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Claims for reimbursement of child support, the reversal of property settlements and compensation can arise when misattributed paternity is discovered. The ethical justifications for such claims seem to be related to the financial cost of bringing up children, the absence of choice about taking on these expenses, the hard work involved in child rearing, the emotional attachments that are formed with children, the obligation of women to make truthful claims about paternity, and the deception involved in infidelity. In this paper it is argued that there should not be compensation for infidelity and that reimbursement is appropriate where the claimant has made child support payments but has not taken on the social role of father. Where the claimant's behaviour suggests a social view of fatherhood, on the other hand, claims for compensation are less coherent. Where the genetic model of fatherhood dominates, the “other” man (the woman's lover and progenitor of the children) might also have a claim for the loss of the benefits of fatherhood. It is concluded that claims for reimbursement and compensation in cases of misattributed paternity produce the same distorted and thin view of what it means to be a father that paternity testing assumes, and underscores a trend that is not in the interests of children.
Claims for reimbursement of child support, the reversal of property settlements and compensation can arise when misattributed paternity is discovered. This is because the cuckolded man, assuming that he is the genetic father, has treated the child as his son or daughter and accordingly has taken upon himself the responsibilities and rights of fatherhood, including financial responsibilities. When he discovers that his assumption is mistaken, he may think that the responsibilities he took up belong to someone else. Misattributed paternity is sometimes referred to as paternity fraud, a term that suggests that the mother (and possibly her lover) knew about the true paternity and deceived the man for financial gain.
Misattributed paternity may be discovered inadvertently during medical treatment, for instance when a child is discovered to have some genetic condition or blood groups are identified and/or tissue matches are required, or it may be uncovered where there are doubts about paternity, for instance based on the child's physical characteristics, or suspicions of infidelity. Outside the context of assisted conception, misattributed paternity is definitive proof of infidelity, and web pages advertising paternity testing are often situated alongside those offering genetic tests on the bodily fluids to be found on bed sheets and underwear. Unsurprisingly, the discovery of misattributed paternity often arises in the context of relationship breakdown: the discovery may instigate the breakdown, or paternity tests may be requested after a relationship has collapsed. Financial claims may be directed at the mother who has knowingly “passed off” the child as one thing (genetically related) when he or she is in fact another (the genetic offspring of a different man). But they may also be directed at the mother's lover – the “other man”. Here the idea is that this other man has not accepted his financial obligations but has dishonestly passed these to the cuckolded man, colluding with the mother by keeping silent. Alternatively, even where it emerges that he, the other man, knew nothing of the child, it may be felt that once he knows about his paternity he ought to want to make financial amends.
The discovery of misattributed paternity may or may not lead to a breakdown of the relationship between the man and the children. Some men are desperate to be regarded as the father of what they regard as their children. Other men, on discovering misattributed paternity, sever all links with the children, disregarding the sometimes considerable length of time during which they have been in a father–child relationship. Our reactions to these two kinds of responses may reveal underlying tensions in our views about what makes a man a father and how significant genetic relatedness is to determining who holds parental rights and responsibilities.
Media coverage of misattributed paternity has been wide and varied. It ranges from newspaper coverage of alleged cases, to documentaries featuring one or more families, to day‐time TV shows where alleged victims bare their souls or the results of paternity tests are revealed “live” to the parties concerned. Clearly, it is an area where emotions run high and accusations of unfairness may be made by all involved. Some campaigning groups have argued for the compulsory paternity testing of all children at birth to prevent any cases of misattributed paternity in the future.1,2 This paper considers whether men who discover that children they have been fathering are not genetically related should be entitled to reimbursement of money paid or used in child support, and also to compensation for related losses or injuries.
