Jay DeVoy is an attorney focusing on First Amendment issues and regular contributor to the award-winning law blog The Legal Satyricon. The full version of this article, Because who cares of it’s your kid? was first published by The Legal Satyricon on November 1, 2010.
Troubling news from Britain, America’s canary in the coal mine and a target of immense reverence from college students who lived there – in a nice part of town, with other Americans – while studying abroad. From a Spectator article picked up by Roissy, arguing for the complete end of DNA paternity testing:
At a stroke, the one thing that women had going for them has been taken away, the one respect in which they had the last laugh over their husbands and lovers. DNA tests are an anti-feminist appliance of science, a change in the balance of power between the sexes that we’ve hardly come to terms with. And that holds true even though many women have the economic potential to provide for their children themselves. (source.)
First and foremost, let’s put the shoe on the other foot: Aren’t feminists constantly calling for tort consequences against men who make minor verbal misrepresentations to get laid? Certain women seek to denude men of their tools for getting what they want while keeping their own. Also, it seems imbalanced for feminists to deride men for using verbal and physical tactics to make themselves more appealing - “game,” writ large – while 1) they do the same thing with makeup and dating guides like The Rules, and 2) the “one respect in which they had the last laugh over their husbands and lovers” has consequences much farther reaching than a woman waking up one morning, rolling over and realizing she was – by her own consent – pwned by some dude who made a good showing the night before, but she does not otherwise find attractive.
The way McDonagh describes her venomous opposition to paternity testing in the article reveals much about those who would take it away: It’s not about equality, or even fairness, but about power. Through science, men have empowered themselves to determine whether they are the parents of the children borne by their lovers, spouses, or complete strangers alleging paternity. A particularly shrill segment of society wants to end that for no reason than consolidating power for themselves – ultimately in the form of child support expropriated from men by the state – and by using shame to do so.
Many men have, of course, ended up raising children who were not genetically their own, but really, does it matter?
Yes. Only in this sick, broken world, sliding into a new dark age with hollow politically correct platitudes serving as truth, could the author ask this question deadpan. Many parents lovingly adopt or raise children who are not their own, but this ignores McDonagh’s broader question of “does [paternity] matter?” Legally, and for the cuckold who believes the child is his, and raises it under those circumstances – rather than as an adoptive parent or step parent – it absolutely matters.
If DNA testing ever was to be banned in the United States, it would raise an interesting constitutional question. Matters of birth and abortion are generally covered by a broadly defined right of privacy that governs martial relationships and reproduction. First established in Griswold v. Connecticut, 381 U.S. 479 (1965), then expanded to cover abortion by Roe v. Wade, 410 U.S. 113 (1973) and sex inLawrence v. Texas, 539 U.S. 558 (2003). Under Roe‘s progeny, a woman has broad rights over her pregnancy and ability to take it to term, but states may require DNA tests after birth to confirm or deny paternity. If this practice is banned, it may create a question of whether child support payments would constitute an unconstitutional taking of property. When paying judgments or taxes, the government takes steps to ensure that the right person is paying the judgment. Even now, the government has stepped in to halt a foreclosure process that cannot produce the notes of delinquent mortgage holders — despite many of them rightly being subject to foreclosure. Whether the government can take property from a putative father based on a woman’s say-so, and without using testing that was previously available, would be an important but dangerously uncertain question.
Among my age group, the ideas of marriage and children are met with a blend of derision and fear. Men, women and children didn’t change; the legal and social atmosphere did — and neither gender seems particularly happy about it. A couple’s higher earning spouse lives in fear of divorce, particularly in no-fault divorce states. The costs associated with divorce and child support contribute to men being unwilling to marry. Based on the concern over men’s hesitation to marry, it seems that women don’t envy the prospect of endlessly dating and potentially missing out on the brass ring of marriage, either.
Removing the protection of DNA paternity testing will only agitate existing tension and mistrust between the genders, which neither of them seems to have particularly wanted. Nobody wants to be divorced, or live constantly on guard to the prospect of his or her partner being constantly solicited – or soliciting others – in pursuit of the elusive “something better” that we’ve been told is waiting for us. Few men or women will ever need DNA paternity testing, but eliminating its existence likely will create paranoia and distrust between men and women that otherwise would not have existed. It will only serve to make degrading gender relations worse and, in the end, hurt everyone.
