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• Part A: Processes
• Part B: Evidence

8. Proving and disproving parenthood

8.1 People can have varied reasons for wanting or needing to prove or disprove legal parenthood. A number of legal entitlements and obligations flow from the parent–child relationship, regardless of whether the parent is the child’s legal guardian. These include claims for inheritance, citizenship and immigration entitlements, and child support.

8.2 Defined legal parenthood can also have a number of personal or non-legal benefits. It can resolve uncertainty about a questioned parent–child relationship and can assist children in gaining access to information about their genetic identities. Where a man suspects he is the father of a child and wishes to play a role in that child’s life, proof of paternity will be critical in helping him found a case for custody, access or guardianship.

8.3 The law recognises a woman as a mother if she gives birth to a child and a man as a father if he is the child’s genetic parent.[343] A statutory presumption also operates to presume a women’s husband or former husband to be the father of her child, if the child was born within the marriage or within 10 months of the marriage being dissolved.[344] The presumption may be rebutted in cases where there is evidence that another man is the child’s genetic parent.

part A: Processes

Establishing paternity in law

8.4 Where the presumption of paternity does not apply, either because it is rebutted or the child is born outside marriage, there are currently two processes for establishing legal paternity. These are:

• declarations of paternity that may be made by the High Court[345] where it is established on the balance of probabilities that a man is the child’s father; and

• paternity orders that are made by the Family Court where it is satisfied that a named man is the child’s father.

8.5 Declarations of paternity are deemed conclusive proof of paternity for all purposes, and are the only means of establishing parenthood in cases of inheritance. Paternity orders, by contrast, are only prima facie evidence of paternity, and can be set aside where there is evidence that another man is the child’s genetic parent.[346] They are less frequent today because of the availability of the Domestic Purposes Benefit, but were common up until the 1980s when they were the chief means by which unmarried women could obtain financial support from their children’s fathers.

Establishing maternity in law

8.6 There are currently no processes for establishing maternity in law. This is largely because women in the past were invariably the genetic parents of children to whom they gave birth. Maternity was seldom an issue except in rare cases where infants were inadvertently swapped at birth.

8.7 With the development of assisted human reproductive technologies it is now possible for a child to be conceived with the egg of one woman and gestated by another. Because two women can claim to be the mother of a child, there may need to be a process for proving genetic and gestational motherhood. This raises the question of who should be recognised as the mother in law: the genetic mother, the gestational mother or both?

Questions

Q49 Should the law recognise both the genetic mother and the gestational mother as parents? If not, who should be recognised in law as the mother?

Q50 Should there be a process for the establishment and disestablishment of maternity in law?

Registering parents on the birth certificate

Getting registered

8.8 Births are registered in New Zealand pursuant to the Births, Deaths, and Marriages Registration Act 1995. The sole guardian or guardians are required to register the birth as soon as is reasonably practicable after the child is born.

8.9 Birth certificates have one box for the name of the child’s father and another for the name of the child’s mother. It follows that only one mother and one father can be shown on a child’s birth certificate. The mother’s name is always shown.

8.10 If a man is married to the child’s mother his name can simply be notified in the child’s birth particulars as the father because paternity is presumed.[347] In all other cases, including those in which the child’s father is a in a de facto relationship with the child’s mother, the consent of both parties is usually required for the father to be registered.[348]

8.11 A man may only be registered without the mother’s consent if she is “unavailable”[349] (for example, dead, missing or of unsound mind) or where the man can satisfy the Registrar-General that:

• he is the child’s father;[350] or

• he has been appointed or declared a guardian pursuant to section 6 or 6A of the Guardianship Act 1968;[351] or

• a declaration of paternity or a paternity order has been made showing him as the father.[352]

8.12 Similarly, a child’s mother may only notify a man as her child’s father without his consent if he is “unavailable”.[353]

8.13 The consequences of these requirements in cases of donor gamete conception or surrogacy are that:

• The birth mother’s husband or partner will be registered as the father if she conceives a child through the use of donor sperm, as her husband or partner is deemed to be the child’s legal father, provided he consented to the procedure.[354]

• A sperm donor may only be registered as the child’s father if he is a father in law (that is, the mother is single or has undergone the procedure without the consent of her husband or partner) and either:

– both he and the mother consent to his name being registered; or

– he provides proof to the Registrar-General that he is the child’s genetic parent.

