Under our legislation the parentage between a child and the mother is established as of right upon the birth taking place; it makes no difference to that outcome whether the child was born within or outside marriage. The position is different as regards the father: for the parentage of a child born outside the union of marriage to be established in relation to the father, the routes provided for by the law — acknowledgement or a paternity action — must be pursued. The first step in establishing that tie is to determine whether a biological relationship exists between the parties. Today, with the possibilities afforded by technology, that determination can be made with a high degree of certainty by means of DNA testing.
Recourse to DNA testing has become frequent of late in determining the tie between father and child. Where the court orders that a test be carried out, that analysis affords a decisive advantage as regards proof of parentage. Beyond this, it is also possible to have a test carried out at a private laboratory without any judicial decision. That possibility gives rise to an important means of proof in actions concerning the determination of parentage.
Below we examine in detail the fundamental questions relating to paternity testing, the legal process that is followed and the approach adopted in the case law.
What Is a Paternity Action?
A paternity action is a legal route pursued in order to establish who a child’s true father is. Recourse is had to this action where a need arises for the genetic tie between child and father to be established in law, and the action is aimed at protecting the rights of both the mother and the child.
The parties to the proceedings are the child’s mother, the child, and the person alleged to be the biological father. The right to bring the action is conferred on the mother and the child, while the person whose paternity is alleged bears the capacity of respondent. For a full understanding of the subject, it is appropriate to consider the institutions of the paternity action and acknowledgement together.
What Is a DNA Test (Paternity Test)?
A DNA test is a method of analysis that allows a person’s biological relationships to be verified by examining their genetic make-up. The test used to determine paternity is of this kind. The method rests essentially on determining whether a biological tie exists between the putative father and the child by comparing DNA samples taken from each of them.
A DNA test is accepted as the most reliable evidence in a paternity action and, by placing conclusive data before the court, contributes to the determination of parentage.
How Is Genetic Testing Conducted in the Proceedings?
Courts may order that a DNA test be carried out in order to resolve certain disputes. In actions where the determination of a biological connection is of importance — such as the determination of parentage and inheritance disputes — that analysis becomes a critical stage of the proceedings. By clarifying the parentage between the parties, the test serves to illuminate the file and to reach an outcome consistent with equity.
In giving a decision to that effect the court is not bound by the parties’ request; it may also act of its own motion (ex officio). Because the test is regarded as the strongest evidence for establishing paternity, it appreciably facilitates the resolution of the dispute.
Proceedings of this kind concern public policy; the parties may not dispose of the subject matter of the action as they please. Actions for rectification of the civil register, actions for absolute nullity of marriage, actions for denial of parentage and paternity actions may be given as examples of this group. In such proceedings the judge does not confine himself to the documents submitted by the parties; where necessary, he investigates the evidence himself. Accordingly, even where none of the parties has made such a request, the judge may order that an examination be carried out where he considers it necessary.
To take an example, in a dispute forming the subject of a paternity action, the child’s tie with his or her genetic father is a matter that closely concerns not only the parties but also public policy. In files of this nature, DNA testing becomes all but unavoidable if parentage is to be determined with an accuracy that leaves no room for doubt. The family court may order that a test be carried out in order to establish the biological tie. That decision should be read as an effort by the court to place its conviction as to the biological relationship between the parties on a sounder and more conclusive footing.
Is the Test Result Alone Sufficient to Found a Judgment?
Although test results are among the most reliable evidence for establishing paternity, the court may from time to time have recourse to other evidence as well. In the proceedings, not only the genetic analysis but also other data of a social, legal and biological nature may be assessed together.
A DNA test is, in law, a form of evidence dealt with within the scope of a court-appointed expert report. It is true that courts are not bound by expert reports; however, given that the accuracy rate of these tests approaches one hundred per cent, the likelihood of a judgment being founded contrary to the result is quite limited. Were such a decision to be given, it may be said that the legal basis of the judgment would remain weak. In that event there is a strong likelihood that the decision would be quashed on appeal.
What Happens If a Person Refuses to Give a Sample Despite the Order?
