The Ruling on DNA Usage to Determine the Paternity of a Child and the Timeframe to apply Li’an in Denying the Paternity of a Child
The 101st Discourse of the Fatwa Committee of the National Fatwa Council for Islamic Religious Affairs Malaysia convened on 27 September 2012 and discussed the ruling on DNA usage to determine the paternity of a child and the timeframe to apply Li’an in denying the paternity of a child. The Discourse decided that:
Upon examining the evidence, contentions and opinions that were forwarded, the Discourse emphasizes that Islam places great attention towards paternity issues and whenever there is any evidence that establishes the paternity, therefore any denial cannot be accepted unless by a li’an procedure, which is derived from al-Quran, al-Sunnah and al-Ijma’and is an act of devotion (taabbudiyah).
The Discourse further elaborated that the Majma’ Fiqh al Islami held on 21-26 Syawal 1422H/ 5-10 January 2002 had decided that in order to establish paternity, DNA procedures are allowed by court order and is applicable only in cases of uncertainty in the child’s paternity due to various reasons including cases of confusion or accidental switching of babies in hospitals or childcare centres, in-vitro babies and missing children due to natural catastrophes and others. However, the Majma’ al-Fiqh al Islami also decided that the DNA test cannot be used to deny the paternity of a child before li’an procedures are first carried out.
The Discourse emphasized that the fuqaha’ have unanimously agreed that any denial of a child’s paternity must be carried out as soon as possible (على الفور) and if such denial is not done within the timeframe specified, the right to deny the paternity shall lapse.
The Discourse clarified this with reference to Mazhab Shafi`e, where there exist two views i.e. qaul qadim and qaul jadid. In qaul qadim, Imam Shafi`e had stipulated that the denial should take place immediately after the birth of the child. If no denial is made, it is implied that the person is actually accepting the child as his own. However according to qaul jadid, the denial need not be made immediately. Time is needed before any decision can be made as it is a very serious matter. The denial can be delayed up to three days, and such delay must only be due to any inability of the person.
In relation thereto, based on the affirmation and views given by the ulama’ pertaining to the urgency to make li’an in denying the paternity of the child, the Discourse is of the view that a reasonable duration of time is necessary before any decision is made, to ensure that no harm takes place.
Therefore, the Discourse agrees to apply that, the earliest possible for a father to make li’an, in denying the paternity of his child is from the exact date his wife was confirmed pregnant until three days after the delivery of the child. Any such denial made after the reasonable time mentioned above lapses will be totally rejected and the child is considered legitimate and confirmed as his own child.
The Discourse also agreed that guidelines for the administration of DNA tests are to be made more stringent, particularly in matters of denying the paternity, as DNA results are only considered as qarinah or corroborative evidence, and cannot be treated as conclusive evidence.