GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2003

Status

Accepted

Abstract

This article addresses the role of the genetic tie in the parent-child relationship through three lenses. First, we argue that the legal system recognizes children's rights not by treating children as autonomous actors, but by identifying the individuals and institutions most likely to promote children's interests and encouraging their success. Second, we examine the existing empirical and socio-biological literature that considers the importance of biological relationships, and concludes that it demonstrates not a single set of answers, but a set of tradeoffs. The well-being of young children, particularly in societies less prosperous than our own, may depend on the mother's ability to enlist a partner's material support. The long term involvement of the partner in the child's life may then depend not just on the strength of the bond with the mother, but on the certainty of paternity. Paternity inquiries, however, may contribute to the instability of the mother's existing relationships, undermining their short term benefits for the child's well-being. Third, we consider recognition of these tradeoffs in the law of paternity, and conclude that existing decisions present an incoherent and fractured body of family law. Finally, we propose mandatory paternity testing as an alternative. The proposal would encourage all of those seeking recognition of paternity at a child's birth to undergo testing; those who waive the tests would be permanently estopped from denying fatherhood. We conclude that in an era in which biological connections are increasingly easy to determine, parental relationships should be based on truth and certainty rather than convenience. And while we recognize that biology should not always determine legal parenthood, we also believe that partners should be fully aware of when they are - and are not - assuming the legal responsibilities of the role.

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