While there is no typical case of misattributed paternity, some of the elements that seem to justify a claim for reimbursement or compensation include:
Liam Magill initially successful persuaded the courts in Australia to allow him to recover money paid in child support, with interest and some compensation for emotional damage ($70,000 in total), for two children he later discovered were not genetically his,3 but he subsequently lost his claim on appeal and again finally before the High Court of Australia in 2006.4 There have been successful cases in the UK: Gerard Bradbury recovered child support payments of £30000 (plus interest)5 made through the Child Support Agency over 7 years, and a Mr A successfully recovered £22000 in damages for the emotional hurt of discovering that he was not a genetic father.7 In France, Mr G was awarded €23000 (€15000 for money spent and €8000 for emotional damage).8 In Canada there has been a mixed response to claims, although one case appeared to pave the way for future successful reimbursement claims, provided that men act quickly on their suspicions of misattributed paternity.9 In Australia, the Family Law Amendments Bill included changes to the law to allow men to reclaim money and property given through a court order under the Family Law Act 1975, in cases of misattributed paternity10,11; the Bill was passed in June 2005.
In general, in societies where so‐called “absent fathers” are legally required to support their children, it is not surprising that men who discover misattributed paternity want to reclaim money they have contributed in child support. The target for financial recovery may be the central or state agency charged with recovering child support, the mother or the mother's lover (the allegedly true absent father of the children concerned). Potential claims can be broken down into different elements: (i) the money that would have been paid in child support – this may be a percentage of salary or a sum fixed by the state; (ii) the actual money paid out by the claimant, which could easily exceed the fixed amount for child support; (iii) compensation for the work involved in childrearing; and (iv) compensation for the emotional costs, loss of choice, loss of life‐style, etc.
Without knowing more about the nature of their relationship, or a woman's reasons for having an affair, it is difficult to assert with confidence that the unfaithful woman has wronged the deceived man. Likewise, a mother may have had good reasons for not telling her partner about the paternity of the children, making it difficult to argue that on balance she has done the wrong thing in not being truthful even if the truth was owed. But let us assume for the sake of argument that the man in question is a model partner, even as far as the woman was concerned, and that there are no good reasons for deceiving him. Should not a man who satisfies these assumptions be compensated by his partner for the wrong he has suffered at her hands?
We might answer “Yes” as a way of agreeing that things have not gone well for the man, and that he deserves a change for the better in his fortunes. Thus we might hope that the woman will get her comeuppance or that the man will find true love and happiness elsewhere which will more than compensate him for his past experiences. But this kind of compensation for an injustice needing to be redressed may not translate into the need for a legal remedy. Generally speaking, personal relationships between adults are not seen as contracts with financial penalties for breaches of any of the conditions of that contract, and if they were, the deceived party would be able to claim compensation for infidelity regardless of whether any children were conceived as a result. This would commodify trust and fidelity, which are supposed to be freely given, and not given in order to avoid legal repercussions and financial costs. Such considerations tell against financial claims based on, or motivated by, a woman's infidelities alone. Moreover, infidelity must be kept out of claims related to misattributed paternity, for, as Kaebnick points out, “…sexual betrayal is not… a feature of the relationship between a man and his child. It is a feature of his relationship with his wife”.12
What about a claim for financial reimbursement for bringing up the non‐genetically related children? In many countries, absent parents have a legal obligation to contribute to their children's upkeep. Paternity testing is now relied upon to settle disputed claims related to child support. This suggests that in some societies, or at least in this part of their legal systems, genetic relatedness is either a marker of responsibility or it generates such responsibilities. Against this background, a man who has discovered misattributed paternity could argue plausibly that the responsibilities of the genetically related man have been illicitly passed to him. Moreover, while there are circumstances where financial responsibilities are not tied to genetic relatedness (adoption and gamete donation, for instance), what appears to make the difference is the element of choice – the responsibilities are transferred from one party to another by mutual agreement. Men who discover misattributed paternity have not been given a similar choice, and this, coupled with the arrangements for absent parents, seems to strengthen the claim for reimbursement.
The view that genetic relatedness forms the basis for financial responsibility has been encouraged by the political policy in many countries of pursuing absent fathers through the legal system for maintenance payments for their children. This policy, however, need not be accepted without question. Sally Sheldon,15 for instance, has challenged it at least two ways. First, she argues that men's control over whether or not genetically related children come into being is limited to the extent that women have the final say in decisions about abortion. Second, it is not obvious that the state should be reluctant to support children with absent fathers (or mothers).
