Legal controversy over the courts’ refusal to recognize DNA to deny paternity

Final judicial rulings issued in the recent period regarding the inadmissibility of lawsuits to deny proof of the lineage of children to fathers who refused to acknowledge their paternity of these children raised a legal controversy, due to the failure of these rulings to recognize the results of several medical analyzes that confirmed the absence of a filial relationship between fathers and the children attributed to them, as the Court of Cassation said in One of its rulings in this regard is that a claim to deny paternity cannot be accepted more than seven days after the date of the father’s knowledge of the birth in the case of li’an.

Lawyer Abdullah Al-Hamdani stated that many of the rulings of the Court of Cassation repeatedly rejected such claims in accordance with the authority of the court, considering that it is the supreme expert in the case, and that the DNA report is considered evidence of the case, and it may take it or not, adding “Although this is correct in terms of form, it contradicts the applicable legal constants, as the court is obligated to provide evidence that it has balanced the legal and factual evidence of the case, and that it has taken into account With all the elements of the case, with insight and insight sufficient to carry her case, and reassure the informed person that she has done everything in her power to achieve the truth in the case, so how can it be accepted that the genetic fingerprint report comes to confirm that that child is not related to his father, and despite that the court confirms him to him? Adding that Article 89 of the Personal Status Law stipulates that paternity is proven by bedding, acknowledgment, evidence, or scientific methods if the bedding is proven, as the text specifies that proof by scientific methods is not accepted unless it is proven. The bed, which is the marital relationship. If there is no marriage, it is not acceptable to prove it by scientific methods. Likewise, lineage is not proven, even if it is correct, if there is no marital relationship, because the son is considered the child of adultery, according to the words of the Chosen One, may God bless him and grant him peace, “The child is for the bed.” And the stone is for the prostitute.”

Al-Hamdani explained, “In light of the tremendous medical progress in recent times, especially in such matters, which do not admit of doubt, proof of lineage in the event of disagreement and dispute must be through medical analysis, which is the closest thing to logic and reason, as there was a jurisprudential rule.” It was decided that lineage is difficult to prove. There is also a jurisprudential rule that states that caution should be taken in proving lineage, which means that caution is necessary in proving it, because of what it may entail, as someone may marry his sister. To prove his lineage to someone other than his real father, someone may inherit someone else’s inheritance, and someone may be deprived of the inheritance of his father to whom his lineage has not been proven. All of these issues can be easily resolved through genetic fingerprinting, but many courts tended to reject many of these claims and refused to conduct That analysis is based on the first rule without taking into account the second rule, which is closer to being correct at the present time.

The legal advisor, Ibrahim Al-Khoury, believed that Islamic law has established clear controls in such matters, and has been transferred to the Personal Status Law, so that it preserves social rules and puts the individual in the spotlight. He stressed that there are many cases in which they, as lawyers, ask not to accept claims of denying lineage, because Sharia law Islamic law specifies only seven days during which the husband is allowed to appeal by cursing and denying the lineage of the child his wife gave birth to. If he does not file an appeal during this period, this is considered an acknowledgment of his filiation, indicating that “The courts take into account the interest of the child as a human being who has the right to a name, nationality, and identity papers, and his future cannot be left hanging on the outcome of an analysis that may be right or wrong.”

The legal advisor, Youssef Mahmoud, stressed that “the court has the right to evaluate and judge every legal case, taking into account all legal and legal controls,” refusing to abolish the court’s right not to take into account the results of the tests, or oblige it to adopt these tests as the only presumption. He said, “There are final judicial rulings issued by the Federal Supreme Court, indicating that the court is not obligated to take the results of the genetic fingerprint examination in proving or denying the parentage of children, considering that these results are nothing more than a presumption that serves as evidence, and can be refuted if they violate the legal controls.” The process to be followed in order to adopt these results, given that the court is the supreme expert in this matter, and it has full authority to understand the reality in the case and evaluate its evidence, including the results of the genetic fingerprint examination and its matching. of the reality in the case.”

Although genetic fingerprinting is considered one of the modern technologies revealed by modern science, and is characterized by the characteristic of accuracy, there are legal and Sharia conditions for adopting it, among them is that its results should not contradict the Sharia texts from the Qur’an and the Sunnah of the Prophet, so that this does not lead to neglecting the definitive Sharia texts. It brings harm, and therefore it is not permissible to use it to cast doubt on a person’s stable health or to undermine trust between spouses, and genetic fingerprint analyzes must not contradict reason and logic.

Among the cases witnessed by the courts was the rejection of an appeal filed by a father against his wife requesting that he deny his child’s lineage after coincidence led him to conduct medical tests on the child during his treatment, only to discover – through the results of the tests – that it was impossible for him to be the child’s biological father.

The court indicated that a lawsuit to deny paternity must be filed within 30 days of his refusal to accept the child’s lineage, provided that he did not acknowledge his paternity of the child in any way after birth, such as receiving congratulations on his birth. The father had filed a lawsuit against his wife, requesting that his son’s lineage be denied. He explained in his lawsuit that his wife gave birth to a baby in one of the major hospitals, and the child was handed over to him and registered in his and his wife’s names.

After the child suffered a health crisis and was presented to doctors, it was discovered during a vital and biological examination that his blood type, genetic genes, and acids did not match his father’s blood sample.

Upon asking his wife, she confirmed her doubts about the child’s lineage to her, which suggested that there had been an error on the part of those working at the hospital when the child was delivered, which prompted him to file a lawsuit against the hospital to oblige him to submit birth records during the period of his wife’s birth, and to present his wife to the medical committee to find his real child. The court referred the wife and child to forensic medicine to take a sample of their blood and compare it with his blood. However, the wife refused to comply with the court’s orders and conduct the necessary tests, so the court ruled that it did not have jurisdiction. She was referred to the Personal Status Court for jurisdiction, which issued a ruling rejecting the case, so the father filed a complaint with the police authorities to summon the wife to conduct the necessary tests.

The result was that he could not genetically be the biological father of the child, and there was also nothing genetically preventing the defendant from being the biological mother of the child. The court ruled that the case could not be considered because it had previously been decided. In the cassation, the court said that the law, and before it jurisprudence, stipulated that a lawsuit to deny paternity be filed for a specific period (seven days), provided that he did not acknowledge his paternity explicitly or implicitly, and the lawsuit for li’an should be filed within 30 days from the date of learning of the birth.

However, he did not submit any legal challenge to the attribution of the child to him throughout the previous period (about nine years), which resulted in the attribution of the child being legally linked to him in the bed, the conditions of which were all met by Sharia law.