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“In the Name of the Child”: A Critical Assessment of the Legal Norm Governing Paternity Tests

Published online by Cambridge University Press:  04 July 2014

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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2007

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Footnotes

*

Graduate of The Hebrew University and member of the Israeli Bar Association. This article was awarded first prize in the 2006 PEF Student Competition. A former version of this paper was originally submitted as a seminar paper in a course on Family Law in Israel, given by Dr. Ayelet Blecher-Prigat. The author would like to express her gratitude to everyone who had a hand, in all manners, in this publication, particularly family and friends.

References

1 The background for this paper is a case the author worked on while clerking in a law firm. The firm represented a woman who filed a paternity suit against the alleged father of her twins. After lengthy negotiations, the defendant agreed to the paternity test in an attempt to end the dispute as quickly and discreetly as possible. The test confirmed the defendant's paternity.

2 In this paper I relate to paternity as it is determined biologically. One can obviously question this definition, and claim that biological paternity differs from legal paternity. This important issue, however, is beyond the scope of this paper.

3 The term assigned by orthodox Jewish law to children who are born to married women, and whose fathers are not their mothers' spouse, see Shifman, infra note 10. This paper will use the term bastard and mamzer interchangeably.

4 Correct analysis of the law governing paternity tests necessitates a distinction between married and single mothers' claims for child support in the name of their children. See Zafran, Ruth, Whose Child Are You? The Israeli Paternity Regularization and its Flaws, 46 Hapraklit 311, 315 (2003) [in Hebrew]Google Scholar.

5 The structure of the paper is based on a composition suggested and applied in a book by Orit Kamir. See Kamir, Orit, Human Dignity Feminism in Israel: a Socio-Legal Analysis (2007) [in Hebrew]Google Scholar.

6 Paternity claims can also be filed in order to cause the alleged father to assume his other parental responsibilities towards the child, and not in order to gain monetary benefits from him. In this case, one can expect orthodox Jewish law to be even stricter in preventing paternity tests, since the question at hand is not the threat of the child being left without financial support, but rather the “luxury” of the child having an active father—a “luxury” perceived to be much less crucial than the obligation to support child. Although this is not commonly seen, a paternity claim can also be filed by a person claiming to be the biological father of a child, against the presumption that the mother's husband is the father. See, e.g., FC (Ha) 29150/00 D.A. v. The Attorney General (unpublished)(given December 1, 2002).

7 Section 3 of the Genetic Information Law, 2000 S.H. 1766, at 62.

8 See, e.g., FC (Hadera) 2170/05 A.K. v. K.L. (unpublished)(given November 29, 2006).

9 See, e.g., CA 1354/92 The Attorney General v. Ploni & Plonit [1994] IsrSC 48(1) 711; FC (TLV) 74803/97 M.R. & N.R. v. S.R. & The Attorney General (unpublished)(given February 9, 2004).

10 Shifman, Pinhas, Family Law in Israel 154 (2nd ed. 1995) [in Hebrew]Google Scholar. Obviously, the degree of severity of being branded a mamzer differs according to one's ideology and belief system. Whereas orthodox religious sects view this status as being extremely debilitating and stigmatizing, certain secular groups may reject its ramifications and regard them as anachronistic. See FC (TLV) 87471/00 Almoni v. Ploni 2001 P.M. 801 (unpublished)(given January 8, 2000). However, in Israeli society, where most Jews still marry according to orthodox Jewish law, one can't ignore the severe limitations of the rights of mamzerim, dictated by the rules of Orthodox Jewish law, and which may affect the majority of Israelis who marry according to these laws.

11 Masechet Sotah, 21 (a), 6.

12 Almoni v. Ploni, supra note 10.

13 Id.; FC 76760/01 S.N. v. C.S.A. (unpublished)(given September 5, 2004).

14 Almoni v. Ploni, supra note 10, at 844-847.

15 Id. at 881-888; S.N. v. C.S.A., supra note 13, at 12-15.

16 Basic Law: Human Dignity and Freedom, 1992, S.H. 150.

17 CA 6821/93 United Mizrachi Bank v. Migdal Agricultural Cooperative [1995] IsrSC 49(4) 221.

18 Almoni v. Ploni, supra note 10, at sections 7-16; S.N. v. C.S.A., supra note 13, at sections 33-37, 41-56, & 85-86.

19 APA (TLV) 1364/04 The Attorney General v. Plonit (unpublished)(given July 5, 2006).

20 We can expect that as a result of pressure from religious elements in the political sphere these decisions will be reversed in higher courts.

