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J Med Ethics 33:475-480 doi:10.1136/jme.2005.013268
  • Law, ethics and medicine

Paternity fraud and compensation for misattributed paternity

  1. Heather Draper
  1. Correspondence to:
 Dr Heather Draper
 Centre for Biomedical Ethics, Department of Primary Care and General Practice, University of Birmingham, Edgbaston, Birmingham B15 2TT, UK;h.draper{at}bham.ac.uk
  • Received 21 June 2005
  • Accepted 30 August 2005

Abstract

Claims for reimbursement of child support, the reversal of property settlements and compensation can arise when misattributed paternity is discovered. The ethical justifications for such claims seem to be related to the financial cost of bringing up children, the absence of choice about taking on these expenses, the hard work involved in child rearing, the emotional attachments that are formed with children, the obligation of women to make truthful claims about paternity, and the deception involved in infidelity. In this paper it is argued that there should not be compensation for infidelity and that reimbursement is appropriate where the claimant has made child support payments but has not taken on the social role of father. Where the claimant’s behaviour suggests a social view of fatherhood, on the other hand, claims for compensation are less coherent. Where the genetic model of fatherhood dominates, the “other” man (the woman’s lover and progenitor of the children) might also have a claim for the loss of the benefits of fatherhood. It is concluded that claims for reimbursement and compensation in cases of misattributed paternity produce the same distorted and thin view of what it means to be a father that paternity testing assumes, and underscores a trend that is not in the interests of children.

Footnotes

  • i This paper will not discuss misattributed paternity in the context of assisted conception.

  • ii Since then the Child Support Agency has been forced to repay more than 3000 men who used paternity testing to show that they had been falsely named as a father (see Hencke6).

  • iii A woman could have good reasons to keep the paternity a secret. For instance, she may think that her partner will be a better father to the child than her lover, or she have other children and think that it is better for all if the family stays together – a state of affairs that may be threatened if her infidelity is revealed along with the paternity of the child.

  • iv In the case of divorce in the UK, for instance, spousal maintenance and the division of property is not supposed to be decided on the basis of fault, even though revenge, resentment and grievance obviously motivate some people during settlement negotiations.

  • v This does not mean that the absent parent has greater responsibilities than the non-absent one. Not being absent means that a parent discharges the responsibilities associated with being present: active involvement in the children’s lives, care, succour and so forth. The non-absent parent who has an income is also expected to contribute some of this income for the upkeep of the children. An anomaly, however, is that if both parents absent themselves, for example leaving the child to be cared for by the state, child support may not be legally required.

  • vi It might be a marker of responsibility if responsibility for children is considered to flow from agreement to potentially procreative forms of sexual activity. But as many writers, for instance and most recently Elizabeth Brake13 point out, post Judith Jarvis Thompson’s paper on abortion, it has been difficult to maintain that duties are owned to children solely on the basis of having engaged in the sexual activity that led to their creation. Rather it is necessary to endow genetic relatedness with some special moral value, usually related to causal responsibility, and to argue that genetic relatedness per se generates a responsibility that cannot be abrogated.14

  • vii But see for instance Benatar,16 Nelson,17 Bayne18 and Fuscaldo.19

  • viii I am currently working on a paper that explores whether the relationship can be completely unconditional, for instance, whether there are no circumstances under which parents can sever their relationship with their children. This paper draws on the novel We need to talk about Kevin by Lionel Shriver, about a mother’s relationship with her son who murders both his father and sister, amongst others.

  • ix The benefits that I am thinking of here include primarily the fundamental benefits of parenting (see Draper21) rather than the incidental ones.

  • x Compensation would be another matter. He clearly has not taken on any of the other (non-financial) burdens of parenting, although he may make a case that he has been emotionally damaged by being forced to pay against his will, being wrongly accused of paternity and, perhaps, by having to bear the disapproval of those who thought he was failing in his obligations to the child by refusing to be a more active parent.

  • xi I am thinking here of so called sperm-jacking (where women remove and use sperm from a used condom) or when a woman insists that she is taking a contraceptive pill but is not.

  • Competing interests: None.