1

A final version of this article was published in Feminist Legal Studies, 16(2): 215-236, doi: http://dx.doi.org/10.1007/s10691-008-9089-y Machado, Helena (2008), “Biologising paternity, moralising maternity: The construction of parenthood in the determination of paternity through the courts in Portugal”.1

ABSTRACT. This article explores how the Portuguese legal system’s efforts to determine paternity of children born outside legal marriage, automatically provoked by the Registry Office when a birth registration doesn’t indicate the father, reveal cultural models, which reinforce the naturalisation of the differences between mothers and fathers with significant effects on the social construction of parental roles, expectations of family organisation and of female sexual behaviour. It relies on a case study using ethnographic data drawn from fieldwork in courtrooms with direct observation of court procedures for the determination of paternity, as well as interviews with judges and Prosecuting Counsels all over the country. It is argued that the judicial practices, in the specific context of courtroom investigation of paternity, reinforce gender inequalities in two interrelated ways. On one hand, they are strengthened in the discursive practices performed during the course of the interactions between judges, Prosecuting Counsels and the mother of the minor, as well as the alleged father. On the other hand, the normative models of family life and the dominant ideology of women’s and men’s relationships, which emphasize women’s socially subordinate position, are revealed by the selective use of DNA testing in paternity cases, based on the judge’s evaluation of the mother’s sexual behaviour. This paper argues that legal attempts to establish the paternity of children born outside marriage – though based on novel technical and supposedly objective procedures – tend, nevertheless, to reproduce the prevailing patriarchal structures.

KEY WORDS: court proceedings, evaluation of female sexual behaviour, family

law, feminist legal studies, parenthood, DNA paternity testing.

1 Author’s note: This paper draws on research funded by the Portuguese Ministry of Science and Higher Education –

Foundation for Science and Technology, and I acknowledge that support with gratitude. An earlier version of this

article was presented on a seminar organized by the Department of Sociology of the University of York, in February

2005. Many thanks to the members of the audience for their input. I also would like to thank Susana Silva (Faculty of

Arts, University of Oporto), Cátia Guimarães and Filomena Louro (Scientific Editing Programme of University of

Minho) and Filipe Santos (Department of Sociology, University of Minho) for revising the final version of this text.

2

Children born outside institutional marriage without a legal father, along with the

uncertainty of biological paternity, have always been a problem for legal systems that

based ownership and inheritance of property on descent through the male line. Carol

Smart puts it in these terms: “[Historically], paternity has been a continuing ‘problem’

for the patriarchal family in Western Europe (…) and this is manifest in the tortuous

complexing nature of the legal system designed to protect the descent of property and

privilege” (Smart, 1987, p. 99).

It has not always been usual to establish the link between a child and its parents,

when the child is born to an unmarried woman. Ancient societies commonly denied

family ties between such a child and its father. In ancient Roman law, a child born out

of marriage was a filius nullius, i.e., it had no family ties with any of its parents (not

even with its mother). It has not been self-evident that such a child should be entitled to

financial support from its father, or that it should have the right to inherit from him (or

his relatives). In fact, until the 70s, affiliation laws in most western European countries

protected the ‘legitimate family’2. There were very limited conditions for admissibility

of a paternity investigation and it was almost impossible to recognize paternity in the

case of a married man. In fact, the law almost appeared to have been designed to give

2 In France, the Civil Code of 1804 forbade trying to establish who the father of a child born to an unmarried woman

was. In Portugal, the Civil Code of 1867 imposed several restrictions on the investigation of paternity, in order to protect the

legitimate family. On the contrary, in ancient Nordic Law, however, the link between a child born to an unmarried woman and its

father was acknowledged, and it seems to be characteristic of the Nordic countries that the task of establishing paternity of non-

marital children (in Sweden since the late 1910s) should fall on society. The legal situation in the Nordic countries is not, however,

identical in all aspects, as is, for example, where the question of how a refusal on the part of the mother to co-operate in the

identification of the father is regarded (Eekelaar & Sarcevic, 1993).

3

the putative father a ‘sporting chance to get away with it’ (Barton & Douglas, 1995:

200).

Despite some differences in family law systems concerning affiliation laws, most

Western European legal systems are historically interconnected and have some common

legal dispositions, like the appliance of the Roman law rule of the presumption of

paternity, – Pater est quem nuptiae demonstrate - which ties men legally to any children

born to their wives (Assier-Andrieu & Commaille, 1995; Council of Europe, 1999;

Diduck & Kaganas, 1999; Eekelaar & Sarcevic, 1993; European Commission, 1997;

Forder, 1993). Even if there isn’t a biological tie between the child and the mother’s

husband, the law considers that the husband is the legal father and in most countries

people have to engage themselves in a particular civil proceeding in order to remove

that presumption of paternity. As such, the marriage retains a privileged place as the

preferred way of attributing paternity (Sheldon, 2005 p. 541). However, regarding

children born outside legal marriage, the problem of paternity remains. If the unmarried

father voluntarily registers the child’s birth with the mother, he will automatically be

recognised as the legal father, but when that doesn’t happen and the birth certificate

doesn’t indicate the identity of the child’s father, courts proceedings may make efforts

to establish fatherhood. In Portugal, since the civil code of 1966 that it is the State’s

obligation to initiate the paternity establishment proceedings when no father is listed to

the birth registration. This obligation ends when the child reaches the age of two, and

after that period the determination of paternity can be asked by the mother, the putative

father or the child when becoming of age. This paper will only focus the cases in which

paternity establishment is automatically provoked by the Registry Office forwarding

details of birth registrations where no father is listed.

4

Although family law and civil proceedings concerning investigation of paternity

of children born outside marriage may vary in the diverse national legal systems3,

almost all societies now support efforts to establish parentage in these cases. The degree

of support varies from country to country. The reasons to establish parentage and the

definition of legal rules to establish parentage are controversial and not self evident.

