Paternity commentaries
Paternity commentaries - index
Commentary: Leslie Cannold & "Paternity denied"
Commentary: Leslie Cannold & "Paternal instinct"
Commentary: Leslie Cannold & "Paternally yours"
Commentary: Lyn Turney & "Contested Paternity"
Commentary: Lyn Turney & "DNA Paternity Testing"
Commentary: Michael Gilding & "Rampant misattributed paternity"
Commentary: Michael Gilding & "Motherless testing"
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Paternity test statistics don't show the rate of paternity fraud
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"The truth is out there" - Commentary on "Move to outlaw secret DNA testing by fathers"
"Knowledge is bliss" - Towards a society without paternity surprises
What is the crime if men seek confirmation that children are theirs?
"A matter of opinion" - Unofficial paternity tests and the impacts on children
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Commentary: Lyn Turney &
"Contested Paternity: Why, and to Whom, Genetic Paternity Testing Matters"

"Contested Paternity: Why, and to Whom, Genetic Paternity Testing Matters"
by Dr Lyn Turney
(A paper prepared and selected for presentation at the annual conference of The Australian Sociological Association (TASA) held at the Beechworth Campus of La Trobe University, December 8-11, 2004).

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

Preliminary comments by Child Support Analysis

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.

Lyn Turney Commentary by Child Support Analysis
The DNA paternity test is a powerful technology that offers definitive, clear cut findings. But, in reality, its human impact rarely reflects the precision and decisiveness the technology promises. In other words, while the technology itself can be said to be neutral, the human ends to which it is put is what gives it intention and purpose (Wajcman 2004). The meaning humans attach to what the technology reveals (the results of the test), the significance they assign to it and what they do about it determine the human consequences. The test has the capacity to change forever the way people relate to each other, in essence to 'change the terms in which social, political and economic relations are played out' (2004:8-9). This is a far better starting point for a debate about paternity testing than starting from "DNA" or "genetic testing". Expertise in those domains provides little help in identifying proposals about family relationships that would improve society.

The purpose of the study being reported in this paper was to provide a sociological analysis of the human relationships that are interrupted by a genetic technology, the paternity test, to determine a primary social relationship. Paternity has generally been accepted as a taken for granted state that defined the connection between a child born within an established partnership and the male partner. A biological relationship was almost always presumed to exist and, unless the man could be proven to be 'absent, impotent, or sterile' at the time of conception, he 'was locked into the role of fatherhood' (Kaebnick 2004:49) Thus, despite the strong primacy given to the necessity for biological ties, 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. In this context, the contestation of paternity involved partial knowledge and competing claims that were difficult to adjudicate. The "marital presumption" protected the legitimacy of a child born within wedlock and disallowed challenges to paternity, thus legally protecting husbands from publicly attacking the fidelity of their wives and the paternal-child relationship (Hirczy 1995).
[snip]

Lyn Turney and Leslie Cannold both focus on marriage as the context for paternity. They both see the biological definition of paternity as something relatively new, for example as an aspect of modern child support systems.

Child Support Analysis is aware that "child support" is not a new concept, and issues of paternity have existed for several centuries, at least. DNA paternity testing would have fitted easily into some legal and social contexts at the time of the English Poor Laws.

Paternity tests often get a bad press. But in some circumstances they are far better than alternatives that have been tried in the past.

The easy accessibility of the tests has thus shifted the locus of demand from court ordered tests to resolve disputed paternity to individually motivated tests to potentially absolve paternity and paternal obligation. However, the test not only affects the individual who instigates it but also provides information about interpersonal and family relationships. Yet, until now, no research has been done on the social impacts of DNA paternity testing.
[snip]

Such research is needed, and in fact should have preceded much of the debate about whether paternity tests need to be regulated!

Some analysis, though, has been done. Four papers on this website (see top of this page) have done significant analysis, which could be exploited by anyone designing a research agenda.

The main people to whom paternity testing matters are men and women caught up in divorce or relationship breakdown where contestation over paternity becomes a flash point of disputation over custody, access and Child Support issues. Paternity testing in these cases is sought either by the man to terminate parental responsibility or by the woman to ensure it. The main usage of the technology has thus become essentially a gendered conflict over paternity establishment or disestablishment.

An important extra group are men in intact families who are suspicious. They use "motherless" tests.

About 90% of such tests are positive in Australia, so a significant usage of paternity tests in Australia probably have beneficial impacts on their families. However, these cases appear to be under-represented in surveys. (ALRC 96 35.159 informally suggests that 80% of tests by one laboratory are "motherless tests").

What proportion of all paternity tests in Australia are positive motherless tests? Is there a "silent majority", improving things for families, while a minority make the headlines and drive policy?

Evading Child Support or simply making sure?

