Social media was recently awash with reactions to comments by the Member of Parliament for Gomoa Central, Kwame Asare Obeng, who has announced his intention to introduce a private member’s bill to criminalise “paternity fraud”.
The proposed legislation would reportedly impose prison terms on women who deliberately misrepresent the paternity of a child, thereby compelling men to assume responsibility for children they did not father.
The proposal has ignited passionate debate. Yet beyond the emotional and social dimensions of the issue lies a more fundamental legal question of whether such conduct can be criminalised within the framework of Ghana’s criminal jurisprudence.
Ghana’s criminal law, rooted in common law traditions, is built on a foundational principle: criminal responsibility arises only where there is a concurrence of actus reus (the prohibited act) and mens rea (the guilty mind). This principle is captured in the maxim:
“Actus non facit reum nisi mens sit rea” (the act does not make a person guilty unless the mind is also guilty).
The Criminal Offences Act 1960 (Act 29) did not discard this principle; rather, it codified it. Under Act 29, criminal liability attaches where a person commits an unlawful act (or omission) accompanied by the requisite mental state which may be intention, knowledge, recklessness or negligence, depending on the offence.
The mental element must coincide with the physical act. Without proof of both, there can be no criminal culpability.
The disruptive reality of modern science, and particularly DNA testing, has led to increasing cases where men discover, sometimes years later, that they are not the biological fathers of children they believed were theirs. These revelations are emotionally devastating and socially complex.
However, criminalising misattributed paternity raises serious doctrinal concerns.
Any such offence would require proof beyond reasonable doubt that:
- The mother knowingly made a false representation about paternity; and
- She intended that the man rely upon that representation to his detriment.
The evidentiary hurdle here is formidable.
Engaging in extramarital intercourse does not automatically mean a woman knows which sexual partner caused the pregnancy. Biological uncertainty at the time of conception, especially where multiple partners are involved, makes knowledge of non-paternity difficult to prove.
Criminal courts cannot convict on suspicion, moral disapproval, or social outrage. They require proof beyond reasonable doubt. Establishing intentional deception in intimate relationships may prove nearly insurmountable in most cases.
Australia does not have a “Paternity Fraud Act”. Misattributed paternity is addressed under the Family Law Act 1975, which governs presumptions of parentage, just as as those under Part III of Ghana’s Children’s Act 1998 (Act 560).
The high court of Australia confronted the issue in Magill v Magill (2006) 231 CLR 1.
In that case, Mr Magill discovered through DNA testing that he was not the biological father of two of the three children born during his marriage. He sued his former wife for deceit and negligent misstatement.
The court dismissed the claim on two principal grounds:
- Failure to establish deceit: The plaintiff could not prove that his wife knew he was not the father or that she recklessly disregarded the truth. Extramarital intercourse alone did not establish knowledge of non-paternity.
- Public policy concerns: The court refused to extend tort liability to intimate marital relationships, warning of destabilised family structures, harm to children and a floodgate of litigation.
In the UK, deliberate misrepresentation of paternity may ground a civil claim in deceit where intentional deception and financial loss are proven. However, the remedy is civil, not criminal, and the burden of proof remains demanding.
In the United States, the principal legal mechanism is not punishment of the mother but disestablishment of paternity. Courts may terminate parental status where DNA evidence excludes biological fatherhood, subject to strict procedural safeguards and time limits.
South African jurisprudence emphasises the welfare of the child and seeks to avoid making children collateral damage in disputes over biological parentage.
Misattributed paternity undeniably raises legitimate grievances. Men who discover they have been raising children not biologically theirs may feel deceived and financially burdened. The emotional impact is real.
Yet criminal law is the most coercive instrument of the state. It requires clear proof of intentional wrongdoing. Without reliable evidence of knowledge and intent, criminal punishment would rest on inference rather than demonstrable culpability.
Criminalisation may also produce unintended consequences as harm to children whose welfare must remain paramount and a possible surge in litigation rooted in suspicion rather than proof.
If Parliament is minded to legislate, careful consideration must be given to whether existing provisions such as Section 131 of the Criminal Offences Act (defrauding by false pretences) can be amended to clearly define what constitutes representation, to establish intent and decide what benefit must be intended.
Reform, if any, must also include jail time for men who go about impregnating other people’s wives.
Paternity misattribution is a sensitive and evolving issue shaped by scientific advance and social change. However, criminal law demands more than moral indignation. It requires proof of both a wrongful act and a guilty mind.
Without clear and reliable evidence of deliberate deception, criminalising paternity fraud risks undermining the doctrinal integrity of Ghana’s criminal law jurisprudence and may create more legal and social complications than it resolves.
Legislative reform must therefore proceed with caution, precision and a firm grounding in principle rather than emotion.
The sledgehammer should hit squarely and hard on the heads of men who go about impregnating wives of other men.
Jonathan Balinia Adda, Esq, Houston, Texas
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