Most European societies support efforts to establish parenthood in order to promote

creating families and ensure that children are cared not only financially but also with

regards to education, upbringing and day-to-day care. There are also medical reasons to

establish parentage, the main ones being to enable the child to know his personal

medical history and the importance of parents in the psychological development of

infants. These must not be underestimated. However, it does not mean that establishing

parentage is necessarily important. It may not matter to the child if the male and the

female adults of its family are its legal parents or not. It may be claimed that the

important thing is that there is someone who acts as a father and a mother towards the

child (Eriksson & Saldeen, 1993). At the other end of the spectrum, however, there is

the possibility that the parent with custody (generally the mother) doesn’t want the

recognition or the determination of paternity, because the child was born as a result of

transient or coercive relationships. The underlying aim of the present UK Family Law

on parental responsibility has been to protect women who are ‘victims' of such

circumstances by allowing the mother, in effect, to veto parental responsibility for an

unmarried father, unless he can persuade the court to override her objections.

3 Several European countries, such as Scandinavian countries, Germany and Portugal have compulsory inquiries of paternity when

the birth certificate of a child under two years old does not show the identity of the father. Other countries just give the court the

power to investigate paternity in the course of existing civil proceedings regarding the child. That is the case in the UK, where

Family Law allows the Secretary of State, the alleged father or the person with custody to apply for a declaration of parentage of the

child (Cretney, 2003).

5

Nevertheless, recent changes to the UK law by way of ‘The Child Support Act’

(Pensions and Social Security), Act 2000 allows courts to authorize blood testing of a

child when the parent with custody refuses consent, but the court considers it to be in

the child’s best interest (Wallbank, 2004).

Nonetheless, in the last four decades, in most European countries, family law has

registered a drift towards the end of the disparity between children born in and out of

wedlock, as well as the privileging of assuring the children’s right to have a mother and

a father. The reasons for this general consensus are connected with personal,

psychological, social, economic, moral and medical factors, which interrelate in

complex ways. Some of them have even raised some controversies, especially regarding

issues related to the invocation of the need to establish paternity of children without a

legal father, or who have a legal father who is not the biological father, regarding

children born by artificial procreation using donor sperm (Gilbar, 2005)4.

Some authors point out that the recent trends of affiliation laws in Europe have

three common elements: equalisation, liberalisation and modernisation (Senaeve,

1993). Regarding ‘equalisation’, the primary object and result of the reforms has been

the elimination of discrimination between various categories of children (legitimate and

illegitimate) on the grounds of birth5. The liberalisation of affiliation laws has occurred

4 Over the last years there has been an intense public debate concerning the child’s right to know its genetic origins. In the context of

donor anonymity, the debate refers to the balance between the child’s right to know (the ethics of ‘rights’, according to which

priority is given to the right over the good) and the possible integrity of the family (the ethics of ‘utility’ by which the concern

would be to balance the interests of all the parties, bearing in mind the consequences for individuals and for the family as a unit)

(Wallbank, 2004, p. 247).

5 In the past four decades, all west European countries have carried out more or less substantial reforms of their affiliation laws

regarding the equality in all fields between children born within and outside of wedlock, with the elimination of the traditional

institution of legitimacy and its accompanying terminology. Some outstanding examples of reforms of affiliation laws took place in

the Netherlands (1969), in France (1972), Switzerland (1976), Portugal (1977), Luxembourg (1979) and Belgium (1987) (for further

details on reforms on affiliation laws in Europe, consult Senaeve, 1993; Assier-Andrieu & Commaille, 1995; Spaas, 1998).

6

in the sense of suppressing numerous restrictions on the establishment and on the

contestation of affiliation. Finally, one of the most perceptible objectives of all these

reforms has been to modernise affiliation laws by adapting them to new medico-genetic

techniques, which allow a child to be conceived without sexual intercourse.

Furthermore, attention has been given to the application of scientific proof of parentage,

with a view to the establishment and the contestation of maternity and paternity. Today,

DNA profiling is indeed becoming increasingly important, as part of the court’s

procedures to investigate paternity of children born outside legal marriage, as well as

when a voluntary recognition of paternity is not spontaneously made by the alleged

father.

These profound modifications in Family Law reflect a set of conditions that

rebounded in many countries, namely the considerable advances seen during the 70s in

the field of genetics and particularly in the realm of investigation of biological paternity.

At par with these scientific advances, there were certain ideological changes, translated

in a greater concern with the defence of the rights of the children born outside

institutional marriage, as well as a growing intervention of the State in areas such as

protection of the minor and control of parental authority (Meulders in Eekelaar &

Sarcevic, 1993).6

The critical and theoretical approach of this study is based on two distinctive and

confluent areas.

6 The European concern over the rights of children born outside marriage is self-evident in the orientation professed by the EC of 15

October 1975, the European Convention on the Judicial Statute of Children born Outside of Wedlock, which specified the need for

the member states of the European Council to adopt common judicial dispositions on this matter.

7

It endorses the currents of thought followed by cultural anthropology for quite a

long time, since Lévi-Strauss’s studies of the kinship systems (Lévi-Strauss, 1969),

argued that the reproduction of human beings is also the reproduction of social

relationships (Strathern, 1992; Spass, 1998; Smart, 1987; Smart & Neale, 1999) and is

also rooted in a tradition of feminist legal studies. This research explores the social

relationships reproduced by the courts of law and evoked in the context of paternity

investigation (i.e. representations of paternity, maternity and family) which highlight the

ideologically dominant gender relations, interpreted as means of reinforcing the socially

subordinate position of women.

This study explores how the Portuguese court procedures for the determination of

paternity out of wedlock, when the alleged father doesn’t voluntarily recognize

paternity, highlighting the prevailing notions of parenthood. I will use ethnographic data

collected from fieldwork in Portuguese courtrooms, based on direct observation of court

proceedings in paternity cases in one court of law selected to develop a case study, as

well as in interviews with judges and Prosecuting Counsels all over the country. This

paper will analyse two aspects of court procedures in paternity investigation: Firstly,

based on feminist legal studies literature, we will consider the modes of domination of

women by means of courtroom discourse (Cameron, 1990; Conley, 1998; Matoesian,

1992). In particular, the discursive practices performed during the interrogations of the

mother and the alleged father, in the course of paternity investigations, will be

examined. And secondly, the selective uses of DNA testing in paternity cases, whose

request is mainly based on the evaluation of the moral character of the child’s mother,

will be analysed. DNA testing – one of the technologies believed to be almost infallible

– is used in a restrictive and selective way, with the unrevealed objective of adapting

individual demeanour to standards of values and behaviour of the dominant social

8

groups. This will show that scientific knowledge both embeds and is embedded in social

identities, institutions, representations and discourses (Jasanoff, 2004a) and that the uses

of science in this context have an important impact, both ideological and of

normalization of behaviour, namely when it comes to reproducing the prevailing

patriarchal structures, in particular the privilege of biological kin relationship, of the

symbolic importance of the father and the imposition of the feminine monogamy.