A further challenge to the policy is that it puts too much weight on genetic relatedness as a sufficient determinant of paternal rights and responsibilities. Much has already been written about the role of genetic relatedness in how “father” (and indeed “mother”) is to be defined, and whether intention, foreseeability, causation, and the like have a part to play. I do not intend to rehearse the arguments here. Suffice it to say that the term “father” has come to have different meanings, and arguably different values, in different contexts. For the purpose this paper only two of these different meanings are significant: “father” as the man whose sperm was used to create the child – I will refer to this man as the progenitor – and “father” as the man who fulfils the responsibilities that we might expect of a father (men who adopt children are also considered fathers, for instance). In my view, it is this man – the “social father” who behaves as we expect a father to – who should be considered to be the father.
There are people who argue that it is just one thing makes a man a father – the intention to have a child or the genetic connection, for instance – and there are those who argue that fatherhood is a more pluralistic concept, that there are a variety of ways in which a man can come to be regarded as a father. With such a view, it would be possible to regard both the progenitor and the social father as a father. What I will concentrate on in this paper is the coherence of the claim for reimbursement and/or compensation against the background of the policy that regards genetic relatedness as defining paternity and therefore paternal responsibility. I will consider claims for compensation against this background while also arguing that its narrow view of fatherhood is unsatisfactory
Where a man is willing to reject the children outright on learning of misattributed paternity, a claim for compensation for the burdens of rearing the children and the return of monies given to support them has a certain coherence, especially where policy assumes that genetic relatedness defines paternity. But if a man who suddenly rejects the children has been their social father for a long time, the repudiation of the children also seems immoral. Describing oneself to a child as his/her father and behaving in a way that a father should behave almost invariably engages the emotions of the child, as well as the parent. It is also tantamount to making certain very serious commitments to the child, not least of which is that his/her interests are vital to oneself and that abandoning him/her is unconscionable because the relationship is (virtually) unconditional. Abandonment can sometimes be justified in the interests of the children, but abandonment because of misattributed paternity does not seem to be open to this kind of justification. Thus, the claim for compensation appears coherent, given the policy, but the man's behaviour is wrong.
What about a man who has been a social father, but who thinks that genetic relatedness matters. In particular, he holds the view that children have a right to know who their progenitors are, and, more importantly, that children are better reared by their progenitors. This man could argue that his decision to abandon the children to their genetic father is in the children's best interests. I have argued elsewhere that children do not have a right to know their genetic origins,20 but even if they did, it is not clear that their best interests are served by being reared by a stranger who happens to be genetically more related, nor does the abandonment ensure that this stranger will indeed be willing to parent them (as opposed to being legally required to provide financial support). In this case, we might say that that man is well motivated but misguided.
When we consider the question of whether his claim to compensation is coherent, it is noticeable that he holds a more pluralistic view than genetic‐relatedness view. He considers the progenitor to be in some sense a father (a genetic father) but simultaneously regards himself as having been a father (a social father) because he has an established relationship with the children. In this case, according to my previous argument from serious commitments, this man has behaved well up to the time he found out he is not the genetic father, and he has been principled in giving way to the progenitor father. But his claim for reimbursement and compensation is less coherent for reasons I will now discuss in relation to yet another type of case.
It is not uncommon for men who discover misattributed paternity to want to continue being the social father to the children. Indeed, far from abandoning the children, they are willing to fight to have access to them in order to continue to be a social father. What if such a man simultaneously wanted reimbursement and compensation? This claim is also incoherent because, as a social father, he has received the benefits of fatherhood as well as the burdens. In bald terms, such a man has had something for his money, something beyond price. Considering himself as the social father is tantamount to saying that he has raised and financed his own children. From this point of view, it is difficult to see what the compensation is for. Before discussing this further there is one other type of claim to consider.