• Where the child is conceived via egg donation, the birth mother will be registered as the legal parent even though she is not genetically related to the child.[355]

Correction of information

8.14 Under section 84(2) of the Births, Deaths, and Marriages Registration Act 1995, the Registrar-General has the discretion to add, remove or amend information entered on the birth register. There have been situations, both here and overseas, where a registered parent (most commonly a father) has asserted that he is not the genetic parent of the child. In such cases, the Registrar-General requires statutory declarations from the parent outlining the facts of the case and any corroborative evidence that is available, such as DNA evidence.

8.15 The Births, Deaths and Marriages Office has informed the Commission that, in some cases, a father’s details have been removed on the basis solely of DNA test evidence. However, where a father wants to be removed, but the mother has refused to cooperate, the Registrar-General will only remove his details once the mother has been given the opportunity to respond and the evidence sufficiently establishes that the information is incorrect.

8.16 Where a child is adopted a new birth certificate recording his or her parents as the adopted parents is issued. The certificate can be annotated with the fact the child is adopted if the adoptive parents so choose.[356]

part b: evidence

DNA parentage tests

8.17 Over the past 15 years DNA parentage testing has become the prime means of establishing genetic parenthood. It can now be carried out on a wide range of bodily samples, including blood, hair and mouth (buccal) swabs, and is being used increasingly by individuals to prove or disprove paternity.

8.18 Up until the mid-1980s, parentage testing was conducted by way of serological (or blood) tests. Blood samples of the mother, father and child were analysed to identify their blood groups and, from this data, it was possible to exclude a person conclusively as a parent or to assess the degree of probability that a person was a parent. Because the results attributing parentage were rarely conclusive, however, people were usually required to rely on other types of evidence and legal inference in establishing parenthood.

8.19 The advent of DNA parentage testing has meant that scientists are now able to not only conclusively exclude people as parents, but also calculate the probability of genetic parenthood with close to absolute certainty. As a consequence, the courts have appeared willing to place considerable weight on DNA test evidence in cases of disputed paternity. Although cases are still not decided solely on the basis of parentage testing,[357] the results can provide strong evidence where the rates of probability are high and the findings are consistent with other relevant evidence.[358]

How it works

8.20 DNA parentage testing works on the principle that a child inherits two sets of DNA markers, one from each parent. In cases where all parties are tested (the mother, child and putative father), scientists are able to analyse the mother and child’s samples to identify what genetic material must have been inherited from the genetic father. If a blood sample from a putative parent is analysed and found to contain markers that do not match with those of the child, he or she may be excluded conclusively as a parent. If the markers do match, scientists then calculate the paternity index value with reference to national population data for the markers. The paternity index is the ratio of two alternative probabilities for the evidence: the probability of paternity versus the probability of non-paternity.

Issues arising out of parentage testing

8.21 Although DNA parentage testing has the potential to answer many questions relating to unknown or disputed parentage, it also raises a number of ethical, social and legal issues. Whether by helping to found new social relationships on the basis of genetic linkage, or by potentially disrupting established family relationships, DNA parentage testing can have a lasting impact on parents, children and their wider families and needs to be carefully managed.

Who is conducting the tests?

8.22 At present, there are no clear New Zealand guidelines covering who may and may not conduct DNA tests for the purposes of establishing parenthood. Under section 54 of the Family Proceedings Act 1980, the Court has the power to recommend that blood tests be carried out in any proceeding where parentage is at issue, but the Act merely states that the person conducting the test must be “suitably qualified” without giving any indication of what qualifications are required.

8.23 Given that the Family Court is not bound by the usual laws of evidence, but may receive “any evidence that it thinks fit”,[359] parentage tests commissioned privately by individuals would be admissible in court provided their reliability was established.

8.24 However, parentage testing, like genetic testing generally, has real scope for fraud, error and improper practice. Reviews of parentage testing practices overseas have highlighted the dangers of testing if collection practices are not tightly regulated. It can be possible for parties to provide false samples, submit samples of third parties without their consent, or to submit samples from children without the consent of their parent or guardian.