My main argument is that while the genetic expert reports reinforce a notion of

paternity associated to a biological determinism, the secure ascertaining of paternity

gave the courts further power of control over those sexual and procreative female

behaviours which break from the conventional standards of a woman’s fidelity to a sole

sexual partner. Thus, maternity is ‘moralized’.

In the words of Gillian Douglas (1991), legal regulation of reproduction mainly

reproduces patriarchal structures in society. As she points out, “On a more basic level,

while women have almost total power over reproduction, because they bear the child, they have

been unable to make use of this power. No man can be certain if a child is his, short of having

genetic testing to find out. Nonetheless, all women, until the past decade, have known that the

child they carry is ‘theirs’. Patriarchal structures in society might be said to be based on the

desire of men to seek to control this power that women have, to try to ensure that a child

belongs to the right man.” (Douglas, 1991: xix). This seems to be emphasised by the

phenomenon of children born outside legal marriage and who have no legal father,

articulated together with the uncertainty of biological paternity, often reinforced by

assumptions about women’s predilection for deception in reproductive matters (Diduck

& Kaganas, 1999, p.130).

Feminist legal studies have shown that lawsuits that evoke sexuality - such as

rape, sexual assault, abortion, assisted reproduction techniques, and now I add to this

9

list the law cases of judicial investigation for the determination of paternity – highlight

mechanisms by which the law provides specific meanings to women’s bodies and

behaviours (Abbott, 1991; Bridgeman & Millns, 1995; Gruen & Panichas, 1997;

Mackinnon, 1987; Matoesian, 1992; Pineau, 1997; Smart, 1995). In this process they

reproduce cultural beliefs about female sexuality and show how the law has its own

very powerful mode of disqualification and subordination of women. This work follows

the feminist legal studies agenda in the way Richardson (2005) proposes and illustrates

in this quote: “Instead of creating the identity of the woman-victim, feminism has

questioned the meaning of what it is to be a woman. This has allowed feminism to

challenge rather than create such a victim identity.” (Richardson, 2005, p. 291).

1. Court proceedings of a paternity investigation in Portugal

Since the Family Law changes were introduced in Portugal in 19667, the legal

system allows the unofficial inquiry of paternity, which occurs in a court of law and

investigates the paternity of any minor under the age of two, whose birth record does

not show the identity of the father8. By imposition of the Portuguese law, the clerk at

the Registry Office is bound to forward to the proper court a copy of the birth certificate

7 One hundred years after the creation of the first Portuguese Civil Code (1867), a new Civil Code was produced – the 1966’s – that

comes to consolidate the binding of new civil code’s social ethics to the catholic moral, thus reinforcing the dictatorial regime’s

doctrinal project (started in1926 and coming to an end with the so-called ‘April’s Revolution’, in 1974). The change in the

legislation was centered on the institution of the State’s obligation to assume the role of petitioner on paternity investigations,

whenever a birth certificate without the father’s identification was found (article 1860). However, legal recognition of paternity was

performed in a manner as to ‘protect the legitimate family or the dignity and honor of unmarried individuals’ (Pinto, 1995). 8 The 1864th article of the Civil Code states: “At any time that a minor’s birth register is made in which only the maternity is

established, the clerk is bound to forward an unabridged register certificate to the court so that the father’s identity is unofficially

investigated.”

10

that only indicates the mother’s identity, with the exception of cases in which the clerk

can verify that the registered minor was born of an incestuous relationship9.

The dominant juridical doctrine has been that paternity investigation as a State

obligation is justified on behalf of the defence of the essential rights of the child whose

paternity is not legally determined, such as the ‘right to personal identity’ and

‘development of personality’10, generally seen as associated to the ‘right to paternity’

(Pinto 1995). The identity of an individual is thus reconfigured according to the

symbolical domination function of biological affiliation, from which has resulted the

emergence of new rights, namely the ‘right to genetic information’ (Eriksson &

Saldeen, 1993; Wallbank, 2004). One of the interviewed judges clearly states the

privileging of biological paternity by the Portuguese judicial system:

There are no human rights that rise above the determination of paternity, there

aren’t. That determination comes with a natural force, supernatural! (Interview with

judge, 2001).

The duty to protect and to defend the best interest of children born outside

matrimony is assumed by the Portuguese State by enforcing procedures that aim to

equalize those cases with the situations of families considered normal, with the purpose

to assure legal parity between the children born within and outside legal wedlock. Well,

the dominant concept of family in western legal frameworks is characterized not only

by the privileging of biological affiliation (Strathern, 1992), but also by the imagery of

9 According to article 121, no 3 of the Registry Office Code “the consignment of the certificate does not take place if, knowing the

name of the alleged father, the clerk verifies that he and the mother are blood relations or relatives by marriage.

10 The right to “development of personality” was introduced with the constitutional revision of 1991, by the Constitutional Law nº

1/97 on September 20th.

11

the breadwinner male and its corresponding configuration of paternity as financial and

moral support of the family (Eaton, 1986). Although the legal conception of parental

duties appeals to the obligation of both mother and father to ensure to child’s well-

being, namely through economical resources and emotional support, it’s more or less

explicit the notion that the maternal role is played under the yoke of emotional and

financial dependence regarding the father. As Pat Carlen and Anne Worral emphasize in

a work dedicated to the ways how the judicial system deals with women, one of the

pillars of juridical construction of femininity is based upon a normative definition of

‘motherhood’ which evokes the conceptions of frailty and weakness: “The ‘normal’

mother is both economically and emotionally dependent on the father of her child, and it

is considered essential to the child’s welfare to have two parents in situ in the family

home.” (Carlen e Worrall, 1987: 3).

