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Bioethics and Law Forum^*

Who's Your Daddy?

From North Wales, Pennsylvania.

Correspondence to: Susan Kerr Bernal (e-mail: bernal{at}erols.com).

Received for publication July 19, 2004; accepted for publication July 19, 2004.

Paternity fraud can stem from a variety of circumstances, but ultimately, they all culminate in a man who is not a child's biological father being declared so by a court and thus becoming required by law to pay child support. Sometimes paternity fraud cases germinate from an intentional action by a mother who is seeking revenge against a certain man, or who believes man "X" is better able to pay child support than the child's actual biological father, or who is trying to hide an extramarital affair. The fraud might also be more a result of apathy than intention when a woman is confused or makes little effort to determine the true identity of a child's biological father. The fault for paternity fraud could even fall partially on the shoulders of the man if he ignores a complaint to appear in court to defend himself and is declared the father by a default judgment. Finally, the fraud might be an unintended consequence of long-standing state laws that decree a presumption of paternity to a husband if a child is born during or soon after the breakup of a marriage.¹ This presumption, which has survived for more than 5 centuries, was crafted to preserve families and protect children who might otherwise be considered "bastards" or "illegitimates" and, as a result, have little entitlement or redress under the law. Quaint and antiquated, these laws and views are simply irrelevant in light of today's DNA technology.

For almost 2 decades now, courts have accepted DNA technology to identify deceaseds' remains, as well as killers, rapists, and other criminals. More recently, the technology has been used to free innocent persons from jail, some even on death row. So why isn't the technology being used to free men from the burden of paying child support for children they did not father and, therefore, should not be responsible for? Sadly, it is mostly about the money.

States receive approximately $18 billion in federal monies to help cover some 20 million children in family assistance programs. In order to get federal funds, states have to identify the fathers of children whose mothers receive these government benefits. If men are able to disprove their paternity through DNA tests and the states cannot locate the actual biological fathers, states will not receive federal dollars; rather, state welfare agencies will get the bill for family assistance benefits.

The second reason for reticence toward prolific DNA paternity testing is the "best interest of the child" standard. Most laws concerning children attempt to put the best interest of the child at the pinnacle of its priorities. Although an admirable and defendable standard, when applied to paternity fraud cases, it translates into forcing nonbiological fathers to continue support payments rather than taking money away from the child or finding his or her actual biological parent. Denying children the child support money they deserve is not the goal of correcting and clarifying so-called paternity fraud cases. Rather, the goal is to alleviate unethical legal penalties and to hold the correct individuals responsible. If the best interest of the child is of paramount concern, should not the truth be a guiding force and cannot a solution be found that ceases to encourage deceit, fraud, irresponsibility, and legal loopholes?

As fathers continue to speak out, some laws are changing. In Alabama, Arkansas, Georgia, Iowa, Ohio, and Virginia, a DNA test can be used to exonerate ex-husbands and out-of-wedlock fathers from support payments. Colorado, Illinois, and Louisiana grant such an entitlement only to ex-husbands. Texas allows an ex-husband 4 years from the birth of a child to challenge paternity rather than the traditional 6 months.

Similarly, as everyone knows, parenting is more than biology, so it seems that a nonbiological father who has had a long-standing, established relationship with a child should not be able to just walk away if a paternity test contradicts long-held beliefs and actions—not if the best interest of the child standard is upheld. Also, it is sad and ironic that in these paternity fraud cases, it is often the biological children of a man paying child support for a nonbiological child who suffer. How is the best interest of the child standard justified in such an instance? Obviously, it is not, and the laws need to be revised in light of advances in science and medicine.

There are no simple solutions to this conundrum, but there are clear steps that can be taken to catalyze the amelioration of unfairness to all parties. The first step is to increase the statute of limitations for challenging paternity for all men. Second, accept the use of DNA technology to clearly establish or disprove paternity at any stage of a paternity proceeding. Third, increase the penalties for men who evade paying child support and create penalties for women who intentionally mislead or defraud the government regarding a child's paternity. Fourth, increase education about the responsibilities and consequences of sex and fathering a child. And fifth, foster laws that promote parental responsibility and honesty so that "Who's your daddy?" will become just a slapstick, overused catchphrase.

Footnotes

^* Journal of Andrology welcomes letters to the editor regarding "Forum" articles and other ethical and legal issues of interest in your own practice or research. We also invite you to suggest topics that deserve attention in future issues. Papers appearing in this section are not considered primary research reports and are thus not subjected to peer review. Unsolicited manuscripts are welcome, and will be reviewed and edited by the Section Editor. All submissions should be sent to the Journal of Andrology Editorial Office.

¹ There is a whole and separate body of law that varies from state to state addressing paternity and the use of assisted reproductive technologies (ART), as there is with respect to adoption. Because these parenting situations are less personal, in certain respects, the paternity issues and concerns involved with ART and adoption differ significantly from those discussed herein and deserve attention in their own right—attention beyond the scope of this article.

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