20 CFR 404.1101

SSR 72-25

Where a worker, domiciled in Hawaii but married to a Chinese national who resided solely in China and Hong Kong, denied paternity of a child born of his spouse, conception of which occurred during a time in which worker had access to her, held, while courts of Hawaii apply presumption of legitimacy where children are born during wedlock and presumption may be rebutted by clear and convincing evidence, the result of blood grouping tests are not precluded by Lord Mansfield Rule and, by reason of their high degree of accuracy are otherwise admissible, and such evidence showing husband's non-paternity is sufficient to rebut the presumption of legitimacy.

R, a United States citizen, was married in 1933 to W, a Chinese national, in China. Since her marriage, W has resided solely in China and Hong Kong, where R visited her on five occasions. A child, C, was born in August 1958 in Hong Kong during the existence of this marriage. R was domiciled in the State of Hawaii at the time an application for child's insurance benefits was filed on behalf of C. Although the evidence indicates that C was conceived when R was in Hong Kong and had access to this wife, a blood grouping test disclosed the impossibility that R could have fathered C. Certified blood grouping test results show that while R and W have A-Type blood, the child has B-Type. Under these circumstances, it is genetically impossible for R to have fathered C. McCormick, Evidence § 178.

Section 216(h)(2)(A) of the Social Security Act (42 U.S.C. 416(h)(2)(A)) provides, in pertinent part, that in determining whether an individual is the child of an insured individual for social security purposes, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual is domiciled at the time application if filed.

At issue is whether C is in fact R's child. This, in turn, depends upon whether the Lord Mansfield Rule preclude the admission of the blood grouping test results as proof of the illegitimacy of C under the laws of Hawaii, the State of R's domicile.

The courts of Hawaii apply the general presumption that children born during wedlock are legitimate. The presumption, however, is not conclusive and may be rebutted by clear and convincing evidence. It also appears that said courts follow the Lord Mansfield Rule, the adoption of which was recently questioned but not resolved by the Supreme Court of Hawaii in Estate of Cunha, 49 Haw. 302, 414 P.2d 925, 940 (1966), under which neither the wife nor her husband is competent to testify against the child's legitimacy.

Although the courts of Hawaii have never ruled on the admission of the blood grouping test results as proof of a child's illegitimacy, courts in other jurisdictions have held that admissibility of such test results showing nonpaternity of the husband does not contravene the Lord Mansfield Rule since such evidence is independent of the fact of the husband's access to the mother. Beach v. Beach, 114 F.3d 479 (U.S. App. D.C. 1940); Commonwealth v. Goldman, 184 A.2d 350 (Pa. 1962); Dellaria v. Dellaria, 52 N.Y.S. 2d 607, 183 Misc. 832 (1944); A.C. v. B.C., 176 N.Y.S. 2d 794, 12 Misc. 2d 1 (1958). Although one court has expressed some reservation as to the admissibility of such results because of the Lord Mansfield Rule, Parsons v. Parsons, 197 Ore. 420, 253 P.2d 914 (1953), there appear to be no cases where a court has in fact held the results of such tests showing the husband's nonpaternity to be inadmissible because of that rule. It is, therefore, reasonable to believe that Hawaii's courts would not consider such results to be inadmissible on that basis.

The real reason for their admissibility is that the accuracy of these tests is of such caliber that the results form such tests should be admitted to prove the nonpaternity of the husband. See, Annot: Blood Grouping Tests, 46 A.L.R. 2d 1000 (1956). Moreover, Schatkin, in his work on Disputed Paternity Proceedings, pp. 283-288, contends that because of the scientific accuracy of blood tests in excluding paternity, a negative result from such a test, if properly conducted, should be considered as conclusively rebutting the presumption of the child's legitimacy.

In the present case, having determined that such tests are admissible, there remains the question of whether the results of the blood grouping tests constitute sufficient evidence to rebut the presumption of legitimacy. Although the courts of Hawaii have not ruled on this issue, there is language in McMillan v. Peters, 30 Haw. 574 (1928) indicating that the presumption of legitimacy is rebutted where there is clear and convincing evidence to the contrary. In view of the high caliber of accuracy inherent in these tests and the authorities cited, supra, the test results here in evidence constitute clear and convincing evidence and rebut the presumption of legitimacy.

Accordingly, it is held that C is not in fact the child of R and is, therefore, not entitled to child's benefits.

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