The examining stage of this type of judicial lawsuit is set about under the

jurisdiction of the Prosecuting Counsel, which has to gather all evidence deemed

necessary for a safe identification of the biological father of a given minor: holding an

interview with the mother of the minor whose paternity is being judicially investigated,

interrogating the alleged father and witnesses, as well as requesting reports on the

‘moral and socio-economic situation’ of the minor’s mother, which are generally

performed by the GNR (National Guard), PSP (Police Force) or by technicians from the

Social Services at the Social Reinsertion Institute. In more recent years, reports of

genetic exams of paternity investigation have been incorporated as evidence in judicial

investigations of paternity. The admission of scientific exams as evidence in lawsuits of

investigation of paternity was introduced in Portugal with the decree-law No. 496/77 of

November 25th, and sanctioned in article No. 1801 of the Civil Code, where it states:

“In lawsuits concerning affiliation, blood tests and any other scientifically reliable

12

methods are admitted as evidence.” However, until the 90’s, scientific exams were

scarcely used in paternity cases in Portugal. In countries such as the USA or the UK, the

use of DNA paternity testing in courts was only disseminated in the late 80’s (Derksen,

2000), but in Portugal, only since the mid 90’s have Portuguese courts become more

receptive to the use of genetics as evidence.

As soon as the evidence is gathered, a formal opinion is issued by the Prosecuting

Counsel on the viability of an unofficial inquiry of paternity, so that an ordinary lawsuit

of paternity can be pursued11. This opinion may or may not be confirmed by a judge’s

ruling. If a judicial magistrate considers an unofficial inquiry of paternity viable, an

ordinary lawsuit of paternity is initiated, in which the evidence gathered in the previous

stage is presented once again, and other elements are eventually included. From this

comes a new formal opinion laid down by a magistrate for the Prosecuting Counsel,

who rules on its grounds (the defendant’s, that is, the alleged father’s conviction) or

groundlessness. The person indicated as being the father can, at any time during the

judicial investigation of paternity, voluntarily acknowledge the minor’s paternity, with

an affiliation tenor being immediately drafted and the case filed.

Although the penetration of the DNA profiling in the Portuguese courts seems to

be significant, the most recent data concerning official statistics in Portuguese Justice,

covering the period between 1996-2004, shows that in 28% of the cases, the courts

don’t reach the determination of the legal paternity of children under the age of two, in

56% of the cases, the legal determination of paternity is made because the alleged father

voluntarily recognizes paternity in the course of the investigation, which leaves only a

11 Article 204, No. 1 of the Minors Tutelary Organisation (Epifânio et al., 1992) states: “1. the judge will issue a final ruling as to

whether to file the case or having it proceed to the magistrate for the prosecuting counsel of the proper court, so that an investigation

or impugnment are recommended .”

13

percentage of 16% of viable cases, referring to those situations, in which the gathered

evidence is actually evaluated in open court (Portuguese Ministry of Justice, Statistics

of Justice, 1996-2004). This relatively low percentage of paternity cases that actually

reach the court sessions can be explained by the existence of a selective use of genetic

testing, based on the judge’s evaluation of the mother’s sexual and moral behaviour, as

it will be discussed in the third section of this paper. I will argue that the assumption of

the child’s best interests within the determination of the legal fatherhood and the

subsequent legal efforts to carry out such establishment, will depend of the production

of evidence, which in this specific case will mainly be based on the evaluation of the

mother’s sexual and moral behaviour. Although the defence of the child’s rights is the

main goal of the judicial system’s attempts to establish paternity, the selective and

restrictive ways of using scientific evidence will produce the fact that only the children

with well behaved mothers will have access to DNA paternity testing ordered by the

court, and therefore, access to the legal determination of paternity.

2. Discursive practices and gendered perceptions of parenthood

Discursive practices in the courtrooms may reflect pre-existing gender differences

and hierarchies of knowledge and power in society. My aim was to understand how this

happens in the particular field of ‘legal language’12, used in hearings with the mother of

12 ‘Legal language’ is here understood as all written and non-written statements produced by the different social actors within the

context of court rooms. I share Conklin’s (1998) opinion that the distinction between the concepts of ‘language’ and ‘discourse’ are

of little analytical importance, in that they are very closely linked and both have to do with ways of expressing ‘power’ (Conklin,

1998: 8), so throughout this paper I will use them both with no distinction.

14

the child born outside legal marriage and whose birth certificate does not state the

identity of the father, as well as in interrogations of the presumed father. In the 1960s

and 1970s, studies of the judicial behaviour of trial court focused on recorded outcomes

of legal procedures, specifically on sentencing behaviour. It means that studies on

judicial practices referred to in written records could be done without ever setting foot

in a trial court (Philips, 1998).

Many sociolinguistic works on courtroom language have provided evidence that

ideology produced in judicial practices is constitutive of certain social processes, or

incites certain social consequences (Jasanoff, 2004a; Smart, 1987), and is related to

everyday ideologies in the family, in schools, in the media, in the workplace (Eaton,

1986, Philips, 1998), which makes the boundaries between law and non law permeable.

This paper is an attempt to contribute to an understanding of how speakers create

realities through language use in courtrooms (Jasanoff, 1998), in the specific context of

judicial investigation of paternity of minors. To pursue this goal, I’ve spent 6 months in

a court of law, between 1996 and 1997, attending the hearings done by a group of

judges and Prosecuting Counsels, with whom I worked closely. I returned in 2000 and

carried out fieldwork for 12 more months. I’ve focused on the language used in court

and on the model of specific gender roles, as well as on feminine sexuality ascribed to

those interactions. This approach is rooted within a feminist tradition of legal studies.

This study proposes to understand how language used in court reproduces the social

construction of gender roles, of ‘acceptable’ and ‘unacceptable’ behaviours for women

and men, for mothers and fathers, thus reproducing prevailing patriarchal structures.