8.25 In Australia and the United Kingdom, the increasing availability of direct-to-consumer tests via mail order and the Internet has also provoked calls for stricter regulation. Although many providers have their own internal protocols governing areas such as procedure and consent, practices vary. Some advertise so-called “motherless tests” that are capable of establishing the likelihood of paternity from a man and child’s sample alone (thus circumventing the need for a woman’s consent) while other bodies require the consent of all affected parties.

8.26 In New Zealand, the presence of one main provider means that the need for regulation may not be as pressing here as it has been overseas. DNA Diagnostics, based in Auckland, is the main provider of DNA parentage testing, for which it has accreditation through International Accreditation New Zealand (IANZ). Samples are collected from collection sites around the country, and the company requires identification and evidence of consent from all parties before samples are tested.[360]

8.27 Notwithstanding this, there may still be a need for regulation along the lines adopted in the United Kingdom and Australia in the future. The Law Commission is aware of at least one company that is directly marketing parentage tests to New Zealanders over the Internet. DNA Solutions,[361] based in Australia, offers two types of tests to consumers in New Zealand: court admissible tests that are conducted in accordance with Australian accreditation guidelines, and other less formal tests that are supplied through the use of home-testing kits. These tests involve people sending samples they have collected themselves to the laboratory in Australia. The laboratory has no means of confirming the identity of the sampler or that consent has been obtained. The laboratory also carries out tests on the basis of genetic material from the child and father only (“motherless testing”).

8.28 There are some options for regulating who is conducting tests within New Zealand. One would be to adopt a model, as in the United Kingdom, where the Department of Health has instituted a voluntary Code of Practice to apply to all organisations advertising and providing DNA parentage testing services direct to the public. The Code[362] governs such areas as the types and forms of consent that are required, quality assurance and requirements of confidentiality.

8.29 Another option would be to certify certain persons or bodies to conduct tests in New Zealand in accordance with accreditation guidelines. This was the option favoured by the Australian Law Reform Commission (ALRC), which released a report on the Protection of Human Genetic Information in March 2003.[363] The ALRC recommended that legislation be enacted to limit parentage testing to laboratories accredited by the National Association of Testing Authorities (NATA) in accordance with NATA guidelines. This would not affect the status of independent tests obtained by laboratories overseas, but would control, to some extent, testing that is carried out in New Zealand.

8.30 A third option would be for courts to recognise only those test results that have been conducted with prior-approval of the Court. This would regulate the method by which tests are obtained rather than the bodies conducting the tests. It may have the disadvantage of increasing cost and delay for the parties involved. It would be difficult to prevent people from sending self-collected samples to Australian laboratories, although it would be possible to declare that the results of such tests would not be admissible in evidence.

Questions

Q51 Is there a need to regulate the bodies or persons who conduct DNA parentage testing?

Q52 If so, should regulation be by way of accreditation, a voluntary Code of Practice or court supervision?

What should be tested?

8.31 Another issue relates to the type of tests that should be conducted. Under section 54 of the Family Proceedings Act 1980, the courts may only recommend that blood tests be carried out in proceedings where parentage is at issue. Although it has been ruled that DNA analysis of a blood sample qualifies as a “blood test”[364] the Act contains no provision for testing of other human tissues.

8.32 The development of new technologies has meant that it is now possible to conduct reliable DNA analysis on a wide range of samples including hair follicles, fingernails and buccal (mouth) swabs. Buccal samples are usually obtained by taking a swab from the area between the lips and the gums. The procedure typically takes about 10–20 seconds and is generally considered less invasive and cheaper than traditional blood sampling.[365] The Police’s powers to obtain DNA evidence during the investigation of criminal offences have recently been extended to cover the taking of these swabs.[366] This is discussed further in paragraphs 8.46–8.47.

8.33 In the United Kingdom and Australia, blood sampling has been criticised as being unnecessarily intrusive.[367] It conflicts with the individual’s right to be protected against assault, and can be inappropriate where a person has an aversion to blood or needles, or is unwilling to participate for religious or cultural reasons.[368] The use of buccal swabs, if available, could alleviate some of these issues.

Question

Q53 Should the Family Proceedings Act 1980 be amended to provide for other forms of DNA parentage testing?

The power to direct tests

8.34 At present, courts only have the power to recommend that tests be conducted. They cannot compel parties to submit to tests, although, where parties refuse to comply with a recommendation of the Court, the Court does have the power to draw such inferences as appear “proper in the circumstances”.[369]

8.35 It is a matter of judgment for the Court what inferences, if any, will be drawn from a person’s refusal to consent to a blood test.[370] While the inferences will almost always be adverse, they will depend on the evidence and on the parties’ credibility.

