Law to clarify paternity regardless of rescission proceedings from 26.3.2008 (BGBl. As defined in 441, Section 1598a German Civil Code Law (Bürgerliches Gesetzbuch, BGB)
To clarify the biological parents of a child, father, mother and the child are entitled to mutual consent to a genetic family relationship analysis and tolerance for the collection of test material. This was laid down in 2008 by the “Claim to consent to a genetic examination to clarify natural parentage” German Civil Code Law (BGB), Section 1598a, Paragraph 1-4. If consent is not given, an application to substitute consent can be made to the family court, i.e. the court decides whether the analysis is carried out.
A person who has consented to a genetic family relationship test and has given a genetic sample is entitled to an inspection of the test report or to be provided a copy on request from those carrying out the analysis i.e. requesting relationship clarification. The family court also decides disputes arising here.
The German Gene Diagnostics Act, 2010 (Gendiagnostikgesetz, GenDG, 2010)
On February 1, 2010 the German Gene Diagnostics Act (Gendiagnostikgesetz – GenDG), regarding genetic examination of people came into force, prohibiting the implementation of secret family relationship analysis. According to GenDG Section 17 Paragraph 1, patient information according to GenDG Section 9 and informed consent in accordance with GenDG Section 8 are required to conduct genetic examination to clarify parentage.
Therefore, all individuals whose genetic samples will be examined are required to provide a written informed consent following patient information. If the person involved is a minor, their legal representatives must be informed of the investigation and must also consent in writing, to the examination and collection of suitable genetic samples.
The legal representatives of a minor comply with the German Civil Code (Bürgerliches Gesetzbuch, BGB). Therefore, an underage child can be represented by the parents (Section 1629, German Civil Code or where applicable, a legal Guardian (Section 1793, Paragraph 1, Section 1, German Civil Code) or carer (Section 1915, Paragraph 1, Section 1793, Paragraph 1, Section 1 German Civil Code). The legal representatives have to decide whether granting permission is in the best interests of the child (Section 1627, German Civil Code). The consent to a family relationship DNA analysis may be revoked in writing or verbally at any time.
If both parents have custody of a child, both parents have to consent to the investigation. Material such as hair, pacifiers and so on are not suitable for family relationship DNA analysis, since it cannot be assumed that all persons concerned have truly consented to the study, in addition the identity and the origin of the sample cannot be guaranteed. EDTA-blood or mucous membrane swabs may be used for the investigation.
Requirements for performing genetic analyses to clarify descent and for the qualifications of medical and non-medical experts (Directive of Genetic Diagnostic Commission, GEKO) from July 26, 2012
A further legal basis for family relationship analysis is the directive of the Genetic Diagnostic Commission for the “Requirements for performing genetic analysis to clarify descent and for the qualifications of medical and non-medical experts” from July 26, 2012. This includes the regulations for the entire process of family relationship DNA analysis – from sampling and identity control to laboratory examinations, and the production and distribution of a written report. Furthermore, it includes criteria for quality assurance of analyses and the special requirements for the qualifications of experts providing family relationship DNA analysis reports.
From the above mentioned directive comes, for example, the demand to always include where possible a child’s mother in the investigation and only in exceptional cases to exclude her. This serves the aim of improving genetic identity control of the genetic sample, and is preferable due to noticeably higher result security.