The question of language as a means of exercising the power of differentiation and

domination has been a frequent matter of interest in feminist studies (Benor et al., 2002;

15

Cameron, 1990; Diamond & Quinby, 1988; MacNay, 1994, 1992; Sawicki, 1991;

Smith, 1990), particularly in feminist approaches to law.

I base much of my argument on what took place in open court, but also on

documents and court hearings that are not available to the casual visitor, namely the

reports on the ‘moral and socio-economic situation’ of the minor’s mother, which are

generally performed by the GNR (National Guard), PSP (Police Force) or by

technicians from the Social Services at the Social Reinsertion Institute. My study

sample is made up of documentation referring to 1257 lawsuits of unofficial inquiry of

paternity, prosecuted in the court in study between the years of 1967 and 2000, on

jurisprudence published in Portuguese law reviews during that period. In 2000 and 2001

I interviewed judges (five women and thirteen men) and Prosecuting Counsel (two

women and eighteen men) who volunteered to participate in this study in response to an

invitation letter which advertised the research. All of them were working in courts

situated in different parts of the country.

I present excerpts of text proceeding from those diverse sources of information

that I consider particularly illustrative of the specific points I will discuss in this paper.

A feminist discourse analysis was used and themes were identified by reading

transcriptions of interviews, jurisprudence and my own notes drawing on the

observation of court hearings. I was interested to focus on the various ideological

functions of the discourses and practices of judges and Prosecuting Counsels in the

specific context of courtroom investigation of paternity, intending to explore how those

reinforce gender inequalities, in particular by constructing a concept of paternity

entailed to biological links between a man and a child, and an understanding of

motherhood grounded on the assessment of moral profiles, directly connected to the

evaluation of the mother’s sexual behaviour.

16

In the judicial investigation of paternity, the present and past history of the

mother’s sexual life is of major relevance, insofar as it will condition the lawsuit’s

results. The minor’s mother is prompted by an agent of the Prosecuting Counsel to

answer certain questions about her sexual life such as: number of sexual partners prior

to her relationship with the person indicated as being the minor’s father; type of sexual

intercourse kept with the alleged father; place and date of those instances of sexual

intercourse with the alleged father; reasons for keeping such sexual relationship; usage

of birth control methods and the alleged father’s reaction to the news of a pregnancy.

With these, the answer to two other questions is sought: if during the so-called ‘legal

period for the minor’s conception’13 his mother and the alleged father had sexual

intercourse of ‘complete copulation’14; and if in the same legal period of conception the

minor’s mother had sexual intercourse solely with the defendant. Basically, the minor’s

mother is asked about the practice of heterosexual sexual intercourse of vaginal

penetration by the male sex organ, as well as about the number of sexual partners she

had before and during the period of time the Portuguese law considers susceptible of

involving the conception and birth of the minor, whose paternity is being investigated.

Despite its façade of neutrality and objectivity, based on the idea that judicial

behaviour enacts mainly legal ideology, law reinforces the prevailing order by

expressing multiple ideologies (Jasanoff, 2004a). In the 1980’s and 1990’s, researchers

from different scientific areas shared the conviction on the importance of the ‘social’ in

the construction of language, which demystified some significant aspects of legal

rhetoric – namely the idea frequently expressed by juridical science that the law is some 13 According to article 204 of the Minors Tutelary Organisation and articles 1795 and following of the Civil Code, the so-called

legal period of conception corresponds to the first 120 days out of the 300 that preceded the minor’s birth.

14 As Teresa Beleza (1993) states, the Portuguese law and jurisprudence restricts the notion of “copulation” to the penetration of the

vagina by the man. Thus, “complete” copulation is of such kind, but sperm release is included.

17

sort of auto-poetic entity which is auto legitimating and auto constructive. As Pierre

Bourdieu says, this rhetoric is a fundamental basis for the legitimacy of judicial power:

“The body of jurists has so little difficulty in convincing itself that the law is based upon

itself (…) [that] the social cohesion of those who interpret the law tends to give the

impression of a transcendental enforcement to historic forms of juridical reason, as well

as to the belief in an organised vision of the social order they produce…”(Bourdieu,

1986:5) [Author’s translation]

Observing courtroom hearings in law cases for the determination of paternity of

children born outside legal marriage, without a legal father, allowed me to understand

how the contents of the language used in the courtroom play a crucial role in the

production and exercise of power, which is particularly clear in the formulation of

questions directed to mothers of minors. Indeed, through judicial paternity hearings, the

sexual and reproductive activity of the mother of the minor is no longer seen as an

intimate and private experience, and becomes a matter of interest to the State, in the

name of ‘the defence of the interests of the minor’, namely the child’s right to know its

genetic history15. The child’s right to know implicates the right of others, i.e., in some

instances the conflicting right of the mother’s to privacy16 (Wallbank, 2004). Facts that

are in no way relevant to the case in question are brought up in the court room, namely

those that refer to the sexual life of the mother of the minor17, although the judges I

15 In Portugal, the individuals’ right to ‘genetic identity’ was introduced to the Constitution in 1997, article 26.º, No.3.

16 European Convention of Human Rights 1950 (ECHR), Strasbourg. Article 8 states that: ‘Everyone has the right to respect for his

private and family life, his home and his correspondence’.

17 According to some feminist writers, in adversarial juridical systems, it is common for the defence to try to emphasize details of

women’s sexual lives (namely, their ‘sexual past’) in rape (Chambers and Millar, 1987; Matoesian, 1993) and sexual harassment

cases, in order to try to prove that the woman in question is not ‘worthy’ of a favourable judicial sentence because she is, for

example, considered ‘promiscuous’. Indeed, the strategy of making public certain facets of the private life of people involved in

legal proceedings would appear to be quite frequent when it comes to the administration of justice, including criminal justice. As Pat

18

interviewed frequently repeated that the sexual behaviour of the mother of the minor, in

the periods before and after the time of conception of the minor, were of no interest.

Let us look at the following example, which involves a textile worker (the mother)

and a businessman (the alleged father), who spent three years in prison for homicide and

who was also suspect of living off immoral earnings, proceeding from economic

exploitation of prostitutes.

The judge begins the interview with the minor’s mother by questioning her about

her fidelity to the alleged father during the long period of time that he spent in prison.

