite him having had no previous contact or relationship with the child'. Interestingly, it was this possibility that first worried men when DNA paternity testing came on the scene, with one male legal theorist proposing legal strategies and recommending legislative reform 'to protect the marital father's developed relationship with his child against interference or termination through … non-paternity actions'.

The issues of paternity have driven the evolution of millions of species across the planet for 100s of millions of years. They have driven the evolution of human nature. Concern about paternity is built into human genes. DNA paternity testing "simply" helps resolve these evolved drives. And "misattributed biological paternity" long-preceded DNA testing! (Paternity testing using blood goes back at least 60 years).

Men have not been reduced to sperm donors. Instead, they have become identified as (at least) two sorts of father, described earlier, in various combinations: biological fathers, and bond fathers.

Depending on the balance of these types of father in any man, he has a combination of parenting and/or child support responsibilities. (These are totally different from one another).

Fathers also initiate DNA testing, though not always, it seems, because they are really in doubt that they are biologically related to their child. According to Turney, estranged male spouses will sometimes demand paternity tests both to insult their estranged wives and, on the advice of their lawyers, to delay payment of child support. As one woman told Turney, her ex used the test to avoid having: " … to pay anything for the time being. There was never any fear in his head that the child wasn't his. It was just that he'd been told somewhere along the line that if he put it off that way, he could stall things for a while."

While Fathers' Rights activists insist on assigning mendacious motives to single women who 'out' the child's biological father to the Child Support Agency - leaving him with the obligation to either disprove biological paternity or pay up - such women have no choice. The federal government is determined to recoup as much of the money it invests in single-parent payments as possible, and if a mother fails to identify her inseminator, she'll lose her benefit.

Many apparent issues with paternity tests are actually caused by the details of the law, and are not inherent in paternity testing. Examination of how other countries do things can be illuminating! For example, in the UK, where paternity can be presumed pending a test, the man must pay while the paternity test goes ahead. Then, if it is negative, he gets a refund. So the delay is not the fault of the paternity test itself.

The "recoup" problem that women face is not the fault of men nor of paternity testing. Once again, it is a matter of how the law works. The answer is to get things right for women, not to restrict things for men because of the problems that women face. Fix the problem, not the blame.

Men may also initiate testing to escape previously accepted child-support obligations. Men who feel abused by the Child Support Agency's determined pursuit of payment (it can access bank accounts and use the tax system to extract payments) and the refusal of the Family Court to tie support payments to access orders, see the discovery of biological non-paternity - and thus the removal of fiscal obligation for their children - as a way of reasserting control over their finances.

Says one man Turney interviewed: "Men recognise family law settlement and ongoing child support as a sentence into financial hell, and while wanting to support their children, equally do not wish to support someone else's. DNA testing provides a means of distinguishing between real biological links and often-concealed third-party liaisons that have produced children outside the established relationship."

In fact, of course, in a system with biological liability, you can't avoid child support obligations using paternity tests! If you are not the biological father, you never had such obligations.

All sorts of people erroneously accept temporary responsibility for things that they are not responsible for in law. In a civilised society, there will be a chance to make things right. It always come back to a key question: "in law, am I responsible?" If so, then a paternity test won't change this, but may simply confirm it. If not, blame the law, not the man! It is a recognised human right to act according to the law and not be penalised as a result.

Misattributed paternity may also be discovered by accident, via a genetic test taken for other reasons. For instance, the diagnosis of a genetic disease in a child may lead to carrier status tests on the parents and the consequent discovery of a lack of biological relationship between the child and the male parent.

This vividly demonstrates that the problem is not "paternity tests". They are only one of the messengers. The problem is with "misattributed paternity" itself, and it would be a good idea to reduce it.

How are we to understand, in political and moral terms, the motivation various stakeholders have to test? And what are we to make of the results?

There is a vastly more important question that needs to be answered first. "How are we to understand, in terms of human nature resulting from the interaction of our genes with the modern world, the motivation various stakeholders have to test?" Stakeholders include children.

