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Commentary: Michael Gilding &
"DNA paternity testing without the knowledge or consent of the mother"

"DNA paternity testing without the knowledge or consent of the mother"
Professor Michael Gilding, Director of the Australian Centre for Emerging Technologies and Society , Swinburne University of Technology, Melbourne

The commentary on the article follows the preliminary comments by Child Support Analysis. Only part of the original paper is quoted, in sequence in the left hand column. Finally, there is an analysis of the consequences of needing the mother's knowledge.

Preliminary comments by Child Support Analysis

Why does a man have a "personal knowledge" paternity test? (aka "peace of mind test", aka "motherless test", aka " paternity test without the knowledge or consent of the mother"). What are the motives? What are not the motives? Are these acceptable or not? Is there anything we can do to make them more acceptable? Here is some discussion:

Michael Gilding Commentary by Child Support Analysis
New technologies are creating new choices and dilemmas in contemporary families. DNA parentage testing exemplifies this process. This article examines the contentious issue of DNA paternity testing without the knowledge or consent of the mother, and suggests a possible way forward in the regulation of such tests.

Before assuming that regulation for this type of test is needed, and so assuming the debate is about what that regulation should be, it is worth asking two other questions:

1. Is it known for sure that this particular type of test does need regulating? There are some public opinions in Australia that it should, but they are not overwhelming, and most other countries appear to see no need. Is Australia different in some way?

2. What are the limits of regulation, given the free availability of these tests over the Internet? Broad regulations that cause these tests to be commissioned overseas may be worse than focused regulations that have a chance of being relevant to the people being tested.

The invention of DNA identity testing in 1984 transformed the attribution of fatherhood. In earlier times attribution of fatherhood depended upon social markers, notably marriage and registration on a birth certificate. In English law, for example, there was a "marital presumption": "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" (cited in Anderlik and Rothstein 2002: 222). The invention of DNA paternity testing meant that for the first time in human history it became possible to identify paternity with reasonable certainty.
[snip]

DNA paternity testing is the only type of test that can identify paternity with (near) certainty. So it is the only type that can deliver "the good news".

Other tests, such as blood tests, medical tests, and so on, were sometimes able to identify non-paternity in many cases decades earlier. So tests that can often deliver "the bad news" are not so new. And it is the potential for bad news that is most important.

Governments around the world are now coming to terms with the regulation of this new industry. The most controversial regulatory issue is the provision of paternity tests without the knowledge or consent of the mother, or what is sometimes described as "motherless testing" or "non-consensual testing". At the moment such tests are allowed in Australia. A recent government-commissioned inquiry recommended tight regulation of such tests, notwithstanding strong representations in their favour from fathers' rights groups and some industry providers.

Is that truly "the most controversial regulatory issue"? Where else is this a hot topic?

It now appears to have dropped out of sight in the UK. It is on the agenda in Germany. Perhaps it is on the agenda in New Zealand. Where else?

This article is about DNA paternity testing without the knowledge or consent of the mother. It describes the structure of the industry in terms of its provision of such tests; what we know about public opinion on the issue; the push for regulation in the Australian context; and the case for and against the tests. The article concludes with a suggestion for a way forward in for the regulation of these tests.

What is missing is a discussion of the ease of commissioning these tests over the Internet, from about 80 services in about 8 countries.

This is essential for understanding the Australian context. But it is also useful for posing the question "what is different about Australia, if anything?"

Key terms
This article is framed in terms of "DNA paternity testing without the knowledge and consent of the mother". This is a long-winded phrase. The alternative terms - widely used in the debate so far - are more punchy, but they are also ambiguous and politically loaded.
[snip]

The term "DNA paternity testing without the knowledge and consent of the mother" is certainly wordy, but at least it is accurate. It also makes the important distinction between knowledge and consent, which the alternative concepts collapse together.

This phrase is also politically loaded! There is no a priori reason why "mother" has to be included. It is there because a "political" judgment has already been made that this is a possible factor in regulation.

The phrase "DNA paternity testing involving only the man and the child" is actually more accurate and less ambiguous. It adds in the lack of a DNA sample from the mother, and also identifies that no one else, nor any agency, is involved. Was it rejected because of a desire to keep "mother", "consent", and "knowledge" visible?

