Cited Article

The DNA Paternity Test: Legislating the Future Paternity Action

Case Citation

State v. Michael J.W., 565 N.W.2d 179 (Wis. Ct. App. 1997)

Background

Holding that "[i]n a paternity action, summary judgment was properly precluded because the man claimed that he never had sex with the mother. A new trial was required because a charge that he was rebuttably presumed to be the father based on blood tests was denied.”

Citing Quote

The results of the various tests performed in 1988 were set out in three documents. The first, dated August 11, 1988, reported only tests conducted locally: ABO, Rh, MNSs, Kell, Duffy, and Kidd red blood cell antigens, six serum proteins and HLA, A and B series. It stated that the probability of paternity of the combined tests was 97.71%. The second document, dated November 23, 1988, reported the DNA analysis with a probability of paternity of 95.9%. The final paternity report combined n3 the probabilities from all 1988 tests. It concluded the statistical probability of paternity was 99.9%. n3 Paternity testing is a process of exclusion rather than a process of identification, wherein the probability of exclusion or the probability of paternity is always stated as a percentage of less than 100% because all males in a given population are not tested. The maximum probability of exclusion that can be achieved differs for each type of blood test that examines genetic markers. For example, the ABO red blood cell antigen is the simplest test to run, but it has a maximum exclusion of only 20%. However, if it is combined with another genetic marking test, such as the MNSs test, which has a 31.6% maximum exclusion capability, the maximum exclusion rate from the combined effect of the two different red blood cell antigen tests increases to 45.3%. See Shapiro, et al., The DNA Paternity Test: Legislating the Future Paternity Action , 7 Journal of Law and Health 1 (1992-93). We are aware of only one other court which has addressed the issue of the right of a woman to the sperm of a decedent. In 1984, in Parpalaix v. CECOS, the French tribunaux de grande instance ordered CECOS, a government run sperm bank in a Paris suburb, to return stored sperm of a decedent to a doctor chosen by his surviving wife. In light of the discussion in the preceding section pertaining to unmarried women, we find the Parpalaix case instructive and pertinent to the issue before us although it dealt with a married couple. We glean the following facts and decision in the Parpalaix case from a discussion of it in Shapiro and Sonnenblick, supra, 1 Journal of Law and Health at pages 229-233. n7

Article Publication Date

1992

Volume

7

Issue

1