First the facts. While academics and Fathers' Rights activists repeatedly cite figures of between one in ten and one in four children affected, such claims lack a reliable evidential basis. According to Professor Michael Gilding, of Swinburne, the data on which such generous estimates are based is tragically flawed - marred by biased sample selection and illegitimate analytical methods. Indeed, in some instances, according to Gilding, the numbers have simply been plucked from the air by private testing companies well aware that male anxiety about female fidelity is good for business. The real Australian figure, says Gilding, is likely to be about one per cent.

In some sub-populations, Michael Gilding identified figures such as 10% or more. A submission to the 2002 enquiry said: "... a large provider of parentage testing services reported that its rate of non-paternity in motherless tests was 10%, whereas the rate for tests involving all parties was 22%; and a smaller accredited laboratory reported that its rate of non-paternity for motherless tests was 11%, while its rate with traditional testing was 31.6%". That 10% may be a good predictor of the underlying rate for that sub-population .

The statistics about paternity testing services come from a small part of the population. And it is precisely that part of the population for which the claims of "paternity fraud" arise! Any meaningful discussion of "the rate of paternity fraud" is related to these statistics, not to the rate of misattributed paternity for the general population.

A 2003 large-scale survey of 19,307 Australians lends credibility to Gilding's estimate. It found that 95 per cent of men - and 97 per cent of women - expected they would remain faithful to their regular partner and that nearly all kept their word, with only 2.1 per cent of partnered men and 0.6 per cent of women having sex with others outside their committed relationship.

What did the members of the above "at-risk" sub-population say about their faithfulness, in that survey?

They were probably not separated out. So that survey probably says nothing whatsoever about faithfulness in the at-risk sub-population where fathers' rights activists claim paternity fraud! For current purposes, it may be an irrelevant survey. And contradictory surveys exist.

The implications of such low estimates of misattributed paternity are vast. The basis of proponents of Fathers' Rights calls for changes to social attitudes and policy surrounding marriage and divorce are high rates of 'paternity fraud', and what such figures suggest about the fate of female sexual and reproductive ethics when women's behaviour is not properly controlled. But if only one per cent of women are 'guilty' of paternity fraud, the case for change is seriously undermined.

No, that is not the basis for changes to policies! The basis is the fact that paternity fraud exists, and paternity testing would help eliminate it. It is as simple as that. That figure of 1% is irrelevant. For a victim of paternity fraud, the rate is precisely 100%. That is unacceptable.

Why does "paternity fraud" gain little attention in the UK, compared with Australia, and even more so the USA? Probably because the UK has a fairly strict "biological liability" policy for child support cases. It is normally easy to have a paternity test, and typically a man who proves not to the biological father can have any payments refunded, probably by the state not the mother. Such paternity testing, with typical exclusions of between 10% & 15%, have defused this explosive topic in the UK.

However, the small incidence of paternity fraud should not lead us to completely dismiss the claims of the Fathers' Rights Movement. First, while cloaked in anger, the 'paternity fraud' discourse can also be read as an expression of pervasive male anxiety about their role in women's lives and in the business of forming and raising families - an expression to which compassion and validation would be the appropriate response.

Men must also be urged to reverse their passive incorporation of the legal re-inscription of fatherhood as a biological relationship into their social understanding of it - an understanding embedded in the 'crime' of paternity fraud. Do men, women or children really understand a father to be a sperm donor and believe that the man who parents and loves a child is not entitled to both social and legal recognition as the child's 'real' father?

The "paternity fraud" discourse should also be read as men's desire to bring up their own children, and not be deceived about such an important matter! Men are not forever restricted by their biological relationship. Instead, they have become identified as a combination of those two sorts of father: biological fathers, and bond fathers, as described earlier.

The man who parents and loves a child is entitled to both social and legal recognition as the child's bond father. But certainly not as a person responsible for paying child support!

