For 50 years now, the courts have been asking the Knesset to establish rules for genetic paternity testing, in vain. In a ruling handed down at the end of the 1970s, then Supreme Court justice Menachem Elon wrote: "It has been 20 years now since this court asked the Knesset for a comprehensive regulation of all the questions entailed in proving paternity ... There would seem to be no room for doubt that it is appropriate and desirable for the court to be able to obligate litigants to undergo those medical or laboratory tests that are necessary and useful in discovering the truth about paternity."
On Tuesday, 50 years overdue, one of Menachem Elon's sons - MK Benny Elon, chairman of the Knesset Science and Technology Committee - shepherded a law to enable courts to order paternity tests against a litigant's will through its final Knesset reading. The law, an amendment to the Genetic Information Law, will enable a woman to prove that a given man is the father of her children and thereby compel him to pay child support; it will also enable a man to prove his paternity of children whose mother is keeping him from them. Paternity tests will also be helpful in determining heirs, settling questions involving the population registry and other issues. "This is a moving closure of a circle for me," MK Elon said.
The bill was first submitted by MK Eitan Cabel, the Labor Party's secretary general, during the previous Knesset. He then resubmitted it to the current Knesset, where it was combined with another bill on the same issue submitted by former Kadima MK Avigdor Itzchaky.
The law states that in deciding whether to order a paternity test, high priority will be given to the welfare of the child. Among other things, it stipulates that tests will almost never be ordered if they might prove mamzerut (bastardy, which under Jewish law refers only to the child of a married woman and a man who is not her husband), nor will tests be made if the findings might lead to the mother being murdered. The law will go into effect as soon as it is published in the government gazette, Reshumot.
"Today, a child who wants to know who his father is cannot find out," but the law will solve this, Cabel said. Court-ordered paternity testing, he added, has until now been prevented by objections from the religious parties, but "we delicately dismantled all the obstacles and issues in rabbinical law, bit by bit. We have done a good deed for the Jewish people."
In discussions of the bill prior to its first reading, Itzchaky noted that "currently, the court does not have the authority to order genetic tests to determine family relationships, and this causes a great deal of suffering to many people, women, children."
He described a classic case for which such a law is needed: "For example, a woman becomes pregnant and wants to file suit against a man for child support or acknowledgment of paternity. The man says: 'It isn't mine.' They tell him: 'Go get a genetic test.' Today, this is not a humiliating test; today, they take a drop of saliva. He says: 'I don't want to.' The judge asks him: 'How will we know?' He replies: 'As far as I'm concerned, you won't. Let's hold a trial and I will prove to you that I am not the father.' Then he starts to humiliate the woman from head to toe, bringing in a parade of all the men who were her boyfriends and making so much trouble for her that in the end she says: 'Leave me alone. I don't want your paternity, I don't want your child support, go to hell' - and pardon the expression."
One of the last discussions that the Science and Technology Committee held on the bill dealt with the question of whether to allow physical coercion to perform the genetic test, as is the case with crime suspects. Since this is a very simple test, which can be performed by taking a hair or saliva sample, the element of coercion involved would be small.
Nevertheless, the committee decided to forbid physical coercion. Instead, it authorized the courts to impose two sanctions on men who refuse to take a court-ordered paternity test. The first, which was in use even before the law passed, is that a court can consider a refusal to be tested as evidence of paternity. The second is that the man can be punished for contempt of court - meaning subject to fines or imprisonment - until he breaks down and agrees to be tested.
Two problems that were not resolved during the committee's discussions will likely lead to fascinating legal debates. First, should paternity testing be allowed with respect to deceased individuals, including by exhumation? And second, should such testing be allowed with respect to fetuses?
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