Cited Article

The DNA Paternity Test: Legislating the Future Paternity Action

Case Citation

Trembow v. Schonfeld, 901 A.2d 825 (Md. 2006)

Background

Holding that a "mother was not entitled to pursue a paternity action after a child's 18th birthday; however, had the mother established paternity prior to the child's 18th birthday, or the child had independently established the same, the mother or the child would have been entitled to seek child support from the alleged father of the destitute adult child.”

Citing Quote

Most significant, however, is the fact that DNA paternity testing techniques presently available permit paternity to be established with near certainty. We have discussed the scientific underpinnings of DNA testing in several of our cases, and therefore I will not reiterate the discussion. See, e.g., Armstead v. State , 342 Md. 38, 49-54, 673 A.2d 221, 226-28 (1996) . The application of DNA testing techniques to questions of paternity has for many years now permitted paternity to be affirmatively established to an exceedingly high level of certainty. See E. Donald Shapiro, et al., The DNA Paternity Test: Legislating the Future Paternity Action , 7 J.L. & Health 1, 29 (1993) (DNA technology permits paternity to be affirmatively established to a probability of 99.999999%). Given that present DNA paternity testing techniques permit paternity to be affirmatively established to such a high degree of certainty, I conclude that it is no longer possible to rely on the basis upon which the Court in Mills rejected the argument that the availability of scientific paternity testing techniques makes any statutory limitations period on paternity actions not substantially related to the State's interest in preventing stale or fraudulent claims. In Mills , the Court rejected this argument because it found that there was an asymmetry in the then-available paternity testing techniques: they could affirmatively establish nonpaternity, but could not affirmatively establish paternity. See Mills , 456 U.S. at 98 n.4, 102 S. Ct. at 1554 n.4 . In the Supreme Court's view, it was this asymmetry that resulted in a continuing need for resort to traditional methods of proof of paternity, which in turn provides justification for the state to impose some statutory period of limitations on paternity actions. See id. This asymmetry, however, no longer exists as a result of the advent of DNA paternity testing techniques. Thus, in my view, the advent of these techniques calls into serious question the constitutionality of any statutory limitations period on paternity actions.

Article Publication Date

1992

Volume

7

Issue

1