Commonwealth Ex Rel. Coburn v. Coburn

CIRILLO, President Judge,

concurring:

While I am in agreement with the majority’s finding that the trial court improperly dismissed appellant’s contempt petition on the basis of the blood test results, I write separately to note my concern with the majority's position that a blood test, instituted by one parent to revoke the parentage of another parent, even after those rights have been legally determined, necessarily “invites chaos to the child’s emotional well-being and legal status.” On the contrary, I can envision numerous instances where such a test would provide crucial data for a child’s well-being and continued mental and physical health.

Since Dr. Karl Landsteiner’s discovery of the ABO blood groupings in 1901, medical science has progressively refined the data that can be obtained through blood analysis. While facilitating the first safe transfusions of blood, Dr. Landsteiner’s discoveries also opened the door to genetic research. See Polesky and Lentz, Parentage Testing: An Interface Between Medicine and Law, 60 N.D.L.Rev. 727, 730 (1984). It was the application of noted geneticist Gregor Mendel’s “inheritance factors,” coupled with the advancement of modern biomedical research, which led to the institution of genetic counselling and screening to determine the chances of contracting certain diseases, or passing them on to one’s offspring. See President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Screening and Counseling for Genetic Conditions, 9-39 (1983). Because of this continually advancing medical technology, the knowledge of one’s filiation has become of paramount importance in diagnosing and treating potentially life-threatening disorders, as well as in forecasting the probabilities of latent genetic disorders appearing in the later years of one’s life.

Until the early 1970s, blood grouping, and in particular human leukocyte antigen (HLA) testing, was used predominately to determine donor recipient compatibility in organ transplants and hereditary disease research. Now, it is revolutionizing determinations of the identity of a child’s father in paternity cases, and, in my opinion, providing critical information for purposes other than custody, support, or visitation.

Through the knowledge of one’s hereditary history, as well as the institution of genetic “carrier screening,” it is possible to detect various recessive, and often asymptomatic, diseases that may have been passed on through generations of familial lines. A partial list of these diseases includes Tay-Sachs (a disease causing progressive neurological abnormalities with the onset often seen in late infancy and death occurring within three to four years); sickle cell anemia (a hemoglobin disorder occurring predominantly in the black community); Cooley’s anemia (a blood disorder similar to sickle-cell anemia); muscular dystrophy (a disease causing progressive muscular weakness with the onset often seen in late childhood years); hypercholesterolemia (a disease causing high serum cholesterol levels in the third or fourth decade of life); cystic fibrosis (a disease which often secondarily affects the lungs, pancreas, and liver); hemophilia A and B (blood diseases manifested by recurrent hemorrhaging); Huntington chorea (a progressively disabling disease with an onset in the fourth decade of life and death within ten to twelve years from the onset); congenital adrenal hyperplasis (a disease affecting the male and female reproductive system and diagnosed through HLA lineage studies); Ehlers-Danlos syndrome (a skin disorder which is manifested by hyperelastic skin and vascular fragility); Friedreich’s ataxia (a progressively disabling muscular disease causing one to be bound to a wheelchair during the second decade of life, and death in the third decade); galactosaemia (a digestive disease causing weight loss, jaundice, cataracts and occasionally mental retardation); gaucher disease (a bone disease occurring predominantly in Ashkenazic Jews); Wilson’s disease (a disease manifested by defective copper metabolism which often causes chronic active hepatitis); phenylketonuria (a disease marked by elevated blood and urine phenylalanine which can cause mental retardation if untreated); and xeroderma pigmentosum (a skin disease manifested by the inability to repair damage after exposure to ultraviolet light). See generally J.M. Connor & M.A. Ferguson-Smith, Essential Medical Genetics 182-201 (1984). As this partial list demonstrates, there are a host of genetic disorders, passed on by one’s biological parents, that can either appear in the later years of life, or be passed unwittingly to one’s children. In both scenarios, the knowledge of one’s biological parents and hereditary history is crucial in ordering one’s affairs and making life’s decisions.

Perhaps the most telling example of the importance of knowing one’s lineage can be seen in the current national focus on the prevention of heart disease. As mentioned above, high blood cholesterol is a disorder which is genetically linked. Studies have indicated that children of parents with hypercholesterolemia demonstrate a proclivity for the same disorder, often beginning at a very young age. Consequently, physicians have found it necessary to place children, as young as six or seven, on severely restricted diets in order to avert complications from high blood cholesterol. Since this particular affliction is rarely monitored until the later years of life, the importance of knowing family history, for purposes of early detection, becomes evident.

Aside from facilitating the discovery of one’s genetic history, HLA testing which conclusively establishes the identity of one’s natural parent also provides a child with the knowledge of an available source for organ donation in the event of emergency. Frequently, parents or biological brothers and sisters are called upon for donation of kidneys, lungs and other essential organs. Organs donated by family members carrying the same blood type and genetic bond are considerably less susceptible to rejection by the donee’s immune systems. So important is the medical information that can be garnered from one’s natural parents, that our legislature expressly provided for the disclosure of medical history information to an adopted child’s parents or their physician from the adoptee’s natural parents. See 23 Pa. C.S. § 2909.

Finally, a determination of one’s biological parents carries with it legal implications for purposes of inheritance. In addressing the interests of a child born out of wedlock, the United States Supreme Court recognized that:

The child bom out of wedlock, ... has an interest in knowing his father and in having two parents to provide and care for him. The child’s concerns include a known belonging to a certain line of descent with knowledge of any benefits or detriments inheritable from that line.

Rivera v. Minnich, 483 U.S. 574, 576, n. 2, 107 S.Ct. 3001, 3003, n. 2, 97 L.Ed.2d 473, 478 n. 2 (1987) (quoting Minnich v. Rivera, 509 Pa. 588, 594, 506 A.2d 879, 882 (1986)). This same reasoning can be applied, in my opinion, to cases of disputed parentage. Even in cases where the “equitable father” holds himself out as the child’s parent, and by authority of a court order raises the child as his own, that child may be, at some point in time, entitled to inheritance as a surviving heir of his or her biological father’s estate.

The various circumstances presented above militate one conclusion: there are several instances where “paternity, parentage or identity of a child is a relevant fact,” and HLA blood tests should be ordered even though a party is traditionally estopped from presenting the issue or have had paternity already decided on the merits. In these situations, I believe that the court should, in the best interests of the child, order tests to ascertain the identity of the biological father. The overriding interests of the child in definitively knowing his or her biological genesis far outweighs the harm that may stem from the revelation. See Pa.R.C.P. 4010(a); see also John M. v. Paula T., 377 Pa.Super. 72, 80, 546 A.2d 1162, 1167 (1988) (the “good cause” requirement of Rule 4010(a) is “a limitation upon the right to compel a litigant to submit to the [blood] test[,] ... [and] entails more than mere relevancy.”) More importantly, I believe that knowledge of genetic factors that may shorten or reduce the quality of life become important considerations in charting the summer and autumn years of one’s life.

In sum, although I agree with the distinguished trial judge’s statement that “it is Angie’s right to know who her [biological] father is,” I am compelled to disagree with his conclusion that appellant’s contempt petition should be denied because of the results of the HLA tests. Even though I am suggesting that HLA tests may be warranted in such situations, their use would necessarily be limited to health and inheritance concerns, and not for the reversal of a prior validly obtained paternity determination.

Because of the reasons outlined above, I respectfully concur with the majority’s disposition of appellant’s claims.