21 Section 28 of the Genetic Information Law (Amendment No 3)(Order by the Court to Perform Genetic Testing for the Determination of Parenthood), 5765-2005, available at www.knesset.gov.il/protocols/data/html/huka/2005-07-05-01.html (last visited October 21, 2007).

22 At the age of 18 the child is permitted to petition the court to order the alleged father to perform a paternity test, even when there is a risk he will be classified as a bastard. However, it seems that by then the child will already have been harmed by the lack of a father figure in his/her life, see Mabry, Cynthia R., “Who is the Baby's Daddy” (And Why is it Important for the Child to Know)?, 34 U. Balt. L. Rev. 211 (2004)Google Scholar.

23 CA 548/78 Sharon v. Levy [1980] IsrSC 35(1) 736.

24 Shifman, supra note 10, at 254. See also CA 222/83 Plonit v. Almoni [1984] IsrSC 38(4) 418; CA 469/84 Hadari v. Shani [1985] IsrSC 39(3) 197. Although the modern, secular interpretation of this obligation by the non-religious courts has created instances of greater financial responsibility of the mother, the original orthodox Jewish law places the principal duty of child support on the father: A father is obligated to provide the child with his/her basic needs; beyond these needs, both parents are equally obligated to provide the child with a higher standard of living, according to their financial abilities. Thus, regarding parents with different levels of income there exists a divergence between the parents' responsibility of providing child support. In practice, the average male salary is still higher than the average female salary, and most fathers are still the main breadwinners and are therefore more capable of providing financial support for their children. Regarding the difference between men's and women's average salaries see http://www.adva.org/UserFiles/File/menandwomen.pdf (last visited December 2, 2007). There are also other expenses involved in raising a child which are not always interpreted as part of “child support,” such as the time a parent spends with the child instead of work. In a Utopian society, where both parents play an equal part in raising their children, and where men and women earn equally, one would expect the disparity between fathers' and mothers' obligations to pay child support be obliterated.

25 CA 413/80 Plonit v. Ploni [1981] IsrSC 38(3) 57.

26 The typical case the author refers to is when a woman accidentally becomes pregnant as a result of unprotected sex, in the course of which the couple failed, in the spur of the moment, to consider the chance of pregnancy, or as a result of a failure of birth control methods. The author is not referring to cases in which a claim is raised against the mother, according to which she purposefully became pregnant while assuring the father that she is practicing birth control. This case, which is commonly referred to as the “Sperm Thieving Claim” deserves separate analysis.

27 Elior, Rachel, “Present but Absent,” “Still Life” and “A Pretty Maiden who has No Eyes”: On the Presence and Absence of Women in Jewish Culture and in Israeli Life, 20 Alpayim 214, 225 [in Hebrew]Google Scholar.

28 Wegner, Judith Romney, Chattel or Person? The Status of Women in the Mishna 4045 (1988)Google Scholar.

29 An additional doctrine that exemplifies the concept of ownership of a husband of his wife is the judiciary development of the Provocation Doctrine in Criminal Law. For further reading see Kamir, Orit, “Reason” Killed the Woman: Provocation, “The Reasonable Israeli” and “The Average Israeli Woman” in Azuelus, 6 Plilim 137 (1997) [in Hebrew]Google Scholar.

30 In an effort to prevent the onset of these sanctions as a result of a wife's unfaithful sexual behavior,, the Rabbinical courts follow very strict evidence rules that often cause the proof of such behavior to be impossible; see, e.g., Westreich, Elimelech, Transitions in the Legal Status of the Wife in Jewish Law 153 (2002) [in Hebrew]Google Scholar.

