CAIRO: In 2005, Egyptian courts witnessed 14,000 parenthood proving cases. The women who filed these lawsuits were trying to prove their marriage (whether orfi, unregistered, or otherwise) to the men they claim are the fathers of their children.
The only way to register the baby under the name of the man in question is by proving the child’s parentage. If the marriage is not proven, whether through legal papers or witnesses, the baby is left without a birth certificate. The legal system only recognizes the child’s existence when the woman’s father or uncle or other male relative agrees to register the baby under his name.
DNA tests, although recognized worldwide in forensic science, are not admissible in Egyptian courts; parenthood proving cases can’t rely on DNA tests. Even if the man officially refuses to take the test, it is not considered evidence against him.
This, however, is about to change. Member of Parliament (MP) Mohamed Khalil Qouita has presented a draft law to make DNA testing a mandatory procedure in such cases. The draft law also states that in cases were the DNA tests prove that the man in question isn’t the father; the women would face either a prison sentence or a fine.
After getting the green light from the grand mufti, the approval of the Ministry of Justice is now pending. The announcement of its decision is slated for this week.
If the Ministry of Justice approves the law, voting in parliament will determine its fate.
Meanwhile, many have bluntly expressed their dismay over the law. Religious scholars have differed over the permissibility of using DNA tests as proof of fatherhood.
A number of scholars say a child can only be registered under a man’s name if he or she was born through marriage. Within this group, there are two opinions: the marriage has to be legal to document parenthood, while others say any form of marriage, even “a corrupt one is enough evidence.
Ahmed Omar Hashem, head of the religious committee in parliament, said the legislation would make the man responsible punishable, but wouldn’t prove his parenthood, since the child was a result of adultery.
But according to Qouita, who supports the reasons that motivated him to present this draft law with several Quranic verses and hadith that stress the importance of associating a child with his real father, the children are currently paying the price for their parents’ wrongdoing.
According to him, there are two million children in the country with no known parents. These children live in orphanages and on the streets. “The society can’t remain secure under these circumstances, he added.
Qouita cited five methods recognized by fiqh (Islamic jurisprudence) in determining parenthood. Proving the existence of marriage, whether legal or corrupt, is the first. The second is witnesses, he continued. Methods also include the man’s admittance of fatherhood and establishing physical resemblance.
Thus, when science offers a foolproof method to prove parenthood, religiously, there is no problem in accepting it, he added.
But religion is not the only reason why some are not fond of the new draft law. In fact, even proponents don’t accept the interference of religious scholars. “I have reservations on the state using religion, said Nahed Abu El Qumsan, the president of the Egyptian Center for Women’s Rights’ (ECWR).
She explained that the government relies on the mufti to make decisions that it does not want to take responsibility for.
But apart from the debate regarding the permissibility of the law and its application, some, including the opposing religious scholars, have repeatedly and publicly expressed concerns over the cultural outcome of accepting such a law.
One side of a widespread debate says that by applying this law, “sin would be legalized. By legally giving the woman an opportunity to hold the man responsible for their child, it is argued, will lead her to be careless when it comes to impermissible sexual relationships.
On the contrary, Qouita argues, this will reduce the number of orfi marriages and impermissible relationships. By legally holding the man responsible, he will think more than once before committing what is considered in Islam as one of the most serious sins – adultery. He noted that the man in this case steals “temporary pleasure and gets away with his deed, leaving the mother in disgrace and a child with no lineage.
But for Abu El Qumsan, there are different reasons to refute such societal concerns. “There is nothing that says law encourages or discourages [a behavior], adds Abu El Qumsan, “The law organizes what already exists. It responds to people’s needs.
She refers to the women that she has dealt with in these cases. Most of them have been rape victims or girls who got married, gave birth and then were divorced before reaching the legal age of marriage. In these cases, the woman’s father, brother or uncle registers the child under his name.
This is the people’s way of organizing their life in the absence of laws that correspond to reality, Abu El Qumsan notes.
She adds that this procedure leads to socially and religiously unacceptable lineage confusion. “The child is a women’s son and her brother at the same time, Abu El Qumsan says.
But eliminating lineage confusion or curbing the spread of sin were not the main objectives of those who rallied for this law. Lamiaa Lotfi from the New Woman Foundation has been working on an eight-month-long campaign to change laws pertaining to parenthood proving court cases. She says the problem is that the mother can’t register her child, since only the husband or any of his male relatives is authorized to do so.
Lotfy notes that 40 percent of the court cases concern married women who had an irresolvable conflict with their husbands, who in turn refused to register the children under their name. She also cited cases of marriage of underage girls to wealthy foreigners that usually end four or five months later, leaving the girl to raise the child on her own.
The case of Hind El Hinnawy and Ahmed El Fishawy recently managed to grab the attention of the public due to the uniqueness of the case and the way it differs from the stereotypes usually associated with other parenthood cases.
Tomorrow: How the Hinnawy and El Fishawy case got the public’s attention, why acquiring a birth certificate is crucial to the baby’s life and what are the other changes the campaigners want to add to the law?
