Secrets and lies

The Age, Australia, Saturday essay, Leslie Cannold, November 26, 2005

Upon the birth of a child, men ought to be given the opportunity to give one-time-only non rescindable consent to their acceptance of the rights and responsibilities of fatherhood. "Paternity fraud" implies deceptive women cuckolding men into believing children are biologically theirs. But the truth is more complex, and more human, writes Leslie Cannold.

While the DNA paternity test has been around since the early 1980s, it was not until the mid-1990s that concerns about what fathers' rights activists call "paternity fraud" took flight in Australia. It started with the Child Support (Assessment) Act of 1989, which in effect transformed the age-old definition of a father from the man married to a child's biological mother to the man whose sperm caused the child to be conceived. Designed to compel men to take fiscal responsibility for their children, the new law was lauded by politicians as a boon to both women and children.

Overnight, the law changed the world for separated and divorced men. While previous support arrangements had largely left men in control of decisions about whether and to what extent they would provide financial support for the children of failed relationships - 60 per cent to 70 per cent found it easy to evade court-ordered maintenance and pay nothing - the new act used set formulas to assign child-support liabilities that could be deducted automatically from a man's salary or from his bank account.

The only recourse for men hoping to avoid what one commentator sympathetic to the fathers' rights cause recently referred to as the "clutches" of the Child Support Agency was to disprove biological paternity.

So, perhaps not surprisingly, the act's passage led to a boom in DNA labs as they marketed paternal anxiety to men and promised "peace of mind" for between $150 and $825 (the higher figure being for results guaranteed to stand up in court).

By early 2000, fathers' rights groups were insisting, on the basis of largely discredited or even non-existent data, that between 10 per cent and 30 per cent of Australian children were being parented by men who were not the biological father.

The groups also attacked academics - such as Swinburne University of Technology's Professor Michael Gilding - who tried to set the record straight. (Gilding's published results show the Australian rate is likely to be between 1 per cent and 3 per cent).

The Australian face of paternity fraud is Melbourne man Liam Magill. In 2002, Magill's ex-wife Meredith was ordered to pay him $70,000 for general damages and the economic loss he suffered as a consequence of her false declaration that he was, as one newspaper report put it, the biological father of "her lover's children". Two of the three children were not biologically Magill's.

Meredith Magill successfully appealed against the decision, with the Victorian Court of Appeal ruling that there was no evidence to show she had intended to deceive her then husband. But last week, the High Court granted Mr Magill leave to continue his case for compensation.

However the highest court in the land ultimately rules, Magill's predicament - and the anxieties of fathers over legally intertwined questions of paternity and fiscal responsibility - have had a profound impact on government policy.

In June, Attorney-General Philip Ruddock amended the Family Law Act to make it easier for men to reclaim child maintenance or property transferred to a child that DNA testing reveals isn't theirs.

About the same time, the Government took delivery of what has become known as the Parkinson report, which recommended that men disputing biological paternity be allowed to suspend child-support payments for as long as it took to resolve the issue.

It is men - or, more precisely, men who Australian Law Reform Commission president David Weisbrot calls "putative" and "angry dads" - who dominate debate about child support and paternity fraud.

While their denunciations of women who "cheat and lie" echo across the internet, in real life such men contributed the bulk of submissions to the Law Reform Commission's recent inquiry into the privacy of genetic information.

Through their complaints to local MPs, these men have also instigated inquiries such as the 2003 review of child custody arrangements that led to the Parkinson report. The voices of children and women are rarely heard. Indeed, even in the wake of her victory in the Victorian Supreme Court, Meredith Magill refused to grant interviews to any of the assembled reporters.

The work of Dr Lyn Turney, a researcher at Swinburne, suggests that this is not surprising. Turney's groundbreaking research on women who keep "paternity secrets" appeared in the most recent issue of the Journal of Family Studies and constitutes the first time this sub-group of women has been studied.

Turney argues that the panic surrounding paternity fraud paints mothers as the central "moral threat" to social stability.

The behaviour of women who society charges with infidelity and sluttishly having more than one partner - while posing in the community as "good" wives and mothers - is depicted as morally indefensible. Turney says: "They encapsulate not only female sexuality out of control but also a view of women as predatory, deceptive and instrumental." No wonder they don't want to stick their heads above the parapet.