In that case, how about changing other phrases too? Instead of "misattributed paternity", why not:

"non-paternity without the knowledge or consent of the husband"?

It has a delightful symmetry with "DNA paternity testing without the knowledge and consent of the mother"!

Sources

There is little research about the social dimensions of DNA paternity testing, in Australia or elsewhere. This article draws upon three main sources of data.
[snip]

A research topic that may be the most important of all, but has so far hardly even been thought of, is "how can we use the existence of DNA paternity testing to help evolve a better society?"

Second, the article draws upon a national random survey of public opinion about new technologies - the 2003 "Swinburne National Technology and Society Monitor" (ACETS 2003). This survey asked 1000 respondents about their views on DNA parentage testing under a variety of conditions, including testing without the knowledge of the mother. The survey was supplemented by six focus groups: three consisting of women, and three of men. Four of the focus groups were recruited on the basis of education: two consisted of tertiary-educated men and women, and two consisted of men and women who were not tertiary educated. The remaining focus groups consisted of stakeholders: one of men from the fathers' rights movement, and the other of women with personal involvement of DNA paternity testing. The Monitor, including the nationwide survey and focus groups, provides the basis for the discussion of public opinion in this article.
[snip]

There are at least three omissions from that set of focus groups:

1. Women from the fathers' rights movement. (World-wide, it is quite common for fathers' rights movements to have women involved in senior positions).

2. Representatives of children's rights groups. Where paternity testing is concerned, children's perspectives and women's perspectives are often different, and children cannot be represented by arbitrary groups of women.

3. Men with personal involvement of DNA paternity testing, especially motherless tests. (Unless these are known to be included in the "men from the fathers' rights movement", which isn't clear, but would need to be clear).

The industry
[snip]
There are no public records concerning the scale of the parentage testing market in Australia. Nonetheless informants generally agree that there are now about four to five thousand parentage tests conducted each year in Australia, that is about 0.25 tests per 1000 persons (at the most). This compares with 340,798 accredited parentage tests in the United States for 2002 (AABB 2002), or almost 1.2 tests per 1000 persons. This figure does not include tests by non-accredited services, so the United States per capita rate could be much higher. In other words, there is scope for substantial growth in the Australian market.
[snip]

Counting paternity tests per head per year is not a useful way of revealing the true extent. For example, suppose every child were paternity tested at birth. This would be about "12.5 paternity tests per 1000 persons", which totally obscures the scale of the testing!

Assuming about 250,000 Australians are born each year, then 5000 paternity tests per year means that about one in fifty children are tested during their childhood. (More work is needed on that number, but it is probably good enough for policy discussions).

(Using AABB and CIA World Factbook statistics, the corresponding number for the USA is about one in twelve children are tested during their childhood using tests from accredited laboratories. The total proportion will be higher. For the UK, using less reliable figures, the proportion may be about one in thirty-two children are tested during their childhood).

Informants explain the decision to refuse these tests mainly in terms of "ethical" considerations, and to a lesser extent in terms of public image. DNA paternity testing is a procedure with potentially major ramifications for the life of the child, and the interests of the child demand that his or her legal guardians are involved in the process. In the absence of such involvement, paternity testing amounts to "assault", or perhaps theft.
[snip]

The problem with emotive discussions about paternity testing is that too many people focus on the sampling. Taking samples is sometimes thought of as "assault", or "theft". But that just obscures their real concern.

Paternity testing is really about "seeking knowledge", and virtually all concerns are about "who is allowed to have which knowledge?" Sampling is pretty irrelevant, and many people wouldn't change their opinions if a contactless, non-sampling, technology were available, such as "Star Trek Tricorders".

