The lack of DNA legislation within the Maltese legal system : a focus on parentage testing

Abstract

This thesis evaluates the existent legislative hiatus with regards to DNA Parentage Testing in Malta, long after similar legislation has existed in other countries. It also evaluates the difficulties experienced by such foreign legislatures and jurisprudences. By far, as expected, the thesis deals with the problems of challenged paternity vis-a-vis the radical effects of the DNA Test, which, scientifically can exclude paternity with certainty but confirm with reserve. The science and the mathematical methodology are briefly described along with potential pitfalls in either. A detailed protocol for a Chain of Custody is described - in lifting the DNA specimen and in following its analysis within the actual laboratory. Briefly, it also looks at maternity identification in the light of artificial procreation using ovum and embryo donation, surrogacy, etc. The legal argumentation draws heavily from foreign courtrooms, especially those of the USA, home of the first court involvement of DNA Parentage Testing. The superb Australian Law Reform Committee's Report of the 14th March 2003 (entitled 'Essentially Yours')- a colossal and masterly report, as well as the multitude of reports from the British Human Genetics Commission have been consulted and quoted more than any others. The thesis stresses that Maltese legislation still does not permit positive DNA Paternity Tests to challenge the Presumption of legitimacy without the evidence as detailed in the laws of filiation, laid down in Chapter 16 (Civil Code). This and other points from the Law of Filiation are discussed and illustrated with examples. Finally, based on the above argumentation a DNA Parentage Law is proposed, also taking into consideration the standards required from the scientific laboratory work required, as well as guaranteeing Genetic Privacy. Two appendices outline the proposed Chain of Custody and a recommendation for an official advisory body - a Maltese Human Genetics Commission - in the light of the positive UK experience.