31 Shifman, supra note 10, at 147.

32 Brehm, Sharon S., Kassin, Saul M. & Fein, Steven, Social Psychology 311313 (1999)Google Scholar.

33 Posner, Richard, Sex and Reason 251252 (1992)Google Scholar.

34 Id. at 251-252.

35 Id. at 251. The latter describes research supporting the notion that men are more likely to enjoy sex without emotional commitment, and are more permissive when it comes to casual sex. Additional research, consistent with evolutionary theory, compared sexual jealousy of men and women in relationships, and concluded that whereas men feel most threatened by their female partners' sexual infidelity, women are most disturbed by emotional infidelity of their male partners.

36 Id. at 251.

37 See. e.g., CC (TLV) 1116/03 The State of Israel v. Guettta (unpublished)(given May 23, 2004); CC (TA) 1058/03 State of Israel v. Ashuri (unpublished)(given April 19, 2004). Interestingly, the latter describes the rape of the victim as harming her right to the wholeness of her body, which is literally true in a rape where the victim is a virgin. As part of the defense's attempt to challenge the credibility of rape victims, the defense sometimes claims that the alleged victim falsely accused the defendant of rape in order to excuse the fact that she was not a virgin prior to the rape, see CrA 1895/01 Ploni v. The State of Israel (unpublished)fgiven July 28, 2003). These allegations were overtly rejected by the court.

38 Dickerson, Lindsay, “Your Wife Should Handle It”: The Implicit Messages of the Family and Medical Leave Act, 25 Boston College Third World L. J. 429 (2005)Google Scholar (reviewing Susan J. Douglas & Meredith W. Michaels, The Mommy Myth: The Idealization of Motherhood and How it has Undermined Women).

39 According to the school of Cultural Feminism, individuality and self-centeredness is a value associated with male ethics, whereas empathy and caring for others is associated with female ethics, see Gilligan, Carol, In a Different Voice (1993)Google Scholar.

40 MacKinnon, Catharine A., Privacy v. Equality: Beyond Roe v. Wade, in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work and Reproduction 985, 986987 (Weisberg, D. Kelly ed., 1996)Google Scholar. It is important to note that women who avoid having an abortion do not always do so out of free choice. Some of these women avoid abortions for religious reasons, or because of financial difficulties. It is therefore problematic to claim that one can presume that women who file paternity claims necessarily chose to give birth to their child, as opposed to women who abort. Regarding financial constrictions for avoiding abortions see MacKinnon, Catharine A., Review: Unthinking ERA Thinking: Why We Lost the ERA by Jane J. Mansbridge, 54 U. Chi. L. Rev. 759 (1987)CrossRefGoogle Scholar.

41 Id. at 986.

42 See, e.g., CrA 2439/93 Zerian v. Israel [1994] IsrSC 48(5) 265, in which the Supreme Court reversed a former decision finding the defendant guilty of rape and acquitted him of these charges. Among other reasons, the judges refer to the fact that the alleged victim had discussed previous sexual encounters with the defendant prior to the rape, and led him to believe that she practices birth control. This statement was regarded as basis for the defendant's claim that the victim consented to have sexual intercourse with him. See also da Luz, Carla M. & Weckerly, Pamela C., Recent Development: The Texas ‘Condom-Rape’ Case: Caution Construed as Consent, 3 UCLA Women's L. J. 95 (1993)Google Scholar. In this case, a Texas grand jury refused to indict a person charged with rape, supposedly basing their decision on the fact that the rape victim requested the defendant use a condom prior to the rape, and had also supplied the condom herself. This was interpreted as the victims consent to sexual intercourse. The decision was appealed before a second grand jury, who indicted the defendant. Neal, Odeana R., National Issues: Myths and Moms: Images of Women and Termination of Parental Rights, 5 Kan. J.L. & Pub. Pol'y 61 (1995)Google Scholar.

43 MacKinnon, supra note 40, at 986-987.

44 Neal, supra note 42, at 61.

45 This is an interesting concept; perhaps one that can be developed in another article.

46 See M.K. Yitzhak Levy's suggestion in Protocol no. 533 of the Committee of Legislation, Constitution and Law, 16th Knesset, (July 7, 2005), available at www.knesset.gov.il/protocols/data/html/huka/2005-07-12-03.html. (last visited December 2, 2007). This committee is responsible for preparing the Genetic Information Law (Amendment No 3)(0rder by the Court to Perform Genetic Testing for the Determination of Parenthood), 5765-2005. Note that the aforementioned M.K. is from the Ichud Leumi-Mafdal party—an orthodox religious, rightist political party that promotes religious, conservative values.