Consider a man who has paid child support for supposedly genetically related children but who has resolutely refused to carry out on‐going parental responsibilities, refusing to have any social contact or form any emotional attachment to the children, paying only because the state insists that he does. In such a case, if a paternity test proved negative, reimbursement with interest seems justified because the financial support was extracted solely on the basis of a genetic connection that did not exist, and this financial support was the only connection the man had with the children. He was in no other sense a father to the children, and did not want to be a father in any sense. However, the more an unwilling man becomes a social father, even if this is based on deception, misunderstanding or misinformation, the less the claim for compensation and reimbursement is justified because, as previously argued, the more he has received the benefits of fatherhood.
This brings us back to the relevance of choice. Men who consent to infertility treatment using donor sperm, or who adopt children or who want to raise children who are known not to be genetically related to them, make a deliberate choice to do so. Social fathers who discover misattributed paternity are not given a choice until a point where there is less of a choice because they are already emotionally involved. If the choice of what to do after misattributed paternity is discovered can count as a choice, it is a choice after the fact of having already carried the burden. So, even if it can be argued that they have raised their own children (in the sense I have outlined above), should they be compensated for not having being given a choice in the matter long ago when the deception started?
There are many occasions when things work out better for us than we could have imagined, when the first event in a chain is not of our own choosing, or is one that we would rather, at the time at least, had not happened. Whether the unwanted first event is a candidate for compensation depends on whether the event is judged a misfortune all things considered. Having children sometimes results from an initially unwanted event; children may not be planned but are conceived and born anyway, and while it is a shock and concern at the time, later the parents are glad that things turned out as they did. Likewise, some men embrace fatherhood when a pregnancy was not just unplanned but also actively unwanted, or even the result of some deception.xi In this respect, there are some similarities between the men who become fathers as the result of unplanned or unwanted pregnancies and men who become fathers as a result of misattributed paternity. If the process of becoming a father (in the richer, social sense of fathering, rather than as a progenitor) entails emotional engagement with children, it is difficult to see how a social father could honestly claim to regret having his children, and the absence of regret undermines a claim for compensation. The choice to become a father may have been absent, but the outcome is not something one would wish to change as the child(ren) are viewed as a good thing.
A distinction can be made between choices that we do not have for reasons of fate or similar, and choices that we are unable to make as the result of deception. Men who become fathers as a result of deception of whatever kind, might still feel that they are owed compensation for the actual deception, even if they are not unhappy with the outcome at the point in time that the deception is discovered. Here it seems reasonable to take an external view of the predicament. While a man thinking as a father at the time the deception is discovered is unable to regret his children, it is possible looking from the outside to see that this man at the crucial time of the deception might or would have made a different decision, one that would not have resulted in his becoming a father, if he had not been deceived. From this perspective, it could be the case that but for the deception he would not have become a father. But how this injury should be compensated for is difficult to quantify except with reference to the costs arising as a result of the loss of autonomy, and this would return us to a figure close to that of the cost and burdens of raising the children concerned.
Before this figure is calculated, however, we need to factor in a different kind of choice, the choice men have about what kind of social father they will be. Parenting styles differ. While many parents adjust their own life choices and desires to accommodate the needs of their children, the extent to which parents spend money on their children can differ enormously, even where their economic backgrounds are very similar. Likewise, parents differ in their views about how much time and energy is enough time and energy to spend on their children. Men who are fathers through deception are no less free than men who are intentional fathers to choose the kind of father they will be. If the compensation for loss of autonomy is to be pegged to the cost of child rearing, it should perhaps be pegged nearer to the basic cost of meeting a child's needs rather than to the actual cost to a particular father, as these will reflect his own choices as much as the needs that had to be fulfilled.