The implicit message is that it seems ‘abnormal’ for an adult woman to spend years

without having a relationship.

Judge: The father of the minor was in prison for three years. And during this time,

didn’t you have any other men-friends?

The mother answers according to an ideal portrait of feminine behaviour, which

displays domesticity and faithfulness.

Mother of the minor: No, Sir. I went to visit him every weekend and on public

holidays, and I went straight home after the visit. I never left home, not even to go for a

walk. It was just home, at work and made prison visits.

The judge goes on questioning her about her past relationships:

Judge: So, you never had other boyfriends?

Mother of the minor: Not since I met him.

Carlen stresses: “Defendants are set up in a guarded dock and then, at a distance stretched beyond the boundaries of face to face

communication, asked to describe or comment on intimate details of their lives; details which do not in themselves constitute

infraction of any law but which are open to public investigation once a person has been accused of breaking the law”. (Carlen,

1976: 23).

19

The judge shows surprise and suspicion regarding this testimony of chastity and

invites the mother to be more sincere, trying at the same time to assure her that her

sexual past history will not damage her intentions to see legally recognized the paternity

of her child.

Judge: And before, did you have other boyfriends? I know the past is of no

interest, and this will not go down on record, but it will make things clearer….

Mother of the minor: I had two boyfriends before him.

At this moment of the inquiry of the mother, the judge moves to a position of

paternalism, showing comprehension and sympathy for her situation of ‘falling into

temptation’ of love and sex:

Judge: And did you have sexual relations with them?

Mother of the minor: I did, with one of them. He was my boyfriend, and you know

how it’s like…

Judge: I see. That is of no interest. Do you realize you’ve wasted six years of your

life with this individual [presumed father of the minor]?

Mother of the minor (resigned): I know, Sir. I completely lost my mind. I was in

love.

(Excerpt of field notes, December 2000)

My direct observation of everyday activities of courtrooms, in which face-to-face

interactions between magistrates and citizens took place, also enabled me to detect some

patterns of gender differentiation, which place the mother in the realm of ‘domesticity’

and the alleged father in the realm of ‘economics’ (Boyd, 1989; Brophy, 1989; Eaton,

1986; Silva & Smart, 1999; Smart, 1978, 1984, 1989a, 1989b). An analysis of the

20

contents of the questions directed at the person presumed to be the father, clearly

revealed that the function of providing ‘financial support’ is associated with the man –

which can be seen in the questions directed at both the alleged father and the mother as

to whether he contributed to the ‘support of the child’.

The following example is a dialogue between a Prosecuting Counsel and a man

that a mother said to be the biological father of her underage child. The Prosecuting

Counsel wishes to determine if he intends to adopt the child, and at the same time,

warns him about his paternal duty to support his child.

Prosecuting Counsel: You never gave any type of support to the child…. but it

could be yours. How would you feel like if the child died of hunger and you found out

later on that it was your child?!!!

The alleged father responds in such a manner that expresses a biological notion of

paternity – in his perspective, the acknowledgment of paternity will only be made if the

genetic test proves the biological link.

Alleged father: I’ll have the tests to find out if I am the father. If I am, I’ll give

something – not much, because I only earn 80 contos (400 euros) and I’m still paying

back the bank loan on my car.

(Extract from field diaries, January, 2001)

The myth of the breadwinning male is very clear here: while the mother is asked

about her sexual life in order to indicate the identity of the father of her child, the

putative father is asked about his willingness to provide financial support. It is

interesting to notice that although the putative father is encouraged to fulfil his role of

financial supporter of the child, the fact is that there is strong evidence, drawing from

interviews I made to thirty eight judges and Prosecuting Counsels working in different

21

courts, that in Portugal most legal fathers do not assume parental responsibilities and

rights as carers or even as financial providers. The legal system’s fatherhood perceived

importance lies primarily in the guaranty of the child’s right to personal identity, thus in

the symbolic function of fatherhood to complete the particular model of parenting,

notably that of heterosexual, preferably married parents (Dewar, 1998; Sheldon, 2005),

and secondly in the role of breadwinner. Little is known about the social and economic

impacts of the legal determination of paternity, although some studies carried out in the

United States (Adams et al., 1992; Pirog-Good & Good, 1995), as well as in some

European Countries (European Commission, 1997), show that very few of these legal

fathers live with their children or make any contact with them, at the same time that

very few contribute to the children’s financial support. Some authors also claim that the

impact on paternity establishment outcomes, namely on what concerns child support

payments, may be improved if there is a public policy to establish a routine of

monitoring the child support obligations from the biological father (Garfinkel &

Klawitter, 1990).

In my perspective, it is necessary to study the consequences of the legal decisions

regarding paternity determination, especially in such cases that involve the use of

genetic fingerprinting as evidence of affiliation, not only due to its economic features

(as the genetic tests are a rather expensive cost to the State), but mainly due to its

individual, familial and social repercussions (Frank, 1996; Sheldon, 2001).

3– Locating judicial uses of genetic testing in paternity cases

22

Nowadays, one of the outstanding features of the judicial investigation of paternity

is the growing use of genetic profiling to assist the courts’ services, which has often

been described either as a ‘scientificization of law’ or as a ‘judicialization of science’

(Jasanoff, 1997). Genetic fingerprinting can be used to prove or disprove a biological

parental tie, with a very small margin for error. Nevertheless, some authors point out the

problem that some legal systems, which use science as evidence in paternity suits, do

not take into account the necessary balance between biological truth and social bonds

(sociological and psychological truth) (Assier-Andrieu & Commaille, 1995, European

Commission, 1997; Eriksson & Saldeen, 1993).

Based on a set of 1257 judicial lawsuits of paternity investigation filed in a court of

law in the North of Portugal, between 1968 and 2000, some aspects of the current

judicial practice, regarding the use of results of genetic tests in investigations of

paternity, were analysed, taking into consideration such cases in which paternity tests

were done as an element of evidence. The oldest lawsuit began in 1974 and the earliest

in 2000, with a total of 85 lawsuits, in which 87 laboratory tests were done (in two of

the cases blood samples from two alleged fathers were analysed).

