Interesting news from Down Under: the Australian government has opposed a suggested rule-change giving teenagers the right to withhold consent for paternity testing (on themselves). This is being spun in some quarters as “forced paternity tests against their will” – which is not an unreasonable construction – but more accurately is a retention of the status quo in which courts may order testing in cases of disputed paternity.

A report by the Australian Law Reform Commission and the National Health and Medical Research Council’s Australian Health Ethics Committee recommended nearly three years ago that the government bring in laws giving young people, deemed to have sufficient maturity, the choice of saying ‘no’ to a paternity test.

“It was an empowering provision in terms of giving a children a voice in these proceedings,” says Professor Margaret Otlowski of the University of Tasmania, an expert on legal aspects of genetics.

“It’s all very well for parents to consent but if we’ve got a mature minor, 12 and up, with views about what they want, their consent should be sought as well.”

But the government has rejected this recommendation saying it would be inconsistent with the Family Law Act.

Otlowski says while one would normally expect the court to take the child’s wishes into consideration, it may make a ruling against a child who doesn’t want a blood sample taken or the issue of paternity dealt with.

“A 15 year old child could be compelled to be tested because a court thought it was in their best interest,” says Otlowski.

The issue arises in the context of paternity tests performed by court order, usually pursuant to divorce or child-custody cases. Such testing is particularly advocated by Australian “men’s rights” groups, which claim that false paternity is a common issue in such cases. (The report linked above notes that “almost a quarter” of disputed paternities turned out to be wrongly attributed in one run of cases – though this does not extrapolate to the general population for which paternity is not usually in question). The fathers seek to disclaim paternity either to weaken the mother’s legal position or to reduce their child-support obligations. (For this reason, the men’s groups have also opposed proposals that consent be required from both parents for testing of younger children. The men want an absolute right to challenge their standing as legal fathers, over the objections of either the mother or the teenage child, in all cases.)

Whatever their motivations, the basic point of the men’s groups is not irrational: it is unfair to impose unwanted obligations of fatherhood on people who are not actually fathers. This is a very far cry from a conclusion that these men’s demands are therefore justified: the practical implications of policy-making on this subject are complex. But it should be acknowledged that there is a basic point there.

In terms of policy-making, this area is famously contentious. The standard Western common-law approach is that the man who is recognized as the father of a child at birth is the legal father thereafter. Thus it becomes especially difficult to renounce paternity once you have acted as a child’s father at any point – even if you can prove you are biologically unrelated. This flies in the face of the common-sense “fairness” objection noted above, but it makes its own kind of sense from a different perspective. Children benefit from family stability, and children must be provided for – thus it is more important that a child have a father than that the child have the particular person who was their biological father as a father – especially if the latter cannot be identified, or doing so would require a lengthy and contentious battle in which it is obvious that whoever gets stuck with the child views himself as the “loser”. For this reason, whoever the mother named as the father on a child’s birth certificate was commonly assigned the legal obligations of fatherhood unless he could prove unambiguously that he was not the father, and whoever acted as father in the child’s early life was commonly recognized as the legal father even when it actually was proved that he was not – for the sake of ensuring that somebody would be around to take care of the child, and that that relationship would be as stable as possible once it was established. This was a straightforward valuation of security and stability much higher than factual accuracy or even fairness to the non-father.

The proposal to give teen children a veto of paternity testing was much in keeping with this tradition: preventing unilateral abrogation of the parent/child relationship and withdrawal of support from the child, even when it can be proven biologically that the presumed “father” is not the actual father. There are other considerations as well – unconsented testing exposes the subject to information they may not be prepared to deal with or which is unwelcome, it may force teens to face changes in their relationship with their parents resulting from the parent’s or the teen’s knowledge of facts which had previously been hidden, and, from a general-principles perspective, it represents unconsented testing on a third party for someone else’s (the father’s) benefit. Any of these may be undesirable from the teen’s perspective, and it is the teen’s body and genetic information that is at the center of the issue. The proposal essentially gives teens the right to demand that any such testing must wait until they – the teen – are comfortable with it and willing to face the outcome that may result. It also means that the teens are given the right to demand that the father’s interests in knowing and acting on their own paternity status be held secondary to the teen’s interest in self-determination – which is not that surprising, given that we do make such demands in almost all other cases of third-party conflict (potential live organ donors may withhold or even revoke consent for donation whether or not anyone else needs those organs; patients have so far been allowed to refuse to be informed of their HIV status, and automatic testing of newborns’ HIV status was opposed in the names of the mothers; testing of doctors’ and prisoners’ HIV status, for the peace of mind of patients or police officers, was also opposed on privacy grounds; etc.).

So, the government’s rejection of that proposal in this case represents an encroachment on self-determination for teens, and an advance of the claim of “fathers’ rights” against the traditional understanding of the obligations of parenthood. Most significantly, it represents a claim that third parties’ privacy may be violated to satisfy the interests of others – a significant rollback of privacy and autonomy doctrine that is ameliorated somewhat by the fact that the subjects in this case are legal minors who are understood not to have full autonomy to begin with. At any rate, it is an important development.