Concept and definition of the hereditary-biological expert opinion
Ein hereditary-biological expert opinion is a scientific opinion that is primarily used in court and administrative proceedings to determine genetic relationships. Such expert opinions were particularly prepared in German-speaking countries in the 20th century for proof of descent, paternity determinations, and in connection with issues of civil status law. The hereditary-biological expert opinion is based on the analysis of hereditary traits, in particular through the examination of genetic markers or blood groups.
Historical Development
Origin and Use
Hereditary-biological expert opinions evolved from the beginnings of human genetics in the late 19th and early 20th centuries. Initially, they were prepared on the basis of phenotypic characteristics (such as hair color, eye color, blood groups) and later using molecular genetic methods. In the interwar period and during the National Socialist regime in Germany, hereditary-biological expert opinions were used in particular before so-called hereditary health courts and in the context of the Law for the Prevention of Hereditarily Diseased Offspring (GzVeN).
Transformation due to Medical Progress
With advances in medicine and the development of modern DNA analysis methods, the formerly hereditary-biological expert opinion has gradually been transformed into today’s common parentage or DNA report. The term ‘hereditary-biological expert opinion’ is nowadays used primarily in historical and legal-historical contexts.
Legal Basis and Areas of Application
Family Law
In family law, the hereditary-biological expert opinion was particularly significant for establishing or contesting parentage. According to the law in force until 2008 in the German Civil Code (BGB) (§§ 1600 ff. old version), courts could order a hereditary-biological expert opinion to clarify questions of descent. Since the revision, parentage reports now correspond to modern DNA tests.
Contesting Paternity
In court proceedings to contest paternity, the hereditary-biological expert opinion was often the central piece of evidence. It was ordered when there was doubt about biological descent, but in the past could also take the form of expert evidence based on blood groups and physical characteristics.
Civil Status Law
In the area of civil status law, the hereditary-biological expert opinion was used to clarify parentage in the issuance of birth certificates or for the recognition of citizenship. Courts and registry offices relied on such expert opinions to definitively establish identity and descent in legal transactions.
Inheritance Law
In inheritance law as well, the hereditary-biological expert opinion was relevant when it came to the legitimacy and entitlement of potential heirs. In particular, when there were doubts about the familial relationship between the decedent and potential heirs, probate courts would request such an expert opinion.
Procedural Aspects
Appointment and Procedure
Hereditary-biological expert opinions were generally prepared by court-appointed experts. The experts examined samples such as blood, saliva, or similar materials. The process followed strict procedural rules to ensure objectivity and the evidentiary value.
Assessment of Evidence
The assessment of evidence followed the general principles of free judicial evaluation of evidence (§ 286 ZPO). The court examined whether the hereditary-biological expert opinion was prepared in a comprehensible and coherent manner before it was included in the decision-making process.
Procedural Rights of the Parties Involved
Affected individuals had various rights to participation, refusal, and legal remedies according to the German Constitution (Art. 2 Para. 1 GG – right to informational self-determination, Art. 1 Para. 1 GG – human dignity). The forced ordering of physical examinations was and is only possible under strict conditions.
Ethical and Data Protection Issues
Personal Rights
The preparation of a hereditary-biological expert opinion regularly affected personal rights, in particular the right to private life and the right to know one’s own ancestry. The Federal Constitutional Court has therefore specified the prerequisites and limits for ordering such expert opinions in several decisions.
Data Protection
The handling of genetic data is now particularly worthy of protection and is subject to data protection requirements pursuant to the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). Even with earlier hereditary-biological expert opinions, the collection, storage, and processing of personal data had to be justified and secured.
Significance in Current Law
With the spread of molecular genetic examinations and clear regulation by the Human Genetic Examination Act (Genetic Diagnostics Act, GenDG), the classic hereditary-biological expert opinion now plays virtually no role. Modern methods rely on established DNA analyses and are subject to strict legal regulations.
Conclusion
The hereditary-biological expert opinion was historically a central piece of evidence for establishing questions of descent in matters of family, civil status, and inheritance law. Due to medical and technical advances and the development of genetic diagnostic law, DNA-based procedures have now replaced it. The classification and assessment of hereditary-biological expert opinions are now primarily relevant from a legal-historical and ethical perspective and serve to contextualize the development of German parentage law.
Literature and Web Links
- German Civil Code (BGB), §§ 1591 ff., 1600 ff.
- Human Genetic Examination Act (GenDG)
- General Data Protection Regulation (GDPR)
- Federal Constitutional Court, Decision of 13 February 2007, 1 BvR 421/05
- German Society for Parentage Assessment e.V.: History of Parentage Assessment
- Federal Ministry of Justice: Parentage and Paternity
(Status: June 2024)
Frequently Asked Questions
What is the legal significance of a hereditary-biological expert opinion in German inheritance law?
