Legal tussle over parental ties

The Supreme Court is scheduled to hand down a ruling next month on two cases that raise the difficult question of how to legally treat father-child relationships when DNA tests have denied the possibility of blood ties with an accuracy of 99.99 percent.

The July 17 ruling could have far-reaching social impact, since recent advances in medical and biological technologies have rendered some legal provisions obsolete. The top court should issue a ruling that is reasonable enough to convince both parties to the lawsuits and the general public.

The two cases involve a married but separated couple in the Kinki region and a divorced couple in Hokkaido.

In each case, the wife gave birth to a child fathered by someone other than her husband, and the wife asked the court to confirm that a legal father-child relationship did not exist between the husband and the child. Attaching importance to the DNA test results, both the Osaka and Sapporo high courts have ruled that a legal father-child relationship does not exist between the husband and the child.

The Civil Code provides that a child born to a married woman shall be regarded as the child of her husband. The provision is a legacy of the Meiji Era — long before the technology was developed for verifying human genetic ties.

There is legal precedent in which circumstances have denied the existence of a legal father-child relationship. For example, showing that a married couple kept separate domiciles a certain distance apart over time might prove to the court’s satisfaction that conception of a child was unlikely. The two cases before the top court do not fall into this category.

The Osaka Family Court, which handled the Kinki case, said in its ruling that the DNA test results are “the ultimate fact that overturns the Civil Code’s provision,” concluding that it is not right for the court to recognize an “untrue” parent-child relationship as legitimate parental ties.

On June 9, the Supreme Court’s No. 1 Petit Bench heard arguments from both sides in each case. The husband’s side in the Kinki case said that the Civil Code provision should be applied since he and his wife were having sex during the period when the wife was said to have become pregnant. The wife’s side argued that the child and the biological father have had a stable life for 2½ years.

The husband’s side in the Hokkaido case said that he should not be deprived of the legal status as father solely on the strength of a DNA test, because it is impossible to determine at this stage who will be the best father for the child. The wife’s side said it is not reasonable for the child to be bound by an untrue parental relationship for its entire life.

Under the current legal system, there are a variety of parent-child relationships that are not bound by blood ties, including ordinary adoption and special adoption in which the adopted child is legally treated as if he or she was the biological child of the adoptive parents.

The bottom line should be that the court carefully examine the situation in which the child is placed and consider what decision will best promote the benefits for the child.

While advances in medical and biological technologies and social changes have exerted influence on family relationships, the government and the Diet have been slow in revising the applicable laws as needed. The judiciary is trying to adapt to the changing situation by taking ad hoc measures that have included, for example, recognizing a transsexual woman who became a man as the legal father of a child born to his wife impregnated with sperm from a third person.

The government and the Diet should tackle in earnest the task of establishing a legal system adaptive to the changes now taking place in relationships between family members.