Lies, deception and paternity fraud

Do the moral issues skirted by the High Court ruling against a finding of deceit in the Magill case indicate that when it comes to reproductive choices women have rights but men do not? Or should our social concern rather focus on the children who are denied knowing their natural fathers and hence lose the key to half of their genetic heritage?

The legal establishment, and others who think that society can do no better, may like us accept that mothers should make the choices about having children and therefore we should not be too dismayed about the possibility of paternity fraud.

But it is an historical, social and ethical mistake to consider mothers (and the courts) as the sole arbiters on the needs of children. Fathers can and should also be involved in decisions about what is best for their children.

Women have been insistent in claiming their rights to choose whether to become parents or not. The long-running debates on “a woman’s right to” abortion and the parliamentary debate on making the RU486 abortion drug available are testimony to these vocal claims.

Men would dearly like to assert similar rights to make their own reproductive choices.

But what happens when a woman exercises her reproductive choice to become a mother while misleading her male partner into believing that he has become a father?

According to last week’s decision by the High Court of Australia in the Magill case, the mother, Meredith Magill, is not guilty of the common law tort of deceit even though she knew that Liam Magill was not the father of two of her children.

Men choose to become fathers through insemination, adoption or assuming some of the fathering responsibilities for their partner’s children. What men do not freely choose is to become a “step-father” to children they believe are their own.

Men who are made aware that they are not the father of their partner’s children may still choose to take on a fathering role if they are comfortable doing so. Liam Magill was not given this choice. He was denied any knowledge of the children’s paternity and his right to make an informed choice was unjustly violated.

Any acceptance of paternity fraud sends a strong message that our society recognises the importance of women’s rights but fails to give men’s rights equal consideration.

Worse still in cases where paternity fraud is deliberate. It involves a calculated decision on the part of a mother to deny the children and the natural father the truth about their father-child relationships. This denies the children a key aspect of their identity.

Biological ties are important to each of us in understanding who we are. Family relations are central to our sense of self-identity: “Who are your parents?”; “Is this your child?”

These questions about family relationships are most often inquiries into the biological connections between generations. These parent-child ties are among our most valued intimate relationships and the source of great love, pride, joy and mutual expectations.

How many parents would accept with equanimity the revelation: “This is not your child”? If a newborn child is given to the wrong parents or mother after delivery we are shocked and anticipate significant distress among all the incorrectly identified parents.

Our moral outrage should be no less where children are deliberately misled about the identity of their father. Discovering that you are not the parent of one of “your” children would be a terribly shocking and identity-altering revelation for most people.

There is widespread support from political liberals, equal parenting and fatherhood advocates, and equality feminists, for women and men to have legal equality and enjoy equal social opportunities. However, some people oppose equality for the sexes and “gender feminists” advocate preferential treatment for women in areas including child custody and reproductive rights.

In the wake of the Magill decision, legislative changes should be considered to protect both women’s rights and men’s rights to make their own, individual reproductive choices. In an open society our laws should be a reflection of our shared moral values so legal reform is required to address social concerns about the myriad problems resulting from paternity fraud.

It is in children’s best interests to have both parents share the responsibilities and care for their children. The importance for children of strong relationships with their mothers and fathers is borne out by modern developmental theory and empirical research. Roles for both parents are supported after marital separation by the latest family law amendments.

Children have rights to know and be cared for by both parents. These moral and legal rights are enshrined in the United Nations Convention on the Rights of the Child, which has been ratified by over 190 countries including Australia. As a UNCRC signatory we must ensure that children are able to maintain personal relations with both their parents.

Both women and men have rights to make reproductive choices about having children, as parenting is a partnership chosen by two people to protect the interests of their children. These moral concerns form the heart of the unique social value parent-child relationships have in our society and the law must protect these vital principles.