The court may order that a DNA test be carried out in order to determine parentage. Where the person concerned does not consent to the test, the judge may, relying on Article 292 of the Code of Civil Procedure No. 6100, order that the examination be carried out using force:
Code of Civil Procedure No. 6100, Art. 292
“Provided that it is necessary for the resolution of the dispute, consistent with scientific data and does not constitute a danger to health, everyone is obliged to submit to the taking of blood or tissue from their body for the purpose of determining parentage. Where this obligation is not complied with without justified cause, the judge shall order that the examination be carried out using force.”
Accordingly, where consent to the test is withheld notwithstanding the court’s order, it is possible for an examination by force to be ordered. If the person to be examined has not completed 18 years of age, the consent of the mother and father is required. A refusal by the parents does not render that obstacle absolute; the judge may nonetheless order that the test be carried out using force.
Can DNA Test Results Be Challenged?
The route of objection to test results is open. If one of the parties takes the view that the examination was not conducted in accordance with proper procedure or that the result obtained is erroneous, that party may object to the result and request that a fresh test be carried out. That is because DNA analyses are, in essence, in the nature of a court-appointed expert report.
What Happens If Paternity Is Excluded by the DNA Test?
If paternity is excluded as a result of the examination, no legal tie arises between the child and the person alleged to be the biological father. In that case the person in question is exempt from rights and obligations towards the child. This outcome should not, however, be regarded as absolute. Bearing in mind that the accuracy rate of these tests is close to one hundred per cent, there is a high likelihood that a judgment excluding paternity would be quashed on appeal. Given how accurate the results are, it is difficult to place a decision excluding paternity on a sufficient legal footing. For that reason there remains a strong likelihood that the decision would be reconsidered and quashed at the appeal stage.
Can a DNA Test Be Carried Out Without a Court Order?
A DNA test may be carried out without a judicial decision. Analyses of this kind may, however, be performed only in molecular genetics laboratories licensed by the Ministry of Health. The only way of having a test carried out without a court order is to apply to a private laboratory; beyond this, neither private nor state hospitals provide such a service.
For a private laboratory to proceed, the persons to be analysed must provide their identity details and give their consent to the test. Where the persons to be tested are under 18 years of age, the permission of the registered mother or father must be obtained.
The Legal Value of a Test Not Based on a Judicial Decision
The validity in law of tests not based on a judicial decision is as a rule limited. Individuals may have a test carried out of their own volition; that examination will nonetheless acquire legal value only if the court adopts it as evidence. Particularly in sensitive processes such as the determination of paternity, for a test to be regarded as valid it must have been carried out in a manner consistent with the statutory procedures and with judicial scrutiny. Two points stand out in this connection.
- The purpose of obtaining personal information
Tests carried out without a court order are for the most part directed at satisfying the person’s own curiosity or at obtaining information, and carry no formal binding force. Individuals may in this way form a view as to biological paternity; the result obtained does not, however, take the place of a court judgment.
- Judicial scrutiny
In assessing whether to accept the result submitted to it as evidence, the court examines whether the analysis was conducted in accordance with proper procedure, whether it was performed in an impartial and reliable laboratory licensed by the Ministry of Health, and whether the parties’ consent was present. If these conditions are not met, the test result may not be accepted as evidence.
DNA Testing in the Decisions of the Court of Cassation and the Lower Courts
- The existence of a public policy interest in having the test carried out
Decision of the Assembly of Civil Chambers of the Court of Cassation, File No. 2017/1922, Decision No. 2018/1305, dated 04.07.2018:
“Moreover, given that if the names of the mother and father of the respondents … and … (Külünk) were to change the position as to inheritance would also be altered — in other words, the exclusion of the respondents from the status of heir would arise — and having regard to the legal consequences that would ensue and to the fact that entries in the civil register also concern public policy, it must not be overlooked that there is an interest in having the DNA test carried out.”
