Copyright (c) 2007 Willamette Law Review
Willamette Law Review
ARTICLE: A NEW PATERNITY LAW FOR THE TWENTY-FIRST CENTURY: OF BIOLOGY, SOCIAL FUNCTION, CHILDREN'S INTERESTS, AND BETRAYAL
44 Willamette L. Rev. 297
Leslie Joan Harris*
In the 1970s, about 90 percent of all children were born to married women, and their paternity was resolved by the legal presumption that a married woman's husband is the father of her children. 1 In some states, including Oregon, legal rules prohibited the admission of evidence to rebut the presumption 2 or precluded parents from testifying so as to "bastardize" their child. 3 Even in states where the presumption could be rebutted, blood tests then available were so primitive that they were unlikely to exclude a man as the biological father even if he were not. 4 As a result of these conditions, the legal father of most children was also the social father, the man who functioned as their father - their mother's husband. This man was usually also their biological father, but even when he was not, few people were likely to know for sure. Children born to unmarried mothers usually did not have a social father, but they also did not have legal fathers because paternity was often not legally established. In these circumstances, the law simply did not need to choose between children's biological and social fathers for purposes of determining their legal fathers. For all practical purposes, social fathers were legal fathers.
Laws and social practices affected by the law of paternity have changed significantly since the 1970s. Among the most important changes are the availability of genetic testing that can identify a child's parents with certainty and the development of ...
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