Who's your Daddy?

By John T. Smith, Editor in Chief

In Australia, the High Court has ruled on a precedent-setting case known as Magill.

Mrs Magill, it seems, had produced two out of three children during her marriage to Mr Magill with the help of someone other than he, and she kept this inconvenient fact from him for a good number of years. As might be expected in these circumstances, a divorce eventually ensued and Mr Magill wound up paying child support. But because Mrs M had lied about the true paternity of the ringers she'd slipped in on him, Mr M wound up paying for all three of the children...and did so for eight years.

When the truth eventually came out, he was able to reclaim the overpayments to his child support administratively (Australian law has provisions for that sort of thing), but the emotional devastation that learning two of his three children weren't really his caused him to fall into a serious depression with all that entails. Mr Magill's attorneys persuaded the County Court of Victoria that he was due the additional sum of $70,000 for personal injury, financial loss, and exemplary damages.

The case was reversed on appeal to the Supreme Court of Victoria on the grounds that Mr Magill had failed to establish the essential elements of the tort of deceit--the wrong on which he based his claim. Mr Magill then appealed to the High Court...which turned him down in a very long and highly technical decision. The gist of it can be summed up by saying that the High Court didn't think the tort of deceit--normally relied upon in civil and contract law--applied to a fraud committed within the confines of a marriage. And, it was noted, Parliament hadn't expressed itself on the subject in a manner which the Court found applicable to this sort of case.

That's the background to recent stories out of Australia about initiatives in Parliament to redress the situation. (At the time of writing this editorial, two such stories are available on our News Page, please see the links to the left).

What's interesting is not (except to attorneys) how tortuously intricate were the legal arguments used by the High Court to deny Mr Magill's claim (in a certain way, the Court tried hard to do what many conservative groups urge them to do, which is to refrain from creating new law from the bench), but rather how DNA testing has, in a very practical sense, given us the potential to change the rules of the game to everyone's benefit.

But what is a true abberration is that anyone would dare to use the 'best interests' principle to condone lying about a child's paternity (see MPs Lobby...). In that report from ABC radio, we learn that Leone Skene, a Professor of Law at the University of Melbourne, was a leading consultant on the 2003 law reform commission report which proposed to restrict access to DNA paternity tests. Not satisfied just with restricting access to DNA testing, the commission called for a new criminal offence to prohibit DNA paternity tests without the consent of both parents or, failing that, a court order.

Professor Skene's argument was reported thusly: "If [paternity is] not disclosed and the man forms an attachment to the child and brings the child up, even if he falsely believes that he's the father, that might be in the best interests of the family."

Using that reasoning, it becomes possible to justify lying about virtually anything to anyone...including a Court. That such a concept could even exist is abhorrent to the most basic premises of law, and is certainly, as the well-worn phrase would have it, 'detrimental to the good administration of justice.'

On the other hand--and there always is one, of course--it's true that the bond between a parent and a child is more than simply a matter of genetics, and that the real human tragedy in these cases grows by virtue of a wandering mother's deception continuing over a period of years during which the paternal bond is nourished by a love born of belief if not of truth. However, the solution to that is not, as Professor Skene suggests, to continue the deception even longer--because 'the truth will out' eventually, as history shows--but rather to nip the deception in the bud so that it cannot flower at all.

That has become not only technically feasible, but simple and routine, thanks to modern methods of comparing DNA samples. A simple DNA test performed at birth on all children would establish the true relationship of the putative father to the child, and would enable him to make an informed choice as to whether or not he wished to develop an emotional parental relationship with that child. Considering the responsibilities placed by the law upon a man in respect of a child supposed to be his biological offspring, it seems to us that this assurance of truth is the very least the law should offer him as quid pro quo. Even more to the point, offering that assurance of truth before the potential damage complained of by Professor Skene had been done would neatly eliminate the possibility of the damage being done at all.

This procedure would also have the secondary (and arguably beneficial) effect of discouraging married or exclusively-partnered women from engaging in amourous adventures without taking appropriate precautions. Contraception would be the measure most appropriate in almost all cases, but in a world which is increasingly liberal in its view of extramarital sexual adventure, 'appropriate precautions' might simply be the woman having made a previous arrangement about such adventures with her husband. He would then be party to the result, if there were one, and, under the broad view, committed to living up to the responsibilities he accepted implicitly by agreeing to his wife's request for an outside romp.

Still, in most people's view, there is no occasion for a wife to 'slip one in' on her husband on the Q.T. just for the sake of 15 minutes of sweaty pleasure. (Neither is there any occasion for a husband to sow his seed gratuitously across the countryside...and the beauty of DNA testing is that what's good for the goose is also good for the gander. Men will no longer be able to spray sperm around without being accountable for it, something women have been rightly complaining of since time immemorial.)

The important thing, it seems to us, is not to debate the ethics of extramarital sex--let's leave that to the individuals concerned to work out amongst themselves--but to support legislation which renders the fraud of which Mr Magill complained impossible to commit. For if there is deceit within a marriage at this very basic, almost elemental level, that augers poorly for the marriage itself and threatens the children's well-being, no matter who their biological parents are.

So although we cannot but feel Mr Magill has personally been badly done by, we're loathe to lay all the blame on the High Court, and we're pleased to note the rapid response of the backbenchers in the Government to fill the legislative void illuminated in deciding his case. It remains to be seen if appropriate legislation will finally be enacted, of course, but it's not beyond the realm of possibility. We hope the legislators, in their wisdom, will see fit to implement routine DNA testing of all children at birth, as this appears to be a solution which addresses not just the immediate problem, but several others as well.

--John T. Smith