8.36 In Matthews v Smith Judge Inglis QC held that there are two bases for the common law rule that the law does not permit a sample of blood or tissue to be taken from an adult without his or her consent. These were that:

• the courts have no legal right to compel a person to incriminate himself or herself; and

• that the taking of a blood sample without consent amounts to an unlawful assault or battery.[371]

8.37 The law places significant value on the dignity and bodily integrity of the human person. This is reflected in sections 11 and 21 of the New Zealand Bill of Rights Act 1990, which affirm the right of every person to refuse to undergo medical treatment and be protected against unreasonable search and seizure. While DNA parentage testing may fall outside the definition of medical treatment and personal seizure, the values underpinning these rights may still be relevant in this context.

8.38 However, it may be asked whether these rights should be balanced against the rights and interests of other parties in a case. The child’s right to know his or her parents is an important (and some would say the paramount) consideration. The decision to refuse tests stands in direct conflict with the child’s right to know his or her identity as assured by Article 8 of the United Nations Convention on the Rights of the Child. It may compromise a child’s emotional or psychological well-being, or prevent genetic information from being obtained for medical or financial purposes.

8.39 The decision to refuse tests may also be inconsistent with the right to privacy affirmed in Article 17 of the International Covenant on Civil and Political Rights, to which New Zealand is a signatory. The European Court of Human Rights has held that the right to “respect for one’s private life”, embodied in Article 8 of the European Convention on Human Rights, includes the right to a determination of the legal relationship between an ex-nuptial child and his or her natural father.[372] The case of Gaskin v UK[373] is also authority that the right to respect for private life requires that everyone should be able to establish details of their identity, and that such information has important implications for the formation of personality.

8.40 From a public policy perspective there may be social benefits in harnessing genetic testing to establish parenthood. DNA parentage testing currently presents the most reliable means of proving or disproving parenthood. Although not conclusive, it has the potential to settle uncertainty where parentage is determined via inference or circumstantial evidence. Where it is sufficiently reliable, it has advantages over evidence offered by the parties about the nature and duration of their sexual relationship. Human memory is fallible and the embarrassment most people feel at disclosing intimate matters can add to the unreliability of the evidence.

8.41 Where it is used by the State to establish parentage for child support purposes, it can also have a public financial benefit of reducing the cost of income support.

Other jurisdictions

8.42 In the United Kingdom and Australia, the courts have the power to direct tests where:

• there is a reasonable and bona fide application for testing (United Kingdom);[374]

• where the Court is of the opinion that the information that could be obtained might assist in determining the parentage of the child (Australia).[375]

8.43 Like New Zealand, however, courts in these jurisdictions do not have the authority to enforce their directions. They may draw inferences from a refusal to comply with a direction, but do not have the power to compel people to submit to testing.

8.44 In Europe, States Parties to the European Convention on Human Rights have adopted different approaches to resolving this issue. While some create a presumption of paternity, others fine or imprison those who refuse to submit to testing without reasonable excuse, or deem non-compliance to be a contempt of court (which can attract criminal prosecution).[376]

The Court’s powers to order tests

8.45 The right to refuse testing is not absolute in other areas of the law. In the criminal jurisdiction for example, the Police have the power to request a blood sample in traffic cases where they have reasonable cause to suspect a person of driving with excess blood-alcohol. It is an offence to refuse to provide a blood sample.

8.46 Under the Criminal Investigations (Blood Samples Act) 1995[377] the Police also have the power to request blood (or bodily) samples to assist in the investigation of indictable offences. If consent to the taking of a sample is withheld, the Police may apply for a suspect compulsion order from the High Court. An order can be made where the Judge is satisfied:

(a) there is good cause to suspect that the respondent has committed the offence;

(b) material reasonably presumed to be from the person who committed the offence has been found;

(c) there are reasonable grounds to believe that analysis of the blood (or bodily) sample would tend to confirm or disprove the respondent’s involvement in the commission of the offence; and

(d) it is reasonable in all the circumstances to make an order.[378]

8.47 Under section 40 of the Act, the District, Youth and High Courts also have the power to order that a blood (or bodily) sample be taken from a person convicted of an offence for the purposes of the Police DNA profile databank.

