Testing for Paternity Fraud - The position of the Australian Law Reform Commission

A letter from Professor David Weisbrot to the Canadian Children's Rights Council

Below that, you will find the response from their president [click here]

This is an email sent by the President of the Canadian Children's Rights Council to David Weisbrot, President of the Australian Law Reform Commission and his response

Sent: by email - Monday, 23 May 2005

Subject: Human identity rights of children - Australian Law Reform Commission - Prof. David Weisbrot

May 22, 2005

Professor David Weisbrot
President
Australian Law Reform Commission
Level 25, 135 King Street
Sydney NSW 2000 Australia

Dear Professor Weisbrot,

Our website at CanadianCRC.com is the most visited children's rights web site in Canada. Last year we had visitors from 160 countries.

We have volunteers from coast to coast to coast in Canada. We are linked from the Public Health Agency of Canada (formerly Health Canada), Library and Archives Canada ( the archives of the Government of Canada), Ottawa University-Virtual Human Rights Library, Queen's University - Faculty of Law, University of Victoria- Children's Rights Centre among many other websites in Canada and abroad.

I am writing you to confirm your personal position and the position of the Australian Law Reform Commission with regards to paternity fraud and the human right to an individual's human heritage and biological identity.

As I'm sure that you are aware, Articles 6, 7 and 9 of the U.N. Convention on the Rights of the Child provide for the right of children to be raised by their biological parents without negative interference by the state and with the support of the state. It is our position that with about 16% of the population being victims of paternity fraud, the state should provide mandatory government paid paternity testing before birth to support a newborn baby's right to identity. Non-invasive testing of the pregnant woman after 12 weeks of pregnancy would contribute to the positive identification of the fetus and gives both potential parents the important identity confirmation needed to determine if either or both choose to be a parent to that child.

As you are aware, in many countries such as Canada and the U.S., a woman can't be forced into becoming a parent. She can choose abortion, anonymous abandonment to the state (often called "hatchery laws") or abandonment by means of closed or open adoption. In open adoption, she may maintain a relationship with her child. In all 3 situations, she is not obligated to financially support the child or have a relationship with the child.

The growing " choice for men movement" around the world is seeking equality with women. Men don't want to be forced into becoming a parent against their will. The right to choice for women, the right to self determination with regards to becoming or not becoming a parent, was won by women 30 years ago in Canada and the U.S.

Mothers often can't be trusted to provide, or don't know, the identity of their potential child's father. They sometimes deliberately misidentify the father or claim they don't know the identity of the father to avoid the father. They can then give up the child to adoption without the father's permission. This same deceit against the child and father saves the woman from 20+ years of child financial support should the father want to become a parent and raise his child.

Which brings me to the reason I am writing you.

I am advised by one of our editors that we are about to publish an article on our website which states that your personal position and/or the position of the Australian Law Reform Commission is that only mothers should, by law, have the right to test for the identity of their children. Further, it will state that the Government of Australia chooses to support paternity deceit in violation of the rights of 3 other people: the biological father, the husband of the woman (or life partner) and the child.

I wanted to write you 1st to inquire about your position and give you a chance to respond before publishing the article. In addition to publishing the article on our website, the article will be submitted to various publications world-wide.

We believe that the state should enforce the child's identity rights not just through laws pertaining to adoption records and assisted human reproduction but also in family law. Obviously, it is the state's responsibility to support the rights of the most vulnerable person in society, a newborn baby, who obviously can't go to court to protect his/her rights.

What is your position on the right of children to their biological identity and their right to be raised by both their biological parents?

I have held up publication of the article until June 1st, 2005 to allow time for you to respond.

The world is very interested in the Liam Magill Paternity fraud case in Australia.

Yours truly,

Grant Wilson
President
Canadian Children's Rights Council
CanadianCRC.com

RESPONSE

May 23, 2005 by email

To: Canadian Children's Rights Council

Dear Grant

Funny -- I was just talking to my staff about the enormous frustrations involved in trying to communicate a clear and simple message through the mass media, despite putting in a great deal of time and care, when I received your message.  As you may have guessed, the recently published reports of the position of the Australian Law Reform Commission (ALRC) on DNA paternity testing have been WRONG - we did NOT recommend that "only mothers should, by law, have the right to test for the identity of their children".   Thank you for giving me this opportunity to correct the record.

The ALRC's interest in this area stems from its earlier report Seen and Heard: priority for children in the legal process  (ALRC 84, 1997), which is available at   click here  -- but primarily from its more recent (2003) report Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, 2003), which is available (together with the preceding community consultation papers, media releases etc) at click here

In the latter project, the Australian Government asked us to consider, in relation to human genetic information (and the tissue samples from which such information may be derived), how best to protect privacy, guard against unfair discrimination, and maintain the highest possible ethical standards.   The ALRC then tracked these three central concerns across a very wide array of practical contexts, including: the conduct of medical/scientific research; the delivery of clinical genetic services; systemic health administration; genetic databases, registers and tissue banks; employment; insurance; immigration; government services (eg schools); sports; law enforcement; "kinship and identity" (including the determination of Aboriginality); and DNA parentage testing (see Ch 35 -- which may be found at click  here ).

