Hostname: page-component-cd9895bd7-7cvxr Total loading time: 0 Render date: 2024-12-27T07:45:26.441Z Has data issue: false hasContentIssue false
  • English
  • Français

Separating Spheres: Legal Ideology v. Paternity Testing in Divorce Cases

Published online by Cambridge University Press:  26 September 2008

Shari Rudavsky
Shari Rudavsky
Affiliation:
Miami, Florida
Get access Rights & Permissions [Opens in a new window]

Abstract

Blood tests developed at the turn of the century could in some cases discern genetic relations. While such tests could never prove that a given individual had fathered a child in question, men of certain blood types could be exonerated from paternity of children with other blood types. Starting in the 1930s, scientists and lawmakers attempted to introduce such evidence into paternity or bastardy trials to attest to a man's innocence. Evidence from blood tests soon came to be used in divorce cases.

Blood tests appeared to be ideal for providing relevant information in cases when divorcing men claimed as a part of their suit that they had not fathered their ex-wife's child or children. Nevertheless, the courts remained reluctant to intro duce such evidence in divorce cases. This paper will argue that reluctance derived not from a distrust of the science, but from the courts' clinging to a definition of paternity that was not rooted in genetic connection.

Many judges and juries fell back on the pre-industrial assumption that once a man married a woman he was automatically the father of any children she bore. While this assumption flew in the face of scientific evidence, it did have the advantage of ensuring that the children of married women could not be bastard ized. The changing manner in which courts handled the tension between genetic paternity and traditional paternity in divorce cases reveals how society's views on paternity have evolved over the course of this century.

Type
Article
Information
Science in Context , Volume 12 , Issue 1 , Spring 1999 , pp. 123 - 138
Copyright
Copyright © Cambridge University Press 1999

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Anthony, v. Anthony. 1950. 74 A. 2d 922.Google Scholar
Bednarik, v. Bednarik. 1940. 16 A. 2d 80.Google Scholar
Chused, , Richard, . 1994. Private Acts in Public Places: A Social History of Divorce in the Formative Era of American Family Law. Philadelphia: University of Pennsylvania Press.Google Scholar
Committee on Medicolegal Problems. 1952. “Medicolegal Application of Blood Grouping Tests,” Journal of the American Medical Association 149:699–706.Google Scholar
Commonwealth ex rel. Ivory Weston v. John Weston. 1963. 193 A 2d 783.Google Scholar
Commonwealth ex rel. Visocki. 1935. 23 Pa. D. & C. 103–109.Google Scholar
Cortese, v. Cortese. 1950. 76 A. 2d 720.Google Scholar
Cuneo, v. Cuneo. 1950. 96 N.Y.S. 2d 901–902.CrossRefGoogle Scholar
Dubinsky, , Karen, . 1993. Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880–1929. Chicago: University of Chicago Press.Google Scholar
Editorial. 1994. “Family Injustice: Houston Man May Have to Support Another's Child.” The Houston Post, 6 August, p.A26.Google Scholar
Goldberg, , Steven, . 1994. Culture Clash: Law and Science in America. New York: New York University Press.Google Scholar
Grossberg, , Michael, . 1994. “Battling Over Motherhood in Philadelphia: A Study of Ante-Bellum American Trial Courts as Arenas of Conflict.” In Contested States: Law, Hegemony, and Resistance, edited by Mindie, Lazarus-Black and Susan, Hirsch, 153–183. New York: Routledge.Google Scholar
Handbook of the National Conference of Commissioners on Uniform State Laws. 1952. Baltimore: Lord Baltimore Press.Google Scholar
Harding, v. Harding. 1940. 22 N.Y.S. 815.Google Scholar
Hill, v. Hill. 1964. 249 N.Y.S. 2d 753.Google Scholar
Hill, v. Jackson. 1951. 226 P. 2d 656.Google Scholar
Hoffman, , William, P Jr., 1968. “California's Tangled Web: Blood tests and the Conclusive Presumption of Legitimacy.” Stanford Law Review 20:754–765.Google Scholar
Jackson, v. Jackson. 1967. 430 P. 2d 291.Google Scholar
Johnson, , Julie, Ann. 1992. “Speaking for the Dead: Forensic Scientists and American Justice in the Twentieth Century.” Ph.D. diss., University of Pennsylvania.Google Scholar
Jones, , Carol, A. G. 1994. Expert Witnesses: Science, Medicine, and the Practice of Law. Oxford: Clarendon Press.Google Scholar
Jones, , Mary, Somerville. 1987. An Historical Geography of the Changing Divorce Law in the United States. New York: Garland Publishing Company.Google Scholar
Kevles, , Daniel, J. 1985. In the Name of Eugenics: Genetics and the Use of Human Heredity. Berkeley: University of California Press.Google Scholar
Kusior, v Silver. 1960. 354 P. 2d 659–667.Google Scholar
Markey, , Howard, T. 1983. “Law and Science: A Dialogue on Understanding.” In Science and Law: An Essential Alliance, edited by William, Thomas, 1–14. Boulder: Westview Press.Google Scholar
Michael, H. v. Gerald D. 1989. 191 Cal. App. 3d 995 (1987); 109 S. Ct. 2333 (1989); 110 S. Ct. 22.Google Scholar
Minow, Martha. 1985. “‘Forming Underneath Everything That Grows’: Toward a History of Family Law.” Wisconsin Law Review 1985:819–898.Google Scholar
Minow, Martha, ed. 1993. Family Matters: Readings on Family Life and the Law. New York: New Press.Google Scholar
O'Bois, John J. 1962. “California's Conclusive Presumption of Legitimacy.” Southern California Law Review 35:353–354.Google Scholar
O'Brien, v. O'Brien. 1957. 166 N.Y.S. 2d 899.Google Scholar
Parsons, v. Parsons. 1952. 253 P. 2d 916.Google Scholar
Petrasic, Kevin L. 1987. “Cutchember v. Payne: Approaching Perfection in Paternity Testing.” Catholic University Law Review 34: 227–265.Google Scholar
Pleck, Elizabeth. 1987. Domestic Tyranny: The Making of Social Policy against Family Violence from Colonial Times to the Present. New York: Oxford University Press.Google Scholar
Prochnow, v. Prochnow. 1957. 80 N.W. 2d 279.Google Scholar
Rasco, v. Rasco. 1969. 447 S.W. 2d 17–18.Google Scholar
Reade, Gerald. 1958. “From Here to Paternity. Blood-Grouping Tests in Bastardy and Divorce Proceedings.” South Dakota Law Review 3:125–148.Google Scholar
Riley, Glenda. 1991. Divorce: An American Tradition. New York: Oxford University Press.Google Scholar
Rudaysky, Shari. 1996. “Blood Will Tell: The Role of Science and Culture in Twentieth-Century Paternity Disputes.” Ph.D. diss., University of Pennsylvania.Google Scholar
Schneider, William H. 1983. “Chance and Social Setting in the Application and Discovery of the Blood Groups.” Bulletin of the History of Medicine 57: 545–562.Google Scholar
Schulze, v. Schulze. 1942. 35 N.Y.S. 218.CrossRefGoogle Scholar
State ex rel. Walker, v. Clark. 1944. 58 N.E. 2d 778.Google Scholar
“Two Adverse Decisions on Blood Grouping Tests.” 1940. Journal of Criminal Law and Criminology 31: 525.Google Scholar
Trial Record in Commonwealth ex rel. O'Brien, O'Brien v, 128 A. 2d 164 (1957).Google Scholar
Wareham, v. Wareham. 1961. 15 Cal. Reporter 465–480 (1961).Google Scholar