Who is my family? In the middle twentieth century,
the answer to “who is family” was a simple one. The
so-called “nuclear” family consisted for the most part
of a married couple having one or more biological offspring. That
picture was immortalized in 1960’s TV shows such as “Leave
it to Beaver” that depicted loving, monogamous, couples with
kooky kids who got into all kinds of wholesome trouble. This
image was not restricted to humans. In the animal kingdom,
biologists described pair-bonded animals, especially ducks and
other birds, who mated for life, raising brood after brood of progeny.
All that has been turned on its head. Scientific technology enabled
biologists to determine the true paternity of offspring from married
ducks and other birds, and to their surprise, a fair number, often
as many as 50%, turned out to be the result of extra-marital copulations. [EXAMPLE] It
was no accident. What looked on the surface to be a
loving couple, instead were two adulterers sneaking around for
casual, yet procreative, sex. In most cases, the conventional,
but non-biological, father accepted his role as parent, despite
the fact that another male was the true gamete-provider. Maybe
he just didn’t know.
Two leading rules are generally applied in paternity disputes. First,
there is the presumption that any child born during a marriage
is the natural and legitimate offspring of the married couple. Under
the common law, the presumption could only be rebutted in limited
circumstances where non-access during the period of conception,
impotency, or sterility was established. Even when blood
testing had unambiguously determined a child to be a product of
an extramarital affair, it was excluded on the grounds that the
paternity presumption had not been overcome. Courts were
very reluctant to bastardize a child, and encroach on the marital
unit.
Paternity estoppel is another rule that is applied in paternity
challenges. When a man holds out a child as his own, and
by his conduct acknowledges the child as his own, he cannot later
deny that he is the father. “We recognize that there
is something disgusting about a husband who, moved by bitterness
toward his wife, suddenly questions the legitimacy of her child
whom he had been accepting and recognizing as his own … Where
the husband accepted his wife’s child and held it out as
his own over a period of time, he is estopped from denying paternity.” Commonwealth
ex rel. Goldman v. Goldman, 199 Pa. Super. 274. 184 A. 2d
351 (1962).
As a result of paternity presumptions and estoppel, a putative
father may be coerced by law to maintain and support a child, even
though they do not share any of the same genes. From the
standpoint of male genes, the law is undeniably unfair in the requirement
that the husband pay for his wife’s child, irrespective of
his genetic contribution to it. There are several obvious
explanations for the one-sidedness of the paternity rules. Money
is of foremost concern to society, and by making the married father
presumptively responsible for any child born during the marriage,
the rule prevents the child from becoming an economic liability
to it. After all, the defrauded father is in the best position
to prevent the situation from happening in the first place. By
making him pay the price for his lack of vigilance, the paternity
rules put the risk on the appropriate party. Rules that permit
the married husband to take punitive action (see, 3.3. The
Paramour Statute) against an adulterer confer power on the
husband to police paternity, consistent with where the burden has
been placed.
Until very recently, only rudimentary technology existed to provide
evidence of paternity. Blood testing was often inconclusive
because only four different blood types could be distinguished,
making it a high probability that a match could be obtained, even
when paternity were factually incorrect. The paternity presumption
may simply reflect the limited ability to prove who was the actual
father beyond a reasonable doubt, avoiding irresolvable disputes
based on nothing more than a difference in eye or hair color, or
a hunch of infidelity.
In the past decade, technology has leaped forward, providing very
cheap and credible tests for resolving issues of fatherhood. If
paternity determining rules reflect the limitations of technology,
is there any reason for perpetuating them when science is able
unambiguously sort out who is the biological dad? |