Paternity: Beyond Biology
George C. Maha, JD, Ph.D., MT(ASCP), d(ABMG)
Associate Vice President
Laboratory Director
DNA Identification Testing Division
LabCorp
MAHAG@LABCORP.COM
Beyond Biology
• Is knowing your biological relationship
important?
Beyond Biology
• Is knowing your biological relationship
important?
• Should biology always trump?
Beyond Biology
• Is knowing your biological relationship
important?
• Should biology always trump?
• What are the effects of other facts when
determining biological relationships?
Beyond Biology
• Is knowing your biological relationship
important?
• Should biology always trump?
• What are the effects of other facts when
determining biological relationships?
Is knowing your biological
relationship important?
• Medical
• Psychological
• Social
Is knowing your biological
relationship important?
• Medical
• Psychological
– Child
– Not just the child
– Unexpected exclusion
• Social
Beyond Biology - Should biology
always trump?
• Michael H. v. Gerald D., 491 U.S. 110, 109
S.Ct. 2333 (1989) .
Michael H. v. Gerald D., 491 U.S.
110, 109 S.Ct. 2333 (1989) .
• Appellant Victoria D. was born to Carole D., who
was married to, and resided with, appellee Gerald
D. in California. Although Gerald was listed as
father on the birth certificate and has always
claimed Victoria as his daughter, blood tests
showed that appellant Michael H., with whom
Carole had had an adulterous affair, was Victoria's
father. During Victoria's first three years, she and
her mother resided at times with Michael, who
held her out as his own, at times with another man,
and at times with Gerald.
Michael H. v. Gerald D., 491 U.S.
110, 109 S.Ct. 2333 (1989) .
• Michael filed a filiation action in California Superior Court
to establish his paternity and right to visitation. Victoria,
through her court-appointed guardian ad litem, filed a
cross-complaint asserting that she was entitled to maintain
filial relationships with both Michael and Gerald. The
court ultimately granted Gerald summary judgment on the
ground that there were no triable issues of fact as to
paternity under Cal. Evid. Code 621, which provides that a
child born to a married woman living with her husband,
who is neither impotent nor sterile, is presumed to be a
child of the marriage, and that this presumption may be
rebutted only by the husband or wife, and then only in
limited circumstances.
Michael H. v. Gerald D., 491 U.S.
110, 109 S.Ct. 2333 (1989) .
• Moreover, the court denied Michael's and Victoria's
motions for visitation pending appeal under Cal. Civ. Code
4601, which provides that a court may, in its discretion,
grant "reasonable visitation rights . . . to any . . . person
having an interest in the [child's] welfare." The California
Court of Appeal affirmed, rejecting Michael's procedural
and substantive due process challenges to 621 as well as
Victoria's due process and equal protection claims. The
court also rejected Victoria's assertion of a right to
continued visitation with Michael under 4601, on the
ground that California law denies visitation against the
wishes of the mother to a putative father who has been
prevented by 621 from establishing his paternity.
Michael H. v. Gerald D., 491 U.S.
110, 109 S.Ct. 2333 (1989) .
• Justice Scalia: The 621 presumption does not infringe upon
the due process rights of a man wishing to establish his
paternity of a child born to the wife of another man.
Michael H. v. Gerald D., 491 U.S.
110, 109 S.Ct. 2333 (1989) .
• Justice Scalia: The 621 presumption does not infringe upon
any constitutional right of a child to maintain a relationship
with her natural father. Victoria's assertion that she has a
due process right to maintain filial relationships with both
Michael and Gerald is, at best, the obverse of Michael's
claim and fails for the same reasons. Nor is there any merit
to her claim that her equal protection rights have been
violated because, unlike her mother and presumed father,
she had no opportunity to rebut the presumption of her
legitimacy, since the State's decision to treat her differently
from her parents pursues the legitimate end of preventing
the disruption of an otherwise peaceful union by the
rational means of not allowing anyone but the husband or
wife to contest legitimacy
Should biology always trump?.
