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Volume11
MonthMay
Year2010
TitlePartitioning Paternity: The German Approach to a Disjuncture Between Genetic and Legal Paternity With Implications for American Courts
Author(s)Shelly Ann Kamei
First Page509
AbstractThis paper will address the strengths and weaknesses of the German approach as well as the potential use of this approach by American states, with particular emphasis given to the conflict between the right to know one’s origins and a child’s right to care and support. Part II discusses the challenge of defining legal paternity in an age of genetic certainty. It will first give a brief explanation of how courts have used functional–social and genetic considerations in defining legal paternity. It will then evaluate the legal implications of this approach on the rights of the father, mother, and child. Part III evaluates the special issues raised in the German system, where the constitutional mandates to protect the family structure and the right of a child to support conflict with constitutionally protected individual personality rights. It also discusses the conflict between the rights of the father, mother, and child inherent in the German system. Part IV discusses the case of Herrn S., wherein the German Federal Constitutional Court ordered the legislature to create a process to protect legal paternity but allow for the determination of genetic paternity. This is followed by an overview of the legislative response that effectively bifurcated paternity proceedings in the German courts. Part V evaluates the alternative avenues that the German legislature could have taken, focusing on the feasibility of such solutions in the German context. This includes a discussion of the discrepancies between a father’s right to test and a mother’s right to test, the potential to vest power to test in a neutral third party, and, the potential for mandatory testing at birth.
Part VI analyzes the gaps in the new German law and potential solutions to the resulting problems. These problems include lack of uniformity in testing standards and lack of effective punishment for men who continue to conduct secret DNA tests. In addition, I discuss the continuing tension between the rights of the parties as well as the high evidentiary burden placed on fathers who wish to challenge paternity.
Part VII discusses the exportability of the German approach to the American context and compares the German approach to the alternative concept of dual legal paternity. Part VIII concludes with a comparative discussion of how the German approach and the dual legal paternity approach could be utilized in American jurisdictions.