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Rabat – A somber expression on her face, head bent towards the microphone, Basima El Heqaoui’s revelation echoes loud and clear in the parliament. “I am in favor of fatherhood DNA tests,” she says. An announcement that would have been revolutionary, if it wasn’t meaningless for the Moroccan family law.
The Minister of Family, Solidarity, Equality and Social Development, Bassima Hakkaoui revealed that she is for the adoption of “DNA test that would reveal the identity of the father of an abandoned child.”
“The government should provide abandoned children with all the services that will allow them to be equal to other children, starting with registration in the civil registry and going as far as identifying the father through DNA testing,” she said.
Class in Family Law
Hakkaoui’s call to use DNA test for paternity proof has already been answered. Judges can impose DNA test on possible fathers.
The paternity test, even if it proves the biological link, does not establish in any case the legal link between the father and the mother and without proof of marriage, the child can not assert his rights from the father.
In 2014, the Ministry of Health revealed intentions of prohibiting the sale of DNA tests, considering that they are “unreliable because of the variation of the standards of analysis, the lack of a legal framework and the risks of being conducted with ‘bad intentions’.”
The ministry never put its intentions into effect, because in late 2016, a Moroccan woman filed a suit against the man with whom she had a child out of wedlock, accusing him of abandoning their daughter and refusing to acknowledge paternity despite definitive DNA proof.
The woman requested the court to recognize her daughter’s affiliation to her biological father and to force the later to assume his parental responsibility by providing financial support to the child.
The defendant replied by stating that the prosecution’s case is legally unfounded, since the relationship between the two individuals is considered “illegitimate” in the eyes of the Moroccan judiciary system.
While the DNA test does in fact prove the biological paternity of the father, the Moroccan family code does not recognize the legitimacy of children conceived out of wedlock.
Article 148 of the family code states that “illegitimate filiation does not produce any of the effects of legitimate parentage in relation to the father.” However, the same document states in Article 146 that “filiation, whether it results from a legitimate or illegitimate relationship, is the same in relation to the mother, as regards the effects which it produces.”
Backward Motion
At first, the judge decided to disregard the Moroccan family code decrees and focus instead on the Moroccan Constitutions and the Children’s rights international conventions signed by Morocco.
He argued that the highest legal text in Morocco requires that “the State will insure equal legal protection, and equal social and moral consideration for all children regardless of their familial status,” and ruled in favor of the single mother.
On October 9, the court overturned the first verdict and declared the child “illegitimate,” falling back on Moroccan law.
The annulled decision does not entitle the child to paternal filiation or fatherhood rights such as inheritance, name bearing and allowance. Having lost the trial, the mother is entitled to pay the costs of both steps of the trial.