Besides accredited laboratories, several nonaccredited agencies - the Melbourne-based laboratory DNA Solutions and the broker GENE-E - also provide "motherless testing". More than this: they actively solicit the tests. DNA Solutions, for example, marketed itself through the Internet at a time when this was not common; promotes its tests through the mass media and organised men's groups (its website includes links to the Lone Fathers Association, "Mens Confraternity", and the "Anti Feminist Pro Mens Page"); and conducts tests on hair samples, making it easier to do tests without the knowledge of other parties. The fact that DNA Solutions is not accredited also reduces its expenses and allows it to compete on price with other providers.
[snip]

What is more relevant is: "whose websites link to DNA Solutions?" Surely that is what would gain customers from these groups? (Are there any?)

Public opinion

[snip]
Follow-up focus groups provided a more nuanced picture of public opinion about DNA parentage testing. The non-stakeholder focus groups - men and women - were overwhelmingly "comfortable" with tests where all parties had agreed. By the same token, their views were "highly abstracted and tentative, based upon the media" (Turney et al. 2003: 11). There was no enthusiasm for DNA paternity testing. The tests opened "a can of worms" (in the words of one participant), but the "right to know" meant that the can had to be opened (Turney et al. 2003: 11).

The media can't be relied upon, with some journalists no better informed than anyone else, and wanting to attract attention to the news. So views based on the media are probably not very useful! See:

Participants in the non-stakeholder focus groups were not so sure about tests without the consent of the mother. Here, the principle of the "right to know" became more complex: that is, the father was exercising his right to know, but concealing information from the mother. The tertiary educated focus groups were especially concerned with regulatory issues in this context; more specifically, the accreditation of the laboratories and the reliability of the tests.
[snip]

The person "exercising his right to know" may not be a "father", of course! That is what is being determined.

What he is concealing is the fact that he knows something. (It is actually irrelevant how he finds out. Paternity testing is just one way). How serious is it to conceal that you know something? It is far less serious to conceal that you know something than it is to conceal something applicable to someone else.

(Consider the equivalent difference between: "the wife conceals the state of their joint bank account"; and "the husband conceals that he knows the state of their joint bank account"!)

It is interesting that the concern was especially with accreditation and reliability. In fact, men using the tests may be equally concerned over those issues!

According to the fathers' rights activists, DNA paternity testing "meant that men, as non-custodial parents, were able to make sure that they were not treated as just 'a wallet', or a ‘means of income' for women to ‘live off the Family Law settlements and ongoing Child Support'" (Turney et al. 2003: 13). More generally, it was "an enabling technology in the context of an unfair legal system stacked in favour of fraudulent women" (Turney et al. 2003: 13). The participants strongly supported men's right to conduct paternity tests without the knowledge or consent of the mother.

There are two totally different matters being mixed together here. They need to be separated out.

1. Most of these views are to do with using official tests to determine child support liability. Of course paternity testing should be freely used to ensure that men are not just treated as "the nearest man with a wallet"!

2. Only the last sentence is to do with motherless tests. That has little to do with "the wallet", because these tests don't influence the CSA.

In contrast, the women - all of whom had experience of the tests in relation to their own children - were most concerned with the "accuracy", "validity" and "confidentiality" of the tests. They believed that "men used paternity tests as a means to 'delay and thwart' access to child support payments, and as 'a way to punish their ex-partner, rather than out of any real concern about paternity'" (Turney et al. 2003: 14). More generally, they regarded the tests "as a destructive technology, used as a weapon by angry men to punish their former partners" (Turney et al. 2003: 14). They accepted that there was a place for the tests where paternity was uncertain, but strongly opposed men's right to conduct paternity tests without the knowledge or consent of the mother.

All parties should be concerned with "accuracy", "validity" and "confidentiality". It isn't an argument against motherless tests.

The statement "angry men ... punish their former partners" surely applies to official paternity tests, not motherless tests? In which case, it doesn't support their opposition to motherless tests.

What is the basis of their opposition, which appears only at the end of that paragraph?

Proposed regulation

In 2001 the Australian Government commissioned the Australian Law Reform Commission (ALRC) and the Australian Health Ethics Committee (AHEC) of the National Health and Medical Research Council to conduct an inquiry into the "Protection of Human Genetic Information". An Issues Paper then included "a brief discussion of the use of DNA parentage testing in family law proceedings", precipitating submissions from "various support groups, laboratories conducting parentage testing, and private individuals - both in support of, and sharply critical of the current regulatory framework and industry practice" (ALRC/AHEC 2002: 44).
[snip]

DNA paternity testing is not about genetic information! All the important issues about paternity testing are about "the ethics of personal and relationship knowledge". Why should a committee concerned with genetics testing have the expertise for that?

