Our Father, DNA testing & what do we mean by ‘parentage’?

From direct-to-consumer DNA testing – it’s on the rise – to a definition of  ‘parentage’ itself. We asked Louisa Ghevaert, founder of specialist fertility and family law firm Louisa Ghevaert Associates, for her expert take on this crucial topic. 

Louisa covers: 

• the context in 2022, following Netflix’s Our Father release
• direct-to-consumer DNA testing, and how it works
• DNA testing and donor/genetic anonymity
• a ‘parentage’ definition
• what we mean by a ‘Declaration of Parentage’
• confirming biological parentage beyond doubt
• who might need a Declaration of Parentage

All of this, plus Louisa’s top five considerations – built on years of professional experience – for your own family-building journey.

The 2022 Netflix documentary Our Father portrays heart-wrenching real-life stories of people who discover through direct-to-consumer DNA testing that their biological father was a well-known US fertility doctor. And, that he was a secret serial sperm donor for over 30 years.

Direct-to-consumer DNA testing – how does it work?

Direct-to-consumer DNA tests typically require a saliva swab from your inside cheek. You’ll usually need to send this back by post, to the DNA testing company you’re working with, for analysis in a laboratory. The company’s DNA database will upload your results, which can then be used to identify the areas within a country a person’s family may have come from. You can also use them to construct family trees and identify genetic relatives.

These tests are growing in popularity. More than 40 million people have now taken a test worldwide, to learn more about their genetic makeup, personal ancestry and even overall health risks (although there are concerns about the accuracy of health data). There are a range of at-home DNA test kits available on the market from companies like Ancestry, 23andMe and MyHeritage, costing less than a hundred pounds (or more, depending upon the type of analysis you’re getting).

Fundamental questions around ‘Who is my parent?’

Despite their growing popularity, direct-to-consumer DNA tests are increasingly raising unforeseen and complex issues about biological and legal parentage, birth certificates and family relationships. At-home DNA testing can raise fundamental questions about “who is my parent?”

This is because DNA test results can lead to discoveries that the person thought to be a parent was not in fact a biological parent. And this is what the donor-conceived siblings discovered in Our Father. At-home DNA testing can help track down unknown biological and birth parents and uncover inaccuracies on birth certificates. It can lead to unexpected discoveries and create new family narratives about unplanned pregnancy, secret love affairs, failed relationships, egg and sperm donation, adoption, unknown brothers and sisters, fertility fraud and even embryo mix-ups at fertility clinics

These discoveries can trigger all sorts of responses – from shock, to disbelief, denial, distress and anger – as people struggle to process and come to terms with test results which can re-write family history and challenge people’s sense of personal identity.

DNA testing and donor and genetic anonymity

Importantly, you don’t have to have personally taken an at-home DNA test to encounter issues and difficulties. Family trees can be constructed and genetic relatives can be identified through the test results of, for example, a sibling, cousin, aunt or uncle. Whilst at-home DNA tests can have positive, interesting outcomes, they can also have a significant impact on spouses, partners and children too. So it’s important to navigate direct-to-consumer testing carefully.

Direct-to-consumer DNA testing is also undermining donor anonymity law, following assisted conception. It undermines the UK’s system of identity-release gamete donation, where a donor-conceived person can obtain:

• non-identifying information about their biological donor from the HFEA from age 16, and
• identifying donor information from age 18

This can lead to donors being traced unexpectedly, and donor-conceived individuals, donors and families having to negotiate all sorts of complex issues associated with at-home DNA testing.

‘Parentage’ definition

Parentage can take different forms and mean different things legally and practically. The term parentage encompasses biological, social and legal parentage, each with its own character and legal significance and varying relevance in family life.

Direct-to-consumer testing can raise complex issues around parentage and challenge established family narratives, just as it did for the donor-conceived siblings and families in Our Father.

A biological parent can be, but is not always, a legal parent. This could be because they are treated as an egg or sperm donor in law. Alternatively, they could be a biological and birth parent but not a legal parent because the child has been adopted. Moreover, a child could have been conceived via a surrogacy arrangement, with the intended parents holding legal parentage to the exclusion of the surrogate birth parent(s).

A social parent is someone who represents a parent-type figure in a child’s life but is not a biological or legal parent. A social parent can be the cohabiting partner of a child’s legal parent, who assumes the role of a parent on a day-to-day basis. A social parent can also include a family relative, step-parent or foster parent who assumes a parenting role in a child’s life.

