DNA Testing: Whose Child is This?

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In a civil case, the court has no power to compel a person to undergo DNA test to prove as to whether a child belongs to them. Let’s have a look on how the court comes to this conclusion.  

The Malaysian legal industry has recently been shaken up when the High Court was faced with the question on whether it has the power to compel a person to undergo DNA testing. The case of Lee Lai Cheng (suing as the next of friend of Lim Chee Zheng and herself) v. Lim Hooi Teik [2017] 10 MLJ 331, garnered the interest of the legal fraternity as it navigates the uncharted territory of court-ordered DNA testing.

On the side note, feel free to click on this article Step by Step Guide to Child Adoption in Malaysia  to know more on Child Adoption in Malaysia.

First things first, what is a DNA test?

Deoxyribonucleic acid, or DNA, is a material that is present in nearly all living organism that carries and passes on genetic information from previous generation to the next. For human beings, DNA test is a process where either blood, tissue or bone samples is extracted and analysed to determine the genetics of an individual. The test can be conducted to determine a wide range of subject matters, from identification of hereditary diseases to legal or evidential purposes, which includes paternity testing and its like.

The Background Story

The Plaintiff (“Lee”) and the Defendant (“Lim”) met each other at an entertainment outlet back in 1993. Their relationship blossomed and eventually, Lee gave birth to a child in year 2000. Disagreement arose when Lee claims that Lim fathered the child, a claim to which Lim vehemently denies. The dispute snowballed into a court action where Lee sought a declaration to compel Lim to undergo a DNA test in order to determine the paternity of the child.

Authority of the Courts

One of the contentious issues raised in this case was whether the court is empowered by any domestic and international laws [1]  to order the defendant to undergo DNA testing for determination of the child’s paternity.

After careful considerations, the Court held that existing laws do not provide courts with the authority to compel the defendant to undergo a DNA test. Lim Chong Fong JC held that:

  1. There is presently no statute nor common law that allows the court the authority to order an individual to undergo DNA test in a civil suit.
  2. A person cannot rely on the inherent jurisdiction of the court by virtue of the Rules of Court to claim for substantive rights, i.e. where the person’s rights are adversely affected by the action of another. The inherent jurisdiction of the court can only be relied upon when there is non-compliance with procedural rules and regulations as stipulated in the Rules of Court.
  3. The only statute that empowers the court to order an individual to undergo DNA test in Malaysia is the Deoxyribonucleic Acid (DNA) Identification Act. However, the act only applies to criminal proceedings [2] and even then, still requires individual consent before DNA samples can be taken for examination.

What does this Mean?

While the Court acknowledges that an individual’s substantive right has been unjustly denied in this case, it is powerless against the face of such injustice as it cannot interpret the law beyond legislative intentions.

Until and unless the Parliament addresses the problem through implementation of a legislative change, it is highly unlikely that the above view will change anytime soon. Therefore, the short answer to the question of whether a person can be compelled by the court to undergo DNA test in a civil case is a resounding “no”.

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[1] Article 8 (1) and (2) of the Federal Constitution, Article 7 of the United Nations Convention on the Rights of the Child and the inherent jurisdiction of court under Order 92 Rule 4 of the Rules of Court 2012.

[2] Section 12 (2) and Section 13 (3), Deoxyribonucleic Acid (DNA) Act 2009

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