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Paternal instinct

Who’s the real father? Men’s rights, women’s quandaries and the truth about misattributed biological paternity

Paternity fraud has become the rallying cry of the Fathers’ Rights Movement. Utilising the radical feminist insight of the 1960s that the personal is political, Fathers’ Rights activists have seized on the experience of a small group of men, who discover through genetic testing that they are biologically unrelated to the children they are parenting, as a paradigm through which we should understand the power balance between the sexes on critical issues of sexuality, reproduction, marriage and divorce. Denied, deceived, humiliated, cheated and used: paternity ‘defrauded’ dads are poster-children for how the Fathers’ Rights Movement sees men in the post-patriarchal world. They are the cause célèbre for men who feel disempowered by current social and legal norms and practice concerning marriage, divorce, sex and reproduction, and want to reassert control.

At the heart of the paternity fraud story are radical–though poorly understood–changes to law and practice governing child support and access arrangements after divorce. The 1970s saw a steep rise in divorce rates and numbers of single women opting to keep their children rather than adopt them out. By 1988 the growth in households headed by single mothers had left large numbers of children living in poverty and the government with a spiralling welfare bill.

Enter the Child Support (Assessment) Act and the Child Support Agency, whose role it was to use freshly minted DNA testing technology to match every child to its biological father’s wallet, thereby ending what one family law specialist called the ‘happy-go-lucky days’ when Australian men could boast that they didn’t even know how many children they had. With power to deduct payments from men’s wages and via the tax system, the Child Support Agency also ended the optional nature of child-support payments by divorced dads. At the heart of the Act was a radical reconfiguration of how Australian society defined fatherhood. With the stroke of a pen–and with only the best interests of ‘taxpayers’ in mind–lawmakers had transformed the age-old definition of father as the mother’s husband to the man whose sperm was implicated in conception. The only exceptions are state and federal laws that exempt sperm donors from the legal rights and responsibilities of parenthood, and allocate it instead to the husband of the woman undertaking IVF.

Cases of misattributed biological paternity–where a man is shown to be biologically unrelated to the child he parents–are an artefact of DNA testing and the new legal arrangements that drive and justify it. The new world order in which dads have been reduced to sperm donors provides motives for both mothers and fathers to test–motives that would not exist if social rather than biological definitions of fatherhood ruled.

Mothers sometimes test in the hope that a‘negative’ result will prevent their ex-partners having further contact with the child. They may even, according to researcher Dr Lyn Turney, of Swinburne University of Technology, enlist the assistance of the biological father in the process, ‘despite him having had no previous contact or relationship with the child’. Interestingly, it was this possibility that first worried men when DNA paternity testing came on the scene, with one male legal theorist proposing legal strategies and recommending legislative reform ‘to protect the marital father’s developed relationship with his child against interference or termination through … non-paternity actions’.

Fathers also initiate DNA testing, though not always, it seems, because they are really in doubt that they are biologically related to their child. According to Turney, estranged male spouses will sometimes demand paternity tests both to insult their estranged wives and, on the advice of their lawyers, to delay payment of child support. As one woman told Turney, her ex used the test to avoid having:

… to pay anything for the time being. There was never any fear in his head that the child wasn’t his. It was just that he’d been told somewhere along the line that if he put it off that way, he could stall things for a while.

While Fathers’ Rights activists insist on assigning mendacious motives to single women who ‘out’ the child’s biological father to the Child Support Agency–leaving him with the obligation to either disprove biological paternity or pay up–such women have no choice. The federal government is determined to recoup as much of the money it invests in single-parent payments as possible, and if a mother fails to identify her inseminator, she’ll lose her benefit.

Men may also initiate testing to escape previously accepted child-support obligations. Men who feel abused by the Child Support Agency’s determined pursuit of payment (it can access bank accounts and use the tax system to extract payments) and the refusal of the Family Court to tie support payments to access orders, see the discovery of biological non-paternity–and thus the removal of fiscal obligation for their children–as a way of reasserting control over their finances. Says one man Turney interviewed:

Men recognise family law settlement and ongoing child support as a sentence into financial hell, and while wanting to support their children, equally do not wish to support someone else’s. DNA testing provides a means of distinguishing between real biological links and often-concealed third-party liaisons that have produced children outside the established relationship.

Misattributed paternity may also be discovered by accident, via a genetic test taken for other reasons. For instance, the diagnosis of a genetic disease in a child may lead to carrier status tests on the parents and the consequent discovery of a lack of biological relationship between the child and the male parent.

How are we to understand, in political and moral terms, the motivation various stakeholders have to test? And what are we to make of the results?

First the facts. While academics and Fathers’ Rights activists repeatedly cite figures of between one in ten and one in four children affected, such claims lack a reliable evidential basis. According to Professor Michael Gilding, of Swinburne, the data on which such generous estimates are based is tragically flawed–marred by biased sample selection and illegitimate analytical methods. Indeed, in some instances, according to Gilding, the numbers have simply been plucked from the air by private testing companies well aware that male anxiety about female fidelity is good for business. The real Australian figure, says Gilding, is likely to be about one per cent. A 2003 large-scale survey of 19,307 Australians lends credibility to Gilding’s estimate. It found that 95 per cent of men–and 97 per cent of women–expected they would remain faithful to their regular partner and that nearly all kept their word, with only 2.1 per cent of partnered men and 0.6 per cent of women having sex with others outside their committed relationship.

