Verdict Restricted DNA test in paternity suits

Federal Constitutional Court: Procedure for legal paternity necessary
Karlsruhe (jur). Possible biological fathers of a child can not be forced in any case to the DNA test. Even if the child is basically entitled to clarification of his or her descent, the genetic descent investigation can only be demanded as part of the clarification of legal paternity, the Federal Constitutional Court in Karlsruhe ruled on Tuesday, 19 April 2016 (Ref .: 1 BvR 3309/13) , The claim derived from the general personality right to know the biological father is not absolute. The legislature has a design scope here.

Thus, the complainant Inge L., born in 1950 and originally from North Rhine-Westphalia, still can not be sure who her biological father is. Her mother had named a man opposite her, who was her father and had also announced her birth at the registry office. He had not taken over legal paternity.

Paternity test not against the will of the father. Image: Syda Productions - fotolia

The mother then complained under the then right to "determination of blood descent". The court initiated an anthropological-herbal biological report in which the external characteristics of the child and their probability of inheritance were compared with the alleged father. The expert negated a similarity, so that the paternity procedure in court in 1955 was unsuccessful.

But the supposed daughter did not let up. At that time, the appraiser either had to be an inexperienced young doctor or had already worked as a hereditary biologist during National Socialism. She wanted to be sure about where she came from. Since today, with a DNA examination, the paternity can be accurately determined, she asked her alleged father now to the gene test. Unlike a legal father, however, the determination of the biological father should have no legal consequences for the father-child relationship.

However, the over 80-year-old alleged father did not want to know if the wife was his daughter. He refused the delivery of a DNA sample.

The alleged daughter wanted to force this now in court. This is possible when clarifying a legal paternity. The same must therefore also apply to the determination of the biological father, even if it does not give rise to any further rights and obligations arising from the father-child relationship.

But before the Federal Constitutional Court, the woman had no success. In principle, children have the right to clarify their descent with regard to their general right to privacy. This claim is not absolute. Only in the context of a legal paternity procedure must be consented to the request of the child in a genetic test.

For with a forced paternity test of the alleged father and its fundamental rights are affected. Every human being has a right to not reveal his sexual relationships. The surrender of a genetic sample also violates his right to informational self-determination and his physical integrity.

Both the presumed biological father and his family were entitled to a protected family life. Even if the paternity procedure were negative, the associated impairments would not be wholly reversible. Because the procedure takes the participants "certainty and confidence in their family relationships," said the Constitutional Court judge.

If the clarification of the biological father is allowed in general, there is the danger that "in the blue" suspected fathers will be forced to the gene test. In clarifying the paternity, within a legal family, this danger does not exist. For here is the circle of entitled and obliged persons to the members of the legal family limited.

The children who want to know their father are thus not without rights, stressed the First Senate of the Federal Constitutional Court. Because they could still clarify the legal paternity with all associated rights and obligations by genetic testing. However, the complainant was no longer able to do this because her first claim for paternity was already unsuccessful. fle / mwo / fle