A child can only have two legal parents under English law, whether through natural or assisted conception. Legal parentage is important because it:

• creates an enduring legal relationship between a parent and a child under English law, and legal relationships between wider family members (e.g grandparents, siblings, aunts, uncles and cousins)
• confers financial rights and responsibilities on a legal parent for their child, including child maintenance responsibilities in both income and capital terms
• gives a child inheritance rights against their legal parent’s estate
• governs who can be registered on a child’s birth certificate
• gives rise to a claim for citizenship, nationality and a passport

What is a ‘declaration of parentage’?

Direct-to-consumer DNA test results can lead to (and provide) helpful information to support applications to the English Family Court for a Declaration of Parentage. This is usually to resolve personal identity and confirm biological and legal parentage.

An application for a Declaration of Parentage is a specific legal application that can be made to the English Family Court under section 55A of the Family Law Act 1986 to:

1. legally confirm whether an individual is a legal parent of a child, and
2. enable re-registration of a British birth certificate, to provide properly maintained records

The application can be made at any point in life (involving both minor and adult children), if there’s sufficient personal interest and connection to England and Wales, and appropriate legal and evidential basis for the application.

Confirming biological parentage beyond doubt

Within an Application for a Declaration of Parentage, it’s possible to seek a legal direction from the English Family Court for formal DNA testing. This  involves  a secure chain of custody testing – through legally accredited providers – to confirm biological parentage beyond doubt.

However, this can be contentious and raise complex legal issues in individual cases, particularly where DNA testing is disputed, making specialist legal advice advisable. In situations where an individual refuses to comply with a legal direction for formal DNA testing, the English Family Court can, in some instances, draw legal inferences (a reasoned conclusion) that they are attempting to hide the truth of their biological parenthood.

Who might need a Declaration of Parentage?

An application for a Declaration of Parentage can be used in a range of situations to resolve:

• issues or disputes around biological and legal parentage, following a direct-to-consumer DNA test (e.g following a DNA test through AncestryDNA, 23andMe, MyHeritage, etc)
• problems with completion of patient HFEA consent forms at UK fertility clinics (e.g missing information or errors), calling into question the legal parentage of a non-birth parent for their child
• disputes about an individual or child’s legal father or second legal parent (this can raise complex legal and evidential issues about conception arrangements, personal relationships, status and consent in modern family cases)
• issues or disputes about an individual or child’s birth certificate (e.g whether a birth certificate should be re-registered to add or remove a person’s details)
• disputes around legal parentage and financial provision for a child or individual

People can seek to rectify their birth certificate following DNA testing as a gateway to obtaining additional citizenship, and a further passport. This might be driven by a desire to feel more connected to their personal ancestry, or to travel, work and settle abroad more easily. Post-Brexit, for example, this can bring into closer focus the value of having an EU passport with its associated rights of freedom to live, work, study, look for a job or retire across Europe.

An application for a Declaration of Parentage can encompass a range of complex legal issues relating to parentage, personal identity and family legacy, medical and genetic history, citizenship and nationality, financial rights, contact, care and upbringing of a minor child.

If you’re in a situation where it’s not appropriate to seek an application, there are other legal mechanisms which can help resolve issues associated with legal parentage, for example to include an adoption order or a parental order following surrogacy.

Top tips for your family-building journey

Above and beyond parentage issues, family building can encompass all sorts of legal options and issues.

With family law and fertility law as they stand, my top tips include:

1. Check, preserve and protect your fertility (e.g through fertility testing, and egg, sperm and embryo freezing)
2. Ensure careful management of genetic aspects of family building (e.g genetic screening, genomic medicine and genetic identity issues, where donor gametes are used)
3. Create a viable family-building action plan, and don’t leave it to chance
4. Review your finances and budget for family creation, fertility treatment and raising a family
5. Get expert legal advice on the issues and outcomes associated with fertility treatment, family building and modern family life (e.g storage and gamete/embryo usage, legal parentage, parental responsibility, birth certificates, arrangements for your children’s care and upbringing)

Specialist family and fertility law advice

Please note that this article is for general information purposes only, reflective of English law as at August 2022,  and should not be construed as legal advice. You should always obtain specialist tailored legal advice in relation to your situation. 

Louisa Ghevaert Associates provides a range of specialist legal services to assist with the management of issues associated with direct-to-consumer DNA tests and parentage, including parentage disputes, applications for a Declaration of Parentage and re-registration of birth certificates.

If you’d like to discuss your situation, or you need specialist family or fertility law advice, contact Louisa Ghevaert by:

• emailing louisa@louisaghevaertassociates.co.uk or
• calling +44 (0)20 7965 8399

There’s also a fantastic range of information about family and fertility law at Louisa Ghevaert Associates online.