8.48 In the criminal context, countervailing public policy interests such as public safety and justice have been the justification for overriding the need for consent and the preservation of personal autonomy. Where the commission of an offence is serious (as is the case with indictable offences) and there is reasonable cause to suspect a person’s involvement in the crime, public policy interests dictate that the rights to consent and to preserve personal autonomy must give way.

8.49 Are there similar countervailing public policy interests in disputed parentage cases? Recognition of the needs and rights of children to know their genetic identity, and the practical and financial benefits that can flow from determined parentage, may justify some limits being placed on the right to refuse testing. If testing is possible through less invasive forms, such as buccal swabs, should adults be compelled to have tests unless they can provide good reason for their refusal?

Questions

Q54 Should the courts have the power to order people to provide a sample obtained from a mouth swab for DNA testing for the purposes of establishing parentage?

Q55 Should the Court take into account the rights of the child when deciding whether to recommend or order a test?

Q56 Should these rights be an important or paramount consideration in the exercise of the Court’s discretion?

Q57 What sanctions, if any, should be placed on those who refuse to submit to tests that are recommended or ordered by the Court? Should it be a criminal offence to refuse to be tested if that has been ordered?

Consent for the child to be tested

8.50 Where parties cannot agree about testing, issues of consent are always controversial. The most difficult cases arise where the party who has guardianship rights and responsibilities for a child under 16 withholds consent to the child being tested.[379]

8.51 While these situations will usually involve a mother withholding consent, there can be situations where it is the father who refuses consent to a sample being taken from the child. Where two parents with shared guardianship rights and responsibilities cannot agree on testing, they can refer the matter to the Court[380] for a decision to be made in accordance with the best interests of the child.[381]

8.52 There may be many reasons why a person might withhold consent on behalf of a child. He or she may oppose testing on cultural or religious grounds, or be fearful of upsetting the existing family network. This can be particularly significant in cases where the mother has doubts about paternity but is in a relationship with a husband or partner who presumes he is the child’s father.

8.53 Parents may also withhold consent if they believe that the welfare of their child may be compromised if a third party establishes parentage and uses this as a basis for applying for guardianship, custody or access.

8.54 In the past, courts have taken a mixed approach to resolving these issues. In some instances, they have drawn inferences as to paternity where a mother has withheld consent,[382] or a putative father has refused to comply with a court recommendation for testing.[383]

Wardship for the purposes of consent

8.55 In a recent case,[384] the High Court circumvented the need for parental consent by making a child a ward of the Court, which enabled the Court to give consent on the child’s behalf to a buccal swab. While acknowledging that it must be cautious when overriding parental consent by the use of wardship powers, O’Regan J took the view that the mother’s refusal presented a barrier to the child being properly informed and forming a relationship with the man who might be her father. The mother had not refused consent for religious or cultural reasons and there did not appear to be any risk of harm to the child in establishing the identity of her father.

8.56 The decision was novel insofar as it removed the mother’s guardianship rights for the limited purposes of consent for the collection of genetic material. Under section 10(2) of the Guardianship Act 1968 the Court must not deprive a parent of his or her guardianship responsibilities unless it can be shown that for some “grave reason” the parent is unfit or has proved unwilling to exercise guardianship responsibilities.

8.57 The United Kingdom courts have been unwilling to use wardship in such situations on the basis that it is inconsistent with the purposes of the UK Family Law Reform Act 1969. In Re O and J (Paternity: Blood Tests) Wall J refused to follow an earlier decision that had placed a child under the care and control of the Official Solicitor to enable DNA parentage testing.[385] Although the Judge considered the law was in need of reform (and indeed might not be compliant with the UK Human Rights Act 1998) he held that wardship purely for the purposes of consent to testing was “a device designed to circumvent the plain provisions of [the Family Law Reform Act]”. This decision was consistent with the historical view of the courts that a refusal of consent by a person with care and control of a child is an absolute obstacle to a blood test being carried out.[386]

Question

Q58 Should the law enable the Court to give consent to DNA parentage testing on behalf of the child?

