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2014年7月19日 (土)

DNA父子訴訟 民法の枠組み重視した最高裁

The Yomiuri Shimbun
‘Presumption of paternity’ an old rule; should it still apply in a DNA-test era?
DNA父子訴訟 民法の枠組み重視した最高裁

Even in cases in which blood relationships are disproved through DNA testing, legal paternity cannot be revoked. A ruling the Supreme Court handed down Thursday drew this conclusion.

This is a judicial decision that gives great weight to the framework regarding the paternity of a child as stipulated by the Civil Code.

A married woman had an affair with another man, becoming pregnant and having a baby. As a result of DNA analysis, it was subsequently determined that the child’s biological father is the man with whom the woman had the extramarital liaison. Under the circumstances, the litigation in this case was initiated by the wife, who demanded that the parental relationship between the child and her husband be revoked.

The Civil Code states that a child conceived during marriage “shall be presumed to be the child of the husband,” a stipulation known as the rule of the presumption of paternity for the legitimacy of children. This exists for the purpose of legally clarifying the child support obligations of a father.

The Supreme Court stated in its decision on this case and two others, “Even though it is evident that there exists no blood relationship, the necessity of retaining the stability of the child’s status in the eyes of the law never ceases.”

The verdict underscores the top court’s stance in favor of strictly applying the rule of the presumption of paternity concerning the legitimacy of children.

As for judicial precedent, exceptions to the presumption of paternity have been restricted to cases in which it is obvious that a married couple had no sexual relations during the relevant period, under such circumstances as the husband being in prison at the time of his wife’s pregnancy or the husband staying overseas and living separately from the wife for a long period of time.

Upholding the Civil Code

The Supreme Court’s verdict in these cases should be interpreted as its judgment that the results of DNA tests cannot lead to denying the rule of the presumption of paternity, in light of the spirit of the Civil Code.

The lower courts in these cases had acknowledged the annulment of the paternal relationship. The judgment by the top court is diametrically opposite the lower courts’ rulings.
However, the Supreme Court decision was a narrow one, with two of the five judges in charge of the cases supporting the lower courts’ verdicts.

The children in the cases reside with their biological fathers, living their lives in a new environment.

There is some merit to the dissenting view that allowing a man who has no genetic relationship to a child to have the legal relationship of paternity could have an adverse psychological and emotional impact on the child during the process of his or her development.

Another minority view noted that it is necessary to “harmonize the rule of presumption of paternity on the one hand and desires to have blood relations reflected in family registers on the other.”

It is worth noting that the presumption of paternity was established in the Meiji era, long before the advent of today’s DNA testing technology. The related legal system has failed to keep up with the progress of testing technology, becoming inadequate for the realities of fatherhood issues. It may be that the time has come to discuss the advisability of the rule of the presumption of paternity under the Civil Code.

In recent years, DNA testing has become less expensive, so that ordinary people can have tests done fairly easily. But at the same time, anxiety has been rising over the accuracy of the testing due to a sharp rise in the number of businesses entering the field of DNA testing.

There is a strong body of opinion that relations of mutual trust between parents and children can be built even in the absence of biological relations if the parents are affectionate with the children.

Discussions about the wisdom of redesigning a family system in connection with such paternity issues should be encouraged with top priority being placed on ensuring the happiness of the children involved.

(From The Yomiuri Shimbun, July 18, 2014)


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