In the age of amendments, DNA tests sow discord [INTÉGRAL]

In 2017, Khadija (not her real name) thought she had finally won her case. A DNA test proved the biological paternity of his child, born out of wedlock. However, in a judgment which would set a precedent, published in 2020, the Moroccan Court of Cassation brushed aside its hopes: with or without genetic testing, the child could not claim any rights vis-à-vis his biological father.
More than four years after this decision which shook associative circles, history seems to be repeating itself on a larger scale: the Superior Council of Ulemas has just categorically rejected the use of DNA tests to establish the filiation of children born out of wedlock, in the framework of the long-awaited reform of the Family Code. This decision, announced on Tuesday, December 24 during the presentation of the main axes of the Moudawana reform, caused a shock wave in Moroccan civil society, while reviving the debate on the condition of children born out of wedlock and their mothers.

A rejection that sparks debate

“Disappointing” for some, “unexpected” for others, the decision of the Superior Council of Ulemas to reject the use of DNA tests to establish the filiation of children born out of wedlock has tarnished the progress contained in the new proposals at the heart of the reform of the Moudawana. Of the 17 questions submitted to the constitutional body by His Majesty King Mohammed VI, ten received unreserved approval, while three others sparked significant counter-proposals, including the rejection of DNA filiation.
The Minister of Habous and Islamic Affairs, Ahmed Toufiq, became the spokesperson for this conservative position, citing “reasons linked to the preservation of the family structure”. According to him, the establishment of filiation by DNA in these cases would go “against Sharia and the Constitution”, in particular its article 32. The Fatwa Commission argues that such recognition would risk “disintegrating the “building the family by creating an alternative family system”.
As an alternative, another solution is proposed: making both parents responsible for providing for the needs of the child without establishing a formal filiation link, thus allowing the preservation of the child’s rights while respecting religious and legal frameworks. . A proposal contested by civil society activists surveyed by «L’Opinion». “It’s a poorly concealed prankregrets, not without irony, Ghizlaine Mamouni, the lawyer and president of the Kif Mama Kif Baba association. She lacks seriousness in more than one way”.
A former minister, on condition of anonymity, recalls that the consequences of this rejection are nevertheless serious for the children concerned, the biological fathers having, in the current system, no responsibility towards them, leaving mothers with the exclusive responsibility of children. If certain progressive jurisprudence had attempted to use DNA tests to establish paternal responsibility, particularly in matters of family name and alimony, “these attempts came up against the unbridled and reckless conservatism of certain magistrates of the Court of Cassation”, deplores Me Mamouni.

The ball is in the parliamentarians’ court

The decision of the Superior Council of Ulemas surprised more than one, especially since the composition of the steering committee for the Moudawana reform suggested major progress on this issue. First there is the presence of the Minister of Justice, Abdellatif Ouahbi, for whom “children from an ‘illegitimate’ pregnancy should be cared for by their father until the age of 21, if DNA tests prove paternity”.
The ad hoc committee also included in its ranks Amina Bouayach, president of the National Human Rights Council (CNDH), whose memorandum relating to the Moudawana insisted on the protection of the child’s right to parentage. The constitutional body considered that DNA must be considered as “proof of filiation, the costs of which must be borne by public funds, in the case where the mothers or children do not have the means, considering that filiation is a right of the child and that the State has the responsibility to take the necessary measures to protect him and guarantee his rights”. The CNDH goes so far as to recommend, still in its memorandum, to “eliminate all discrimination between children born within the framework of marriage and those born outside”.
Contrary to these recommendations, the rejection of the Superior Council of Ulemas took certain members of the steering committee by surprise, convinced that progress will be made for the right to filiation, according to a source close to the matter. If the decision has provoked the ire of associations, several voices are being raised as the examination of the text in Parliament approaches to encourage elected officials to rectify the situation. “In view of the parliamentary debate, we call for intellectual honesty and political courage to carry this reform through to the end and ensure that it is marked by the seal of its conformity with the 2011 Constitution and international treaties. ratified by Morocco and universal human rights”, confides lawyer Ghizlaine Mamouni. Because, she continues, “we are at a decisive moment in the history of our country and the whole world is watching us. This reform is an opportunity to repair the injustices of the past and build a Morocco that looks fearlessly to the future.”.