I think not. Women's behaviour in cases of misattributed paternity clearly suggests that the man they hope is the biological, and want to be the social, father of their child is their partner, not their ex, one-night stand or even lover. That women see their child's father as the male parent, not the child's sperm donor, was shown clearly in the Abbott adoption story. Despite Kathleen Donnelly's knowing there was a possibility that it wasn't the Health Minister's sperm that was implicated in Daniel's conception, she seems to have firmly convinced herself that it was (so firmly, that she exposed herself, Daniel, Abbott and Daniel's biological father to considerable public scrutiny and ridicule). Why? Because Abbott was her regular partner and the love of her life, and this is what she wanted to be the case.

Women have various options, if they want the law to match their hopes and wants. If they fail to exercise any of them, it is wrong for men to have to suffer further in order to help women escape the consequences of their actions. Women obviously should have equal rights as rational beings. That implies accepting responsibility for their actions.

This is for the sake of the children, as well as both men. Often the child's interests coincide with the man's interests rather than the mother's. This is typical of paternity testing. "Children's rights to information".

What men incensed about paternity fraud seem to focus on is the woman's failure to have sex exclusively with their partner and thus ensure he is their child's only possible genetic father. But this overlooks the significant fact that women do choose their partners to be their companions through life and to be the men who parent their children. My research suggests that, for women at least, this latter choice is by far the weightiest one, with numerous women I've interviewed over the years preferring to terminate a wanted pregnancy rather than continue one to a man who wants to parent, but with whom they cannot bear the thought of an ongoing relationship.

Of course women choose that! Now ask what men (both of them) want. And what children want.This text appears to talk as though the children belong solely to the mother, ignoring that other man. The world can't just revolve around what women want and choose.

There needs to be a balanced set of rights and responsibilities. Many men, and some children, want assurance of paternity. Women who ignore that are simply being selfish. All parties need to respect, and take into account, the positions of the others, and should discover those positions before acting if they don't already know them. Paternity linkage and assurance is part of that agenda, and will remain there.

For children, it is a loving and consistent relationship with a male parent that is primarily of interest, and in their best interest. Indeed, in the early years, children will have no comprehension of and little interest in which man's sperm contributed to their creation. Of course, they may ultimately need or want to know the truth about their biological heritage, but this is not an argument for privileging genetic over social fatherhood, but rather truth above lies. Thus, in the same way that children born from donor sperm, and who are adopted, are entitled to the truth about their conception (which, it should be added, many never get), this information must have neither social nor legal implications for their male parent's status as the 'real' dad.

"... truth above lies ...".

That is probably the vital issue for many men. And possibly many children too. For a mother who has revealed the truth, a paternity test is no threat. It will simply confirm her honesty. The availability of paternity tests will help ensure that "truth above lies" remains on the agenda!

Society should encourage social parenting, and not discourage it by making such a man liable to pay child support. And society should discourage men who forego contraception even though they don't want to support the child, and therefore child support should be linked to those men.

Finally, evidence suggests that even men don't entirely, perhaps even largely, conceive of fatherhood as a kinship rather than a social relationship. Among the Australian men interviewed by Turney who have used their discovery of biological non-paternity to disavow their fiscal responsibility for their children, few thought this shedding of legal paternal obligations meant the children they loved weren't really theirs.

Said one man: "… fathers are caught between a rock and a hard place, because in most cases they love the children and have bonded with them and vice versa … and they don't want that to end."

Agreed another: "The [test] results ruined my life when my ex-wife then ordered the child never to call me 'Dad' again. And worse still, she is never allowed to see me again … I still think of her as my daughter."

This was identified above. Men should continue to be recognised as two sorts of father, in various combinations: biological fathers, and bond fathers.

Depending on the balance of these types of father in any man, he has a combination of parenting and/or child support responsibilities.

Most of the issues raised in this artticle can be resolved once these different types of father are accepted.