"Genetic testing" tests genes. "DNA paternity testing" tests junk. Both genes and junk are encoded in DNA. The processing technologies may be shared, because they are based on DNA. But that is really the only useful connection between these two types of test.

Issues of ownership, health, privacy, employment, insurance, screening, etc, which are the most important issues about genetic testing, don't apply to paternity testing. And issues of family structures, financing, and breakdown, which are the most important issues about paternity testing, don't apply to genetic testing.

The submissions from fathers' rights groups (such as "Mens Confraternity" and "Dad's Landing Pad") and activists were overwhelmingly concerned with the issue of paternity testing. They were uniformly against compulsory accreditation, and insisted upon the "fundamental and inalienable right of a father to know his own paternity" (ALRC/AHEC 2003b: G280). These submissions argued that paternity fraud was widespread; "vindictive" ex-wives had every reason to refuse testing; the Family Court was routinely biased against fathers; and legal costs were prohibitive for many fathers in any case. "If you really think that legislating against fathers determining their paternity for themselves will stop it happening," one man wrote, "you're dreaming. It will be a law without effect because it will grossly violate a fundamental human right." The only winners, he argued, would be "the lawyers - as usual" (ALRC/AHEC 2003b: G280).
[snip]

They are probably right that it can't be prevented by legislation.

But many of their issues would go away if official paternity testing were freely available for cases of child support and cases involving conflicts in the family courts. These particular issues are less prominent in the UK, probably because of this greater availability.

Motherless tests in broken families may be mainly a poor substitute for official tests that can't be obtained. If official tests could be used wherever desired to sort out conflicts in broken families, then motherless tests would be primarily for "peace of mind", mainly in still-intact families. That is their proper place.

The industry providers, like the fathers' rights groups, were mostly concerned with the issue of paternity testing. They took different positions consistent with their current business strategy. Sydney IVF, the largest of the accredited laboratories that did not provide DNA paternity testing without the consent of the mother, supported the recommendations of the Discussion Paper. It observed: "Parentage testing is usually initiated for the purpose of defining responsibility for child support payments. Non-consensual testing might be initiated for financial reasons and without consideration for the welfare of the child. Our current laboratory practice is to require the consent of the custodial parent or guardian." (ALRC/AHEC 2003b: G246)

Sydney IVF may simply be trying to force other companies to conform to their particular business strategy. Their statement in quotes makes little sense.

Of course motherless tests must never be useable with any agency. No test without a chain of custody for the evidence should be used. In fact, one of the few justifications for regulation would be the requirement: "no name should appear on a test certificate unless it is supported by a chain of custody". Then the results of an unofficial test couldn't even be used to scare anyone. The certificate would simply say "Sample X is/isn't a parent of sample Y".

Genetic Technologies - the market leader - also supported mandatory accreditation, but opposed tighter regulation of "motherless testing". Its submission observed that routine medical procedures normally required the consent of only one parent; that tighter regulation would generate unnecessary litigation; that motherless testing was permitted in comparable jurisdictions such as the United States and the United Kingdom; and that testing had potential benefits, notably "keeping families together" and "allowing a parent to bond with a child" (ALRC/AHEC 2003b: G245).
[snip]

Those latter benefits apply in the 90% (positive) cases, rather than the 10% (negative) cases.

The 10% cases are not "marriages made in heaven"! These are relationships where the mother committed adultery and had a child as a result. She then lied about the child's origins to the male partner, and probably to the child and to everyone else. She hasn't got total respect for her partner. He has become suspicious of her and wonders whether the child isn't his. Even without a paternity test, the relationship may terminate early. Or it may be damaging to the child because of the lack of trust between the couple, and because of the man's suspicions.

