Every human being has the right to know their identity, their family roots, their past, and, as such, to know who their biological father is. In order to exercise this right, one can, if desired, resort to the court for a paternity investigation/determination. However, this cannot be done at any time, as there is a restricted time limit set by law, which is outlined in Article 1817, No. 1 of the Civil Code.
In this sense, the process may be initiated in court:
During the minor’s childhood;
Or within ten years after the child has reached the age of majority or emancipation, up to 28 years old;
Or later, within three years after the child has become aware of facts or circumstances that justify the investigation. That is, in the first case, as a minor, the child is represented in the process by the mother. In the other cases, the child themselves is the plaintiff and will file the respective action against the alleged father, requesting recognition as their child for all legal purposes.
To do so, they must allege and provide evidence that their mother, during the legal period of conception, namely the 120 days of the 300 that preceded their birth, had sexual relations exclusively with the alleged father, resulting in the child’s birth from those same sexual relations.
As can be easily understood, sexual relations are an intimate act, usually not witnessed by third parties.
Therefore, in order to prove the biological link of paternity, the most appropriate means of evidence is the carrying out of DNA tests.
And is it possible for the defendant, that is, the alleged father against whom an action has been filed to investigate paternity, to refuse to undergo the mentioned tests?
They can, indeed, as no one can force them to comply. However, both the courts and civil law consider such a refusal as illegitimate for the purposes of determining or excluding paternity, as it violates the duty to cooperate.
Indeed, nowadays, science provides very reliable and nearly infallible means of proving paternity, so it is considered that there is no valid reason to refuse such a means of evidence.
On the other hand, it is still understood that such a refusal suggests that the alleged father is deeply convinced that he is the biological parent. In fact, by avoiding the test, the defendant can only be signaling the fear of the result, a fear that only makes sense if, in fact, they had sexual relations with the mother of the child, which they are denying.
As the old saying goes: "He who has nothing to hide, fears nothing."
To conclude, in the case where the alleged father has passed away before the action was filed or even during its course, the DNA tests can be performed through the exhumation of the body. In such a situation, there is always the possibility of collecting biological material from the deceased father’s body for analysis and comparison of their DNA with that of the claimant/child.
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