Children’s consent to testing

8.58 New Zealand law is uncertain as to when children can consent to providing a blood or bodily sample for parentage testing. Children and young persons aged 16 years and over can consent to any medical or dental procedure as if they were adults.[387] It is less clear whether volunteering a buccal swab can be characterised as a medical procedure. Older children would be able to provide a swab or hair follicle without medical assistance, which raises the issue of whether giving a mouth or hair sample for parentage testing is indeed a “medical procedure”. Furthermore, section 25 of the Guardianship Act 1968 does not prevent under-16 year olds from consenting to a medical or dental procedure, and it is generally accepted that when children have the maturity and understanding to weigh the implications of any procedure they can give valid consent.[388]

8.59 Article 12(1) of the UN Convention on the Rights of the Child states that:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

8.60 Implicit in the Article is the recognition that children develop differently and at different times. While some may acquire a level of understanding and maturity at an early age, others may be slower to mature. Where children are aware of the issues, and are able to form their own views, this must be taken into account.

8.61 Traditionally, it has been considered much easier to designate an age at which maturity is presumed. If a child is considered to have insufficient capacity at that age, an application may be made to the Court to have the decision-making powers of the guardians extended.

8.62 However, this approach can deny mature minors the enjoyment of their rights under Article 12 of the UN Convention. For this reason, the common law has adopted a more developmental approach with regard to children’s consent to medical treatment. Where a child is under the age of 16 but is of sufficient understanding and intellectual capacity to comprehend the nature and purposes of the treatment, he or she may give or withhold consent irrespective of the wishes of his or her parents.[389]

8.63 This approach is less rigid but can be difficult to apply in practice. To be practicable, a system needs to be in place to determine at what age each child is sufficiently mature. Such a system must contain protections that ensure children have:

• an appropriate and full understanding of the issues involved;

• the emotional maturity to make an informed and safe decision; and

• the voluntariness to make decisions free from the influence or emotional pressure of their parents or third parties.

8.64 One option would be to leave it to the Court to assess a child’s competence in cases of disputed consent. Where parties (including the child) cannot agree on testing, the parties could apply to the Court to determine the matter with the assistance of a psychologist, social worker or counsel for the child. If the Court found the child to be sufficiently mature and to have an appropriate understanding of the issues involved, it could take the child’s views into account when determining the matter.

8.65 Another option would be to adopt the model recommended by the Australian Law Reform Commission (ALRC) in their report on human genetic information.[390] The ALRC took the view that young persons aged 12–18 years should be able to give or withhold consent, provided they have sufficient competence and maturity to make their own decision. It recommended:

• that children be assessed by an independent professional (being a family and child counsellor, social worker or psychologist) for their capacity to give free and informed consent; but that

• children under the age of 12, and young persons aged 12–18 who are found not to have the requisite maturity or voluntariness, should be subject to parental consent on their behalf.[391]

8.66 In addition, the ALRC report recommended that parties should be able to apply to the Court to have the matter determined where persons sharing parental responsibility cannot agree, or where a child withholds consent to testing unreasonably.

Questions

Q59 Should children under the age of 16 be able to give or refuse consent to DNA parentage testing in cases where they are sufficiently mature and capable of making a free and informed decision?

Q60 Would the recommendations of the Australian Law Reform Commission be an appropriate model for determining the capacity of a child to give or withhold consent? If not, what other model would you favour?

Is testing always appropriate?

8.67 DNA parentage testing can be contentious when it is used either to disestablish parenthood, or establish parenthood in cases where the child already has an existing parental figure. Typical cases involve those where a father finds out he is not the genetic parent of a child he has presumed his own, or where third parties have sought parentage testing as proof that the child is theirs and not the social father’s.

8.68 Overseas, there has been significant discussion about the incidence of mis-attributed paternity and so-called “paternity fraud”.[392] In the United States, in particular, strong calls have been made to reform State parentage laws to enable men to disestablish paternity more easily where there is proof of non-paternity.[393] While there are no doubt a number of reasons (including personal) why a person might want to be removed as a parent in these situations, a strong theme relates to the need to absolve people from future child support payments and reimburse them for contributions made in the past.

8.69 However, children may be in danger of emotional upheaval if they find out suddenly via DNA testing that the person they have always treated as a parent is not in fact their genetic father. Disestablishing paternity in these circumstances may risk destabilising the child’s family unit and deprive the child of existing emotional, financial and other forms of support.

