The determination of a filiation has been a common problem that nowaday, implies to let behind obsolete laws, old principles and traditions, in order to establish paternity. That is why, in Peru, the Law N° 28457 (08/01/2005) regulates the action to establish the filiation against the presumed father, based on an irrefutable proof: DNA testing. The law bases its foundations the biologycal reality, rejecting old presumptions. This new process is fast, modern and sui generis. It is characterized by an action presented to a non specialized judge, because it is a simple process. Besides, any interested person may claim a filiation against the presumed father, because of the child’s interests. Finally, this process can be “open” because the proof of filiation may be made by any mode of testing, but the DNA testing predominates.
This new process is based on the child’s a identity, the child’s interest and the values of the society. The process begins with an action to establish the filiation against the presumed father, who is declared by sentence, the father of the child if he unjustifily refuses to submit to the DNA testing --which is the only way to contest the action-- within the next ten days from the notification of the action. The cost of the proof is paid by the plaintiff, usually the mother, although is the father who has to contest the action submitting to the ADN analysis (reversal of burden of proof). And, if the presumed father is declared father by the sentence, he can appeal it.
On the other hand, it has been said that the new process is unconstitutional because it would be against the rights of liberty, privacy, integrity and the presumption of innocence of the father. We disagree with that. The new process does not implicate violation of these rights.
The new process has its pros and cons, offering an alternative of solution for the establishment of the filiation. It depends of us, to look for new alternatives in order to fit the biological reality into the law.
This new process is based on the child’s a identity, the child’s interest and the values of the society. The process begins with an action to establish the filiation against the presumed father, who is declared by sentence, the father of the child if he unjustifily refuses to submit to the DNA testing --which is the only way to contest the action-- within the next ten days from the notification of the action. The cost of the proof is paid by the plaintiff, usually the mother, although is the father who has to contest the action submitting to the ADN analysis (reversal of burden of proof). And, if the presumed father is declared father by the sentence, he can appeal it.
On the other hand, it has been said that the new process is unconstitutional because it would be against the rights of liberty, privacy, integrity and the presumption of innocence of the father. We disagree with that. The new process does not implicate violation of these rights.
The new process has its pros and cons, offering an alternative of solution for the establishment of the filiation. It depends of us, to look for new alternatives in order to fit the biological reality into the law.
(Traducción Paola Atoche)
