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November 18, 1957


Appeal, No. 274, Jan. T., 1957, from judgment of Superior Court, Oct. T., 1955, No. 212, affirming order of Municipal Court of Philadelphia County, Domestic Relations Division, No. 126298, in case of Commonwealth of Pennsylvania ex rel. Adele T. O'Brien v. Robert J. O'Brien. Judgment affirmed.


Irving R. Shull, with him Alfred I. Ginsburg and Bernard L. Lemisch, for appellant.

Norman R. Bradley, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 390 Pa. Page 552]


We have allowed this appeal from a judgment of the Superior Court in order that we might determine whether, in an action for the support of a minor child, born during wedlock, a husband may obtain compulsory blood grouping tests in order to exclude himself from being the father of the child.

The present proceedings were instituted by the relatrix in 1954 in order to increase the amount of a support order entered in favor of herself and a daughter,

[ 390 Pa. Page 553]

    and to include therein a son born before her divorce.*fn1 At the hearing before the Domestic Relations Division of the Municipal Court of Philadelphia, the former husband moved for compulsory blood grouping tests of his wife, the son, and himself under the Act of 1951, providing, inter alia: "In any proceeding to establish paternity, the court, on motion of the defendant, shall order the mother, her child and the defendant to submit to one or more blood grouping tests ... to determine whether or not the defendant can be excluded as being the father of the child. ..." Act of May 24, 1951, P.L. 402, § 1, 28 P.S. § 306 (Supp).

The Municipal Court denied the motion, entered an order for the support of the son, and increased the weekly payments. On appeal the Superior Court affirmed, with three judges dissenting.*fn2

We are not here called upon to decide the general question of the admissibility of, or the probative weight to be accorded to, blood grouping tests offered in evidence. Nor are we required to determine the specific issue of whether a trial court might in the exercise of its discretion refuse to proceed in an action for support until the relatrix consents to undergo such an examination.

The sole question before us is whether in an action for support a husband may obtain, as a statutory right, compulsory blood grouping tests of the mother and her child born during wedlock.

At the outset we note that the legislature placed two qualifications upon the right to compulsory blood

[ 390 Pa. Page 554]

    grouping tests which substantially limit the scope and application of the act: 1. Only a male defendant who is the putative father may move to have the blood grouping tests taken. 2. Such tests are permitted only in "proceedings to establish paternity."

These qualifications render the statutory procedure unavailable, among others, to the following parties who might seek blood grouping tests to negate paternity: husbands bringing an action for divorce on the ground of adultery,*fn3 or an action for annulment because of fraudulent representations as to parenthood;*fn4 mothers seeking custody of children;*fn5 parties seeking a determination that they are the parents of a child of whom another claims to be the father;*fn6 Parties disputing the claim of a child to share in an estate;*fn7 parties attempting to prove non-citizenship of a child;*fn8 or to defendants in prosecutions for rape in which the prosecuting witness testified that as a consequence of the rape she became pregnant and gave birth to a child.*fn9

On the other hand, the act does apply to at least two classes of cases - prosecutions for fornication and bastardy, Act of June 24, 1939, P.L. 872, § 506, as amended, 18 P.S. § 4506 (Supp.), and actions for neglect to support a bastard, Act of June 24, 1939, P.L. 872, § 732, 18 P.S. § 4732. Thus, apparently the act was designed to aid the man who is accused by an unwed mother of being the father of her illegitimate child. Except for protestations of innocence, a blameless defendant

[ 390 Pa. Page 555]

    is often helpless to refute such a charge lodged against him, and consequently is convicted of the crime. In addition to being compelled to support a child which he has not fathered, the defendant also receives the condemnation of the community. The legislature apparently believed that the occasions of injustice in these two classes of cases were so numerous as to overcome any reluctance to compel a complaining witness to submit her body to blood tests at the option of a defendant, and therefore provided this procedure whereby a defendant might successfully assert his innocence.

The husband herein, however, contends that this action for support of a child born during wedlock is also a "proceeding to establish paternity" within the meaning of the act's second qualification.*fn10

We cannot agree. It is true that the present proceeding is one in which paternity is relevant or one in which paternity has been controverted, or one in which paternity is an issue, but it is not a proceeding brought to establish paternity. In actions brought by a wife against a husband for support of a minor child born during wedlock, paternity has already been established in the eyes of the law by operation of the presumption of the legitimacy of children born during wedlock. Cairgle v. American Radiator & Std. San. Corp., 366 Pa. 249, 255-56, 77 A.2d 439 (1951). The presumption of legitimacy is invoked at the very moment of birth and no further proceedings are required to establish the paternity of the child.*fn11 This presumption

[ 390 Pa. Page 556]

    is essential in any society in which the family is the fundamental unit.

The result urged upon us by the appellant has been reached in other jurisdictions through the interpretation of statutes containing a broader provision for blood group testing than that set forth in our own act.*fn12

Several legislatures have seen fit to make blood tests available in any civil or criminal action in which paternity is a relevant fact. This is the provision of the Uniform Act on blood tests to determine paternity.*fn13 New Jersey permits blood tests: "Whenever it is relevant to the case of the prosecution of the defense in a proceeding involving parentage of a child," and "Whenever it shall be relevant in a civil action to determine the parentage or identity of any child. ..."*fn14 And the language of the statute adopted by New York reads: "Wherever it shall be relevant to the prosecution or defense of an action, or wherever it shall be relevant in any proceeding pending in a court of record jurisdiction. ..."*fn15 Even the Pennsylvania legislature employed terms of wider application when it made birth certificates prima facie evidence of their contents in proceedings in which "paternity is controverted."*fn16 The fact that our own legislature declined

[ 390 Pa. Page 557]

    to choose any one of these provisions of more liberal scope when it enacted the present compulsory blood test statute indicates that it did not intend to extend the application of the act beyond the two proceedings - prosecutions for fornication and bastardy and actions for neglect to support a bastard - ...

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