Some of the ALRC's 144 recommendations are context-specific, but a number of the major recommendations are more broadly applicable.  These include the recommended requirement that DNA testing and analysis for health or identity purposes should occur only at laboratories which are properly accredited (there is a national accreditation body in Australia), for quality assurance purposes -- since skill and accuracy is so important in this area.   Another central recommendation is that, given the potency of genetic information, a very high premium should be placed on respect for individual dignity and autonomy, so that no DNA testing should be allowed without the consent of the individual concerned OR without other "lawful authority" -- such as a court order or the statutory authority usually given to police to obtain a sample from a suspect in a serious criminal matter.

These principles are pretty uncontroversial in most contexts -- few if any people believe that their employers or insurers (or government, or journalists etc) should be able to collect their DNA surreptitiously and submit it for analysis.

In the context of DNA paternity testing, in keeping with the overall pattern of recommendations, the ALRC felt uncomfortable with authorising any NON-consensual testing, absent other lawful authority.

In an ideal world, we would hope that consent would be granted to DNA parentage testing, given the social, medical and other importance.  However, the ALRC recognises that in the fraught circumstances of family conflict, such consent sometimes/often will be withheld for purposes for less than noble (strategic, malicious etc) reasons.  In those cases, it is the properly role of the courts to resolve such disputes about parental roles and rights, having regard to the best interests of the child.   (In Australia, this normally would be the Federal Magistrates Court or the Family Court.)

Thus the ALRC recommended that:

*DNA parentage testing involving children of 12-18 years who are sufficiently mature to make a free and informed decision should be permitted only with the consent of the child -- OR pursuant to a court order

* DNA parentage testing involving children under 12 should be allowed only with the written consent of both parents, OR pursuant to a court order.  (This rule also should apply to children 12-18 years of age who lack sufficient maturity to make such a decision,)

In my own view, absent consent, a court should grant such an order where there is any credible suggestion that paternity (or, more rarely, maternity) is in doubt.

As you can see we most certainly did NOT recommend that "only mothers should, by law, have the right to test for the identity of their children" -- that not only would be very bad policy, but would be in direct contravention of human rights and anti-discrimination laws.  Instead, we placed the rights and interests of the *child* squarely at the centre of the matter -- which I assume must accord with the views of your Children's Rights Council.

Finally, the issue of paternity fraud was not really within the terms of reference for our inquiry; however, as part of our extensive community consultation effort, we did hear a number of credible allegations along these lines.  Some were from fathers who alleged that they were paying child support on false pretences, sometimes the allegations came from mothers who said that the true biological father had fraudulently evaded legal and financial responsibility (for example, by having a friend take the court-ordered paternity test).  The ALRC could not make a specific recommendation in this area, but we highlighted the matter for Government consideration.   In public comment on this matter, I have consistently condemned paternity fraud (whether by mothers or fathers) as a breach of the existing laws, which make it a serious crime to engage in fraudulent misrepresentation for financial gain.   In such circumstances, the victim also should be in a position to gain restitution.

In March, the Australian Government introduced into Parliament legislation "to enable people who, through the use of DNA testing, have found they are not the parent of a child, to recover child maintenance payments".  According to the Attorney-General, "The bill is intended to make it easier for people who find themselves in this position to take recovery action without the need to initiate separate proceedings for an order from a court of civil jurisdiction, such as a State, Local or Magistrates court" -- and the amendment would apply retrospectively to cover payments made before start of the new provisions.   The Attorney-General's full press release on this topic may be found at : click here

I trust this now sets the record straight.

Finally, since we are on the subject of genetic testing and children, I was disturbed to learn that Canada (or at least some Canadian provinces, including Ontario) does NOT require routine neonatal genetic screening programs.  In Australia,  all newborns are tested for a variety of serious genetic disorders (following the heel prick or "Guthrie" test, which draws a few drops of blood for analysis) -- such as PKU, Cystic Fibrosis, Congenital Hypothyroidism and Galactosemia -- which will require immediate medical attention and changes to diet etc, in order to preserve the life and health of the child.   Using Tandem Mass Spectrometry technology, it is now possible to test conveniently and cheaply for an array of genetic conditions.   In the US, an expert panel recently recommended that it become the standard practice in that country to test for 29 such genetic disorders.  I hope that your Council will see fit take up this point with the proper authorities.   Absent such screening, it is a statistical certainty that some Canadian newborns will suffer and die -- rendering their biological parentage a sadly moot point.

Yours sincerely,

David Weisbrot

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Professor David Weisbrot
President,
Australian Law Reform Commission
Level 25, 135 King Street
Sydney NSW 2000 AUSTRALIA

personal email address provided but not listed herein for the purpose of protecting against spam

general email: info@alrc.gov.au
Visit the ALRC's website at www.alrc.gov.au

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