47 Although the aforementioned committee did not detail the authority and the exact duty which is to be granted to the Rabbinical judge, there is a possibility that the scope of his authority may be limited to voicing an opinion only regarding the authorization of the paternity test. In a meeting of the aforementioned committee on July 20, 2005 it was suggested that the Attorney General should be the one to submit the opinion, following consultations with a Rabbinical judge. This procedure is yet to be decided and was not detailed in the latest version of the suggested law, from November 15, 2005. As limited as the expert's authority may be, the criticism raised regarding this suggestion still stands.

48 Sections 175-183 of the Penal Law, LSI Special Volume: 5737-1977 9 (Isr.).

49 It seems that the aforementioned decision in supra note 19 partly implements this suggestion.

50 Obviously cases where the parents reach an agreement regarding child support payments do not reach the courts. The main issue at hand is whether the alleged father in this case will be forced to pay child support despite the mother's status as an Aguna.

51 Fineman, Martha L., Images of Mothers in Poverty Discourses, 41 Duke L.J. 274 (1991)CrossRefGoogle Scholar.

52 See, e.g., CA 10280/01 Yaros-Chakak v. The Attorney General [2005] IsrSC 59(5) 64. In this decision nine judges of the Supreme Court allowed a lesbian couple to adopt each of their other partner's children. Part of this decision was based on the fact that the couple and their three children were de facto functioning like an “ordinary” family.

53 Brown, Sarah, Part Three: Custody and Visitation: Why Daddy Loses, 16 J. Cont. Legal Issues 177 (2007)Google Scholar.

54 Rogus, Caroline, Comment: Conflating Women's Biological and Sociological Roles: The Ideal of Motherhood, Equal Protection, and the Implications of the Nguyen v. INS Opinion, 5 U. Pa. J. Const. L. 803 (2003)Google Scholar.

55 Article 25 of the Legal Capacity and Guardianship Law, 1962, S.H. 1993, 274.

56 The Schnitt Committee was appointed in March 2005 by the (then) Minister of Justice Zippi Livni, in order to examine the existing framework of parental responsibilities towards children after a divorce. Among other topics, the committee is authorized to re-examine the tender years presumption. Although the committee has been active for almost two and a half years, it has yet submitted any conclusions. See, e.g. Herzog, Esther, The Return of Patriarchy, NRG (Sep. 25, 2005), available at http://images.fixtravel.co.il/online/1/ART/988/343.html Google Scholar (last visited October 22, 2007).

57 Shifman, supra note 10, at 254.

58 Section 17 of the Legal Capacity and Guardianship Law, supra note 55; CA 2034/98 Yitschak Amin v. David Amin [1999] IsrSC 53(5) 69. In this decision, the Supreme Court found a father liable for damages caused to his three children, when, after their mother committed suicide, the father negligently severed all contact with the three children, married again and had two other children, denying any connection to his first three children and overtly rejecting any attempts to be involved in their lives. The three children from the first marriage were separated and placed in different institutions, and all suffered severe emotional damage, which the father was eventually found liable for. The courts upheld that although the law can't obligate a parent to love his/her child, a parent is obligated to show concern for the child's wellbeing.

59 CA 2034/98 Yitschak Amin v. David Amin [1999] IsrSC 53(5) 69.

60 Legal Capacity and Guardianship Law, supra note 55.

61 See Plonit v. Ploni, supra note 25.

62 For further reading regarding the right to become a parent versus the right not to become a parent, see ACP 2401/95 Nahmani v. Nachmani [1996] IsrSC 50(4) 661. In this decision, a married couple which was unable to have children decided to have a child by external fertilization with the aid of a surrogate mother. The wife's ova were fertilized with the husband's sperm, and were frozen until a suitable surrogate mother was found. In the meantime, the husband left home and had a daughter with another woman, and objected to the wife's wish to see use his sperm to have a child. After a number of decisions, seven Supreme Court judges (against four converging opinions) decided in favor of the wife, generally deeming her right to become a parent as overcoming her husband's right not to become a parent. Regarding the stage at which the child becomes a separate entity, certain judges, such as Justice Tirkel, related to the “right to life” as a basic right, and recognized a right to life that can be acknowledged and protected already at the initial stages of a fertilized ovum.