But Turney wanted to know more. In particular, what led women to have and to keep "paternity secrets"?

Her results, the outcome of extensive interviews with 15 Australian women, are testament to the stubborn opacity of conception, the complexity of human relationships, and the way in which both shame and violence shape women's sexual and reproductive lives. In Turney's sample, several women admitted uncertainty about the genetic father of their child.

But few of these women's stories conformed to the "paternity fraud" stereotype of faithless wives with regular lovers, though the self-selected nature of the sample and small numbers makes it impossible to know how representative the group is.

The women Turney interviewed told of sexual relationships that "overlapped" or happened "in quick succession", as well as "one-off" encounters with friends, acquaintances and old flames that usually didn't involve either infidelity or deception because the women were either unattached or only "minimally attached" to a dying, old or embryonic relationship at the time. One woman, for example, had unplanned sex with a long-time friend: her first encounter after the death of her husband a year earlier.

Several days later, she met a new man who became her regular partner. Another woman told of a single sexual liaison with an old flame while single and trying to conceive a child with a donor whom she knew.

Both of these women, as well as others to whom Turney spoke, had dismissed the reproductive potential of these one-off encounters because they wanted to believe that their chosen or permanent partner - the one with whom they were having regular unprotected sex - was the genetic father.

It was only when the baby bore a similarity to the biological father at birth, or the woman later happened upon a childhood photograph of the biological father, that the connection was made and the reality of the situation accepted.

The threat of sexual violence or shaming also explains some cases of "paternity fraud". Four of 15 women, some of whom confessed tales of rape and abuse, withheld doubts about their child's paternity for fear of their partner's response. One woman told of being raped by a family friend and, believing herself to be at fault because she trusted him, never told anyone of the assault or her subsequent doubts about paternity.

Turney also cites several instances in which older domineering husbands organised sexual liaisons - in the context of an "open marriage" and plenty of drugs and alcohol - in which their wives participated. When the women subsequently raised questions about the paternity of resulting children, the husbands muted the discussion by "highlighting the women's sexual transgressions" and threatening them with public disclosure. In other words, such men "drew upon the moral panic" to stop the woman revealing the secret about the child's paternity - not to the social father, who knew exactly what was going on - but to society at large. Only when the relationship broke down and the question of support payments arose did the men question the child's biological paternity.

Abortion was considered by several women unsure who caused their pregnancy, but the men in their lives were not always supportive. The Catholic stepfather of a 16-year-old told her he would never speak to her again if she had an abortion, while a GP to whom another woman confessed her lack of certainty over paternity counselled her to "go ahead with the pregnancy and see what happens". In one instance, the suggestion of abortion triggered an angry response from the woman's partner because she was threatening to "kill a baby that was probably his".

The knowledge that some "defrauded" dads have about women's paternity "secrets" is perhaps the most important - and surprising - of Turney's findings.

From the wife-swapping husband to the abortion-opposing partner to the spouse who knew his wife had conceived during a short break in their relationship yet chose to sign the birth registration papers and act in the role of the child's father, Turney exposes a range of scenarios in which fraud poorly describes what the men involved describe as the problem they face, if indeed they define their situation as problematic at all.

For one man, the issue was that his partner was unfaithful, not that the resulting child wasn't biologically his.

However, in explaining his refusal to have a paternity test, the former partner of another woman said that while he was "over the fact (she had) slept with someone else", he hadn't come to terms with the potential genetic consequences of her actions.

Indeed, Turney's revelation that some men know there are doubts about their children's genetic lineage or even that their children are definitely not biologically theirs bolsters suggestions - rife in the academic literature - that relationship breakdown is an important trigger to men's (and consequently society's) reworking of paternity "secrets" into the moral crime of paternity "fraud". It also hints at the unsavoury possibility, vehemently rejected by fathers' rights groups, that at least some men are motivated to have DNA tests - after marital breakdown - to avoid child support liabilities.

The message of Turney's research is simple, yet overlooked in debates about paternity fraud: that human values, motives and relationships come in myriad complex, even convoluted, forms. "Oh, what a tangled web we weave," I wanted to sigh as each woman's tale - with its coercion and choice, misunderstanding and deception, care and indifference - unfolded. Turney's work is also suggestive of a number of ways in which the problem of paternity fraud can be understood and fixed.

