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Post-Mortem Paternity Testing – Unprecedented High Court Ruling

Advances in DNA technology enabled the Archbishop of Canterbury to find out with certainty who his father really was – and an unprecedented High Court decision means that that same opportunity is potentially open to all.

The case concerned a man in his 20s who suspected that he had been kept in the dark about his father’s identity for most of his life. He had been brought up by his mother and her first husband, who was named as his father on his birth certificate. He suspected, however, that both were aware that that was not the truth and DNA testing had established that the husband was not in fact his father.

He suspected that his real father was a man with whom his mother had had an affair which ended when she was three months’ pregnant. That man had died of a heart attack in 2012. In those circumstances, he sought an order that a sample of his putative father’s blood or tissue – which was held by a hospital after he underwent treatment for bowel cancer before his death – should be released for DNA testing so that his paternity, or otherwise, could be established.

The man’s application, which the Court acknowledged was without precedent, was resisted by the deceased’s mother. It was submitted that release of the sample would breach her right to respect for family life and that a ruling in the man’s favour would open the floodgates to post-mortem paternity testing on demand.

In upholding the man’s application, however, the Court noted that the family of the deceased had a genetic propensity to a form of bowel cancer which was also likely to affect any of his offspring. If paternity were established, the man would need to undergo regular scans to enable early diagnosis of the disease.

Although there was no identified statutory power to direct post-mortem scientific testing to establish biological relationships, the Court exercised its inherent jurisdiction in the man’s favour. Biological identity was a central component of everyone’s existence and the European Convention on Human Rights underscored the importance of the opportunity to discover one’s parentage.

It was a peculiar feature of genetic testing that it inescapably had the potential to affect not only the individual being tested but also those to whom he is closely related. However, the availability of DNA testing meant that the truth was there for the asking and it was difficult to envisage circumstances in which revealing such a truth could amount to an unlawful interference with human rights.

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