In search of the lost gene

Penumbra’s special correspondent investigates the secrets of life and of adulterine children, using DNA fingerprinting.

The July 29, 1994 Act relative to the respect of the human body in France sets down strict regulations for the use of DNA fingerprinting. This technique is extremely useful for police investigations, such as the identification of a corpse by analysis of a drop of blood or a single hair, or again, for identifying a rapist by analysis of sperm. Its use is potentially dangerous (un-genethical), however, if private individuals abusively take advantage of it to ascertain a person’s biological father, in particular. The risk involved is particularly great since the very nature of the specimen and the minute amount required make it feasible for analysis to be conducted without the knowledge of the concerned party.

One of the main arguments of the instigators of this strict regulation (which contrasts with the policies of other countries, and of the English-speaking countries in particular, which frequently resort to these methods1) is that this fingerprinting may endanger the family, since many presumed “legal” fathers actually are not the “biological” fathers of their children, generally unwittingly so. The figures quoted turn the country into an immense vaudeville scene, and give every reason to fear for the French family.

In 1991, in her report to the prime minister on which the 1994 Act on bioethics was based, Noëlle Lenoir stated that “There is no serious investigation of the number of adulterine children, but some people contend that between 10 and 20 % of presumedly legitimate children are in fact born out of adultery. One may easily imagine the catastrophic effects that would be produced by free access to DNA fingerprinting if it could be performed by any laboratory that so desired. Such access therefore requires regulation”2. No source is quoted.

The veil of discretion

The national weekly l’Express gave slightly lower figures in a March 1992 article by Gilbert Charles, who wrote : “the fact remains that by invading private life, this new technique [DNA fingerprinting] raises a challenge of another order : it will lift the veil of discretion covering the father’s identity. As we know, 10 to 12 % of allegedly legitimate children are actually born out of adultery (this figure, obtained through prenatal screening tests, corroborates the long-standing estimations of the clergy, based on confessions)”. Have we read correctly ? The Church knew, and we were kept in ignorance !

The Quotidien du médecin (a medical periodical) published a more secular and cautious view in 1998 : “our country has a peculiar legislation, in that the head of family is considered to be the father of its children, barring proof to the contrary. Now, while this generally is the case for the first children, it is much less true for the others, since the proportion of children who were not fathered by their presumed father is estimated at several %”. In the December 23, 1991 issue of Libération (a national daily paper), Loïc Chauveau, referring to a legal journal, gave another estimation, stating that “an estimated 10 % of officially recognized children are believed not to have been begotten by their legal father. This is enough to instill doubts in the population at large.”

In his ongoing quest for the scientific source of this harvest of “it is known” and “it is believed”, our investigator came upon the following paper published in the 1991 general edition of La Semaine Juridique (a law periodical) : “there is however the risk that such [genetic] investigations of families would disturb the peace in many homes, given the known fact that nearly 10 % of what the law deems legitimate children are actually bastards... not to speak of the thousands of children born to a legitimate couple following artificial insemination with a donor’s semen”3.

The author of this article, Professor Galloux, leaves a clue in the form of a quotation of a source, his colleague Durry, in the Jurisclasseur périodique (another law periodical). Our travels through the land of the juridical were getting quite enjoyable, so we dived deeper into our law library.

A fierce fight

Our efforts were not in vain. Having shaken and dusted off a dozing head librarian, our investigator managed to obtain the Jurisclasseur for the year 1984. In it, he discovered a fierce fight between eminent jurists over the presumption of legitimate paternity using blood testing. Professor Durry attacks his colleague Atias as follows : “would he suggest that all those children who are not disowned were truly the works of the husband ? Suffice it to remind him that according to the specialists, at least 7 % of legitimate children are actually adulterine ‘a patre’. We may be glad that the law does not facilitate the implementation of this truth, and at the same time, not deny the fact itself”4.

Fortunately, Professor Durry leaves some indications, along with a reference, a work entitled “Droit de la filiation et progrès scientifiques”, containing a study by Doctor Denise Salmon, from which he draws the following quotation : “between 7 and 10 % of children are not the biological children of their legitimate father”. Sensing that he was approaching the scientific source, the investigator was overwhelmed with a gust of fresh air. At last, a doctor, after all these jurists. A woman, after all these machos, a mother, perhaps, the guardian of the secret of the origins, after those secrets gathered in the confessionals !

So the investigator returned to the library, once again he shook the head librarian, now being wrapped in the web of a beautiful spider, and discovered “The” Book, the portal of the Temple of scientific knowledge. The work, edited by Professors Labrusse and Cornu, contains the proceedings of a colloquium held in Paris in June 19785. The quotation is there, on page 44. Doctor Denise Salmon, researcher at the CNRS, does really broach the fundamental issue of the proof of paternity in a paper in which she explains, in 23 dense pages, the scientificity of the methods used, the precautions to be taken in such research and in interpreting the findings, the difference between a scientific truth and a legal truth. Alas, in her emphasis on the danger of genetic testing, she utters the fatal phrase : “between 7 and 10 % of children are not the biological children of their legitimate father. Most of these are first-born. Many families take these involuntary adoptions into stride, and the genetic studies that reveal such incompatibilities must remain discrete. Unfortunately, there is reason to fear that the aura surrounding these studies and the curiosity of those people involved will make it increasingly difficult to keep the secret”6.

