A UK court has ruled that it is currently impossible to determine the father of a child conceived after a woman had s3x with identical twin brothers within days of each other.
The case, heard at the Court of Appeal in London, was brought by the child’s mother and one of the twins after the other brother had been named as the father on the birth certificate. The pair sought legal recognition of parental responsibility for the child, known as P, but judges concluded that existing DNA testing methods cannot distinguish between the two men.
Delivering the judgment, Sir Andrew McFarlane said: “Currently, the truth of P’s paternity is that their father is one or other of these two identical twins, but it is not possible to say which.
“It is possible, indeed likely, that by the time P reaches maturity, it may be possible for science to identify one father and exclude the other twin, but, for the coming time, that cannot be done without very significant cost, and so her ‘truth’ is binary and not a single man.”
The court heard earlier findings that “both brothers had had s3x” with the woman “within four days of each other in the month when P was conceived,” making it “equally likely that each of the brothers is P’s father.”
As part of the ruling, the judge determined that the twin currently listed on the birth certificate “was not entitled” to be registered as the father and that any parental responsibility he held “shall cease” pending further legal proceedings. However, the court stopped short of declaring that he is not the father.
Sir Andrew explained: “The failure to prove a fact means that that fact is not proved; it does not mean that the contrary is proved. There is a distinction between something being not proven, and making a positive declaration that the fact asserted is not true.”
The case is expected to continue as the court considers further arguments around parental responsibility.