For the most part the Inquiry stuck to its guns. In 2003 its final report recommended compulsory accreditation and much tighter regulation of paternity testing without the knowledge or consent of the mother. So far the government has not acted on its recommendations. As the discussion of public opinion showed, there is no pressing electoral reason to do so. Indeed, the fact that fathers' rights groups are strong and active opponents of tighter regulation might mean that there is some electoral risk in tighter regulation.

"... its guns" appear to have been informed by the issues of "genetic testing", and then have been transferred to paternity testing quite casually.

If "fathers' rights groups are strong", why haven't they made much headway with other issues they are fighting? In fact, they are probably quite weak in terms of their influence on the government. They are probably not the reason for the government not acting on the recommendations. The real reason may be that the recommendations concerning paternity testing are not credible.

The debate

DNA paternity testing highlights the way in which new technologies are creating new choices and dilemmas in contemporary families. New technologies such as IVF, sex selection, antenatal screening and parentage testing mean that what was once left to nature (such as infertility) or convention (such as attribution of paternity) now call for active decision-making.
[snip]

"Attribution of paternity" probably did once call for "active decision-making". Then the decisions became codified in common law by Lord Mansfield in 1777, and the resultant law lasted for centuries.

What we need now are proposals for laws that may last a long time, at least decades, if not centuries. But the research focus appears to be about trying to cater for historical problems, such as the current batch of children with misattributed paternity, rather than trying to improve society over the decades to come, using new tools that help all of us be better informed about ourselves. We should be seeking new opportunities, rather than merely reacting minimally to new technology.

As the Inquiry concluded, there is a powerful case for more regulation of the market. More than most products, DNA parentage testing calls for independent accreditation, given the opaqueness of the tests and their implications. The aim should be to resolve issues of "accuracy", "validity", and "confidentiality", while still providing the services that men want, so that they are not driven to use overseas services that don't have these qualities.

There is also a strong case for tighter regulation of paternity testing without the knowledge or consent of the mother. Ainslie Newson, a bioethicist with training in the biological sciences and law, identified five key elements of this case in her independent submission to the Inquiry. First, the tests fail to recognise the rights of the mother and child. Second, they ignore the "collaborative nature of parenting". Third, the tests have "potential for harm", including physical and emotional violence directed by angry fathers against former wives and children. Fourth, the tests are an "inappropriate means of ‘holding a family together'", if that is the reason for which they are done. Finally, the tests are inconsistent with "best practice in closely related disciplines", notably medicine and genetic counseling. More generally, Newson observed that easy access to tests "arguably trivialises their seriousness, dismissing their potential consequences" (ALRC/AHEC 2003b: G283).
[snip]

First: What are the rights of the mother and child? (It is asserted that children have rights to know). Are these actual rights that can be exercised, or wishful thinking "rights"? (Many so-called "rights" amount to wishful thinking, at the expense of someone else).

Second: Probably true. And the same could probably be said about "misattributed paternity"! A positive motherless test doesn't alter the nature for that family. A negative motherless test reveals that collaboration may already have broken down. Doesn't genuine collaboration involve information sharing?

(Should women only be allowed in law to have extra-marital conceptions with the knowledge or consent of their partners?)

Third: Probably true. And the same could be said about suspicion. (And if official paternity tests are readily available, motherless tests are likely to be within an intact family, so "former wives" may not be relevant).

Fourth: Why not? They enable informed decision making, which is generally preferred to uninformed decision making.

Fifth: "Medicine and genetic counseling" are not closely related disciplines to paternity testing! It is a fallacy to relate "knowledge of relationships" with "knowledge of medical conditions". The fact that they may both use DNA is superficial and irrelevant.

The demand for fathers' rights is intrinsically related to the obligations of biological paternity. In recent decades governments in western countries have taken measures to trim their welfare spending through enforcement of child support by biological fathers (Anderlik and Rothstein 2002: 217-218). In the Australian context, the Child Support Scheme created a more effective mechanism to enforce child support from biological fathers, making it a "‘lightning rod' for much pent-up anger, grief and disappointment surrounding relationship breakdown" (Smyth 2004: 43). If governments attach more binding obligations to biological paternity, then it is only to be expected that fathers will be more demanding about their rights, not least in the context of paternity testing.

