Redefining Paternal Filiation through DNA Testing

Abstract

The social malaise produced by thousands of children born out of wedlock and abandoned is widely understood in the Maghreb. It has opened a breach in traditional Islamic legal discourses as well as social practices regarding the establishment of filiation in Tunisia, Morocco, and Algeria. Analysis of Islamic jurisprudence and opinions, court decisions, and state laws since 1999 shows that the crisis of abandoned children combined with the biological truth revealed by DNA testing have helped produce a paradigm shift. Islamic legal opinions now argue for the need to grant paternal filiation and rights for children born out of wedlock in Morocco, Algeria, and Tunisia. Majority juristic opinions do not always determine state legal practices, and contemporary Islamic legal positions are neither monolithic nor static.

Evidence Laws in Sharia and the Impact of Modern Technology and DNA Testing

“…In a 2008 conference on genetic testing in Algeria, the president of the Personal Status Chamber of the Supreme Court stated ijtihad was necessary paternal affiliation of children born to unwed parents because the search for precedents in classical Islamic jurisprudence has proved insufficient. 140 DNA testing as a modern technology is complex and beyond what jurists could have imagined; hence, a new situation needs new rulings.…”

“…150 Despite ongoing social denunciation, the rate of unmarried mothers who abandon children in Tunisia decreased by a third since these laws were introduced. 151 DNA testing is seen in Morocco as the solution to establish paternal filiation for children born outside marriage, and there has been a call for Sharia to support such measures, where advocates of DNA testing state it is essential to protect children and maintain equality of both parents. 152 In 2004, Morocco reformed its Personal Status Law establishing the Moudawana, a family code that deals with paternity issues.…”

“…151 DNA testing is seen in Morocco as the solution to establish paternal filiation for children born outside marriage, and there has been a call for Sharia to support such measures, where advocates of DNA testing state it is essential to protect children and maintain equality of both parents. 152 In 2004, Morocco reformed its Personal Status Law establishing the Moudawana, a family code that deals with paternity issues. 153 The Moudawana sees Morocco as the first Arab country to include DNA testing when it added "all other means" under article 158 to prove paternity (including and taken to mean DNA testing, which can only occur at a judge's discretion), 154 despite traditional methods of paternity filiation remaining more common.…”

“…Current judicial practice in Morocco sees DNA tests (article 153) as establishing paternity denial, making li'an unnecessary when a husband's claims are supported, resulting in loss of women's protections via li'an. 155 However, judges assume a husband's refusal to attend court over a paternity denial commensurate with admitting paternity. 156 In 2017, a woman sued the father of her child for maintenance after a DNA test established his paternity, but while her claim was rejected because the parents were not married, the court applied section 77 of the Code of Obligations and Contracts and ordered the father to pay money to the mother as he was criminally responsible for engaging in a non-marital relationship, which violated article 409 of the Moroccan Penal Code.…”