To summarise: based on this analysis whether or not a man is entitled to reimbursement or compensation depends upon the circumstances. The most obvious case for reimbursement occurs when a man has paid child support but has no relationship at all with the child(ren). The more this man becomes a social father, the more difficult it is to demonstrate injury because it becomes difficult for him to argue that he would change the circumstances in which he finds himself, and also because he has reaped the benefits of fatherhood along with shouldering the burdens. The longer a man is a social father, the more he can be regarded as behaving badly if he severs his relationship with his children, which act would seem to show that he does indeed regret the circumstances in which he finds himself. In this case he becomes a candidate for both reimbursement and compensation but only by doing something morally bad – abandoning his children. Viewed from his own perspective, a social father who is unwilling to sever relationships with his children may not be a candidate for either reimbursement or compensation, but viewed from an external perspective, it is arguable that he is owed compensation for the undermining of his autonomy at the point when the deception started. If the level of this compensation is to reflect the cost to him of the loss of this autonomy, it must take into account the extent to which his own choices about how to behave as a social father have affected his spending habits and the time and effort expended on the child(ren.) This general principle might also reduce the amount owing to those who are willing to sever relationships with the child(ren).
The external point of view can legitimately take into account two further things. The first is the interests of the children concerned. Depending upon the circumstances, the interests of the children may be affected if the resident parent is required to make a large financial settlement on the deceived man. Arguably, however, a debt is a debt however it is generated and many children suffer as a result of the debts of those upon whom they depend. Parents cannot be released from their debts just because they have dependent children, although repayment can be scheduled so as to minimise the consequent disadvantages to them. Second, it is reasonable to take into account the general effect on the interests of children if claims for misattributed paternity are encouraged. It is not in the public interest for social fathers to use as a benchmark for fatherhood what is required of absent fathers by the state in child support. Nor is it in the public interest for the view to be perpetuated that merely paying child support is a legitimate means of discharging one's responsibilities to one's children. Arguably, children need active fathers, not just money from men to contribute towards their upkeep. While a man might feel wronged by the deception involved in misattributed paternity, it could be argued that it is in the interests of the children to remain in a stable family. Likewise, it is rarely in the interests of children to be separated from men who have been actively fathering them. It is likewise not in the interests of children to encourage the view that fathering is primarily about providing financial child support. Nor is it in the interests of children to encourage the view that their “real” fathers are sperm providers.22 Nor should it be taken for granted that children have an interest in knowing or right to know their genetic origins. Rather than clarifying matters of paternity, paternity tests may well erode the meaning of fatherhood, and this erosion must be taken into account when considering the value of paternity testing as a means of allocating the financial responsibility for children.
Against this background, it is easy to become sympathetic to the views of those campaign groups who want compulsory genetic testing of children at birth. This would be one solution to the problem of misattributed paternity, but it concedes too much to the view that parental responsibilities are generated only with reference to genetic relatedness (as either a cause or marker of those responsibilities). It may be another example of measuring that which is most easily measured, rather than that which ought to be measured.
When men argue that they should be reimbursed or compensated by the “other man”, they seem to assume that the progenitor knew about the children, but he may well not have done. The use of paternity testing to support claims for child support is something of a blunt instrument for the progenitor too, for he has also had his choices limited and could theoretically have been deceived as well. Certainly, if he did not know about the children, he cannot be accused of being party to a fraud.
If the progenitor was not party to the deception, he might also feel aggrieved. If he shares the view that genetic relatedness is sufficient to make a man a father, he may well feel that his rightful place as father to the children has been usurped and that as a result he has lost out on the positive aspects of the experience of raising his children and living in their company. Should he be entitled to compensation for this loss? The likely candidate to compensate him would appear to be the woman as, in the kinds of misattributed paternity that we have been discussing so far, we have assumed that the social father was also deceived and cannot therefore be blamed for the injury. However, there have been cases where husbands have colluded with their wives in misattributed paternity, either because they want to keep the family unit together, or because, in at least one case, the husband was infertile and wanted to have a baby with his wife.23 Given that, as Kaebnick notes,12 it is difficult to displace a social father once he is established, where this kind of misattributed paternity is discovered it is consistent with the arguments in the previous section to honour the claims for compensation of progenitors who, as a result of deception, are unable to become social fathers to their children (assuming a willingness to concede that genetic relatedness gives a man a claim on becoming a social father).
