The Australian debate about asylum seekers and refugees

Debate about asylum seekers and refugees, especially when it concerns “boat people”, is often characterised by misrepresentation and hysteria. Amid all of the politics concerning the issue, the ethical dimensions of asylum are not always given their proper attention.

This paper seeks to offer a brief guide to the ethics of asylum and refugees, focusing in particular on four general questions:

  1. What should be the place of empathy and compassion in our moral reasoning with respect to asylum seekers and refugees?
  2. To what extent must any ethical account of refugee policy incorporate concerns about practical or political feasibility?
  3. What is the nature of Australia’s moral obligations to asylum seekers and refugees, and to what extent are these shaped by our understanding of membership?
  4. Can mandatory detention and offshore processing be ethically justified?

It would be a demonstration of good faith if Australia should increase its intake of refugees under its humanitarian program.

It is argued that empathy should figure in ethical reasoning, that it is irresponsible to adopt an ethical framework without attention to practical feasibility, and that in a liberal democracy, moral obligations are complicated by a value of self-determination.

In policy terms, the paper argues that it is difficult to justify the continuation of mandatory detention, and that onshore processing of asylum seekers who arrive in Australia by boat is the ideal response. Yet the latter would be best achieved with bipartisan political support and as part of a credible, regional solution. By itself, a shift to onshore processing is likely to lead to an increase in the arrival of boats carrying asylum seekers wanting to make it to Australian territory.

In such a scenario, political leaders must educate public opinion about asylum seekers and refugees and avoid politicking over boat people. Where such resolve is missing, a shift to onshore processing may carry the risk of a number of “spillover” effects – in particular, the possible undermining of public acceptance of a substantial, racially non-discriminatory immigration program, and of a multicultural Australian society.

If there is to be offshore processing, as may well be the case, there must be legislated minimum standards for how asylum seekers are treated in any offshore facility, based on relevant human rights standards, with adequate legal protections. It is also important that any durable policy response involves a regional dimension. It is important to ensure Australia bears a larger burden, if there is to be successful cooperation with our regional neighbours, particularly in stemming the arrival of asylum seekers by boat. It would be a demonstration of good faith if Australia should increase its intake of refugees under its humanitarian program.

There is also merit in proposals to establish an independent commission to facilitate informed public debate, and an independent authority to administer Australia’s humanitarian programs. At least until there can be strong bipartisan political leadership on this issue, it may be necessary to seek an institutionalised form of depoliticising this most divisive of issues.

Read Dr Tim Soutphommasane’s introduction to the Ethics of Asylum and Refugees Symposium, held on 30 June 2011.

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What extent do we need empathy in treatment of asylum seekers and refugees?


Who’s your daddy?

“Discrepant paternity” – or what fathers’ rights discourses call paternity fraud – has become a rallying point for parts of the fathers’ rights movement. Though fathers’ rights groups have successfully engaged with the media and politicians to achieve desired changes to the family law system, what is novel is the use of paternity fraud discourse to achieve these ends.

Types of paternity fraud

Bureaucratic and fathers’ rights discourse use the term paternity fraud to refer to two distinct phenomena. The first is where non-biological fathers are assigned legal and fiscal obligations for children they have never parented and may not even have known existed. Men attempting to use DNA evidence of non-paternity to terminate such obligations are blocked by legal and/or bureaucratic obstacles.

The second referent for paternity fraud in fathers’ rights discourse is the discovery by a man in a married or de facto relationship, through deliberate or incidental genetic testing, that he is not the biological father of one or more of the children he is parenting.

In Australia, the case of Liam Magill is a classic case of what I will call ‘cuckold’ paternity fraud. Several years after separating from his wife Meredith, Magill subjected his three children to secretive DNA paternity testing that revealed that the two youngest were genetically unrelated to him. He successfully terminated child support payments for these children and, because he was in arrears for payments for all three children, was effectively offered a refund for previous amounts paid for the two when this debt was cancelled.

Despite this, Magill pursued a claim for compensation from his wife on the grounds of deceit. While a lower court awarded Magilla $70,000 for pain, suffering and economic loss, the Australian High Court eventually dismissed the case on the grounds that the tort of deceit was an inappropriate vehicle for remedying the wide variety of dissimulation that can occur in intimate relationships.

Motivations for testing

Father’s rights groups claim that between 10 percent and 30 percent of children are being parented by men who are unaware they are not the genetic father. These figures are used to support their contention that discrepant paternity is a widespread social problem in need of systemic address through changes to family law and policy.

Fathers’ rights discourse implies that men are the prime instigators of paternity tests in the face of duplicitous and resistant mothers. This depiction is particularly seen in the push by fathers’ rights groups for ‘motherless testing,’ or the testing of the child’s DNA without the mother’s consent.