Social disadvantage on the access to paternity

The Portuguese legal system does not possess information that could enable a social,

economical and demographical characterization of the population involved in paternity

investigations. However, data collected in this study allows me to assert that, generally,

most of the populations involved in this type of lawsuit are social groups deprived of

cultural and economical resources. On one hand, my case study presents a majority of

population whose professional occupation is mostly of blue collar predominance and an

almost absence of professionals. On the other hand, jurisprudence itself by several

courts in the country, published on legal magazines, frequently points out the poverty

23

conditions of the participants, especially the child’s mother, in order to reinforce the

State’s protective role which, by identifying the father, tries to ensure the child’s

economical support.

The ‘social disadvantage’ profile is mentioned in the interviews, allowing the

justification of distinct and many times contradictory decision making, concerning the

performing, or not, of DNA testing. The following interview excerpt illustrates the way

how ‘poverty’ may be used to justify the request for DNA testing, suggesting that

poverty may be accompanied by lack of information and naivety, being the woman an

‘innocent victim of the male’s sexual advances’ (Beleza 1993); or in order to raise

suspicion regarding the mother’s intentions, leading to the thought that poverty may

elicit the intention to ‘catch a rich father’. It’s also mentioned the situation of the

woman’s extreme frailty – the case of the handicapped woman – stressing the need to

reinforce the State’s vigilant and protective role:

“What sort of people come to my presence in cases of paternity investigation? They are

usually people [referring to the child’s mother] less cultivated, simple and humble.

Normally, they are people who belong to a lower-middle social class, who are unaware of

contraception or are deluded by an affair and some men take advantage of such naivety (…)

There are even cases of men who take advantage of handicapped women, and in those cases

we must intervene, if not, what would become of the child? In other cases there are

‘experienced’ women who seek to get out of a deprived livelihood, who don’t have the best

manners or great stability in affective or emotional terms and think that having a child may

provide some stability to their lives and, therefore, finding the ideal husband, preferably

rich.”

(Interview with Prosecuting Counsel, 2001).

24

Moralysing maternity

The judicial magistrates’ acceptance of the results given by the forensic biology

reveals a particular logic, characterized mainly by the fact that the moral and sexual

behaviour of the minor’s mother still carries considerable weight, regarding the decision

pertaining to the legal paternity of the child, which in turn reinforces the predominant

idea of institutional control of the sexual and procreative behaviour of women.

Through an analysis of the sentences of the judicial paternity investigation lawsuits

taken into account and for which reports concerning genetic tests done were presented

as evidence, we were confronted with two different situations. On one hand, there are

cases in which the judge states he will make a certain decision concerning the

establishment of legal paternity based on the scientific report. On the other hand, we

have verified that in most lawsuits, even though a direct link between the laboratory

results and the judicial decisions is maintained, the decision is based on the existence of

the traditional evidence of the exclusiveness of sexual intercourse of the minor’s

mother, during the so-called conception period. There is a vast array of examples but let

us consider the following:

In 1994, in an ordinary lawsuit of paternity, in which the genetic tests showed a

paternity practically proven, the judge considered the case had grounds, two facts being

evident: on the one hand, the realisation of the so-called “scientific evidence” is

omitted; on the other hand, the magistrate implicitly believes that the positive result of

the investigation of paternity done in a laboratory, shows that the minor’s mother only

had sexual intercourse with the alleged father during the legal period of conception:

“The reason for filing a lawsuit of investigation of paternity is the genetic fact of procreation,

which is based on the generating act of pregnancy and consolidates biological affiliation.

The biological affiliation will have to be established on the evidence of the exclusiveness of

25

sexual intercourse with the future father during the legal period of conception (...) And, as

stated in the records pertaining to this sentence, the minor’s mother, during his legal period

of conception, had sexual intercourse with the defendant, which she did exclusively. “

(Records of lawsuits of judicial investigation of paternity, 1974-2000)

In those cases, when the judge refers to the results of the genetic tests of the

investigation of paternity explicitly, an absolute acceptance of these exams is still

verifiable, which can be seen in the following ruling concerning an unofficial

investigation of paternity, concluded in 1994:

“The minor’s mother states that she has never had sexual intercourse with any other man (...)

However, an exam of investigation of paternity was done in the Instituto de Medicina Legal

(Forensics Institute) in Porto, from which could be concluded that the designated father was

excluded as the minor’s father. Thus there is not, in our view, viability for a lawsuit of

investigation of paternity to be filed.”

(Records of lawsuits of judicial investigation of paternity, 1974-2000)

The division between ‘good’ and ‘bad’ women is thus based on the notion of

appropriate feminine behaviours, defined according to the social expectations, culturally

elaborated according to the codes of the dominant social groups, in this case the judges

and Public Counsels. The following dialog that I maintained with a judge is rather

illustrative of the selection of cases that ‘deserve’ paternity testing, based on the

judgement of the mother’s sexual behaviour.

Researcher: Suppose a situation in which the mother elects only one man as the possible

biological father of the child. If there is testimonial evidence that the child’s mother had

several sexual partners during the legal period of conception, would you demand a DNA

exam?

26

Judge: Yes, unless it’s a rather abnormal situation – if there are five, six, seven or eight…

I’m not going to test every one of them! (…)

Researcher: And what is the criteria [in order to decide if you demand an exam or not]?

Judge: The criteria, let us say, is a one of normality. If the mother says she had been with

this one, and that one, and another, there you go, these are more or less normal

relationships. Now, if things are like that, if it’s a thing, let’s say, in which the mother

knows that there were five or six, but that she had been with many more and doesn’t know

who they are, in that situation, I drop the case.

(Interview with Judge, 2000).

The blood tests in the investigation of biologic paternity are only done in those

instances when the mother is thought to have ‘good moral and sexual behaviour’. On a

first analysis, the researcher may conclude that this is culture-specific, associated with

strong persistence of conventional behaviour patterns, which in Portuguese society

relegated women to the domestic sphere. However, similar patterns of monitoring

women’s behaviour, namely with regards to the type of company kept, frequently

visited places and the types of clothes worn, were identified in countries such as the

USA and the United Kingdom, in the context of legal proceedings in cases of rape and

sexual harassment (Matoesian, 1992; Smart, 1995; Chambers and Millar, 1987).