Indeed, the early focus of legal experts on the capacity of mothers to use DNA testing to lock devoted fathers out of ongoing legal and emotional relationships with their children suggests that at one point at least there was recognition among some men that the loss of emotional - not kinship - ties with their children is the real harm. Legal theorist Dr Wolfgang Hirczy has argued that the law should recognise the man who assumes 'responsibility for the pregnancy and the child' as the real father, a sentiment with which the fathers of donor-conceived, adopted and stepchildren are likely to concur. Certainly, this would be the position of those who speak in the name of the Men's Rights Movement, which has long argued that active fathers - parents, not sperm donors - are essential to the well-being and achievement of children, especially boys.

The mistake comes when people think that "bond fathers", instead of continuing to "parent" the child with proximity and interaction, should instead "support" the child by paying someone else to do the parenting. That lacks logic and justice, because the concepts are totally different. After separation:

- Biological fathers and mothers should continue to have financial responsibilities. (And add contractual fathers and mothers, who made their intentions clear by signing a piece of paper which stands in lieu of the parentage test certificate).

- Bond fathers and mothers should continue to have parenting opportunities responsibilities.

- Men and women who are both of these are likely to parent for a while, and support for a while.

So where does all this leave us? There is little doubt that the biologisation of fatherhood by child-support laws has profoundly impinged on the way some men understand the nature and value of fatherhood. Governments have a key role in sustaining workable relationships between parents, and thriving ones between parent and child after divorce. There seems evidence that the redefinition of fatherhood as a biological rather than a social relationship does not contribute to this end - putting a handful of father-child relationships at risk in the face of unexpected results from genetic testing, and more broadly undermining men's understanding of themselves as valuable to their children as parents, not just providers, at a time of significant emotional upheaval.

Simply recognise the above two types of father! They are often talked about, but sometimes the difference is disguised by over-generalised words such as "father", "fathering", "fatherhood", etc. Those vague words are typically used without prior definition, and only serve to confuse.

Sometimes they are used as a trick to "find the nearest man with a wallet". "That man has a bond with the child as a result of helping to bring up the child. So we will force him to pay someone else to bring up the child".

The solution seems clear: support laws need to be rewritten to allocate parental rights and responsibilities to men on the basis of their paternal commitment and behaviour, not pedigree. Sure, taxpayers may be up for slightly higher costs, because, while every child has a biological father, they don't all have social ones. But the protection of the father-child relationship that such a change could offer is clearly worth it.

Distinguish between two totally different types of financial enabling for children:

1. "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.

2. "Child support", which is hands-off, and amounts to paying someone else to do the parenting.

Being just a bond parent is a precedent for parenting, not child support. Being just a biological parent (or a contractual parent) is a precedent for child support, not parenting. Being both is a precedent for both. Man or woman.

Dr Leslie Cannold is an ethicist, writer and commentator working at the University of Melbourne. Her most recent book is What, no baby: why women have lost the freedom to mother and how they can get it back, Fremantle Arts Centre Press, 2005.

Here is a discussion of the ethics of paternity testing.

Here is a discussion of the ethical principles used in this website.

Women's options for avoiding misattributed paternity

Women have several ways of avoiding "misattributed paternity", (bringing another man's child into the family while concealing its true parentage). Aren't these enough? If a woman doesn't use any of these, what does it say about her ability to act out of respect for her partner?

1. Don't have an affair.

2. Ensure the man uses contraception. (Vasectomy, condom).

3. Use contraception herself. (Contraceptive pill, implants, patches, injections, female condom, cap, Intra-Uterine Device).

4. Use the "morning after" pill.

5. Have an abortion. (Can use a pre-natal paternity test, CVS or amniocentesis or non-invasive, first).

6. Inform her husband/partner. (Can use a paternity test, lots of kinds, first).

7. Get separated and/or divorced.

Page last updated: 27 August, 2005 © Copyright Barry Pearson 2005