But to return to the kinds of misattributed paternity previously discussed, would re‐paying the cuckolded man weaken his claim to be the children's social father? Wouldn't the progenitor be paying for the privilege of asserting paternal rights and responsibilities for the children concerned? Questions such as these reinforce the impression that the policy of connecting a positive paternity test with financial obligations is in danger of producing a distorted and thin view of what it means to be a father. It is distorted in the sense that it gives undue weight to genetic relatedness. It is thin because it suggests that it is enough for fatherhood to provide a small amount of sperm, and also in suggesting that what counts in fathering is financial support. The danger of this thin and distorted understanding is felt mainly by the children, whose interests in these kinds of confrontations tend to be overlooked.
When misattributed paternity is discovered, it is sometimes appropriate for money and property to be reimbursed, but not in every case – particularly where a social father wants to continue in this role. Moreover, such claims need to distinguish between what might be owed to a man when misattributed paternity is discovered and compensating him for infidelity per se. Although children may result from infidelity, and paternity testing may be proof of infidelity, these issues (and the feelings they engage) need to be disentangled both from the interests of the children, and from our understanding of what fatherhood means. Paternity testing might be an effective test of genetic relatedness and infidelity, but it is an ineffective test of fatherhood.
I must record my gratitude to my colleagues Tom Sorell and Jon Ives for their helpful suggestions on this version of the paper, given generously and at short notice.
iThis paper will not discuss misattributed paternity in the context of assisted conception.
iiSince then the Child Support Agency has been forced to repay more than 3000 men who used paternity testing to show that they had been falsely named as a father (see Hencke).
iiiA woman could have good reasons to keep the paternity a secret. For instance, she may think that her partner will be a better father to the child than her lover, or she have other children and think that it is better for all if the family stays together – a state of affairs that may be threatened if her infidelity is revealed along with the paternity of the child.
ivIn the case of divorce in the UK, for instance, spousal maintenance and the division of property is not supposed to be decided on the basis of fault, even though revenge, resentment and grievance obviously motivate some people during settlement negotiations.
vThis does not mean that the absent parent has greater responsibilities than the non‐absent one. Not being absent means that a parent discharges the responsibilities associated with being present: active involvement in the children's lives, care, succour and so forth. The non‐absent parent who has an income is also expected to contribute some of this income for the upkeep of the children. An anomaly, however, is that if both parents absent themselves, for example leaving the child to be cared for by the state, child support may not be legally required.
viIt might be a marker of responsibility if responsibility for children is considered to flow from agreement to potentially procreative forms of sexual activity. But as many writers, for instance and most recently Elizabeth Brake point out, post Judith Jarvis Thompson's paper on abortion, it has been difficult to maintain that duties are owned to children solely on the basis of having engaged in the sexual activity that led to their creation. Rather it is necessary to endow genetic relatedness with some special moral value, usually related to causal responsibility, and to argue that genetic relatedness per se generates a responsibility that cannot be abrogated.
viiBut see for instance Benatar, Nelson, Bayne and Fuscaldo.
viiiIam currently working on a paper that explores whether the relationship can be completely unconditional, for instance, whether there are no circumstances under which parents can sever their relationship with their children. This paper draws on the novel We need to talk about Kevin by Lionel Shriver, about a mother's relationship with her son who murders both his father and sister, amongst others.
ixThe benefits that I am thinking of here include primarily the fundamental benefits of parenting (see Draper) rather than the incidental ones.
xCompensation would be another matter. He clearly has not taken on any of the other (non‐financial) burdens of parenting, although he may make a case that he has been emotionally damaged by being forced to pay against his will, being wrongly accused of paternity and, perhaps, by having to bear the disapproval of those who thought he was failing in his obligations to the child by refusing to be a more active parent.
xiIam thinking here of so called sperm‐jacking (where women remove and use sperm from a used condom) or when a woman insists that she is taking a contraceptive pill but is not.
Competing interests: None.