July 24, 2014 by Robert Franklin, Esq.
The Japanese Supreme Court ruled last week that DNA test results demonstrating non-paternity on the part of a married man are insufficient to remove his parental obligations. Read about it here (Japan Today, 7/18/14).
In a historic case, Japan’s Supreme Court has ruled that DNA tests are not sufficient to invalidate familial paternal relations, even if the results from the test show no signs of blood relation to the assumed father.
The ruling means that under the Japanese Civil Code, DNA tests cannot change the status of a child who is considered the legitimate offspring of a married couple.
The court ruling, handed down on Thursday, said that it was paramount to protect the social status of the child, Sankei Shimbun reported. Even if DNA testing shows that the child has no blood relationship to his familial father, the paternal status of the father cannot be revoked.
The court made the ruling after deliberating on three cases. In two cases, two married women became pregnant after having extramarital relationships. In the third case, a married man asked the court to invalidate his paternal relationship with two of his children after DNA tests established they were not his offspring. His appeal was rejected by the Supreme Court, Sankei reported.
The court ruling therefore means that children are legally recognized to be the offspring of their mothers’ husbands, and not their biological fathers.
Now, Japanese statute law permits a married man to challenge the paternity of any child born to his wife within one year of learning of the child’s birth. So, although the article doesn’t mention it, the Supreme Court’s ruling likely applies only to men who attempt to contest paternity after the one-year period has elapsed.
The ruling seems to be one of strict statutory interpretation. The law says men can’t challenge paternity after one year and that’s the end of it regardless of genetic reality and the child’s best interests. The court’s decision can be read as suggesting to the Japanese Diet that it might consider passing a more sensible law.
Why limit a child’s ability to know its biological father to a husband’s chance investigation of its paternity within a very short time frame? That’s a good question. The usual answer has something to do with giving the child a stable life; if the husband has played the role of father to the child, then surely that should continue regardless of whether or not a biological connection between the two exists.
That’s a fair argument as far as it goes. After all, we know that fathers and their offspring develop deep, lasting bonds from the earliest weeks of the child’s life. Children learn to differentiate their father’s touch and voice within weeks of birth. They learn to anticipate how they’re treated by fathers and mothers. And, in a remarkable study done in Israel, fathers who were blindfolded, and prevented from hearing or smelling via plugs in their ears and noses, nevertheless were able to identify their own infants simply by feeling their hands.
None of that of course depends on the biological connection between fathers and children, but on their post-birth bonding. In short, any man who believes a child is his can and will develop those attachments with a child, and vice versa, given the opportunity.
So why disturb those bonds just because another man is in fact the child’s father? The reasons are many. Among other things, the child’s health may depend on it. Some illnesses and medical conditions, like cystic fibrosis, are diagnosed via parental genetics. Only if both parents have the gene for the illness can the child have CF. So if a child suffers a respiratory ailment, the lack of the CF gene in the father will automatically rule out that diagnosis. Of course if Hubby isn’t the father, then CF may not be ruled out, but the doctor wouldn’t know that because Hubby doesn’t.
Other reasons fall into the public policy realm. We say we want those who produce offspring to be responsible for their upkeep. That’s why we have draconian laws on establishing paternity and enforcing child support orders. So a law that tells a biological father “Hey, once a year passes, you’re off the hook,” directly contravenes the policy of requiring responsibility on the part of adults who bring children into the world. And basing his parental responsibility solely on dumb luck — did Hubby figure out something was amiss in time or didn’t he? — makes even less sense.
What about basic honesty? Why permit something as important to all concerned — child, husband, biological dad and mother — as who is the child’s father dependent on the frail reed of the mother’s ethical behavior. All too often, we learn that reed has broken. In the United States, as many as 30% of paternity contests in family court turn out to prove paternity in someone other than the man the mother identified as the father. That’s according to the American Association of Blood Banks that licenses and oversees DNA testing laboratories.
And why should we place the parental rights and duties of two men, not in their hands but in the mother’s? As it stands, if she lies and can make her lie convincing enough for just a year, she effectively vests parental rights and duties in her husband and ousts the actual father of both. Given that we say fathers have parental rights, shouldn’t we allow them to exercise them or not as they decide, not someone else?
Where else in law do we place one person’s valuable rights in the hands of another? Principally in two very instructive cases. Children’s rights are generally exercised or not by their parents. And the rights of an adult may be exercised by another adult if the first adult is unable to do so him/herself due to some sort of extreme disability. In short, when we place the parental rights of a husband and a biological father, not in their hands but in the mother’s, we treat them legally as if they were children or incompetents. As I said, the comparison is instructive.
So we have competing interests. On one hand we have a child who’s formed elemental attachments to a man it considers its father, to the extent it’s able to do so. On the other we have the child’s need to know its biology and multiple public policy demands. How do we rationalize the two? Simple, mandatory DNA testing of all children at birth. That way no child will come to believe a man is its father who isn’t and no man will come to believe a child is his who isn’t.
Face it, we test children at birth for a variety of conditions anyway, why not add one? In the end, we’d save a lot of pain, heartache, money and judicial resources and everyone would know the truth from the outset. Plus, I suspect that, if mandatory DNA testing became the law of the land, the rate of paternity fraud would drop to near zero. If women knew the truth would be revealed at birth, what could they gain by telling one man he’s the dad when he’s not and another he’s not when he is?
So far, this culture remains comfortable with mothers having considerable power over fathers’ rights and children’s welfare. So I don’t expect such a sensible law to come into effect any time soon. But slowly we’re getting the idea that children need their dads and that fathers are fully capable of doing the job. Will we see anti-paternity fraud statutes crop up in the future? I won’t be surprised if we do.
But for now, Japan is content with the status quo — fathers without children and children without fathers.
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