In arguing in favour of the legality of this sort of testing, fathers’ rights advocates claim that any law requiring the consent of both parents would effectively deny fathers the ‘right to know’ because mothers with something to hide would always withhold consent for the child to be tested.

Fathers’ rights discourse articulates four ways in which paternity fraud cheats or defrauds men or children: first, by creating a relationship between a man and a non-biological child/ren; second, by stripping non-biological fathers of the resources  they need to start another family in which they can create and raise biological progeny; third, by denying the biological father knowledge of his progeny and/or a chance to form a relationship with that progeny; and fourth, by denying children full and factual knowledge of their biological origins and the resulting opportunity to both form a relationship with their biological father and to gain knowledge of paternity genetics essential to their health.

The central claim of paternity fraud discourse is that a man’s relationship with a non-biological child does not constitute a real parent–child relationship, and that cuckold paternity fraud cheats or defrauds husbands of real fatherhood.

The causative agent in this fraud is the unfaithful wife who, through her sexual infidelity and subsequent failure to disclose it, causes the man to form a relationship with a biologically unrelated child that he wrongly believes – and has a right to expect – is his biological progeny. In its arguments in favour of compulsory DNA testing at birth, the group Men’s Confraternity reveals its understanding of authentic fatherhood as biological fatherhood:

“DNA testing should be a compulsory procedure at the birth of every child born to ensure that the correct father is registered. Paternity must be determined via DNA testing at birth because any man can be deceived into believing they are the father.” (Men’s Confraternity, 2006)

Citing figures impossible to confirm, the website Men’s Rights Online asserts that non-biological relationships between men and children provide no basis for legal paternity and its attendant fiscal obligations for children:

“The Court System … forc[es] males to continue paying child support for children that they are NOT the biological father of as DNA testing proves. It is also brought to the knowledge of the judges in the individual cases that DNA testing proves the male paying child support is NOT the biological father… A minimum of 1,600,000 (1.6 million) males are being forced to financially support children that they are NOT biologically related to.” (Men’s Rights Online, 2003–2006)

Implicit in much paternity fraud discourse are normative claims about the wrongs of female infidelity and subsequent duplicity with regard to it, and the potential reproductive consequences. Justice, the discourse suggests, requires men to be released from support obligations for children of the marriage not just because of the non-biological relationship between father and child, but because they have resulted from illegitimate female sexual and reproductive activity.

Paternity fraud discourse also asserts that, when biological paternity is wrongly ascribed to the social father, the biological father loses the opportunity to know he has a biological child and/or accept rights to and responsibilities for this child. The group Australian Paternity Fraud, for instance, claims that paternity fraud ‘victims’ include “the biological father that may not even know he is a father and who, when the deceit is uncovered, will suffer … mental … damage”.

Finally, it is asserted that paternity fraud denies children necessary knowledge of their biological origins, the chance to form a relationship with their biological father and the knowledge of paternal genetics necessary for optimal medical treatment.

At the heart of cuckold paternity fraud discourse is the claim that real fatherhood is biological fatherhood. However, neither this assertion nor assertions about the threat to children’s health posed by non-disclosure of paternal genetics stand up well to scrutiny.

Legal definitions of parenthood

DNA paternity testing is often credited with causing the paternity fraud phenomenon. When performed properly, DNA tests guarantee a 99.9% probability of paternity.

Legislators in both Australia and England see the commercial paternity testing industry as a means of reducing the cost to taxpayers of growing numbers of socially fatherless children. They understand that, while not all children have social fathers, they all have biological ones, and that the new testing technology could, for the first time in history, reliably identify these men.
Affordable and reliable genetic testing is available, and the legal and financial implications of test results for men, women and children are significant and profound.

Motivations to test

While research data are scant, those available suggest a variety of motivations for both men and women to undertake or consent to tests that lead to the discovery of discrepant paternity.

Counter to the picture offered by fathers’ rights discourse, such tests are not always undertaken by men in the face of the mother’s ignorance or resistance.

Discrepant paternity may be discovered via a genetic test taken for other reasons. For instance, genetic tests may be performed on  the parents of a sick child to ascertain whether the illness is caused by a hereditary condition or to determine whether the parent is a tissue match for a sick child. Parents of children diagnosed with a hereditary condition may also undertake genetic tests to discover their carrier status and the risk of transmission to future children. Separated and divorced mothers may test their children in the hope that proof of the social father’s non-paternity will allow them to block their ex-husband’s access to children of the relationship.

It is perhaps worth noting that the potential for mothers to deploy DNA paternity testing technology against social fathers to deny them access to children they have parented within the marriage was an early concern expressed by academic lawyers about the widespread use of DNA testing technology and concomitant legal changes to definitions of paternity and paternal obligation. This worry – about  the risk testing posed to the maintenance of men’s relationship with children – contrasts with what appears to be the main concern of contemporary academic lawyers: the claimed injustice of men’s inability to shrug off support obligations – and be compensated for past amounts paid – for genetically unrelated children.