Visibly this article, like the tombs of the pharaohs, has been plundered by subsequent writers who practice speed-reading. The Quotidien du médecin , for instance, had gained the exact opposite understanding of what was written about the filiation of the first-born child, who is often granted legitimacy out of indulgence. But above all, the plunderers of the “7 to 10 %” estimation did not read the rest of the article, nor the ensuing discussion, struck and titillated as they were by their own imagination and fantasies about the secret of paternity. Professor Carbonnier had asked the right question straight off : “how were these figures of 7 to 10 % of non-legitimate children among those presumed legitimate established ?”. Doctor Salmon answered, without beating about the bush : “it is an estimation, with no statistical validity”. She then went on to state that researchers did not agree on the exact figure, but simply noted the “relative frequency of the occurrence”. Professor Terré then took the floor to simplify the problem, emphasizing the fact that : “the transition from illegitimacy to legitimacy occurs within the proportions given by some demographers, of 45 to 59 % of illegitimate children who become legitimate one day or another. These findings are rather dated, but given this morning’s contributions and what we have just learned about their fragility, I do wonder whether our basic issue does not suffer from unclear figures...”.

Based on confessions

At this point a certain Mr. Pohier spoke out, bringing his own insight to the question : “You find these figures of 7 to 10 % surprising. I have a twofold practice in this field, both of the confessional, (we lack statistics here, as well), and of clinical psychology (here too, there is very little statistical evidence), but what surprises me, sir, is your own astonishment, because my experience in both fields seems to corroborate this phenomenon.” This contribution, so concise in its content, is certainly the scientific source to which l’Express refers concerning “the long-standing estimations of the clergy, based on confessions”.

Fortunately, Professors Terré and Carbonnier did dare to speak out again once these definitive truths had been uttered. The former expressed his surprise at the claim of a rate of 7 to 10 %, while the second questioned the representiveness of the sample on which the studies must have been based.

The representative of the ministry of Justice closed the discussion with a show of solemn learnedness, asserting that “in divorce cases, when the wife does not request alimony for a child this is a disguised admission that the legitimate child is in fact illegitimate. The ministry, which has been establishing statistics on all divorce cases for many years, would probably be in a position to determine this particular statistic, which would, in my opinion, probably back up the percentages of the present evaluation...”. Say no more ! Fortunately Doctor Soulié subsequently gave a remarkable speech in which he explained how complex, psychologically, the notion of truth is with respect to filiation, and the power of fantasizing...

Our investigator was unable to meet Doctor Salmon, who must have regretted she had given those jurists the estimation “between 7 and 10 % of children are not the biological children of their legitimate father”, which, despite her careful phrasing, was to be utilized and fantasized later on, to become, in an official report 13 years later, “between 10 and 20 % of legitimate children are in fact born out of adultery”.

May this humble detective, overcome by the importance of his discoveries, dare to put some naive questions to these eminent specialists in different fields ?

1 — To be legal, research into the contradiction between legal paternity and biological paternity must be conducted on a sufficiently large and representative sample of cases reduced to anonymity, and based, for instance, on a series of blood specimens from a same family. How, then, in an anonymous sample, can one determine the extent of voluntary legitimization, through recognition or marriage, of a child who the man knows is not his own, the proportion of artificial inseminations, and of full-fledged adoptions ? That is to say, of all those cases in which paternity is voluntarily shouldered, and which have nothing to do with adultery ?

2 —Do jurists who specialize in the law of filiation always use such flowery expressions as “born of the works of the husband”7 and “adulterine a patre” to designate the fruits of love-making ? Are jurists’ children works of art or works of the artist ?

3 — Have the Vatican’s statistics been published ?

Jean-Paul Jean
August 1994


1. Great Britain is a case in point : genetic fingerprinting is used to determine whether a child coming from a country in the Commonwealth and requesting naturalization is effectively a biologically verifiable descendant of a person already naturalized.

2. “Aux frontières de la vie : pour une éthique à la française”, Documentation française 1991, p. 73.

3 N° 4386 dated October 16, 1989.

4. Doctrine 3497 P. 107, note 40, JCP 1984 doctrine 3171

5. Labrusse et Cornu (sous la direction de) : “Droit de la filiation et progrès scientifiques”, éditions Economica 1981.

6. Idem p. 27s. “La preuve scientifique de la paternité : état de la science et déontologie”.

7. The expression is more solemnly legal in French (translator’s note)

Penumbra, 2001 June