In German inheritance law, a hereditary-biological expert opinion primarily serves to unequivocally clarify genetic relationships, especially issues of descent. Its most significant legal relevance arises in inheritance proceedings when there are doubts about a person’s descent from the decedent and these doubts could affect inheritance entitlements. For example, an heir can only claim a compulsory portion or a legal share if it is proven that there is a biological relationship – usually in a direct line – to the deceased. In cases where the birth certificate or other public records do not provide conclusive proof or are challenged, the court may order a hereditary-biological expert opinion to clarify parentage. The expert opinion thus constitutes important evidence, the results of which are legally binding in the judgment process and often form the basis for the final decision regarding inheritance rights.
Who has the right to request a hereditary-biological expert opinion in an inheritance case?
The right to request a hereditary-biological expert opinion in an inheritance case primarily belongs to the parties involved in inheritance proceedings, i.e., persons who have a legal interest in establishing or disproving a specific relationship. This includes potential heirs, persons entitled to a compulsory share, as well as disinherited relatives who wish to assert claims. The application is usually made in the course of judicial proceedings, for example, a certificate of inheritance process or an inheritance dispute lawsuit. The probate court itself also has the authority to order a hereditary-biological expert opinion ex officio, provided there are significant doubts about the relationship and other evidence is insufficient. The prerequisite is always a legitimate legal interest, for example to defend against or assert an inheritance claim.
What formal requirements and legal guidelines apply to the preparation of a hereditary-biological expert opinion?
A number of formal and legal requirements must be observed in preparing a hereditary-biological expert opinion. First, the preparation of the expert opinion must be based on a court order or judicial directive, if the results are to be used in judicial proceedings. The expert must be impartial and qualified, usually a specialist physician in human genetics or a forensic institute. The expert opinion must be prepared and documented while upholding personal rights and in strict compliance with data protection laws. The provisions of the Human Genetic Examination Act (GenDG) as well as data protection regulations must be observed. Furthermore, the expert opinion must be comprehensible and understandable for legal laypersons, with all methods, steps of investigation, results, and conclusions being clearly presented. For sample collection, the consent of all living participants is generally required.
How does the court evaluate and assess a hereditary-biological expert opinion?
The judicial evaluation and assessment of a hereditary-biological expert opinion is carried out according to the general rules of free judicial evaluation of evidence pursuant to § 286 ZPO (Code of Civil Procedure). The court examines whether the expert opinion has been prepared methodologically correctly and comprehensibly, and whether the experts have complied with the actual foundations and scientific standards. If there are justified doubts about the scientific validity of an expert opinion, the court may obtain another opinion (“superior expert opinion”). In practice, the court usually attaches great evidential value to an impartial and carefully prepared hereditary-biological expert opinion, as it provides reliable scientific foundations. If the expert opinion clearly indicates or excludes a biological relationship, the court decision on inheritance claims will generally be based on this.
What are the legal consequences if a hereditary-biological expert opinion disproves an existing descent?
If a hereditary-biological expert opinion in inheritance proceedings disproves the asserted descent, the affected person generally loses the statutory right to inherit or the right to a compulsory share, which is reserved for biological relatives. The court will thus reject the application for a certificate of inheritance or revoke one already issued. Claimed inheritance shares may have to be repaid (e.g. in the context of a surrender lawsuit under § 2029 BGB). The decision is final and may also affect distributions of the estate that have already taken place; if third parties have acted in good faith, certain protection of legitimate expectations is provided under § 2366 BGB. In addition, false statements in inheritance proceedings, especially if made intentionally, can result in criminal penalties.
Is there a legal obligation to cooperate if participation in a hereditary-biological expert opinion is refused?
In the context of a judicial inheritance proceeding, the court may order the taking of evidence and require parties to cooperate, for example by providing tissue or saliva samples. There is, however, no immediate compulsory obligation to enforce participation in a hereditary-biological expert opinion against a person’s will, as this would interfere with the right to privacy and physical integrity (Art. 2 GG). If participation is refused, this may be taken into account in the proceedings under § 427 ZPO; this can result in adverse inferences (‘evidence obstruction’) for the refusing party. Especially in cases of unjustified refusal, the court may decide in favor of the opposing party.
What are the costs of a hereditary-biological expert opinion and who bears them in an inheritance case?
The costs for hereditary-biological expert opinions may vary greatly depending on scope, complexity, and the commissioned institute, but often range from several hundred to a few thousand euros. In judicial proceedings, the general principles of cost allocation apply: initially, the party who requests or orders the expert opinion in advance bears the costs as an advance payment (§ 402 ZPO). After the proceedings have concluded, the final allocation of costs depends on the outcome: the losing party generally bears the costs for the expert opinion; in cases of partial success or loss, the costs are split proportionally (§ 91 ff. ZPO). If the report is commissioned ex officio, the costs are usually allocated as part of the court costs among the parties involved in the proceedings.
