Volume 14 (2006) / Issue 2
Gerd Verschelden, Paul Vlaardingerbroek, 'BGH, 12.01.2005, XII ZR 60/03 und XII ZR 227/03 - Zur Frage der Verwertbarkeit einer heimlich eingeholten DNA-Analyse im Vaterschaftsanfechtungsverfahren' (2006) 14 European Review of Private Law, Issue 2, pp. 221–327
In two similar cases, the German BGH had to consider the question whether, and to what extent, secretly obtained DNA-analysis can be used in paternity proceedings. Plaintiff had initially recognized the paternity of Defendant. Later he had tests carried out without the knowledge and the consent of the mother, such tests being based on samples from Plaintiff (his saliva) and from the child (a chewing gum or a root of a hair). As the results ruled out paternity of Plaintiff, he contested his paternity in court. The instance courts and the appeals courts rejected his claim. Pursuant to the case law of the BGH the contestations in both cases were not brought conclusively. The mere motion of a plaintiff that he is not the father and that a forensic analysis will rule out paternity is not sufficient for a contestation of paternity. Instead, the plaintiff has to put forward circumstances that, seen objectively, are both capable of giving rise to doubts as to the paternity of the plaintiff and that allow for the possibility that the paternity of another man is not highly unlikely. A secret paternity test is not appropriate to indicate such circumstances, as its use would violate the personality right of the child (as protected under Articles 2(1) and 1(1) of the German Grundgesetz), in particular the right to so-called informational self-determination. The right of the father or father-apparent to know his paternity (which also follows from the right to personality) cannot be considered as paramount to that of the child. Besides, the refusal by the mother of the Defendant to consent, with retroactive effect, to the DNA analysis and its use in the trial does not amount to a first probable cause in the contestation proceedings, as such behaviour has to be considered as falling under the (negative) right to selfdetermination.
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