Should Mandatory Parentage DNA Testing be Allowed in Scotland?
We recently had the pleasure of reading Nadine Martin’s article in the Journal of The Law Society of Scotland’s March 2019 edition, ‘Parentage or Privacy?’ In it, Martin reviewed the recent case of Misfud v Malta (2019), which was decided by the European Court of Human Rights (‘ECtHR’). The case establishes that, provided that there is a mechanism by which the supposed parent’s rights can be balanced against those of the child, the interference to private life – and therefore privacy – caused by the mandatory DNA testing can be justified.
This case was brought in Malta by a female applicant, then aged 55, asking the court to declare that X was her biological father, and to have her birth certificate amended accordingly.
The Maltese Civil Code allowed the woman to request the court that the person whom she believed to be her father undertake genetic testing, to which he opposed, inter alia, on the grounds that this would be contrary to Article 8 of the European Convention on Human Rights, namely the right to respect for private and family life.
The court ordered that such testing take place, which revealed that he was 99.9998 per cent certainly the father of the applicant, and he was therefore declared to be the father of the woman, whose birth certificate was thereafter amended so as to reflect this.
Martin states that “while it had previously been held by the ECtHR that the taking of cellular material and its retention can be a contravention of article 8, it will not be held to breach an individual’s rights if it can be justified as being ‘in accordance with the law’.”
Martin goes on to explain that the court emphasised that “…respect for private life requires that everyone should be able to establish details of their identity as individual human beings and that an individual’s entitlement to such information is of importance because of formative implications for his or her personality. This includes obtaining the information needed to uncover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents.”
Currently the position in Scotland is that if a supposed parent refuses to be subject to DNA testing, the court may draw an inference that the reason for such a refusal is that the test will reveal that the person in question is the father.
The distinction between the European decision and the current law in Scotland is the mandatory element of the genetic testing, as opposed to the more ‘voluntary’ nature of such testing in Scotland, albeit that the refusal to agree to such testing may often result in the same conclusions being reached by a court deciding on the matter. This case is another example of the difficulties encountered in privacy laws, when balancing the rights of individuals and those of the State.