Statelessness Working Paper Series No. 2015/01 2.2. Inadequate means to establish paternity Another cause of statelessness that has not been previously discussed in the literature on statelessness is the absence of adequate means to document paternity. Put simply, if a child is entitled to receive her father’s nationality, but there is no legal process to confirm the child’s relationship to the father, the child will not benefit from her father’s nationality. Gulf countries are generally reluctant to use DNA testing in paternity because, throughout the region, traditional interpretations of sharia’ remain influential. Interpretations of sharia’ are extremely detailed when addressing family law and propose traditional ways of establishing paternity.25 Every GCC state except Saudi Arabia has codified a family law (usually called a personal status law), Bahrain has a codified family law for the Sunni population in 2009, leaving the Shia’ population without a codified family law.26 Each of these codes draws upon sharia’. Under traditional interpretations of Islamic law, “paternity has always been connected with licit sexual relationship . . . [C]hildren born within wedlock are automatically attached to the bona fide husband who also becomes the bona fide father.”27 More than a question of biology, paternity is a matter of a legal relationship (marriage) between the child’s mother and father. When a child is unable to prove paternity in a country that conveys nationality exclusively or primarily through the father, the child is at severe risk of statelessness. This risk can arise when the parents are married but the father disclaims paternity; when the parents are married but the marriage is not recognized by the state; when the father wants to verify paternity but cannot because the couple is not married; or when the parents are not married and the mother or the child want to verify paternity but do not have a way to force the father to acknowledge paternity.28 While each of the five GCC codified family laws provides some way for a husband to disclaim paternity for his wife’s child, no GCC family law explains how a non-marital child can force its father to acknowledge paternity. Bahrain’s Sunni family code presumes paternity for the husband of the child’s mother. A husband can disclaim paternity of his wife’s child, but only when DNA evidence confirms that the husband is not the father.29 This DNA prerequisite ensures that a biological father cannot disown a child through mistake or fraud and thereby leave the child potentially stateless. It appears that, since 2008, paternity can be established in a family court by the use of DNA.30 Whether a mother or child can use this means to force the father to acknowledge paternity, though, is unclear. Furthermore, Kuwait, Oman, Qatari, and Emirati laws all provide that a mother’s husband is automatically established as the father, but the husband is given an opportunity to deny paternity by swearing an oath that he is not the father.31 In Kuwait, paternity is also automatically established for children born to couples who attempt to marry but whose marriage is defective because of some procedural inadequacy.32 However, none of these states’ family laws establishes a way to force a man to acknowledge paternity, whether with DNA testing or otherwise. 25 A. Shabana, ‘Negation of Paternity in Islamic Law between Li'an and DNA Fingerprinting’, (2013) 20 ISLAMIC L. & SOC’Y 157, 158 26 L Welchman, ‘Bahrain, Qatar, UAE: First time Family Law Codifications in Three Gulf States’ (2010), in INTERNATIONAL SURVEY OF FAMILY LAW 163; K AL-AZZAWI, SOCIAL AND GENDER INEQUALITY IN OMAN: THE POWER OF RELIGIOUS AND POLITICAL TRADITION (2013). 27 Shabana, supra note 21, at 158-59. 28 See R Torr, DNA Test to Decide Boy's Future, GULF DAILY NEWS, (Aug. 17, 2008), http://www.gulf-dailynews.com/NewsDetails.aspx?storyid=226531 (discussing a case in Bahrain in which the parents had not registered their marriage and DNA testing was necessary to verify the child’s paternity). 29 Welchman, supra note 22, at 12-13. 30 Torr, supra note 24. 31 Kuwaiti Personal Status Law No. 51 of 1984, arts. 169-71, 177-80; Omani Personal Status Law No. 32 of 1997 at arts. 70, 89-79; Welchman, supra note 22, at 12-13 (describing means to disclaim paternity in Bahraini, Qatari, and Emirati law). However, in at least one case in Kuwait there were reports of DNA testing against potential fathers. See Kuwaiti Times, Pregnant Filipina - 6 Kuwaitis Called to Take DNA Test, April 11, 2014, http://news.kuwaittimes.net/pregnant-filipina-6kuwaitis-called-to-take-dna-test/ 32 Kuwaiti Personal Status Law, No. 51 of 1984, art. 172. 4