• The evidence is undisputed that Michael, Victoria, and Carole
did live together as a family; that is, they shared the same
household, Victoria called Michael "Daddy," Michael
contributed to Victoria's support, and he is eager to continue his
relationship with her. Yet they are not, in the plurality's view, a
"unitary family," whereas Gerald, Carole, and Victoria do
compose such a family. The only difference between these two
sets of relationships, however, is the fact of marriage. The
plurality, indeed, expressly recognizes that marriage is the
critical fact in denying Michael a constitutionally protected
stake in his relationship with Victoria: no fewer than six times,
the plurality refers to Michael as the "adulterous natural father”
Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333 (1989)
(Brennan, J., dissenting).
Should biology always trump?.
• “In this day and age, however, proving paternity by asking
intimate and detailed questions about a couple's
relationship would be decidedly anachronistic. Who on
earth would choose this method of establishing fatherhood
when blood tests prove it with far more certainty and far
less fuss?” Michael H. v. Gerald D., 491 U.S. 110, 109
S.Ct. 2333 (1989) (Brennan, J., dissenting).
Paternity: Beyond Biology
What are the effects of other facts
when determining biological
relationships?
What are the effects of other facts when
determining biological relationships?
Massachusetts General Laws Chapter 209C § 17
the test results […]shall not be considered as evidence
of the occurrence of intercourse between the mother
and the putative father; and provided, however, that
such report shall not be admissible absent sufficient
evidence of intercourse between the mother and the
putative father during the period of probable
conception.
What are the effects of other facts when
determining biological relationships?
• Twins
• Fraud
• Birth Control
Twins
Can the testing determine:
• which one of two identical twins fathered a child?
• which one of two non-identical twins fathered a
child?
Twins
Identical twins will be identical (See: Illinois
Dept. of Public Aid, ex rel. Masinelli. v.
Whitworth, 273 Ill.App.3d 156, 209 Ill.Dec. 918,
652 N.E.2d 458 (1995))
Twins
The case involved a paternity suit against two identical twin men in
which the results demonstrated an equal probability that they each
fathered the child in question. That case also involved a statute
creating a presumption of parentage which could be rebutted by clear
and convincing evidence. The Illinois Appellate Court held that when
blood tests of two identical twins produces an equal probability of
fatherhood, there is a rebuttable presumption that one or the other is
the father. In such cases, the court said that the “so-called ‘hard’
scientific blood testing could result in competing presumptions of
paternity which cancel each other out, relegating the trier of fact to the
‘soft’ evidence.” There, the “soft evidence” was that one twin had had
sexual intercourse with the mother but the other had not. The
appellate court approved the trial court relying on nongenetic evidence
to conclude that one of the twins was the father. Illinois Dept. of
Public Aid, ex rel. Masinelli. v. Whitworth, 273 Ill.App.3d 156, 209
Ill.Dec. 918, 652 N.E.2d 458 (1995).
Twins
Twins were tested. The alleged father was excluded as
the biological father of one twin. For the other twin he
had a paternity index of 11,734,738 to 1 (Probability of
Paternity of 99.999+%). The trial court dismissed the
petition to establish paternity because, in part, of a fear
“that there might be disparity created between
developing twin siblings, one of whom had [an]
identifiable father and the other of whom did not.”
Reversed. Commissioner of Social Serv. v. Hector S., 628
N.Y.S.2d 270 (A.D. 1 Dept. 1995).
What are the effects of other facts when
determining biological relationships?
• Twins
• Fraud
• Birth Control
Fraud
• Forged test reports
• Imposters
– Alleged fathers
– Children
– Mothers
Forged test reports
Forged test reports
The alleged father is included in above paternity.
Therefore, test shows him to be the biological father of
the child.
Forged test reports
The alleged father is not excluded from paternity in the following
systems: D1S80, FES, VWF, and CYP19. Therefore, he is the biological
father of the child.
Forged test reports
Conclusion
The alleged father should be excluded, as the biological father
of the child. While there are some shared genetic markers in
only part of the independent loci tested, the chances of
probability of paternity from this caucasian male tested are
79.25%. After carefully reviewing, a “recalculation” was
performed, and since an error was found, the rightful total of
paternity is 79.25%.
