The hidden (and sometimes surprising) costs of a brief encounter may now be higher, with courts around the world ordering more and more DNA testing to identify heirs, writes Michael Mylonas QC
'The sins of the fathers are to be laid upon the children' – true in Shakespeare’s Merchant of Venice but the children are having to pay for those sins more often now as courts around the world become more enthusiastic about ordering DNA testing to identify potential heirs.
In July 2017, Salvador Dali’s body was exhumed from its resting place at his home Figueres, Catalonia where he was born in 1904. His embalmer was present at the exhumation. Dali’s trademark moustache was said to be in perfect condition and would last for centuries. Even so, it will be a few hairs short because the purpose of the exhumation was to obtain samples for DNA testing. 61 year old Pilar Martinez, a tarot reading fortune teller, claims she is Dali’s daughter.
Martinez’ mother cleaned for Dali in the 1950’s and according to the story she told her daughter, Dali was her daddy. This is the second time Martinez has tried to establish paternity – in 2007 samples taken from naso-gastric tubes used by Dali in his dying days proved inconclusive and it was to be ten years before her legal team persuaded the Spanish Courts to order the great man’s exhumation. Dali’s case isn’t unusual but the enigmatic artist and his rumoured €300 million estate helped make it headline news. Martinez hasn’t yet decided whether to make a financial claim if the testing is conclusive but the lure of a share of such a large estate may prove hard to resist.
This isn’t the first time her legal team have been involved in such a claim but Martinez will be hoping that they are more successful than on their last outing. In 2015 they brought a paternity suit against Spain’s former king, Juan Carlos. He lost his immunity from suit following his abdication in June 2014 and faced two paternity claims before the Spanish Supreme Court the following year. He was fortunate. Inconsistencies in the evidence helped his legal team cruise to a 7:3 majority decision against paternity.
A Dali-style exhumation may be unusual but post-mortem tissue sampling is easier than ever before. In addition, more and more of us will provide tissue samples during our lives to assist in our own treatment, providing future claimants with a library of tissue samples that they can access without any need to bring up the bodies.
This has resulted in unintended consequences. In a case we’re dealing with at the moment, the High Court in England ordered the post-mortem DNA sampling of tissues held by a hospital following biopsies taken during the patient’s life. That case is on the way to the Court of Appeal at the moment but it serves as a reminder that patient confidentiality doesn’t necessarily attach to post-mortem samples and testing may be ordered even where surviving relatives don’t consent.
The potential success of any claim will be heavily fact dependent but the advances in science and testing guarantee future claims for years to come. The availability of IVF treatment - and the inevitable room for error and deceit – is another source of disputes.
In a case that we settled two years ago, a same sex couple had paid an IVF clinic to store the sperm of the blond caucasian donor they had used for their first child with the aim of ensuring that their second child would have the same biological parents and some family resemblance. There was probably a moment of palpable surprise in the delivery room when the mother was congratulated by the midwife on the birth of a beautiful child of Asian descent – a result of a mix up in the clinic’s storage processes with no certainty at all about the child’s paternity.
Sometimes the claims are the result of deliberate action - in the first case of its kind, we are bringing a claim in the High Court in London when, following the breakdown in a relationship, a woman forged her partner’s consent to thaw and then place an embryo inside her. The devastating news that she was pregnant with their child was delivered by SMS to her former partner and his new girlfriend on Valentine’s Day.
The courts are prepared to make declarations of parenthood even where tissue samples aren’t available. Rachida Dati first came to public prominence as the glamorous Minister of Justice to the Sarkozy government. She made the headlines again some years later when the French Courts declared that Dominique Desseigne, a 70-year-old businessman worth an estimated €500 million was the father of her child. In that case the Versailles Court made the declaration of paternity after Desseigne refused to submit samples for DNA testing.
Advances in both medicine and law mean that it’s now easier than ever to discover who your Daddy actually is and claim your birthright.
Michael Mylonas QC is a barrister at Serjeants’ Inn Chambers