L'incidence des tests d'ADN sur le droit quebecois de la filiation
McGill Law Journal 2000 May; 45(2): 483-526
The availability of genetic testing now enables us to determine the filiation of a child, with near certainty in cases of dispute. This scientific upheaval has had enormous repercussions on family law. The author examines, through a comparative approach, the way in which DNA testing has contributed to the recent evolution and changes in Quebec filiation law, thus putting the developments in Quebec in a more global context. She suggests that Quebec law has adopted a conservative attitude when it comes to ordering filiation tests, especially when compared to the law in other Canadian provinces, the United States, and Europe. However, in Quebec, as in other jurisdictions, in order to be accepted as evidence, DNA tests must be reliable, useful, and carried out in a way that respects the fundamental rights of the interested parties. When faced with a refusal to be subjected to such a test, the courts at least have the power to draw a negative inference. Moreover, the author considers the legal and ethical questions raised both in Quebec law and in other jurisdictions by the practice of DNA testing, particularly the difficulty the courts face in trying to reconcile such tests with the right to inviolability and integrity of the person, and the right to privacy. Lastly, the author discusses the attempts in the various legal traditions surveyed to resolve the conflict between biological reality, on the one hand, and psychosocial reality on the other, in light of the fundamental principle of the best interests of the child.
The effect of DNA testing on Quebec filiation law english abstract
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Annexe à l'avis no. 37 du 13 novembre 2006 portant sur l'usage des tests ADN en matière de détermination de la filiation: considerations juridiques concernant la filiation [Annex to Opinion no. 37 of November 13, 2006 on the use DNA tests to determine a family relationship: judicial concerns related to a family relationship] Comité consultatif de Bioéthique de Belgique (2007-04)