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Biologising Paternity, Moralising Maternity: The Construction of Parenthood in the Determination of Paternity Through the Courts in Portugal

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Abstract

This article explores how the Portuguese legal system’s efforts to determine paternity of children born outside legal marriage, automatically initiated by the Registry Office when a birth registration does not indicate the father, reveal cultural models which reinforce the naturalisation of the differences between mothers and fathers, with significant effects on the social construction of parental roles and on expectations of family organisation and female sexual behaviour. The article relies on ethnographic data drawn from direct observation of court proceedings for the determination of paternity, as well as interviews with judges and prosecuting counsels all over the country. It is argued that judicial practices in the specific context of courtroom investigations of paternity reinforce gender inequalities in two interrelated ways. On the one hand, they are strengthened in the discursive practices performed during the course of the interactions between judges, prosecuting counsels and the mother of the child, as well as the alleged father. On the other hand, the normative model of family life and the dominant ideology of women’s and men’s relationships, which emphasise women’s socially subordinate position, are revealed by the selective use of DNA testing in paternity cases, based on the judge’s evaluation of the mother’s sexual behaviour. The article argues that legal attempts to establish the paternity of children born outside marriage—though based on novel technical and supposedly objective procedures—tend, nevertheless, to reproduce the prevailing patriarchal structures.

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Notes

  1. In France, the Civil Code of 1804 forbade trying to establish the identity of the father of a child born to an unmarried woman. In Portugal, the Civil Code of 1867 imposed several restrictions on the investigation of paternity in order to protect the legitimate family. By contrast, in ancient Nordic law, the link between a child born to an unmarried woman and its father was acknowledged, and it seems to be characteristic of the Nordic countries that the task of establishing paternity of non-marital children (in Sweden since the late 1910s) should fall on society. The legal situation in the Nordic countries is not, however, identical in all aspects, for example on the question of how a refusal on the part of the mother to co-operate in the identification of the father is regarded (Eekelaar and Sarcevic 1993).

  2. Several European countries, such as Scandinavian countries, Germany and Portugal have compulsory inquiries of paternity when the birth certificate of a child under 2 years old does not show the identity of the father. Other countries simply give the court the power to investigate paternity in the course of other civil proceedings regarding the child. That is the case in the UK, where family law allows the Secretary of State, the alleged father or the person with residence to apply for a declaration of parentage of the child (Cretney 2003).

  3. In recent years there has been an intense public debate concerning the child’s right to know its genetic origins. In the context of donor anonymity, the debate refers to the balance between the child’s right to know (the ethics of ‘rights’, according to which priority is given to the right over the good) and the possible integrity of the family (the ethics of ‘utility’ by which the concern would be to balance the interests of all the parties, bearing in mind the consequences for individuals and for the family as a unit) (Wallbank 2004, p. 247).

  4. In the past four decades, all western European countries have carried out more or less substantial reforms of their affiliation laws to provide equality in all fields between children born within and outside of wedlock, with the elimination of the traditional institution of legitimacy and its accompanying terminology. Some outstanding examples of reforms of affiliation laws took place in the Netherlands (1969), France (1972), Switzerland (1976), Portugal (1977), Luxembourg (1979) and Belgium (1987). For further details on reforms of affiliation laws in Europe, see Senaeve (1993), Assier-Andrieu and Commaille (1995) and Spaas (1998).

  5. The European concern over the rights of children born outside marriage is evident in the European Convention on the Judicial Status of Children Born Outside of Wedlock (15 October 1975), which specified the need for the member states of the European Council to adopt common judicial dispositions on this matter.

  6. Article 1864 of the Civil Code states: “At any time that a minor’s birth register is made in which only the maternity is established, the clerk is bound to forward an unabridged register certificate to the court so that the father’s identity may be unofficially investigated”.

  7. According to article 121, no 3 of the Registry Office Code, “the consignment of the certificate shall not take place if, knowing the name of the alleged father, the clerk verifies that he and the mother are blood relations or relatives by marriage”.