The demand for fathers' rights is not only related to the obligations of biological paternity. The concern over paternity long preceded paternity testing, and in fact helped form human nature itself.

"In every age and in every place, men behave as if they owned their wives' vaginas". This applied long before paternity testing, as shown in Matt Ridley's book "The Red Queen - Sex and the Evolution of Human Nature". (The quote is from chapter 7).

On another tack, Newson emphasised "the importance of balancing harms when considering whether mothers should always be involved". Mandatory consent of the mother demands the involvement of the "entire family in the decision-making process about a parentage test (at least where younger children are concerned)", and "could lead to a destruction of trust between partners and a destruction of the father/child relationship". In fact, most tests without the consent of the mother resulted in the reassurance of the father. It was "better for a father to confirm his fears accurately and quickly, rather than to continue living with the uncertainty" (ALRC/AHEC 2003b: G283).

Assertion: "On average, unofficial motherless paternity tests improve the outcomes for children".

This is quite a common argument. Getting the mother involved in the 90% (or so) of positive tests will cause damage that should be avoided. And if a requirement for her knowledge inhibits the man from going ahead with the test, his suspicion will continue. In the positive 90% case, it is better all round for the mother never to know.

This is not a straightforward issue. Not least, it is complicated because - as participants in the focus groups observed - the circumstances under which such tests become necessary are unhappy ones at the best of times. There is already a breakdown of trust. It is questionable whether a deceitful action (doing the tests without the knowledge of the mother) - intended to produce evidence of deceit (misattributed paternity) - can provide the basis for renewed trust.
[snip]

Anecdotally is does "provide the basis for renewed trust". Clearly, more research would be illuminating!

But an important fact is that, often, the man already knows (or very strongly suspects) that his partner had an affair! Typically, he isn't paternity testing to see if his partner had an affair. Men can often forgive that, and get on with life. He simply wants to know that, despite the affair, he isn't wasting his limited lifetime and resources bringing up someone else's child.

There is a good reason that the tests should not be conducted without the knowledge of the mother. The tests are not trivial or routine. They have immense implications for all parties. Mothers have a right to know that the tests are to be conducted. Children have a right to the advocacy of both the mother and father in the event of such tests. The fact that all parties must be informed of the tests would promote the principle of collaborative parenting and and minimise the potential for harm. It would also mean that they are not undertaken lightly.
[snip]

What right do mothers have, (to know that the tests are to be conducted)? Is that an actual right, or just the opinion of some people that they should have that right? Probably the latter. Just an opinion of some people.

Note that the above page separates out the ethics of personal knowledge of paternity from the ethics of paternity testing. Issues of personal knowledge need to be sorted out before the implications of using paternity tests can sensibly be explored.

Certainly this approach would not make everybody happy. Then again, perhaps this is a good sign, for it would imply compromise between the rights of fathers, mothers and their children. This is, after all, the basis of successful collaborative parenting and families.

In future, we should aim not to need to compromise about this. If misattributed paternity didn't exist, these compromises wouldn't be needed. The problem is that too many people are looking backwards at the situation we are in and how to manage it, and not enough are looking forward towards a better society without such problems.

Knowledge of the mother

  Man is biological father Man is not biological father
  Mother knows Mother doesn't know Mother knows Mother doesn't know

Man has paternity test without the mother's knowledge

Man has peace of mind.

All parties benefit.

Man has peace of mind.

All parties benefit.

Prognosis: unpredictable. Prognosis: unpredictable.

Man doesn't have paternity test because of the need for the mother's knowledge

Man continues to have (unjustified) suspicion.

All parties are losers.

Man continues to have (unjustified) suspicion.

All parties are losers.

Man continues to have (justified) suspicion.

Prognosis: unpredictable.

Man continues to have (justified) suspicion.

Prognosis: unpredictable.

Man has paternity test with the mother's knowledge

Man has peace of mind about the child, but now also has relationship problems.

Mother is probably visible angry.

Man has peace of mind about the child, but now also has relationship problems.

Mother is probably visible angry but secretly relieved.

Time of reckoning!

Prognosis: unpredictable.

Time of reckoning!

Prognosis: unpredictable.

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