Frustrated by outcomes of the Family Court and custody decisions and spurred on by paternity testing's promise of a pathway to evade Child Support payments, many men seek testing. These cases probably constitute the largest proportion of men tested, as well as the majority of single parent or "motherless testing". According to the largest testing company in Australia, eighty percent of the men tested in these circumstances turn out to actually be the biological father (Stapleton 2002). Although these men have not participated in the study, proportional to their expected numbers, those who have provide a compelling rationale for unrestricted access to both court sanctioned and "private" or "motherless" testing to clarify paternity. Fathers report having suspicions about their paternity because the child does not look like them or there are unexplained whispering and tears in the family at the time of child's birth, friends drop hints, and so on. They then either take on "the war" with the Family Court or have a surreptitious test to clarify things for themselves before they take the next legal steps or, in some cases, do nothing further. For the men in the study, the technology revealed different outcomes and correspondingly very different human consequences and responses.

I needed to conduct the first test secretly (without anyone knowing) because, had the result been positive, then I would have happily continued to pay maintenance and done nothing further. Likewise the child would never have known (which is a most important consideration). Sadly, that was not to be... The 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. (Adam)

[The results showed that the child was] absolutely, definitely my son… I was rapt. That was exactly what I wanted in the first place. But it was just the fear that he wasn't my son - basically not knowing... It may not have made a difference in the long run but it's still nice to know. (Ben)

Do men use "motherless tests" and reveal their results to help them overcome obstacles in "the system"? Anecdotally, such tests are sometimes used because of the need for "an honest, bona fide and reasonable belief that there is a doubt as to the child's parentage", before an official test can be ordered. (ALRC 96 35.33). If so, those obstacles, whether in the child support or family court systems, need to be removed - they are part of the problem.

But when "motherless tests" are simply being used for "personal knowledge", to enable a man to make an informed decision, then this is excellent use of them. Where they are positive, the man can avoid the pain to everyone concerned that might arise from requesting an official paternity test.

Paradoxically, society may be better off if all official paternity tests gave negative results!

This would need mechanisms that discouraged men who already know about their paternity from seeking an official test for spurious reasons. For example, he should be expected to pay for a positive official test. And he should not be able to delay child support payments during the testing process. (The payment would go into a "holding account", until the result were known). This has already been proposed. ("In the Best Interests of Children - Reforming the Child Support Scheme". Report of the Ministerial Taskforce on Child Support).

Misattributed Paternity

[snip]
Men report that a subsection of these women, in the context of relationship breakdown and separation, use their knowledge of the father's non-biological paternity to win custody battles and Family Law settlements. In these circumstances, the fathers reported being either totally unsuspecting of their non-paternity, or if they did suspect it, chose not to pursue or acknowledge their suspicions. The mother sometimes also enlisted the assistance of the biological father in the process, despite him having had no previous contact or relationship with the child. This is a complex circumstance which effectively amounts to "fatherless testing", or testing without the 6 knowledge or consent of the rearing father, a practice that is sanctioned by the Family Court for consent-to-testing purposes. Presumed biological ties are thus legally prioritised over the rearing father's relationship with his child. The outcome of these challenges to paternity is that the rearing father legally becomes a non-father and, in most cases, loses both custody and access, which is devastating for him.

There is a child out there who loves me and was ripped away from me... I miss him every day. (Geoff)

This illustrates what has been said many times before. Bad news about paternity doesn't improve with age!

We are going through a transitional period, in which there is misattributed paternity already "out there", and there is a temptation to cover it up. Sometimes the cover-up will be successful, but when it isn't, the devastation within established families may be out of proportion to the benefits in some of the cover-ups.

Ideally, in future we will have a society with little misattributed paternity:
"Knowledge is bliss"- Towards a society without paternity surprises

The Denial of Paternity

Another set of cases involve situations where women were obliged to undertake a test or instigate the process because the father of their child, often advised by his lawyer, had denied paternity. The onus to prove paternity was placed on women if they wanted the father recorded on the birth certificate or if they required access to Child Support payments, which is contingent upon naming the father of the child. In each of these cases there did not seem to be any real doubt about the ex-partner being the biological father; rather the men were reported to be playing "mind games". As an example, one father, after a protracted period of legal action to contest paternity, did not bother to pick up the test results. In essence, the actions of the fatehr was seen by women to be a way of delaying and hampering the process of documentation and payment of Child Support for a lengthy period of time (often somewhere between twelve and eighteen months) so that the father "can get his affairs in order".
[snip]

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, when paternity can sometimes 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, but just the way Australia happens to use them for child support purposes.

The proposals to reform the Australian system appear to require the man to continue to pay while paternity is resolved, but not to pass the money to the mother.

Should access to testing be restricted?

