Biologising Paternity, Moralising Maternity: The Construction of Parenthood in the Determination of Paternity Through the Courts in Portugal

Abstract

This article explores how the Portuguese legal system's efforts to determine paternity of children born outside legal marriage, automatically initiated by the Registry Office when a birth registration does not indicate the father, reveal cultural models which reinforce the naturalisation of the differences between mothers and fathers, with significant effects on the social construction of parental roles and on expectations of family organisation and female sexual behaviour. The article relies on ethnographic data drawn from direct observation of court proceedings for the determination of paternity, as well as interviews with judges and prosecuting counsels all over the country. It is argued that judicial practices in the specific context of courtroom investigations of paternity reinforce gender inequalities in two interrelated ways. On the one hand, they are strengthened in the discursive practices performed during the course of the interactions between judges, prosecuting counsels and the mother of the child, as well as the alleged father. On the other hand, the normative model of family life and the dominant ideology of women's and men's relationships, which emphasise women's socially subordinate position, are revealed by the selective use of DNA testing in paternity cases, based on the judge's evaluation of the mother's sexual behaviour. The article argues that legal attempts to establish the paternity of children born outside marriage-though based on novel technical and supposedly objective procedures-tend, nevertheless, to reproduce the prevailing patriarchal structures.

The construction of meaning by experts and would‐be parents in assisted reproductive technology

“…Like other European systems, the Portuguese legal system has been very receptive to scientific and technological progress (Machado 2008), usually illustrating co‐production of social order and technoscience (Jasanoff 2004); for example, in Article 11 of the Portuguese Law on ART, the supremacy of medical criteria is reinforced by emphasis on the exclusive competence of medical doctors in proposing the most ‘scientifically appropriate’ technique to would‐be parents:…”

“They never talk about a victim’s feelings: according to criminal law, feelings are not facts”—Portuguese judicial narratives about sex crimes

“…The judicial preference for experts' reports and statements, which are regarded as more reliable than those of non-experts (Fairclough, 1995;Smart, 1995;Machado, 2008;Rees, 2010), result from the judicial practices and social actor's representations as well as from the procedural rules. These interdict judges of freely appreciating evidence given by specialists.…”

The Right to Know One's Genetic Origin: Are Gamete Donations and Misattributed Paternity Cases Alike?

“…Moreover, it is a general practice to evaluate the psychological strength and the nature of the familial relationships of people who wish to participate in a gamete donation program and it is recommended to encourage them to benefit from psychological counseling (American Society for Reproductive Medicine 2013) for this purpose. On the other hand, a mandatory DNA testing under MP cases, may, as Ravelingien and Pennings admit, put pressure on the mother to inform the child about his or her genetic father, and affect the sexual and procreative liberties of women more generally (Machado 2008). If positive, such testing could create serious tension between the social father and the mother (if, for example the child were born as a result of an unknown affair, or if the child seeks some contact with his genetic father), and/or between the social father and the child, the nature of whose relationship would have changed significantly following the testing.…”