NYT Article on Paternity Fraud Tosses Aside the Obvious Solution – Mandatory DNA Testing
I wrote recently about an article in the New York Times Sunday Magazine about paternity fraud (New York Times, 11/22/09). Generally, it’s pretty well-done, although it seems to have left out some pertinent information about Carnell Smith’s separation from his daughter. Its good side is that it presents the personal anguish of paternity fraud in real terms. Unlike so many pieces about parents and parenting, it actually gives dads a voice. The writer, Ruth Padawer, interviewed fathers and quotes them sympathetically. That alone sets the piece head and shoulders above most writing about family life.
But the piece has its drawbacks, one of which is that, as clearly as the author sees the emotional and moral conundrums these men are placed in, she fails to see that there is a clear way out. That way is to do mandatory DNA testing of every child at birth.
As we know, something like 90% of those tests will reveal that the dad who thinks he’s the dad is right. Into the bargain, mandatory testing would almost certainly lower the rate of false paternity. After all, one reason some women feel free to conceal what they know or suspect is that they figure they can get away with it. If they knew the truth would be told, they’d either be a bit more careful about pregnancy or they’d come clean.
Voluntary testing is no answer. Imagine you’re a man who believes he’s the father of the child his wife/partner just gave birth to at the hospital. How realistic is it to expect him, at that most emotional and precious of times, to say “OK, honey, now let’s see if I’m actually the dad”? It’s an outrageous idea that few men would even consider. Mandatory testing for everyone takes the onus off the man and in doing so guarantees that everyone - father, mother, child and state - will have the information they need about who’s the dad.
The simple fact is that paternity fraud is an artifact of a time in which we had no way of knowing for certain who a baby’s father was. That “time” of course was all of human history up to the advent of DNA testing. The law sought to solve the problem posed by uncertain paternity by simply defining it out of existence. It did so via the legal fiction that any child born during marriage was presumed to be the child of the mother’s husband. In an age of quick, easy and accurate genetic testing, that presumption is useless, unnecessary and should be abolished.
Padawer tries to dispose of the idea of mandatory DNA testing as too expensive. But would it be? If testing at birth were mandatory, the sheer volume of tests (some 4 million a year) would bring the per-test cost down and, instead of relying on for-profit companies to do it, states could set up their own labs.
And what Padawer doesn’t’ mention is that the current system isn’t exactly free. With 40% of births being to unmarried women, the legal presumption of paternity doesn’t even apply. So somehow, those fathers have to be found and made to acknowledge paternity. That’s been going on for many years and it’s an expensive process as the budget for paternity acknowledgement of the Office of Child Support Enforcement clearly shows.
It’s also badly done. Many mothers simply refuse to tell who the dad is or misidentify him. Needless to say, that can result in lawsuits which cost money and take up court time. And that doesn’t even count the time, money and anguish of all the children of married women that turn out to be fathered by men who aren’t married to the mothers. As the Times article clearly shows, that tends to result in its own set of litigation.
But Padawer’s failure to seriously consider mandatory testing suggests a mindset that to me looks like the root of the problem. Simply put, it never seems to occur to her that men should have some control over their own parental decisions. As things stand now, our legal approach to paternity fraud places a man’s parental rights and duties, not in his own hands, but in hers. If she chooses to tell him the truth (“The child I’m pregnant with is not yours.” or “I’m not sure who’s the father of this child.”), he can make his own decision about whether to take up active fatherhood or walk away. But if she chooses not to, he’s stuck with her decision. And whatever she decides, it’s still her decision about his rights, not his.
As a purely legal matter, apart from the emotional trauma of paternity fraud, men should be entitled to decide for themselves about whose children they raise.
Since Roe was decided over 36 years ago, abortion proponents have characterized the issue as a question of who decides – the mother or the government. I believe we rightly place that decision in her hands. We should give men equal respect. Mandatory genetic testing does exactly that; it gives accurate, timely information to the person whose rights are at stake and allows him to decide what to do with that information.
Currently, law and public discourse give no respect to the concept that men – not women – should decide men’s parental rights and duties. Parental equality can never exist as long as that holds true.
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