The Australian Law Reform Commission (ALRC) and the Australian Health Ethics Committee's (AHEC) Inquiry into the "Protection of Human Genetic Information" recommended, among other things, stricter regulation of paternity testing through compulsory laboratory accreditation (ALRC/AHEC 2003). This included the ethical requirement that both parents of a child give their written consent to testing, a recommendation that has been hotly contested by men's rights activists and defended by women. However, whether we like it or not, commercial testing has already created a market and any attempts at banning the technology would be futile; it would simply mean that business would go offshore and accessibly would not change (Gilding 2004). Regulation of the industry would then become impossible and there would be no opportunity for the intervention of family and relationship counselling - something that appears to be urgently needed. But, important as regulation is in terms of ensuring adequate technical and ethical standards, the ALRC/AHEC recommendations largely miss the point: it is the human usage to which the technology is put that requires serious consideration. From the data, there appears to be no good reason to prevent anyone from having information about paternity where they genuinely do not know. It is what they do with the information based on the meaning that is given to knowledge about paternity or non-paternity that matters.

The statement on the left is almost precisely what Child Support Analysis has concluded from its own analysis.

(See the papers identified at the top of this page, etc).

Issues for policy

In terms of policy, two suggested areas of concern are clearly evident. First, where non-paternity is uncovered we need to weigh up the rights of a father who has acted in every sense of the word to nurture, love and care for a child, against those of a biological father, whose contribution to fatherhood is merely. Further, the issue of "fatherless testing" in this context needs to be considered. In the face of this new technology, we need to rethink the abandonment in law of the "marital presumption" and the prioritising of biological non-parents in Family Law. Where the father-child bond has been established and a challenge by the mother reveals non-paternity, the father's role and rights need to be legalised, formalised and elevated to at least that of an adoptive parent (Hirczy 1995). Such an approach challenges the current emphasis on biology as the primary, single marker of paternal responsibility. On the other hand, it undermines the well established principle of making men responsible for the outcomes of sexual actions. Where Child Support policy initiatives once had an effective solution for this, with the advent of the commercial paternity testing, such a policy option may no longer be tenable.

Yes, these are precisely the areas of concern. They are the topics of some of the "preliminary comments" in this set of commentaries:

But it doesn't need to "undermine the well established principle of making men responsible for the outcomes of sexual actions", which it is vital to retain.

Instead, society needs to evolve the rules for "Types of father" and "Types of financial support for children" so that all requirements are met. Biology needn't be "the primary, single marker". It can be just one of the markers. We already know how to supercede biology with adoption. We have already made progress in the right direction. Perhaps the concept of the "contractual father" is the way to go.

Child Support policy was developed in quite a specific socio-cultural and political context - following the sexual revolution and the introduction of no-fault divorce. It assumed a relatively uncomplicated paternal responsibility for extra-marital children among singles and for children of divorced couples. In the twenty-first century, relationships are more complex and typified by serial coupling and uncoupling and, at the same time, liberal approaches to sex has largely seen it de-linked from fertility and reproduction, and thus, arguably from paternal responsibility. In this altered context, policy initiatives need to provide innovative solutions to the issue of fatherless children. Perhaps too the definition of paternity in family law should be recast in broader terms that extend beyond the current biological, material and financial formulation (Haney and March 2003).
[snip]

"... de-linked from fertility and reproduction ..." doesn't de-link sex from paternal responsibility. Society will be better if all children were wanted, or at least accepted, by both man and women at the time of sex.

Surely we want a society where:

- children were wanted, or at least accepted, by both man and the woman, at the time of sex;
- it is the biological parents who have the first chance of developing a bond with the child;
- a bond with a child is not lightly broken;
- we have no paternity surprises.

Overall though, the focus on infidelity between couples and a gendered usage of the technology draws attention from the key relationship that paternity testing is designed to confirm or deny: the biological bond between a father and his child. Kaebnick (2004) argues that the motivation for testing, when associated with divorce proceedings, 'is not genuinely to discover whether a parental relationship exists but to bring about an outcome that an adult wants, whatever the biological facts may be' (2004:51). In his view, envisaging a child as the result of sexual betrayal is confounding 'contests between adults' with the fact of paternity (2004). A consequence of the current debates about paternity testing, as they focus on highly volatile emotional relationships between parents, is that the child becomes invisible except as the progeny of an adulterous liaison. If we are to invest in a view that takes aboard the best interest of the child, we need to move beyond a gendered debate that, whilst loudly declaring the interests of the child, actually ignores them. A focus away from parental infidelity and acrimony between partners and towards the welfare of the child needs to be a key feature of the decision-making process at both a policy and individual level.

As repeated above. Bad news about paternity doesn't improve with age! We should be trying to achieve a society with little misattributed paternity:

Here is an attempt to analyse what is in the interests of the child:

The statement by Kaebnick (2004) is an over-generalisation! Where there is doubt, how can it be to bring about a specific outcome?

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!
About the author: Dr Lyn Turney is a is a researcher in the Biotechnology and Society program of the Australian Centre for Emerging Technologies and Society (ACETS) at Swinburne University of Technology. She lectures in sociology, social policy and qualitative research methods.  
Page last updated: 27 August, 2005 © Copyright Barry Pearson 2005