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Bari Zell Weinberger, Esq. Headshot

Who's Your Daddy? Paternity Testing and the Nature of Fatherhood

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You may have been in the delivery room to snip your baby's umbilical cord and the first to hold your new little bundle of joy. But before you don that "Proud Daddy" t-shirt you bought for the occasion of your child's birth, a proposed regulation in New Jersey wants to make you take a mandatory DNA test before you can legally call yourself DAD.

The measure, New Jersey A2609, calls on obstetricians or midwives -- or whoever delivers the baby -- to be responsible for conducting cheek swab DNA tests at the expense of patients or their insurers. Men "claiming" to be the father would be tested, babies would be tested and even moms. However, the creator of the regulation does admit that testing would "mostly... be geared towards the father because with the mother, of course, there is no doubt. Included in the bill is language that would allow a man who erroneously thought he was the dad to seek reimbursement or sue the "real father" for support and other expenses he incurred raising the child.

As someone who practices family law, I do see a faint glimmer here of how this could be viewed as a practical idea. Concerns over paternity, especially as they relate to clarifying who is responsible for paying child support, are issues I deal with every day. The writer of the bill views mandatory DNA testing as an "opportunity" to make sure every child born in New Jersey has the correct father on record. But is this the best way to go about defining who is -- or isn't -- a father? How will this affect families and what about the many other implications of mandatory DNA testing?

First, let's talk about women. Yes, we know that sometimes women have multiple partners, even when they are married. However, assuming that you can't trust any New Jersey mom to be honest about (or worse, to know!) who fathered her child seems like a giant step backwards, not to mention insulting. In my experience, paternity issues affect a minority of families, not the majority.

But what if a woman did cheat on her spouse around the time she became pregnant... and he doesn't know it? Is it now the state's responsibility to let men know their wives have been unfaithful? What about surrogate mothers or women who use donor eggs to become pregnant? Who is the "real" mother in these cases? And taking this bill to a potential extreme, what about women who become pregnant as the result of a sexual assault? If she chooses to have and raise the child as her own, she should not be reminded of the assault at the time of the birth, when it should arguably be one of the most joyous moments of her life. Does the government really intend to require that the rapist's name be identified as Dad on the birth certificate?

As for fathers, it's a psychological fact that men do bond with their children, sometimes even before they are born. And that bond doesn't require shared DNA. Even when they have suspicions that Mom isn't being absolutely honest, many men won't insist on a paternity test for one simple reason: because they want to be Dads. Blissful ignorance guarantees the ability to raise a child they may have loved from the very first ultrasound picture. And contrary to what the bill's sponsor may believe, men raising children fathered by someone else often do not feel any differently about the child once they learn that child isn't their genetic offspring. "It doesn't matter to me," one such father told his eight-year-old, after learning (in the course of a bitter custody battle) that he was not his son's biological father. "It's love, not blood, that makes people parents."

What about men who donated their sperm for this child to be born, but not much else? The bill takes the position that if your DNA is part of this child's genetic composition, you are a father, and thus financially responsible for that child. Where does this leave sperm donors?

The ramifications of this bill don't even stop there. If it's encoded into law that fatherhood equals shared DNA, where does that leave non-biologically based fathers -- and more importantly, where does it leave their children? What does this bill mean for adoptive fathers and gay fathers? This legislation flies in the face of adoptive parents and same-sex couples when one of the "parents" is clearly not biological. What about fathers (and mothers) who don't want testing done for any number of reasons, including religion or inability to make payment for the mandatory lab test?

It's hard to see who wins with this bill, except for perhaps the lab testing companies.

As for the non-biological father, he gets the dubious pleasure of knowing he's been cheated twice over -- cheated financially out of money he paid to raise a child for whom he's not responsible, and cheated emotionally of his status as a loving father. As for the child, I can't imagine that it's anything but painful to learn that "Dad" isn't your father -- especially once you're old enough to realize that Mom may have been hiding his "real" identity. And Mom herself? She gets to have her character called into question because she either didn't know or didn't say who her baby-daddy was. Basically, this law would be a lose-lose-lose-lose proposition for everyone involved.

This law brings into question several interesting problems to consider. Is fatherhood really established at the moment of conception? Or is it a bigger and more complex role than DNA can determine? And are decisions about who gets to be part of a family -- and who doesn't -- really the province of our political and legal system to determine?

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