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Case:
BGH XII ZR 60/03 XII. Civil Senate XII ZR 60/03
Date:
12 January 2005
Translated by:
Tony Weir
Copyright:
Sir Basil Markesinis

The claimant seeks a declaration that he is not the father of the defendant.

The defendant’s mother, having had intercourse with the claimant during the statutory period of gestation, assured the claimant that he was the father of the defendant child, born on 10 January 1986. On 11 October 1989 he acknowledged that he was the father, an acknowledgement which the mother endorsed the same day by notarial act. Since then the defendant has been supported by the claimant.

In summer 2001 the claimant arranged for a private DNA analysis with a view to ascertaining paternity: the analyst’s report stated that the claimant could not possibly be the defendant’s father. The analysis was based on a sample of the claimant’s saliva and some hair alleged by the claimant to be hair from the head of the defendant which fell out as his sister was extirpating a tick. The defendant denied that the hair was his, and contested the admissibility of the report to which he had not consented.

The Amtsgericht dismissed the claimant’s demand, the Oberlandesgericht dismissed his appeal, and the claimant now repeats his demand.

Reasons:
2. This court has already held that a claim of denial of paternity does not get off the ground just because the claimant asserts that he is not the father of the child and that a court-appointed expert would confirm this: he must advance facts which are sufficient, on an objective appraisal, to raise doubt about the child’s paternity. …

b) Contrary to the claimant’s argument, the fact that the defendant refused, after the event, to approve the DNA analysis being taken or admitted in court is also not enough to raise a suspicion sufficient to get a claim for denial of paternity off its feet. …In refusing his consent the defendant is simply exercising his right to prevent the disclosure of information about himself. If a refusal to go along with a report by an extrajudicial expert could open up a claim for denial of paternity this right would be diminished, for the information which this basic right is designed to protect would then be ventilated in evidence given in court contrary to the wish of the person affected and in the face of his refusal to consent to its disclosure….

c) Furthermore the report of a DNA analysis secretly undertaken is not apt to found a prima facie case.

In balancing the defendant’s right to prevent the disclosure of personal information against the claimant’s right to have his non-paternity established the court below was right to hold that the former was at least as important as the latter.

aa)The right of the human personality is entrenched in Art. 2(1) of the Constitution in conjunction with Art. 1(1). Here it appears in the form of the right to control the disclosure of personal information. It is infringed when DNA material is analysed and the results disclosed: only by statute or law in the higher general interest can this right be restricted, and then only if the restriction is proportionate, the restriction being no greater than is essential to protect the public weal.

The basic right of the individual to prevent the analysis of his genome without his consent is protected by other legal measures, such as the UNESCO Universal Declaration on the Human Genome and Human Rights of 11 November 1997, Art. 5; Art. II-68 of the Constitution of the European Union; Art. 8 of the European Convention on Human Rights and, as regards the right of the child, Art. 8(1) and 16 of the United Nations Convention on the Rights of Children of 20 November 1989.

bb) This right must also be respected by courts when hearing evidence or testimony, whether the proceedings be criminal or civil. The judge is constitutionally bound to inquire whether the application of rules of private law would infringe a basic right. If so, he must construe and apply the private law rules consistently with the basic right: he may not decline to do so on the basis of court practice or on the argument that this is to give undue weight to constitutional considerations.

Thus it is only in the most exceptional case that information unlawfully obtained by secret telephone-tapping can be admitted in court…. Likewise the right in question is not outweighed by a person’s interest in obtaining evidence in support of a private law claim.

Accordingly, a DNA-analysis undertaken without the knowledge of the person affected cannot be admitted in employment cases or permitted to raise a prima facie case.

cc) The consequence is that since it is unlawful to effect a secret DNA-analysis of paternity the results cannot be admitted in court proceedings to determine paternity or even as a basis for doubt about the paternity under §1600b BGB: to do so would constitute a further invasion of the child’s right to determine the disclosure of personal information.

d) This view is consonant with the intention to put a blanket ban on “secret” reports on paternity as appears in the federal government’s bill on Genomal Diagnosis (Law on Genetic Research on Human Beings). This concern is replicated elsewhere. Here we give only a sample.

In Belgium bills have been introduced to legalise private DNA-investigations at the instance of a parent while the child is under the age of one, and of the child himself or his statutory representative for four years after reaching majority: otherwise such investigations are prohibited. In France non-judicial DNA-analysis is forbidden unless the party affected consents (see art. 16-11 Code civil, Art. 145-15 and 145-20 Code de la Santè Publique… In Great Britain DNA analysis without the consent of the party affected is forbidden (Human Tissue Act 2004, s. 45), and in the Canadian Province of Quebec DNA analysis in principle requires the consent of the person affected, otherwise it is inadmissible under art. 2858 of the Civil Code. In Switzerland extrajudicial DNA analysis is forbidden unless the party affected consents (art. 5, 6, 32, 34 and 36 of the Federal Law on Genetic Research on Human Beings).

e) The child’s right to control information about himself is a product of the general right of human personality; so, too, is the right of the father or supposed father to determine the fact of his status. But the latter right does not outweigh the former. For example, the father’s right is restricted by the severe time limit imposed by §1600 b BGB whereas the child is entitled at any time to oppose the admission or acceptance of genetic information about himself and so to control the disclosure of personal information. Furthermore, in reforming the law as to children in 1997 the legislator decided not to confer a general right to determine biological parentage but rather made such inquiry subject to the interests of the child, especially one born to a married mother and already incorporated in a family.

Furthermore, the right to ascertain whether a child is one’s own or not, even if it were equal to the child’s right to know who his father was, would not entail the right to obtain the relevant information.

The interest of the father or supposed father in discovering the true facts can therefore not be regarded as superior even when he is defending civil proceedings for the enforcement of his liabilities as legal father.