What is clear is that it is a nonsense to brand every instance in which a man receives paternity test results showing he is not a child's biological father as an instance of "paternity fraud". As Turney's research suggests, such results may or may not be telling the man something he didn't know already. Fraud implies deceit and if men know there is doubt about a child's paternity or are sure a child is not their progeny - and have supported the pregnancy continuing (for instance, by opposing an abortion) - then it is incorrect to claim that they have been duped either about their partner's fidelity or into accepting legal responsibility for the child.

By definition, a victim of fraud is someone who has been injured, or at least disadvantaged. To be defrauded is to be cheated of something that is rightfully yours. Indeed, the claim that "real" dads are genetic ones, and therefore that men who discover they are not the progenitor of the child they are parenting have been cheated of fatherhood, is at the heart of claims by fathers' rights groups about the wrongs suffered by victims of paternity fraud.

Yet, research evidence, not to mention the decisions of millions of men to adopt children or conceive them using donor sperm, suggest that many men see the essence of fatherhood as parenting, not sperm donation. For them, the "real" father is the one who is there not at the time of conception, but for the joys and hard work of parenting.

Of course, many - if not most - men want to be both the genetic and the social father of their child. Were this not the case, chastity belts would never have been invented, nor the debilitating laws and attitudes that until recently condemned unwed mothers and their "bastard" children to legal and social non-personhood. When women keep paternity secrets, they deprive men of the knowledge that would instigate an exploration of their values regarding social and genetic fatherhood, and the chance to make partnering and parenting choices based on those values. Paternity secrets deprive men of the chance to say "thanks, but no thanks" to an offer of social, but not biological, fatherhood.

All this results in a definition of the problem that focuses on the abuse of trust caused by infidelity and subsequent deception about the infidelity, and the consequent denial to men of the chance to make informed decisions about partnering and parenting. Such a definition does not make the parenting of an unrelated child a quandary in and of itself, but only one in the context of a lack of female honesty and informed decision-making by the man.

The difficulty is not the return of DNA results that show a social father is not a biological one, but the return of such results to a man who did not know there was any doubt about his partner's sexual fidelity and his genetic paternity. The trouble is the discrepancy between what men believe is the case about their partner's fidelity and genetic paternity, and the reality.

What all this should make clear is that the current child-support payment system, which assigns payment obligations on the basis of biological paternity, not parenting commitment, is tragically flawed. Regardless of whether the father suspected, knew or had no idea that the child he was parenting was genetically unrelated, and notwithstanding however culpable his female partner's behaviour was in creating that situation, the law needs to recognise and affirm men's value to children as parents - and people - not sperm donors. Playing the biological card not only undercuts research findings that affirm the importance to children of having an active male parent in their lives, but lends support to the insulting claim made by a sperm donor interviewed on Four Corners last month that he, not the man who invested 20 years of time and love, was his daughter's "real" father.

Ditto for recent suggestions that DNA paternity testing ought to be made compulsory at birth. Turney's research makes it easy to imagine the man who suspects or even knows that his new bundle of joy is not a biological relation compelled to face a doctor or nurse delivering the negative results of a mandatory paternity test. How likely is such a man to admit to knowing and not caring about the sexual and biological realities surrounding his child's conception if he feels this will brand him as cuckold and a mug? Better, he may feel, to beat his chest, cry foul and walk out on his wife and new baby.

Of course, rejecting mandatory paternity testing at birth does not mean that men should not be assisted to accept the obligations of fatherhood in a more informed way. Upon the birth of a child, men ought to be given the opportunity to give one-time-only non-rescindable consent to their acceptance of the rights and responsibilities of fatherhood. If they feel unable to sign on the dotted line without conclusive proof that they are the biological progenitor, they should be offered a DNA test free of charge.

However, once a man does formally accept social and legal responsibility for a child - either with knowledge of their genetic paternity or in the face of a fully informed waiver of that knowledge - their status as the child's legal father should rightly be set in stone. No DNA skeletons rattling out of the cupboards at a later date should affect what they legally owe their child or, hopefully, how they feel about the kid who calls him dad.

Dr Leslie Cannold is a bioethicist at the University of Melbourne's centre for applied philosophy and public ethics. Dr Lyn Turney's research is ongoing. Men and women with experiences of paternity testing or paternity uncertainty interested in participating can call 1800 007 166 for more information.