8.70 As has been argued by Oliver Curry, a social scientist at the London School of Economics, the availability of parentage testing may also have an impact on the rate of family breakdown or instability. He believes that the technology has the potential to alter men’s behaviour by prompting them to leave their partners or become less committed to their children where mis-attributed paternity is proven. Studies show that men invest more time and money in children where confidence in paternity is high, and are less likely to invest in other men’s children.[394]

8.71 While the availability of private testing outside the Court system may make it inevitable that tests will be carried out where they are contrary to the child’s interests, there may be some role for courts in limiting their impact. One option would be for courts to elect not to recommend or order tests in cases where harm could result to the child. This has been the approach in the United Kingdom where courts have, at times, refused to direct tests that have been held not to be in the child’s best interests.[395] Given what is now known of children and the need to know genetic identity, this approach would need to include this as a factor in any given case.

8.72 Another option would be to have less strict regulation of testing, but to adopt an approach to legal parentage that is not based solely on genetic linkage. Thus, tests proving a genetic relationship would not necessarily be determinative of legal parentage. The courts would have the discretion to assess whether the child’s existing caregiver should continue to be a legal parent, notwithstanding evidence that he is not the genetic father.

8.73 As one commentator has argued, the issue will be determined on the weight that is to be accorded to the child’s link with his or her genetic parent vis-a-vis other types of parental care relationships.[396] If “parenthood” is to be defined solely by genetic lineage, then a child’s right to have accurate information as to the identity of his or her genetic parents may be of paramount importance. However, if parenthood is defined more broadly to encompass other types of social and emotional ties, parentage testing may not be appropriate in cases where it is used to displace existing relationships.

Questions

Q61 Should the courts have the discretion to refuse to recommend (or order) DNA parentage tests where such testing may not be in the child’s best interests? As, for example, in cases where the child already has a stable family unit, or where an existing parental figure seeks to disestablish parenthood?

Q62 Should persons who have contributed financially and emotionally to the child’s care on the understanding that they are a parent, be able to seek removal of parental responsibilities later on the basis of a test proving that they have no genetic connection to the child?

Use of blood samples from newborn babies for parentage testing

8.74 Another important issue relates to the consent needed for disclosure of babies’ genetic information that is routinely collected shortly after birth and retained indefinitely. Since the mid-1960s, blood samples have been taken from newborn babies for screening for genetic diseases such as Phenylketonuria (PKU) and cystic fibrosis. The tests, known as “Guthrie tests”, involve the removal of spots of blood through a heel prick between three and 10 days after the birth. The samples are held in a national testing centre in Auckland.

8.75 The samples are stored indefinitely for the purposes of a programme audit, unless a parent or guardian asks for them or the parent’s consent is obtained for their disclosure. Disclosure may also be made pursuant to a police search warrant and the approval of the Clinical/Technical Head of the Screening Programme, the Advisory Committee and the Legal Advisor, Auckland Healthcare. The Auckland District Health Board’s Administration Manual states “without these approvals, the Clinical/Technical Head of the screening program should consult widely before determining a course of action”.

8.76 Although the tests are voluntary,[397] it is estimated that nearly all babies born in New Zealand (amounting to some 55 000 annually) are tested through this programme.[398]

8.77 The programme sparked debate in May 1999 when an application was made to the High Court to release a sample to a third party to enable parentage testing in a paternity case.[399] The Court directed that the sample be released for testing, contrary to the wishes of the child’s mother, to a man who claimed to be the genetic father. The decision was controversial because it authorised disclosure of the child’s health information to a third party as an exception to the Health Information Privacy Code. Usually, information may only be released where there is consent to disclosure or where disclosure is consistent with the purposes for which the information was collected – in this case, screening for medical disorders.

8.78 The case prompted the Privacy Commissioner to review the programme and release a report in September 2003. He recommended that the Ministry of Health appoint a body with “clear responsibility and authority” for the programme to develop rules for the retention and further use of, or third party access to, stored samples. He further recommended that these rules be incorporated in legislation to give them clear and binding effect, although the report did not outline what these rules would involve.

Questions

Q63 Should the blood samples taken from newborn babies for genetic defect screening be released to third parties for the purposes of DNA analysis to establish parenthood contrary to the wishes of the guardian?

Q64 Does the child have any rights in relation to the use of these blood samples for DNA parentage testing?