Genetic Bodily Fragments and Relational Embodiment: Judicial Rhetoric about ‘Biological Truth’ in Paternity Disputes in the Family Courts

Abstract

In an era of quick, cheap and readily available genetic heredity testing, the Family Courts are increasingly asked to determine legal parentage in light of DNA evidence. For the children involved, that can mean that their genetic bodily fragments are used to retrospectively ‘correct’ their legal kinship relationships and legal identity. Where genetic paternity has been misattributed, judges have erased children’s legal connections with misattributed fathers (and their kin) from birth certificates irrespective of any social and relational meaning that these relationships and identities may have accumulated. This article critiques the genetic thinking apparent in family law judgments on legal parentage. It draws on theories of embodiment to argue that judges use a rhetoric of ‘biotruth’ to engage with the child’s body only as genetic fragments. In reconstructing children’s ‘true’ legal parentage and identity from their genetic fragments, law disembodies children themselves, relating to them as evidence of a reproductive transaction in which men who did not get the genetic child they bargained for may be able to obtain a refund of child support paid. In doing so, the current model of legal parentage fails to engage with the children involved in these disputes as embodied and relational legal persons.