A woman who had sex with identical twins has been told by a court that it is impossible to determine which brother fathered her child.
The woman, who has not been identified, as well as the other parties in the matter, had sex with the twin brothers within four days of each other, resulting in the baby known as child P, the Guardian reports.
The mother, and one of the twins, launched legal action in the Court of Appeal in London after the other twin was named the father of the child on the birth certificate.
The action followed a family court judge’s refusal to delete the father’s name from the document.
Now, a panel of judges in the Court of Appeal has ruled it is “not possible” to determine which of the identical twins is the biological father.
Sir Andrew McFarlane said DNA testing was currently unable to distinguish which twin was the father, meaning there is only a 50 percent chance the birth certificate is accurate.
“It is possible, indeed likely, that by the time P reaches maturity it may be possible for science to identify one father and exclude the other twin, but, for the coming time that cannot be done without very significant cost, and so her ‘truth’ is binary and not a single man,” McFarlane added.
He said the first twin “was not entitled” to be registered as the father and that any parental responsibility he had “shall cease” as a result.
The judge also noted he was “wholly unpersuaded” to declare that the twin listed on the document was not the father either.
“The failure to prove a fact means that that fact is not proved; it does not mean that the contrary is proved,” McFarlane said.
“There is a distinction between something being not proven, and making a positive declaration that the fact asserted is not true.”
Judge Madeleine Reardon had previously found that “both brothers had had sex” with the woman “within four days of each other in the month when P was conceived”, and that “it is equally likely that each of the brothers is P’s father”.
The case is continuing.