Forged test reports
Fraud –
Alleged
Fathers
What are the effects of other facts when
determining biological relationships?
The alleged father presents the court
with his passport which shows he
exited the US before the conceptive
period and did not re-enter the US until
after the conceptive period. The
paternity test is 99.99%. How do you
explain this?
What are the effects of other facts when
determining biological relationships?
• Twins
• Fraud
• Birth Control
Birth Control - Forged test reports
I further certify that the annex report was made in the
regular course of business of this Laboratory. Due to
Laboratory Test Interactions there has been an error in
the conclusion of paternity. The chemical Depo-Provera
Sterile Medroxyprogesterone acetate suspension given to
(M) Jane Doe caused a chemical imbalance reaction in
the following: HLA and D1S80-7,2. Therefore I
concluded that there was an error in the blood test result.
This error has been rectified and therefore all other
findings are considered normal.
Birth Control
Alleged fathers with documented vasectomies
and negative sperm counts prior to the date of
conception make for an interesting day in court.
The scientific and social evidence is clear that it
is possible for someone to have a negative post
vasectomy sperm count and still father a child
(See Smith, et al., Fatherhood without apparent
spermatozoa after vasectomy. 344 Lancet 30
(1994)).
Birth Control
Birth Control
Some courts have suggested that the laboratory present the
results using several prior probabilities such 0, 0.1, 0.2.,
0.3, etc. (see Plemel v. Walter, 303 Or 262, 735 P.2d 1209
(1987) or County of El Dorado v. Misura, 38 Cal.Rptr.2d
908 (Cal.App. 3 Dist. 1995)).
If the average combined paternity index is 1,000,000 then:
Prior Probability
0
0.1
0.2
0.3
0.4
0.5
0.6
0.7
0.8
0.9
1
Probability of
Paternity
0
99.99%
99.99%
99.99%
99.99%
99.99%
99.99%
99.99%
99.99%
99.99%
100%
Combined Paternity Index = 664,437,070,000
Birth Control
Prior Probability
Probability of Paternity
0.9
99.99999
0.5
99.99999
0.1
99.99999
0.01
99.99999
0.001
99.99999
0.0001
99.99999
0.00001*
99.99998
0.000001
99.99985
0.0000001
99.99849
0.00000001
99.98495
0.000000001
99.84972
0.0000000001
98.51728
Birth Control
One court has held that a documented
vasectomy is clear and convincing evidence to
rebut the presumption of paternity, however, it is
not clear if the same court finds it dispositive of
the issue of paternity (P.C.S. v. J.E.B., 659 A.2d
1043 (Pa.Super. 1995).
Birth Control
One appellate court did find the vasectomy
dispositive, despite the trial courts finding of
paternity. In Cole v. Cole (328 S.E.2d 446 (NC App.
1985), aff'd, 335 S.E.2d 897 (NC 1985)) the husband
had a documented vasectomy. Several years after the
vasectomy he and his wife apparently conceived a
child. The trial court found the husband to be the
biological father based on the blood tests and the
social evidence. The appellate court reversed and
entered a finding of non-paternity.
Birth Control
However, a couple of years later, with a new wife,
the husband again fathered a child with an
apparent negative sperm count. Cole v. Cole, 90
N.C.App. 724, 370 S.E.2d 272, Review den'd, 323
N.C. 475, 373 S.E.2d 862 (1988).
Testing is Not a Yes Answer
Cauthen v. Yates, 716 So.2d 1256
(Ala. Civ. App. 1998)
Cauthen v. Yates
•
•
•
•
•
March 1995, Lab A – 2,500 (99.96%)
January 1996, Lab A – 100,000 (99.999%)
July 1996 Lab B - Excludes
October 1996 Lab B - Excludes
November 1996 Lab C - Excludes
Another Example
• Tested in 2008 with 13 loci (CODIS)
• CPI = 375,546 to 1 (99.999889%)
• Test in 2010 with CODIS loci plus 4 other
loci - excludes the presumptive father in
the 4 other loci.
• Exclusions confirmed with new testing.