Proving paternity: A prolonged struggle for thousands of Egyptian mothers
For mothers who choose to file paternity lawsuits, proceedings can take years
 
 
 
Courtesy: Wyncliffe via Flickr
 

“I wrote this post just to say that I will not give up on my son’s rights until the last minute of my life, and I don’t fear your threats and accusations. I’m proud of myself, I’m strong, and I will continue until I get my son’s rights,” Hadeer Mekway wrote in one of a number of Facebook posts that set social media ablaze at the start of this year.

When Egyptian journalist Mekawy proclaimed that her baby was the outcome of an undocumented marriage, her story sparked widespread contention between those who supported her bravery in a male-dominated society, and others who condemned her as sinful.

Given that the father of Mekawy’s child refuses to recognize him, Mekawy must indeed fight for his rights. In Egypt, the law, based on Islamic Sharia, stipulates that children must be named after their fathers and only through a proven marriage relationship.

With both families opposed to Mekawy and her partner’s relationship, the couple were unable to marry as Egyptian law mandates that women can get married only with the consent of their male guardians. So the couple entered into an urfi or customary marriage.

Mekway’s ordeal started when her husband left her after finding out she was pregnant, refusing to acknowledge the baby. In her post, Mekawy announced that she will be embarking on legal proceedings.

Most paternity cases, like that of Mekawy, involve customary marriages, which have become increasingly common. As they are not documented in a court, the father has more room for manoeuvre if the couple conceives.

Customary marriage is a form of marriage that is not officialy registered by the state, whereby a couple sign a document to prove the marriage, in the presence of two witnesses who sign as well. The procedure is usually carried out by couples who do not wish to publicly announce their marriage, in cases where families disapprove of the marriage, for example. Despite being Sharia-compliant, the practice is generally frowned upon in Egyptian society and can lead to legal issues for women afterward.

These laws have left thousands of Egyptian women with no proof of marriage contracts struggling for years to prove the paternity of their children. There are no official statistics regarding how many paternity lawsuits are filed before the courts, but head of the Cairo Center for Development and Human Rights (CCD) Intisar al-Saeed estimates it to be around 14,000 cases.

Until a few years ago, no mother was allowed to register her baby at all, as only the father, or the men in his family, were able to do so. Amendments to the Child Law in 2008 made it possible for women to register their infants, but only upon presenting “an official document proving the marriage relationship and consent signed by her that the child is born out of this relationship.”

Not only do unregistered children face lifelong stigma, as do their mothers, but they do not have access to services that require a birth certificate, such as enrolling at schools or health services such as vaccinations.

As such, many women in Mekawy’s predicament opt for abortion, which is illegal, or give their children up.   

A legal maze

A mother’s struggle starts when she has no proof of her marriage, Moataz al-Dakar, a lawyer specialized in personal status lawsuits, explains. This includes married women who have no access to their marriage contracts, women who have customary marriage contracts, or those who conceived outside of marriage.

“It is a very painful and complicated legal maze,” he says, adding that the choice to resort to the courts is not an easy one as the judicial process can take years.

Women who have the buffer of wealth or fame are thus more likely to take this decision, he says.

Dakar represented actress Zeina when she successfully filed a lawsuit against popular actor Ahmed Ezz to prove the paternity of her twin boys, Zein Eddin and Ezz Eddin. Throughout the 18-month case, Zeina claimed that the twins were the outcome of a customary marriage while Ezz denied ever having been married to her and refused to take a DNA test.

Zeina in Ramadan series “Azmit Nasab”

Zeina won the case in 2015, and was able to officially register her twins, though Ezz continued to deny that they are his children. In 2016, Zeina sued him for defamation a couple of months before starring in a Ramadan show titled “Azmit Nasab” (Crisis of Lineage), where she played a maid who is pregnant with the child of a married businessman who denies the child is his.

Zeina’s case was relatively easy. Not only was public opinion largely on her side, Dakar says, but she had a customary marriage contract as well as testimonies of witnesses who confirmed that Ezz and Zeina were married.

A mother who wishes to win a paternity lawsuit has to prove that a marriage occurred, Dakar explains. This could be through an official or customary contract, and in the absence of these, testimonies from witnesses of the ceremony may count as proof.

The law also lists cases in which a husband may deny the paternity of a child born to his legitimate wife. Article 15 of the second chapter of the personal status law stipulates that if the child is born within six months of the start of the marriage or when the husband has been absent for a year, there are grounds for refusing paternity.

A suggested amendment was made to the Child Law in 2008 that would enable mothers who cannot prove the paternity of their children to register them under the mother’s family name by former head of the National Council for Motherhood and Childhood Moshira Khattab. But it was rejected, primarily by Al-Azhar.