Single and divorced mothers may wish to test, or be coerced into doing so by the state, in order to facilitate the identification and/or enforcement of paternal support obligations. In Australia, England and the United States, a failure to identify and, where necessary, prove the paternity of their child’s father may put all or part of the mother’s welfare benefits in jeopardy.

In Australia, it is estimated that around one third of tests are sought by mothers wanting or needing – through obligations related to their pension – to enforce child support obligations from biological fathers.

As well, men, or parties acting on their behalf, pursue tests. They do so, the evidence suggests, not to satisfy a disinterested pursuit of the truth – as father’s rights discourse often suggests – but in the hope of altering existing legal and fiscal obligations for children.

The link between men’s, their new wives’ or their parents’ decision to test and the desire to alter legal responsibilities for children in the wake of relationship breakdown is further supported by Australian data showing that at least some men who test know that the child of the marriage is or may be genetically unrelated to them.

Finally, men with little doubt about their biological paternity may test to humiliate estranged partners and/or delay paternity adjudication and the assignment of support obligations.

Harm to children

The fathers’ rights argument about a child’s right to know takes in both the idea that the creation of a parenting relationship between a father and a genetically unrelated child is wrong because it is not a ‘real’ parent–child relationship and the claim that children’s health and identity formation are harmed by ignorance of their biological father’s existence and paternal genetics.

Claims of a child’s right to know also encompass assertions about the harms to children’s health resulting from non-disclosure of paternity uncertainty or discrepancy.

The claim that only biological paternity is real paternity is asserted rather than argued in father’s rights discourse, and is contestable on moral, logical, evidence-based and consistency grounds. In particular, the lack of argument leaves many questionable assertions including, though not limited to: What makes biological parental relationships real or valid in a way non-biological ones are not? How can genetics be understood as critical to the creation of real parent–child relationships when parties to such relationships can die unaware that their social parent–child relationship was not accompanied by a genetic one? If non-genetically based relationships between men and children harm both, how can the deliberate creation of such relationships in some contexts, most notably where a couple is infertile, be justified?

The central role that fathers’ rights discourse gives to paternal genetics in the establishment of a child’s identity may also be questioned.

While reflective of dominant Western social understandings that biological or blood relationships form the basis of kinship, Ruth McNair argues that “non-biological parenting has existed for millennia as a successful and meaningful addition to or replacement for biological parenting” (McNair, 2004, p. 39).

While some evidence exists to support claims that children may be harmed by the failure to disclose the existence of non-genetic parental relationships, McNair has found that this harm appears largely attributable to secrecy about the existence of such relationships rather than to a decisive role of genetic knowledge in identity formation (McNair, 2004, pp. 39–45).

Indeed, McNair adds:

“… the profound role social parenting plays in children’s understanding of who they are may be why some adopted children choose not to pursue knowledge about their genetic parents and suffer no negative outcomes as a consequence.”

Of course, identity is hard to define and measure, but this does suggest that, while it may be preferable for parents to give their children a truthful account of their conception story, including information relevant to their genetic lineage, the failure to do so need not necessarily damage children’s identity formation or overall social and psychological wellbeing.

The failure of fathers’ rights discourse to problematise the potential harms to children resulting from men’s behaviour around cuckold paternity raises questions about the sincerity of such concerns.

For instance, the discourse is largely silent on the question of paternal motives for testing and silent about the harms caused by men who respond to test results disconfirming biological paternity by abandoning children they have parented from birth.

In contrast to the gendered and non-nuanced depictions of cuckold paternity offered by fathers’ rights groups, analysis and evidence suggest that discrepant paternity reflects the complex nature of sexual and intimate relationships at the end of the twentieth and start of the twenty-first centuries.

At the heart of cuckold paternity fraud discourse is the claim that real fatherhood is biological fatherhood. However, neither this assertion nor assertions about the threat to children’s health posed by non-disclosure of paternal genetics stand up well to scrutiny.

In contrast, feminists who value autonomy may share concerns raised in cuckold paternity fraud discourse about the harm suffered by men and children when informed consent is denied.

Defining fatherhood in social and intentional terms could end the nexus in law, social policy and the public imagination between biological fatherhood and fiscal obligations for children, undermine the ‘you play, you pay’ philosophy supported by biological definitions of fatherhood, and reduce demand for DNA paternity testing with their high costs to father–child relationships.

References

McNair, Ruth (2004), Outcomes for children born of ART in a diverse range of families (occasional paper), Victorian Law Reform Commission, Victoria, Australia.

See also Men’s Rights Online at www.mens-rights.net/law/paternityfraud.htm and Men’s Confraternity at www.mensconfraternity.org.au 

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Is ‘paternity fraud’ a moral crime?