Report No. 69

X. Blood Group Evidence

54.49. Blood groups.-

We have referred above1 to the scope for blood-group evidence. A brief discussion of the nature and significance of this type of evidence would not be out of place. The characteristics which determine a person's blood group are inherited from his parents, and he cannot have any blood characteristics which one or the other parent does not have. Blood groups themselves will indicate the blood proportion of a given man, and whether he is the father of a given child-though they cannot in the present state of medical knowledge fix affirmatively a given man with paternity.

1. See supra.

54.50. Characteristics of blood.-

Blood tests are based on the fact that blood possesses attributes which are inherited or genetic. The four blood groups are 0, A, B and AB. They refer to the absence (0) or presence of the antigen A or B or both, in the red blood cells. No person belonging to the 0 blood group can pass antigen A or B to a child. It follows that if a woman belongs to blood group 0 and her child belongs to blood group A, the child must have received antigen A from its father. Now, if the man charged with paternity of the child does not have antigen A because he belongs to blood group 0 or B, then he is excluded from possible paternity of the child belonging to blood group A. If, on the other hand, the man belongs to blood group A or AB, this particular test would show him not to be excluded from possible paternity.

54.51. Types of proceedings.-

Blood tests may be1 of relevance in many types of proceedings,2 e.g.

(a) proceedings for maintenance in magistrate's courts where the blood test may either give some corroborative evidence to the mother of the illegitimate child, or help the respondent by proving that the respondent was not the father of the child;

(b) in divorce proceedings, to support allegations of adultery or to decide paternity,3 or

(c) in suits in which a claim is made to the estate of a deceased person by a person (not being a child of the deceased) on the ground that he falls within the category of beneficiaries in the contemplation of the deceased person's will.

1. Article on Blood Tests and Paternity, in New LJ (November 7, 1968), p. 1058.

2. The list is not exhaustive.

3. E.g. allegations of premarital pregnancy.

54.52. English cases.-

In an English case,1 the husband had been granted a divorce on the ground of his wife's adultery with the co-respondent. The wife had applied to the magistrate for an order against the co-respondent, and her application had been adjourned pending the trial in regard to legitimacy. It was held that a blood test could be taken to establish which of the two identifiable men was the father of the child. Of course, in England, the procedure for ordering a blood test is provided for by statute, but the point to be made is that evidence of blood test was regarded as relevant.

1. S. v. S., (1970) 3 All ER 107.

54.53. Utility of blood tests.-

Blood tests have become sufficiently sophisticated so that when the father of the child must be one of two men both of whose blood groups are known, one can in 90 per cent cases, obtain an exclusion result.1 They do not have much affirmative value. But they are useful when the argument is that one party before the court is not the father-assuming that that party and the child agree to the blood test. Blood groups have been used on a large scale in other countries by defendants in bastardy suits. Of course, a person cannot be compelled to submit a sample of blood except by statutory provisions. But, if a pathologist swore that the blood test showed that the husband could not be the father, this might well be held to be evidence of adultery by the woman, and no question of non-access will then arise.2-3

1. L. (in re:), 1968 Probate 118 (Court of Appeal).

1. Note in (1942) Vol. 92, Law Journal 129.

2. See (1961) 24 Modern Law Review 333.s

54.54. Value based on different factors.-

The value of blood testing rests on the principle that different factors in each blood group are transmitted from one generation to another on a hereditary basis, allowing for conclusions to be made respecting not only the impossibility of a person being the father of a child but also, in varying degrees, the probability of the person being the father of a child. Research over the years has resulted in increasing accuracy in the identification of relevant factors, and, in some jurisdictions, evidence of blood type may be admitted to establish either the negation or affirmation of paternity. For example, the U.K. Parliament in 1969 enacted that:

"In any civil proceedings in which the paternity of any person falls to be determined by the court hearing the proceedings, the court may, on an application by any party to the proceedings, give a direction for the use of blood tests to ascertain whether such tests show that a party to the proceedings is or is not thereby excluded from being the father of that person ".1-2

1. Section 20(1), Family Law Reform Act, 1969 (17 & 17 Eliz. II, C. 46).

2. Emphasis added.

54.55. Position on the continent.-

In Courts in Europe, these tests have been recognised since 1924, chiefly in cases of paternity. Thus, upto 1929, the tests were used in over 150 court cases in Vienna; and in Germany, they were used in over five thousand cases1 upto 1929.

1. Marybury, C.J. in Shanksh v. State, (1945) 185 Maryland 437; Judgment extracted in Curran Law and Medicine, (1960), p. 487.

54.56. Position in U.S.A.-

It would appear that in the United States, blood groups evidence is being increasingly used in disputed paternity cases.1-2

The application of blood grouping tests in disputed maternity cases is also recognised3 in the Western world. Many States in the U.S.A. have statutes that give conclusive effect to an expert's determination based on blood tests to the effect that the alleged father cannot be the real father.4-5

A blood test acts only negatively. Its results can exclude paternity, but, it cannot conclusively establish it.6

1. Davidson Levine and Wiener, Medico Legal Application of Blood Grouping Tests, (1952) Vol. 149, Journal of the American Medical Association 699.

2. Vol. 43, Yale LJ 651.

3. Wiener in (1959) Vol. 4, Journal of Forensic Sciences 35.

4. California Code of Civil Procedure, section 1980.6.

5. For a collection of blood test statutes, see Plescowe & Freed Cases on Family Law, (1963), 555-556, 196.

6. See Note Illegitimacy, 26 Brooklyn Law Review 45, 91 (1959), referred to in Note Possible Father Statute, 18 Stanford Law Review 859, 864, f.n. 30.

XI. Recommendation

54.57. In the light of the above discussion, we recommend that section 112 should be revised as follows:-

"112. The fact that any person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution1 or after it was annulled or avoided, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Explanation.-Where, by any enactment for the time being in force, it is provided that the children of any marriage which is annulled or avoided shall nevertheless be legitimate, the marriage shall, for the purpose of this section, be deemed to be valid until it is annulled or avoided."

1. The expression "dissolution" could be replaced by "termination" to cover death more specifically.

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