Morocco Grapples with DNA Testing Dilemma: Islamic Tradition vs. Children’s Rights

The debate around the recognition of children born out of wedlock has resurfaced on the occasion of the ongoing reform of the Family Code. Among the proposals made by democratic institutions and civil society was the introduction of DNA testing as legal proof to establish paternity. A measure eagerly awaited, particularly to defend the rights of so-called "natural" children. But the Council of Ulema opposed it, in the name of preserving the foundations of the Islamic family, as reported in the Policy Paper of the Policy Center for the New South.

Moroccan law, in its current form, only recognizes paternal filiation (nasab) based on three very specific conditions: marital relations, the father’s admission, or a sexual relationship considered an "error". DNA is not included, despite scientific developments and Morocco’s international commitments to child protection.

This religious resistance is part of an ambiguous constitutional framework. Article 32 of the 2011 Constitution states that the family is based on the legal bond of marriage. This firm reference to marriage as the sole basis of filiation makes it difficult to recognize children born out of wedlock.

The case of the Tangier court, in 2017, illustrated the full complexity of the issue. A first judgment had recognized the filiation of a little girl to her biological father, after genetic expertise. A decision hailed as historic. But the appeal court and then the Court of Cassation had overturned this judgment, on the grounds that it did not respect the rules of filiation set by the Moudawana.

For human rights defenders, this decision is a setback compared to the best interests of the child. It also shows that the Moroccan justice system remains strongly marked by a conservative reading of Islamic law, to the detriment of social reality: more than 50,000 children are born out of wedlock each year, according to figures cited in the report.

The reform of the Family Code could have corrected this imbalance by integrating DNA evidence as legal proof, on par with the others. The rejection of this proposal, despite the expectations of civil society, reveals a persistent tension between the religious and the universal human rights frameworks.

For the mobilized NGOs and lawyers, the use of DNA expertise does not call into question the foundations of Islam, but would simply guarantee each child’s right to identity, as recognized in the International Convention on the Rights of the Child (Article 7). A requirement of equality, but also of dignity.