Conclusion

The Portuguese law which imposes the State’s mandatory investigation of

paternity of any child whose birth certificate doesn’t mention the father’s identity is

based upon in the principle of the public duty to defend the children’s interests, seeking

to legally establish the type of affiliation bonds that Portuguese law still considers today

27

to be vital for the upholding of the “moral integrity, better socialization and economical

support of the minor” (Pinto, 1995) However, in the context of the law in action, the

defence of the children’s rights appears closely associated to the juridical evaluation of

non-conformity regarding the normative standards and dominant values, which are

represented by the situation of women who procreate outside matrimony and whose

children ‘have no father’. This seems to produce social legitimating effects of the

State’s intervention on public monitoring of private behaviors of women who procreate

outside a conventional conjugal situation. These women seem to constitute the

preferential target for strategies of social control proceeding from the courts. As Emily

Jackson states, “Women without men do not get any privacy, the prevailing wisdom is

that they may be legitimately subjected to public, political and media scrutiny.” (in

Kurczewski e Maclean, 1997: 53-54).

A judicial investigation of paternity results from a complex interrelationship

between the judicial and the patriarchal power, shown by the realization that, in the

institutional construction of negative images around single-parent families, in which the

father is absent, there are two main arguments: on one hand, it’s assumed that these are

families with low economical resources (because they lack the father’s contribution,

seen as indispensable). On the other hand, these are families who are faced as potential

sources of deviant behaviours, in the absence of an ‘adequate’ socialization of its

members, which occurs, precisely, due to the father’s absence (Narayan et al., 1999).

In the context of judicial paternity investigations, women seem to be the preferential

targets for familialist paternalistic strategies through which the legal system tries to

impose a model of femininity and familial life, seen by the judicial system as being the

most adequate: nuclear family and the woman who procreates within institutional

marriage, who develops affective and sexual relationships considered ‘stable’. Women

28

are evaluated and classified in the light of moral standards that interrelate with the

objectivity and certainty presented by forensic science through laboratorial techniques

of biological paternity investigation.

The apparently neutral application of genetic tests in paternity investigation

judicial lawsuits in Portugal has important effects, both ideological and of behaviour

normalization, namely, in reproducing social gender distinctions, which were already

present in society: on one hand, DNA testing offers a scientific means of reifying the

biological basis of kin relationships that have, at least until relatively recent times, been

assumed to provide the bedrock of kinship structures in western societies that are quite

present in Portuguese socio-legal and cultural understandings of parentage and kinship.

On the other hand, by allowing ‘safe’ ascertaining of paternity, genetic tests gave the

courts further power of control over any female sexual and procreative behaviour that

breaks away from the conventional standards of a woman’s fidelity to a sole sexual

partner, in the sense that the request of DNA testing might be denied to a mother who

has declared to have many sexual partners, even if she only points to a single man as

being the probable father of her child.

A perspective of the present and future configurations of women’s citizenship in

Portugal points to the fact that it continues to be conditioned and limited in many

situations. These limitations are aggravated whenever multidimensional accumulation

vulnerabilities are found regarding class position, economic or labour dependence or

sexual and procreative behaviours considered as deviant. This state of matters is

reinforced by the political and regulatory culture still enforced today in Portugal. This

culture is based on the central role assumed by the State in social regulation (in this

case, by the imposition of paternity investigations), as well as in the authoritarian

relationship between the State, the judicial system and certain institutional uses of

29

science. It is also built upon the citizens, affecting overall the most vulnerable citizens –

for example, working class’s mothers (as it happens to be case of the majority of

mothers who appear in paternity investigations) -, because they are particularly

permeable to the harmful effects of ‘routine justice’ which is a part of that culture. And

if the dramatization of court justice, in the sense that “the courtroom is quintessentially

also a theatre in which things are not only related but also shown in order to compel

belief” (Jasanoff, 1998, p.716) can effectively lead to the questioning of the justice

system’s own functioning and credibility, routine justice seems to ensure the continuity

of the system, not just because it is satisfactory, but because passive citizenship

prevails, grounded, on one hand, on a weak internalization of citizen’s rights and a

strong internalization of the principle of non-application of laws or their selective

application by the courts and, on the other hand, on a low motivation and feeble

capacity to make claims (Santos et al., 1996). Routine in court proceedings appears to

be the most usual scenario in the context of a judicial practice which doesn’t translate in

an actual mobilization of the judicial system by the citizens, but rather in a State

imposition that, in a compulsory fashion, involves citizens in courts, which is

aggravated by the fact that women tend to have a more negative opinion of courts and to

express more feelings of distance and incapacity to deal with them; which is consistent

with the greater distance which women in general express in regard to public

institutions, in virtue of the persistence of a patriarchal system which keeps them

preferably within the private sphere and makes the State and the public sphere

masculine

The recent history of the practice of judicial paternity investigations has been

marked by the growing use of DNA profiling to identify biological paternity. The

laboratory tests concerning biological paternity have been perceived in the juridical

30

field as the tools that made the introduction of further objectivity and exactness in

affiliation law possible. Scientific evidence is a complex production, in the sense

exposed by Jasanoff (1998), that draws on a wide range of social and cultural resources

- such as the persuasion of inscriptions (in the case of paternity testing, 'DNA

fingerprints'), the authority of professional codes and standards, and judges' and

citizens’ commonsense understandings of science (Jasanoff, idem, ibidem).

The symbolic subordination of law to science (Santos, 1995) is clearly shown in

the impact that scientific exams have in judicial results, whenever a child’s legal

paternity is established. The results of the scientific tests are seen by the judges as

mirrors of the child’s mother’s sexual and moral behaviour, producing normative

judgements legitimated by scientific ones. More than soothing the judicial watching

over women’s behaviour, the use of the denominated scientific evidence seems to

reinforce the monitoring of the sex life of the mothers of children without a legally

recognized father, by the imposition of a refined and restrictive selectivity of the cases

‘worthy’ to include that individual identification tool, based on moralist criteria which

excludes women reputed as sexually and affectively unstable.

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