§1908.__Genetic testing when specimens not available

1.__Specimen not available; submission of specimens.__Subject to subsection 2, if a genetic-testing specimen is not available from a man who may be the father of a child, for good cause and under circumstances the court considers to be just, the court may order the following individuals to submit specimens for genetic testing:

A.__The parents of the man;

B.__Brothers and sisters of the man;

C.__Other children of the man and their mothers; and

D.__Other relatives of the man necessary to complete genetic testing.

2.__Finding required.__Issuance of an order under this section requires a finding that a need for genetic testing outweighs the legitimate interests of the individual sought to be tested.

Comment

(This is section 508 of the UPA.)

In some cases, the alleged father may be unavailable for testing. Subsection (a) accommodates those cases by providing for testing of the man's relatives to establish his paternity or nonpaternity of a child. Depending on the proceeding, some of the individuals listed for testing in subsection (a) will be parties to the paternity proceeding and others will not. If an individual does not volunteer to participate in the testing and is not a party, in the absence of this provision the court would be required to decide whether it has the authority to order the testing and whether testing the objecting individual is necessary. This provision resolves the issues. Given the fact that genetic testing in the modern age is not invasive--use of the buccal swab method means that the intrusion into the privacy of the individual is relatively slight compared to the right of the child to have parentage established. Moreover, the alleged parent also has a right to have that fact determined.