The implications of such low estimates of misattributed paternity are vast. The basis of proponents of Fathers’ Rights calls for changes to social attitudes and policy surrounding marriage and divorce are high rates of ‘paternity fraud’, and what such figures suggest about the fate of female sexual and reproductive ethics when women’s behaviour is not properly controlled. But if only one per cent of women are ‘guilty’ of paternity fraud, the case for change is seriously undermined.

However, the small incidence of paternity fraud should not lead us to completely dismiss the claims of the Fathers’ Rights Movement. First, while cloaked in anger, the ‘paternity fraud’ discourse can also be read as an expression of pervasive male anxiety about their role in women’s lives and in the business of forming and raising families–an expression to which compassion and validation would be the appropriate response.

Men must also be urged to reverse their passive incorporation of the legal re-inscription of fatherhood as a biological relationship into their social understanding of it–an understanding embedded in the ‘crime’ of paternity fraud. Do men, women or children really understand a father to be a sperm donor and believe that the man who parents and loves a child is not entitled to both social and legal recognition as the child’s ‘real’ father?

I think not. Women’s behaviour in cases of misattributed paternity clearly suggests that the man they hope is the biological, and want to be the social, father of their child is their partner, not their ex, one-night stand or even lover. That women see their child’s father as the male parent, not the child’s sperm donor, was shown clearly in the Abbott adoption story. Despite Kathleen Donnelly’s knowing there was a possibility that it wasn’t the Health Minister’s sperm that was implicated in Daniel’s conception, she seems to have firmly convinced herself that it was (so firmly, that she exposed herself, Daniel, Abbott and Daniel’s biological father to considerable public scrutiny and ridicule). Why? Because Abbott was her regular partner and the love of her life, and this is what she wanted to be the case.

What men incensed about paternity fraud seem to focus on is the woman’s failure to have sex exclusively with their partner and thus ensure he is their child’s only possible genetic father. But this overlooks the significant fact that women do choose their partners to be their companions through life and to be the men who parent their children. My research suggests that, for women at least, this latter choice is by far the weightiest one, with numerous women I’ve interviewed over the years preferring to terminate a wanted pregnancy rather than continue one to a man who wants to parent, but with whom they cannot bear the thought of an ongoing relationship.

For children, it is a loving and consistent relationship with a loving male parent that is primarily of interest, and in their best interest.

For children, it is a loving and consistent relationship with a male parent that is primarily of interest, and in their best interest. Indeed, in the early years, children will have no comprehension of and little interest in which man’s sperm contributed to their creation. Of course, they may ultimately need or want to know the truth about their biological heritage, but this is not an argument for privileging genetic over social fatherhood, but rather truth above lies. Thus, in the same way that children born from donor sperm, and who are adopted, are entitled to the truth about their conception (which, it should be added, many never get), this information must have neither social nor legal implications for their male parent’s status as the ‘real’ dad.

Finally, evidence suggests that even men don’t entirely, perhaps even largely, conceive of fatherhood as a kinship rather than a social relationship. Among the Australian men interviewed by Turney who have used their discovery of biological non-paternity to disavow their fiscal responsibility for their children, few thought this shedding of legal paternal obligations meant the children they loved weren’t really theirs. Said one man:

… fathers are caught between a rock and a hard place, because in most cases they love the children and have bonded with them and vice versa … and they don’t want that to end.

Agreed another:

The [test] results ruined my life when my ex-wife then ordered the child never to call me ‘Dad’ again. And worse still, she is never allowed to see me again … I still think of her as my daughter.

Indeed, the early focus of legal experts on the capacity of mothers to use DNA testing to lock devoted fathers out of ongoing legal and emotional relationships with their children suggests that at one point at least there was recognition among some men that the loss of emotional–not kinship–ties with their children is the real harm. Legal theorist Dr Wolfgang Hirczy has argued that the law should recognise the man who assumes ‘responsibility for the pregnancy and the child’ as the real father, a sentiment with which the fathers of donor-conceived, adopted and stepchildren are likely to concur. Certainly, this would be the position of those who speak in the name of the Men’s Rights Movement, which has long argued that active fathers–parents, not sperm donors–are essential to the well-being and achievement of children, especially boys.

So where does all this leave us? There is little doubt that the biologisation of fatherhood by child-support laws has profoundly impinged on the way some men understand the nature and value of fatherhood. Governments have a key role in sustaining workable relationships between parents, and thriving ones between parent and child after divorce. There seems evidence that the redefinition of fatherhood as a biological rather than a social relationship does not contribute to this end–putting a handful of father-child relationships at risk in the face of unexpected results from genetic testing, and more broadly undermining men’s understanding of themselves as valuable to their children as parents, not just providers, at a time of significant emotional upheaval.

The solution seems clear: support laws need to be rewritten to allocate parental rights and responsibilities to men on the basis of their paternal commitment and behaviour, not pedigree. Sure, taxpayers may be up for slightly higher costs, because, while every child has a biological father, they don’t all have social ones. But the protection of the father-child relationship that such a change could offer is clearly worth it.

Dr Leslie Cannold is an ethicist, writer and commentator working at the University of Melbourne. Her most recent book is What, no baby: why women have lost the freedom to mother and how they can get it back, Fremantle Arts Centre Press, 2005.

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