The writer: Her Ladyship Justice Sedinam Awo Kwadam (Mrs.)
- An Incomplete Pursuit of Certainty and the Dislocation of Criminal Liability from Moral Fault
Let us begin with a premise so fundamental that it anchors both law and reason: if the State’s objective is to ensure that no parent leaves a healthcare facility with a child who is not biologically theirs, then that objective must be pursued with consistent logic, as a parentage test, a test of both parents.
The proposed bill, however, directs its scrutiny exclusively toward paternity. It does not extend the same verification to maternity, despite the reality that maternity, though often treated as certain, is not beyond the reach of institutional or human error.
In my own practice sitting as a family court judge, I have come across a case where a DNA test performed on both mother and father returned a verdict of no biological linkage with the set of twins they had delivered. Hospital systems are fallible. Instances of neonatal misidentification or baby-switching, whether inadvertent or deliberate, are rare but undeniably possible.
That case was not one of deception; it was one of institutional breakdown. Yet under the proposed bill, that mother would have been investigated, charged, and presumed fraudulent, while the hospital’s error would have escaped all scrutiny.
This selective focus creates a structural imbalance. Where a paternity mismatch arises, in the absence of any corresponding inquiry into maternity, it will almost inevitably be read as evidence of female infidelity and, within this framework, as proof of paternity fraud. The possibility of institutional error fades from consideration, while suspicion attaches swiftly, and almost exclusively, to the mother. A system that examines only one side of parentage cannot reveal the full truth. It is designed to reach a predetermined conclusion rather than uncover what actually happened.
The proposed bill, as is being argued by its proponents, goes beyond simple verification. It proposes to introduce criminal sanctions. This raises a more basic question: what exactly is the wrongful act to be punished? Perhaps, the infidelity of a woman.
Criminal law is not meant to punish unfortunate or undesirable outcomes. It rests on personal culpability. For someone to be held criminally liable, their conduct must be both voluntary and blameworthy, and it must involve a guilty state of mind, intent, or recklessness, the mens rea.
To punish a mother of an infant simply because a DNA test later reveals a mismatch, without any proof of actual deception, is to return to the logic of the medieval trial by ordeal, where the outcome itself was treated as a divine verdict. Modern law has rightly abandoned that framework of criminal justice.
Consider a phenomenon that, while rare, is biologically undeniable: heteropaternal superfecundation, where twins are born with different biological fathers because two eggs were fertilized by sperm from different men within the same ovulation cycle.
In the documented case of twins Lavinia and Michelle Osbourne, born minutes apart but to different fathers, the mother had done nothing criminally wrong. She had not committed fraud. She had not deceived anyone. She could not have known, and had no way of knowing, that her twins had different fathers.
Yet under the proposed bill for Ghana, the compulsory DNA test would have revealed a mismatch for one twin, and the presumption baked into the bill’s architecture would have rushed toward a conclusion of deliberate deception. A mother entirely innocent of any fraudulent intent would have been investigated, potentially charged, and subjected to criminal sanction for a biological outcome she could neither control nor foresee.
This case exposes a conceptual flaw in the proposed bill’s logic: a DNA test does one thing, and one thing only, it establishes or excludes biological linkage. It cannot, and does not, speak to intention, knowledge, or motive. Yet the proposed bill treats the scientific outcome as though it carries, within it, proof of culpability with regard to fraud. That is a grave error of criminal justice jurisprudence.
Real courtroom experiences reinforce this concern. There are documented cases where DNA testing excludes both the presumed father and the mother. In these situations, the cause is usually not deliberate deception by the mother, but institutional failure, most commonly, mix-ups in the hospital’s neonatal identification and handling processes.
In a hospital setting, childbirth is not a private or self-managed event. It is overseen by trained medical professionals following established protocols. The identification, labelling, and transfer of newborns are entirely under the hospital’s control. A woman in labour or recovering from the birthing process does not direct or supervise these processes. She is usually too exhausted or under the influence of medication to properly oversee the handling of her baby.
To impose criminal liability in such cases is to punish someone for something they neither intended nor could control. The Osbourne case illustrates this principle in stark terms: if biology itself can produce a paternity mismatch without any deception whatsoever, then a law that criminalizes mismatches as presumptive fraud will inevitably ensnare the innocent. It breaks the essential link between fault and punishment. A legal framework like this does not merely risk injustice; it makes it inevitable.
- The Ghanaian Jurisprudential Foundation and the Limits of Legal Intervention
At the core of Ghanaian parentage law is a principle that is often misunderstood in current debates on genetic testing: the law does not require that a child at birth be assigned his biological father as a matter of scientific certainty. It requires, instead, that the child have a legal father from the moment of birth. This distinction is foundational. The law is not in the business of suspending a child’s identity until biology is verified; it is in the business of securing that identity immediately through legal presumption.
That is why paternity operates as a rebuttable presumption. It is not a declaration of biological fact, but a legal mechanism for managing uncertainty. Where doubt arises, it may be challenged with evidence in court. But crucially, the law does not treat uncertainty as wrongdoing. A mother may genuinely be mistaken about paternity without any element of fraud or criminal intent. Mistake is not deception, and the law has never conflated the two.
This logic is reflected in Section 32 of the Evidence Act, 1975 (NRCD 323), which presumes a child born in marriage to be the husband’s child. The aim is not to override biology, but to ensure that no child is left in a legal limbo while biological truth is investigated. Legal identity is secured first; disputes are resolved later. This is significant in upholding the welfare principle, the best interest of the child, as per Section 2 of the Children’s Act, 1998 (Act 560 as amended).
The proposed bill departs radically from this legal framework. By making DNA confirmation a condition for legal fatherhood, it replaces a rebuttable presumption with a precondition. The result is jurisprudentially incoherent: a child may exist for a time without a recognized father, not because the law lacks a presumption, but because the scientific process has not yet been completed. That is not legal refinement; it is legal destabilization.
Parentage in law has never been purely biological. It is also about stability, responsibility, and the child’s immediate welfare (Section 2 of Act 560). Elevating DNA testing from an evidentiary tool to a gatekeeper of legal fatherhood replaces certainty with contingency, making legal status dependent on laboratory timelines and accuracy rather than legal principles.
Even if universal testing were desirable, its timing is deeply problematic. The immediate postnatal period is one of physical vulnerability and emotional adjustment. Introducing compulsory testing and implicit suspicion at that stage distorts the protective role of family law.
Practically, the flaw is stark. Where a husband is absent at birth, travelling, working abroad, or otherwise unavailable, the child would remain legally fatherless until testing is completed. That disrupts immediate access to support, inheritance, and recognition, contrary to the very purpose of Ghanaian parentage law: to ensure that no child begins life in legal uncertainty and stigmatization.
In truth, the proposed bill does not strengthen the law of parentage. It dismantles a coherent presumption-based system and replaces it with a verification regime that shifts the burden of uncertainty onto mothers, not because wrongdoing is proven, but because suspicion has been institutionalized.
Source: Her Ladyship Justice Sedinam Awo Kwadam (Mrs.)