President Abdel Fattah al-Sisi issued a presidential decree amending the social solidarity law in March, redefining orphan children to include children with unproven paternity, enabling greater access to services.

An article in the personal status law that allows for the registration of children under a chosen name if their paternity is not proven — enabling them to go to school and be issued ID cards, but cutting them off from any inheritance rights — is not implemented, says Saeed of CCD.

“Women are obliged to file a paternity lawsuit first and can only register their children after they win the case,” Saeed explains.

Mothers with a customary marriage contract may temporarily register their infants under the name of the father mentioned in the contract in cases where the mother is pursuing a paternity lawsuit until a final ruling is issued, according to a 2015 ruling from the Administrative Court. This allowance is rarely implemented, however.

While most paternity cases concern customary marriages, this is not always the case. Being legally married did not spare Yasmine* a paternity lawsuit when her daughter was born, and again when she gave birth to another daughter.

“My husband said he didn’t want a girl, and he didn’t want to spend on her. He sent me to my family’s home and refused to register the baby,” Yasmine relates, sitting with one of her girls on her lap at the headquarters of CCD, which has helped her in a lengthy legal battle.

Yasmine never had access to her marriage certificate. The 25-year-old mother was officially married when she was 19, having fallen quickly in love with a man 30 years her senior. “I grew up to divorced parents, he was the first to show me love, he got me nice gifts and said sweet words, it was something I’d never experienced,” she says as she puts her younger daughter to sleep in her arms.

Just days after her wedding, however, Yasmine discovered that she was just a “maid” to her husband and his sons from his previous marriage. When he refused to register their first daughter, Yasmine filed a paternity lawsuit.

Fatma Salah, CCD lawyer who represented Yasmine, explains that the lawsuit was easy because she was already married. “One court session before the final ruling, Yasmine’s husband showed up to court and offered to register the baby and to reconcile with his wife, if she dropped the case,” Salah explains.

He registered the baby and forbade Yasmine from continuing any relationship with the center.

“I was so naive, I did not realize that he never wanted me to feel empowered,” Yasmine says. When Yasmine again fell pregnant with a girl, her husband again sent her back to her family home and again refused to register his daughter.

The court ruled in favor of Yasmine the second time, and another lawsuit obliged the father to pay monthly financial compensation for both of his children and his wife.

Compulsory DNA testing

One thing in common between the thousands of men who deny paternity of their children is that they usually refuse to conduct a DNA test.

Interior designer Hend al-Hinnawy was the first woman to take her paternity lawsuit to the public. She won her paternity lawsuit in 2006 against actor Ahmed al-Fishawy, through appeal after an initial ruling against her. Her case captured public opinion, and in its wake, NGOs worked on a draft law that would have compelled men to take DNA tests.

Interior designer Hend al-Hinnawy

The 2008 amendment to the child law makes mention of “legitimate scientific techniques” to prove parentage, but it does not make DNA tests compulsory.

When a man refuses to carry out a DNA test, however, “is usually used by the judge as evidence against him,” Saeed explains. “But the problem is that is a very lengthy judicial process, and the social stigma alone destroys the lives of thousands of women.”

“Obliging the father to carry out the test would save us all this hassle,” Dakar says. “Just one test would prove whether this child is really the son of this father or not, no need for witnesses, documents, or anything else.”

But such a reform would contradict Sharia, which is the basis for Egypt’s law. A fatwa issued by Dar al-Ifta declared that DNA testing to prove paternity is permissible only when is a proven marriage relationship.

Amna Nosseir, professor of Islamic philosophy at Al-Azhar University and member of Parliament, explains to Mada Masr that obliging men to conduct DNA tests would enable more women to go into non-marital relationships, something an Islamic society cannot accept.

For her, the difficulties related to proving paternity are not the problem of Sharia or the law, but rather the women.

“A woman has a duty to document whatever relationship she has. Women should value themselves more and protect themselves,” she says. “Even if they went through a customary marriage, let them document that, so that they can secure their rights and their children’s as well.”

Many women have no access to their marriage certificates, and those with customary marriage sometimes perform the marriage rituals verbally without documentation, which further complicates the process.

Rights lawyer Taher Abul Nasr, who has worked closely on a number of paternity cases, believes that such laws are designed to punish women.

“Laws are meant to protect people’s rights, not to discipline their behavior. When we say that legal reforms are needed to make sure men are obliged to conduct DNA tests, they tell us we encourage women to get involved in non-permitted sexual relationships,” Abul Nasr says. “The irony is that the current laws encourage men to do the same, and pushes them to evade their responsibilities.”

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Mai Shams El-Din