Cape Cod divorce lawyer Carmela Miraglia examines the increasing chasm between the law and science of paternity in Massachusetts.
When science and law converge there is often a conflict. The legal system seeks to resolve controversies in a consistent manner. As a result, the law is often less concerned with understanding or addressing problems in the scientific processes that courts rely on. DNA testing for paternity is a classic example of a scientific process that courts rely on to make decision, despite increasing concerns about the accuracy of the tests.
The struggle between law and science is most evident in family law when parties are attempting to determine a child’s parentage. There are significant practical and legal obstacles that can get in the way of determining a child’s real parent. One of the biggest problems facing parties in an action for paternity is the fact that paternity tests are not foolproof, and when they are wrong, it can have lasting effects for both the child and the parent who is incorrectly declared the child’s parent.
Legal Challenges in Establishing Paternity for Unmarried Parents
Previously, we discussed some of the challenges surrounding establishing paternity in Massachusetts for unmarried parents. The Courts strongly encourage unmarried parties to acknowledge paternity through the use of a Voluntary Acknowledgment of Parentage. Setting aside the legal risks that come with this form—such as the difficulty in overcoming its admission should the father later discover he is not the child’s biological parent—there is the more common logistical problem of tracking down an absentee father to get his cooperation in signing the form. (Note that under Massachusetts law, a father who wishes for his name to appear on a child’s birth certificate must generally execute a Voluntary Acknowledgment of Parentage at the hospital where the child is born.)
In cases where a father is not present to voluntarily acknowledge being the child’s parent, the mother—or child, a grandparent, a guardian, or even the Commonwealth of Massachusetts—can pursue a paternity action to determine who fathered the child, thereby requiring the putative father to take a genetic marker test. However, these tests are not foolproof, and an incorrect result can obligate an individual to support a child to which he would otherwise have no obligation to support.
Don’t Believe CSI: Courtroom Science is Often Inaccurate
Before discussing the accuracy of DNA testing in Massachusetts, it is instructive to look at another area where the law has struggled to respond to inaccurate science. Since 2017, we have seen numerous articles and court cases challenging the accuracy of Breathalyzer tests in Massachusetts. This culminated in the total suspension of breathalyzer test results from a widely used machine by District Attorneys in December 2017:
District attorneys statewide have suspended the use of test results from a widely used breathalyzer machine as the state sorts through thousands of documents that should have been turned over to attorneys challenging the machines' reliability.
Breathalyzer results are not the only problematic that courts rely on. Last fall, the President’s Council of Advisors on Science and Technology (PCAST) released a scathing report that challenged that legal world’s reliance on a range of forensic science techniques, ranging from bite mark identification to finger print technology. The bottom line: much of the science that is taken for granted in courtrooms has never been subject to the kind of rigorous testing and study that we expect from medical science or other forms of peer-reviewed science.
Genetic Testing for Paternity in Massachusetts: Outdated Technology
Paternity testing in Massachusetts is far from the scientific perfection that people come to expect from TV shows. DNA testing is an evolving science that has grown more accurate over time, but the state of Massachusetts still uses outdated methods and testing standards – the kind of tests that Ancestry.com or 23andme would regard has practically prehistoric.
The Massachusetts paternity statute, G.L. c. 209C, s. 17, states that there is a rebuttable presumption of paternity if a putative father’s DNA is at least a 97% match with the child’s. While this seems close to perfection, it pales in comparison with how precise DNA testing can be using modern methods.
Unfortunately, accepting a lower number drastically increases the odds of a false positive in cases where the alleged father is closely related to the child, like an uncle or a cousin. This example may seem extreme, but family relatives frequently associate with many of the same people in the same social circles. It certainly is not unheard for the “real father” of a child to be a brother, cousin or uncle of the alleged putative father.
Massachusetts’ low standards are far behind the times when it comes to DNA testing.
All human beings share more than 99% of their DNA. Within the remaining 1% lies all of the differences between one person and the next. To find those differences, scientists look at a handful of genetic markers—sections on the strand of DNA that are known to vary in certain ways—and compare them with other DNA samples. The more often the genetic markers on one sample of DNA match the genetic markers on another sample of DNA, the higher the probability that those two samples of DNA came from the same person—or at least two related people.
Since first discovering genetic markers, geneticists have found more and more of them. With additional markers to compare, DNA tests have become more accurate. This accuracy is especially important for DNA samples from people who are closely related. In the early days of genetic testing when there were only a small number of genetic markers, DNA tests were reporting false positives between close relatives nearly one in five times. Today, retail DNA tests from vendors like ancestry.com and 23andme have significantly reduced false positives by applying the most cutting edge technologies available to genetic tests.
The Lack of Development in Massachusetts Law
While geneticists have found more genetic markers to examine and DNA testing has advanced to be able to differentiate close relatives from one another, the law in Massachusetts has done little to keep up. Instead of raising the match rate required to establish a rebuttable presumption of paternity—like many other states have done—Massachusetts has chosen to leave its standard at 97%. This increases the likelihood of a false positive, thereby creating obligations for an individual to support a child when they would otherwise have no responsibility to do so.
As far back as 2014, any paternity test result that was above 0% and under 99% has been considered inconclusive by accredited labs. By failing to update the law to reflect advances in DNA testing technology, the Massachusetts legislature has once again dropped the ball on important family law issue.
About the Author: Carmela M. Miraglia is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation. Harold A. Mazzio, a law student at Suffolk University Law School, contributed to this blog.