Shadows of doubt: the uneasy incorporation of identification science into legal determination of paternity in Brazil

Abstract

The arrival of DNA paternity testing in the 1980s was met with great enthusiasm in the Brazilian courts. Yet, over the past two decades, Brazilian legal doctrine and jurisprudence have increasingly rejected DNA proof as the sine qua non for paternity cases. Instead, DNA paternity testing has generated mountains of litigation, as biological proof has been challenged by the argument that paternity is primarily “socio-affective”. Leading family law specialists describe this new conception of paternity as an outcome of the “revolutionary” provisions of the 1988 Constitution, which recognizes the “pluralism” of family forms in modern society and guarantees equal family rights for all children. Without denying the significance of the constitution’s dignitary framework, we show that new legal understandings of paternity represent less a paradigm shift than a continuation of longstanding historical tensions between biological and socio-cultural understandings of family and identity. In this article, we explore the development of biological and eventually genetic typing in Brazil, both of which had ties to the fields of criminology and race science. Our review suggests that techniques of biological identification, no matter how sophisticated or precise, were ineffective means for establishing identity, whether of individual personhood, as in the case of paternity, or national make-up. Instead, they became incorporated as supplemental methods into complex legal, social, and cultural decision-making around families.

DNA and the displacement of certainties in brazilian family law

“…(apud Madaleno 1999) This is the only case we came across in over a hundred paternity investigations opened in 8 th Family Court of Rio Grande do Sul between 1999 and 2002 that ventured to question the scientific validity of the proof provided by the new genetic technology. The judge's written sentence reaffirmed the trend of the times towards what certain juridical analysts would come to call the "sanctification of DNA" and the "biologization of kinship" (Caulfield & Stern, 2017).…”

“…Reinforcing a 1992 "Paternity Law" designed to promote the identification of fathers for children born out-of-wedlock, a number of court decisions had progressively enhanced the centrality of the DNA test. In 1994, arguing that thanks to the test's near-absolute accuracy, and the fact that "fictive truth" could now be replaced with "real truth", the Superior Tribunal of Justice decreed that men who refused to undergo a paternity test would automatically be declared fathers (apud Caulfield and Stern, 2017). Traditional proofs were losing ground.…”

“…Although cases of "paternity fraud" are not unknown in other countries (Machado and Silva, 2012), Brazil's particular history of government administration has made this phenomenon all the more likely. Until at least the 1970s, the most elementary documents-birth certificates, identity cards, and so on-were still not a routine part of most Brazilians' lives (Cunha, 2005;Fonseca, 2016;Caulfield & Stern, 2017). The majority of the population was to be found in rural areas, where couples lived in consensual unions and children were born at home.…”

“…During some time, it appeared sufficient for a man to combine a negative test result with a convincing tale of his own ignorance for a judge to reluctantly cut the tie between father and son. However, little by little Appeals Courts, began to overturn lower-court decisions, arguing that socio-emotional ties of fatherhood overrode the lack of genetic connection (Caulfield & Stern, 2017). In 2004, members of the influential Brazilian Institute of Family Law proposed a bill in congress to prohibit step-fathers who had effectively raised their ex-mate's children from disclaiming their previously declared paternal status (Bill n.4946 of 2004).…”

Conceiving Parents, Consolidating the State: Emphasis and Erasure in the Governance of Marginal Parenthoods in Brazil

“…Their mothers were then summoned to family court, where they would be pressured to reveal the name of a "purported" father and submit to a government-funded DNA test. Increasingly refined technologies were channelled toward ensuring the accurate identification of family ties (Caulfield and Stern 2017;Fonseca 2009a).…”