63 Triger, Zvi, There is a Country for Love: Marriage and Divorce Among Jews in the State of Israel, in Trials of Love, 173 (Naftali, Orna Ben & Nave, Chana eds., 2005) [in Hebrew]Google Scholar.

64 Id. at 194.

65 Id. at 195.

66 Id. at 175.

67 Halperin-Kaddari, Ruth, Symposium Issue Colonizing Women: The Ethical and Legal Issues Surrounding Systematic Gender and Race Discrimination: Article Women, Religion and Multiculturalism in Israel, 5 UCLA J. Int'l L. & For. Aff. 339 (2001)Google Scholar.

68 The High Rabbinical Court in Jerusalem-Appeal no. 26 Chanoch and Miriam Langer. This case is discussed in Goren, Shlomo, The Ruling in the Matter of the Brother and Sister (1973) [in Hebrew]Google Scholar.

69 Goren, id.

70 Zafran, supra note 4, at 325.

71 Id. at 330-331. In this case the results of the paternity test may impose an even greater threat towards the child's status, since he/she could be determined a “questionable bastard” and therefore be forbidden to marry other bastards, as well as anyone else.

72 Proceedings in the family courts are already held “behind closed doors,” according to section 10(4) of the Family Court Law, 5755-1995. This may in itself mean that the contents of the judgment are secret, causing them inaccessible to a different court as well.

73 See Protocol no. 614 of the Committee of Legislation, Constitution and Law, 16th Knesset, (November 15, 2005), available at www.knesset.gov.il/protocols/data/html/huka/2005 (last visited December 2, 2007).

74 Zafran, supra note 4, at 331.

75 Infra note 78.

76 Penal Code, supra note 48.

77 See, e.g., CC (TLV) 1137/03 Israel v. Serpo (unpublishedMgiven November 8, 2005).

78 Shifman, supra note 10, at 254.

79 Totz, Mary, What's Good for the Goose is Good for the Gander: Toward Recognition of Men's Reproductive Rights, 15 N. Ill. U. L. Rev, 141 (1994)Google ScholarPubMed.

80 This gives preference to the initial intentions of the couple, and bases the said presumptions on them. In a case where the couple had no intention to procreate, but where the woman decides to keep the child, another consideration would be the question of her control over her body. This question however “contaminates” the sterile setting of this model, and raises matters beyond the scope of this paper.

81 Totz, supra note 79.

82 One of the ways fathers can overcome later claims made by children for child support is to “resue” the mother for the differences between the child support payments as agreed upon earlier by the father and the mother, and the later sum they are liable to pay as a result of the children's separate claim.

83 Shifman, Pinhas, Family Law in Israel 213 (1989) [in Hebrew]Google Scholar.

84 Tushnet, Mark, An Essay on Rights, 62 Tex. L. Rev. 1363, at 1366 (1984)Google Scholar.

85 Id. at 1366-1368.

86 This setting represents a situation similar to that of the Nachmani case, referred to in supra note 62. However, this instance discusses the opposite case, the husband wishes to procreate against his wife's wishes. It would be interesting to compare these situations and note the supposed difference in the courts rhetoric, if any. One must keep in mind that in the Nachmani decision, the husband already had a child with another woman, while the wife's only chance to have children was through the fertilized eggs in dispute—a consideration which certainly influenced the courts decision. Also, men have a longer span of years in the course of which they can procreate. It may therefore be unjust to view each of the members of the couple's rights equally, since biology often dictates differences. Ignoring these differences may bring us to an unjust conclusion.

87 Fineman, Martha Albertson, Legal Stories, Change and Incentives—Reinforcing the Law of the Father, 37 N.Y. L. Sch. L. Rev 227, 233 (1992)Google Scholar.

88 Id. at 233.

89 Id. at 244-245.

90 Id. at 234.

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