- Carrying out the examination by the use of force
Decision of the 8th Civil Chamber of the Court of Cassation, File No. 2018/12715, Decision No. 2019/6954, dated 04.07.2019:
“In actions for rectification of the civil register, which are closely connected with public policy, the Code of Civil Procedure No. 6100 applies, subject to the conditions set out in Article 284 of the Turkish Civil Code No. 4721. Pursuant to that article, the judge investigates the factual matters of his own motion and appraises the evidence freely. Pursuant to Article 292 of the Code of Civil Procedure No. 6100, within the framework of the request in the statement of claim and having regard also to the parties’ allegations and defences, a further annotated summons ought to have been issued to the respondents … and … requiring them to provide the blood and tissue samples necessary for the DNA test in connection with the allegation, with a warning that failing this the examination would be carried out using force; and if, notwithstanding this, the respondents did not attend, or attended but did not provide blood and tissue samples, an order ought to have been made for those examinations to be carried out using force, whereupon the DNA test would be conducted and a decision given in line with the report to be obtained; instead of which, allowing the action on the basis of an incomplete examination, contrary to the statutory provisions set out above, was not found to be correct.”
- That witness statements alone are not sufficient and a test must be carried out
Decision of the 8th Civil Chamber of the Court of Cassation, File No. 2012/6926, Decision No. 2012/8542, dated 05.07.2012:
“A paternity action is, by reason of its consequences, closely connected with public policy, and the courts are obliged, without being bound by the request and leaving no room for doubt or hesitation, to determine parentage correctly on the basis of the findings they will obtain through the investigation they will also carry out of their own motion. In the present case, rather than confining itself solely to the statements of the parties and the witnesses, the court ought to have had a DNA test carried out in respect of the allegation and to have given a decision in line with the outcome arising, having regard also to the report to be obtained; instead of which, allowing the action on the basis of an incomplete examination was not found to be correct.”
Frequently Asked Questions
On what samples is the test carried out?
The analysis may be performed on any kind of biological material containing the person’s genetic characteristics. In practice the methods most frequently used are a blood sample taken with the person’s consent or a saliva sample taken from the inside of the cheek. That said, most private laboratories decline on ethical grounds to carry out an analysis on material such as hair, nail clippings or a toothbrush whose owner is uncertain. Which sample is to be used may vary according to the laboratory’s own procedure.
Can a test be carried out during pregnancy?
Yes, a test can also be carried out while the pregnancy is continuing. In this method paternity is determined by examining the DNA of the unborn child. For analyses of this kind to be performed, however, a certain period of gestation must have been completed.
May the mother or the father refuse permission for the child to be tested?
Yes, it is possible for the parents to refuse permission. That obstacle may nonetheless be overcome by a court order, and the carrying out of the test may be made compulsory.
Is it prohibited to have a DNA test carried out?
No, as a rule there is no such prohibition. However, in the absence of a judicial decision, having a test carried out without obtaining the person’s consent is unlawful.
Can a test be carried out without a judicial decision?
It may be carried out at a private laboratory with the person’s consent; the result may not, on the other hand, be capable of being used as evidence in court in every case.
Is it compulsory to have a test carried out in a paternity action?
In practice this analysis for the most part functions as decisive evidence and may be required by the court.
May a person’s genetic sample be taken covertly and an analysis carried out?
No. Collecting a sample without the person’s knowledge may result in a violation of the privacy of private life and may give rise to legal sanctions.
Is every test submitted to the court regarded as valid?
The report submitted must have been prepared in an authorised laboratory whose reliability is beyond dispute. Examinations arranged privately do not carry legal validity in every case.
The Independent Legal Assessment
In parentage disputes genetic analysis occupies the position of the evidence that determines the fate of the file; it does not, however, produce a result on its own. A test becomes capable of founding a judgment only where it has been obtained in accordance with the procedural rules of the proceedings and has entered the file in the character of a court-appointed expert report. For that reason the real debate in practice concentrates less on the result of the test than on the procedure by which that result was obtained.
Since the judge has the power to investigate of his own motion in these actions concerning public policy, passivity on the part of the parties does not justify an incomplete examination of the file. In a concrete dispute the following points stand out in particular:
- advancing the request for a test expressly in the statement of claim and giving reasons for it,
- ensuring that the examination is carried out in a laboratory licensed by the Ministry of Health,
- issuing an annotated summons to the party who declines to be tested and giving the warning as to the use of force in accordance with proper procedure,
- conducting correctly, in respect of children who are minors, the process relating to the consent of the legal representative,
- assessing at the outset the evidential value of a report obtained from a private laboratory and, if necessary, requesting a fresh test within the proceedings.
Independent Legal provides advisory services and conducts litigation in disputes concerning paternity actions, acknowledgement, denial of parentage and rectification of the civil register.