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Germany: Paternity Testing

(June 2, 2008) The Act for the Establishment of Paternity Without a Proceeding to Contest Paternity, enacted on March 28, 2008 (BUNDESGESETZBLATT (BGBL, official law gazette of the Federal Republic of Germany) I at 441), became effective on April 1, 2008. This Act makes it easier for the presumptive father of a child, the husband of the mother, to insist on genetic testing to establish whether he is the biological father. Prior to this reform, paternity could only be contested for two years after birth, under limiting circumstances that required the presumptive father to bring evidence that he had reason to doubt his paternity (Bürgerliches Gesetzbuch, repromulgated on Jan. 2, 2002, BGBL 2003 I at 738, as amended, §§ 1599 – 1600 e). This led presumptive fathers to engage in surreptitious testing, a practice that had no effect before the German courts because it violated the privacy rights of the child by testing his or her genetic material without his or her consent (M. Wellenhofer, Das neue Gesetz, 61 NEUE JURISTISCHE WOCHENSCHRIFT 1185 (2008)). The impetus for the new Act came from a decision of the Federal Constitutional Court that held that a presumptive father has a constitutional right to know whether he is the biological father (Bundesverfassungsgericht decision of Feb. 13, 2007, Docket No. 1 BvR 421/05, Federal Constitutional Court official Web site). The new Act, however, does not afford equal treatment for the putative natural father of the child who is not married to the mother. If, during the critical period, the mother was married to someone else, a natural father can claim paternity only through a complex court proceeding that examines whether the establishment of paternity would be in the best interests of the child (Wellenhofer, supra, at 1188).