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Abstract

Genetic profiling offers a new dimension for the possibility of exploring biological truth. It plays an important role in establishing paternity in Western legislation, though two conflicting trends are apparent in this connection: free and restricted.

In both trends, however, proving the biological truth is not the only objective of the legal rules organizing the establishment of paternity. The present study has also indicated that genetic profiling poses a threat to human rights, especially inviolability of the human body. Scientific evidence would certainly help determine paternity through the use of biologically accurate techniques. In the event of disputed paternity, however, genetic profiling has no role in determining the paternity that is more useful for the child: biological or legal. It is incumbent, therefore, to restrict the principle if freedom of proving through genetic profiling. The judge must exercise control over this way of proving, resort to which is to be left to the discretion of the judge himself.

Arab legislation derived from Shariaa (Islamic Law) has not yet dealt with genetic profiling, except for Tunisian law No.75 for 1998. However, the absence of legislation with regard to genetic profiling has not prevented judges from resorting to this means (Lebanese courts, for instance).

Contemporary Islamic jurists differ with regard to establishing or negating paternity by means of genetic profiling. Decisions issued by the Islamic Jurisprudence Academy at its 16th session excluded the use of genetic profiling in the negation of paternity and that it must not supercede leaan, i.e. the case of a husband negating paternity of a child begotten by a wife he claims to be an adulteress.

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