  8. Article 26, no 1 of the present Constitutional Law states that: “everyone has the right to personal identity, to the development of personality, to civil capacity, to citizenship, to good name and reputation, image, speech, respect for private and family life and to protection against all forms of discrimination”. Children’s rights to personal identity and development of personality are considered to justify the limitation or restriction of the supposed father’s right of respect for private life and physical integrity. Hence, if the putative father refuses to submit to a paternity test, he may be taken to the place where the test is administered under police escort.

  9. Interview with judge, 2001.

  10. This is a department of the Ministry of Justice which is responsible for, among other services, advisory reports regarding family law and juvenile penal matters, social or psychological analyses of ex-prisoners, drug addicts and juvenile delinquents in order to combat social exclusion, and the articulation between the administration of justice and the community.

  11. Article 204, no 1 of the Minors Tutelary Organisation (Epifânio and Farinha 1992) states: “1. the judge will issue a final ruling as to whether to close the case or have it proceed to the magistrate for the prosecuting counsel of the proper court, so that an investigation or impugnment are recommended.”

  12. “Legal language” is here understood as all written and non-written statements produced by the different social actors within the context of the courtroom. I share Conklin’s (1998) opinion that the distinction between the concepts of ‘language’ and ‘discourse’ are of little analytical importance, in that they are very closely linked and both have to do with ways of expressing ‘power’ (Conklin 1998, p. 8), so in the following discussion I will use both terms without distinction.

  13. After obtaining permission from the Portuguese Ministry of Justice, my access to documentation and to hearings that are closed to the public in general was authorised by the Chief Judge of the local court.

  14. According to article 204 of the Minors Tutelary Organisation and articles 1795 and following of the Civil Code, the so-called “legal period of conception” corresponds to the first 120 days out of the 300 that preceded the minor’s birth.

  15. As Beleza (1993) states, Portuguese law and jurisprudence restricts the notion of “copulation” to the penetration of the vagina by the man’s penis. “Complete” copulation is copulation accompanied by the release of sperm.

  16. In Portugal, the individual’s right to “genetic identity” was introduced into the Constitution in 1997, article 26, no 3.

  17. Article 8 of the European Convention on Human Rights states that: “Everyone has the right to respect for his private and family life, his home and his correspondence”.

  18. According to some feminist writers, in adversarial juridical systems, it is common for the defence to try to emphasise details of women’s sexual lives (namely, their sexual history) in rape (Chambers and Millar 1987; Matoesian 1993) and sexual harassment cases, in order to try to prove that the woman in question is not ‘worthy’ of a favourable decision because she is, for example, considered ‘promiscuous’. Indeed, the strategy of making public certain facets of the private life of people involved in legal proceedings would appear to be quite frequent when it comes to the administration of justice, including criminal justice. As Pat Carlen stresses: “Defendants are set up in a guarded dock and then, at a distance stretched beyond the boundaries of face to face communication, asked to describe or comment on intimate details of their lives; details which do not in themselves constitute infraction of any law but which are open to public investigation once a person has been accused of breaking the law” (Carlen 1976, p. 23).

  19. Excerpt from field notes, December 2000.

  20. Excerpt from field notes, January 2001.

  21. Interview with prosecuting counsel, 2001.

  22. Records of lawsuits of judicial investigation of paternity, 1974–2000.

  23. Records of lawsuits of judicial investigation of paternity, 1974–2000.

  24. Interview with judge, 2000.

  25. Lawsuit 06ª2113, 16 September 2006, available at http://www.dgsi.pt/.

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Acknowledgements

This paper draws on research funded by the Portuguese Ministry of Science and Higher Education—Foundation for Science and Technology, and I acknowledge that support with gratitude. I also would like to thank Susana Silva (Faculty of Arts, University of Oporto) for her insightful comments on a first version of this text and Cátia Guimarães and Filomena Louro (Scientific Editing Programme, University of Minho) and Filipe Santos (Department of Sociology, University of Minho) for editorial advice.

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  1. Department of Sociology, Research Centre for the Social Sciences, University of Minho, 4710-057, Braga, Portugal

    Helena Machado

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Machado, H. Biologising Paternity, Moralising Maternity: The Construction of Parenthood in the Determination of Paternity Through the Courts in Portugal. Fem Leg Stud 16, 215–236 (2008). https://doi.org/10.1007/s10691-008-9089-y

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