Who’s your daddy? Don’t ask a DNA test

Man Ordered to Pay $65K in Child Support for Kid Who Isn’t His.” “Father Hopes to Change State Paternity Law” after losing custody of his biological daughter to another man. The headlines are lurid and seemingly nonsensical. How can a man bear financial responsibility for a child that is not “his”? How can he be denied legal paternity of a child whom he conceived?

The gist of these stories is that such outcomes are not only ludicrous but unjust. Such tales not only appear in the mainstream media but provide fodder for men’s rights websites and have even inspired bills to make DNA testing mandatory at birth, though none has actually become law.

But history suggests such cases are not so strange. In fact, they follow from a long tradition in which paternity was a social and legal relationship, not a biological one.

After all, it was only in the 1980s that DNA testing emerged, with its promise to reveal the identity of the biological father. For most of human history, no such technology existed – nor was it missed. Paternity was based on presumption, deduced from social behaviors and legal conventions.

Is a baby’s father set by social, legal, biogenetic factors… or a combination of all? Minnie Zhou/Unsplash, CC BY

Father, by tradition

Historically, the father was defined by marriage. Pater est quem nuptiae, in the Roman formulation: The father is he whom marriage indicates, even in circumstances when, well, he could not be. The tradition carried forward over the centuries. According to 17th-century English common law, for example, if a husband was located anywhere within the “Four Seas” of the King of England at the time of his wife’s conception, he was legally presumed the father of her child.

As for children born out of wedlock, courts, especially those operating in the civil law tradition, deduced paternity from a man’s actions or public reputation. The father was he who cohabited with the mother or kissed the baby in public, the man whom a neighbor saw paying the wet nurse. Paternity was performative.

Such definitions of fatherhood did not mean it was less certain or less true: It was simply that the truth of paternity was social, not physical.

This situation contrasted with the logic of maternity. Mater certissima est – the mother is always certain, in the Roman formulation. Maternal identity could presumably be known by the physical facts of pregnancy and birth.

A more muddled modern landscape

Today, according to some observers, reproductive technologies like surrogacy and egg donation have disrupted the certainty of the Roman dictum on maternity. After all, maternal identity is not so obvious when the gestational mother who births the child and the genetic one whose egg creates it can be two different people.

By contrast, DNA was supposed to make biological paternity certain. And yet the older reasoning that long defined paternity as a social relationship endures.

Today, family law in the U.S. and elsewhere continues to recognize nonbiological lines of reasoning. A man’s behavior, intent, the nature of his relationship with the mother, stability in a preexisting parent-child relationship – all these criteria, rather than biology, may define the father. If anything, reproductive technologies like sperm donation and new family forms, like those born of the frequency of divorce, have only multiplied the scenarios in which biology may take a backseat to social criteria.

But in some contexts, the biological continues to prevail. This is often the case in immigration and citizenship law. Kin relations play a central role in immigration proceedings in the U.S. and other countries because citizens can sponsor close relatives to immigrate, and under certain circumstances refugees have a right to join family members in their adoptive country.