THE COURT’S POWER TO COMPEL DNA TESTING IN PATERNITY DISPUTES – LB v YD 2009 5 SA 463 (T)

A fundamental scientific breakthrough was made in 1900 by Landsteiner, who demonstrated that the red blood cells of some individuals contained different chemical substances from the blood cells of others; and that all blood could be classified into a small number of groups. In accordance with recognized principles of genetics these characteristics are transmitted from one generation to another, and thus “[A] comparison of the characteristics of a child’s blood with that of his mother and a particular man may show that the man cannot be the father … [and] if it is known that at the material times the mother had had intercourse only with H (her husband) and X and the blood test excludes H but not X, then X must be the father”. Whilst English courts began to accept such evidence in paternity cases, Heaton points out that until a few decades ago the unreliability of blood tests meant that they were seldom employed in such cases in South Africa. A further complication in the use of these tests as a means of determining parentage, however, related to the fact that in order for an acceptable result to ensue it was necessary to have samples not only from a child but also from the adults involved. What if an adult refused to be tested, or a parent refused to allow the child to undergo a test? The South African courts initially held that they could not compel any person to undergo blood tests, although they were prepared to accept evidence obtained through voluntary testing. The potential consequences of the courts refusing to compel testing are that a non-biological “father” will be compelled to maintain the child. More recently the South African courts have seen fit to order blood tests in paternity disputes, although whether such orders should be made remains controversial. The latest case dealing with this issue is that of LB v YD (2009 5 SA 463 (T)). (Leave to appeal the decision in this matter was dismissed in YD v LB (A) 2009 5 SA 479 (GNP)).

Population genetics of 30 insertion/deletion polymorphisms in the Kuwaiti population

This study evaluates the forensic utility of the 30 insertion and deletion (indel) markers contained in the Qiagen Investigator® DIPplex kit in the Kuwaiti population (n = 150). All but one of the 30 markers were shown to conform to the expectations of the Hardy-Weinberg Equilibrium. Linkage disequilibrium tests showed no statistically significant deviation from independence. The high combined power of discrimination (CPD > 99.999%) and low combined match probability (CMP) of 2.736 × 10−13 provide a satisfactory level of discrimination, allowing the DIPplex loci to be used as forensic markers for individual identification in Kuwait. The paternity indices indicate the usefulness of the DIPplex kit as a supplementary typing system for challenging paternity cases in Kuwait.

Shadows of doubt: the uneasy incorporation of identification science into legal determination of paternity in Brazil

The arrival of DNA paternity testing in the 1980s was met with great enthusiasm in the Brazilian courts. Yet, over the past two decades, Brazilian legal doctrine and jurisprudence have increasingly rejected DNA proof as the sine qua non for paternity cases. Instead, DNA paternity testing has generated mountains of litigation, as biological proof has been challenged by the argument that paternity is primarily “socio-affective”. Leading family law specialists describe this new conception of paternity as an outcome of the “revolutionary” provisions of the 1988 Constitution, which recognizes the “pluralism” of family forms in modern society and guarantees equal family rights for all children. Without denying the significance of the constitution’s dignitary framework, we show that new legal understandings of paternity represent less a paradigm shift than a continuation of longstanding historical tensions between biological and socio-cultural understandings of family and identity. In this article, we explore the development of biological and eventually genetic typing in Brazil, both of which had ties to the fields of criminology and race science. Our review suggests that techniques of biological identification, no matter how sophisticated or precise, were ineffective means for establishing identity, whether of individual personhood, as in the case of paternity, or national make-up. Instead, they became incorporated as supplemental methods into complex legal, social, and cultural decision-making around families.