Paternity Lawsuit for a Child Born Out of Wedlock in Turkey
Paternity Lawsuit for a Child Born Out of Wedlock
In this article, the paternity lawsuit for a child born out of wedlock will be examined within the framework of the Turkish Civil Code, covering topics such as the conditions of the lawsuit, parties, burden of proof, statute of limitations, and consequences. Additionally, decisions of the Supreme Court on the subject will be included to provide a better understanding of the practical situation.
1 – Definition and Purpose of Paternity Lawsuit
A paternity lawsuit is a lawsuit filed to legally determine a child born out of wedlock. This lawsuit, regulated in Article 301 of the Turkish Civil Code, enables the court to establish the lineage between the child and the father.
The main purpose of the lawsuit is to secure the rights of the child born out of wedlock by establishing a legal bond with the father. Through this, the child can gain many rights such as alimony and inheritance.
Note: To explain the difference between the often confused concepts of “real father” and “biological father” in paternity lawsuits; Biological father is the genetic father of the child, that is, the person carrying the child’s DNA. Real father refers to the person who legally holds the title of father. This person may be the biological father, or someone else who has gained the legal title of father through court decision, recognition, adoption, etc. Therefore, biological paternity and legal paternity may not always coincide.
2 – Conditions of Paternity Lawsuit
Note: According to the Law on the Implementation and Application Method of the Turkish Civil Code No. 4722, paternity lawsuits filed before the New Turkish Civil Code came into force will also be decided according to the provisions in the Turkish Civil Code (Law No. 4722 Art. 13/para. 1). Therefore, the relevant provisions of the Civil Code will also apply to paternity lawsuits filed before 01.12.2002 and not concluded before this date.
A) Birth Out of Wedlock
For a paternity lawsuit to be filed, the child must have been born out of wedlock. For children born within marriage, the paternity presumption applies, so there is no need to file a paternity lawsuit for these children.
Exception: However, a paternity lawsuit can be filed even for children born within marriage in cases where the paternity presumption has been refuted. For example, if it is understood that the child is not from the husband as a result of a denial of lineage lawsuit filed by the husband, a paternity lawsuit can be filed against the real father.
B) Child Not Being Recognized
One of the important conditions for filing a paternity lawsuit is that the child has not been recognized by the father. If the father has recognized the child, there is no need to file a paternity lawsuit as the lineage has already been established.
C) Lawsuit Filing Period
First, it should be noted that the paternity lawsuit is subject to a statute of repose, not a statute of limitations. This important distinction plays a critical role in terms of the nature of the lawsuit and the conditions for filing it. The statute of repose is the period envisaged for the exercise of the right and leads to the termination of the right if it is exceeded.
Note: The statute of limitations eliminates the right to file a lawsuit if a right is not used for a certain period, but the right itself continues to exist. For example; if a debtor pays a debt that has expired, he cannot claim it back because he has paid a legally existing debt even if it has expired. On the other hand, the statute of repose causes the right that is not used within a certain period to completely disappear.
a – Statute of Repose for the Mother
Article 303 of the Turkish Civil Code No. 4721 regulates the period for the mother to file a paternity lawsuit. Accordingly:
- The mother must file the paternity lawsuit within 1 year from the birth.
- The lawsuit can also be filed before the child’s birth.
- If there are reasons justifying the delay after the one-year period has passed, the lawsuit can be filed within one month from the disappearance of the reason.
In a paternity lawsuit filed by the mother against the biological father, the Supreme Court has given examples of justified reasons that would cause a delay in the 1-year statute of repose:
” (…) According to Article 303 of the Turkish Civil Code, the mother’s right to file a paternity lawsuit should be used within one year from the child’s birth. However, if the defendant’s fraudulent behavior caused the expiration of this period, this situation can be accepted as a justified reason preventing the filing of the lawsuit. Factors such as the defendant living together with the plaintiff despite being married, accepting being the father of the child, making promises to marry, and postponing the recognition procedures of the child have been considered as reasons justifying the plaintiff’s delay in filing the lawsuit. General Assembly of Civil Chambers Case: 2023/383 Decision: 2024/294 Date: 29.05.2024 (…)”
Note: In a paternity lawsuit filed before birth, the case continues by appointing a guardian for the child. Also in these cases, birth is considered as a preliminary issue. Because if the child is stillborn, it will not be possible to gain personality, so no lineage bond will be formed between the father and the child.
Point to Note: If there is already a lineage relationship between the child and another man, the one-year statute of repose starts from the date this relationship is terminated.
b – Statute of Repose for the Child
According to current legal regulations, there is no statute of repose for the child to file a paternity lawsuit. This important change was realized with two critical decisions of the Constitutional Court:
- Decision dated 27.10.2011 with Case No. 2010/71, Decision No. 2011/143
- Decision dated 15.03.2012 with Case No. 2011/116, Decision No. 2012/39
With these decisions, the child gained the right to file a paternity lawsuit at any time after reaching majority. This regulation is of great importance in terms of protecting the rights of the child and guaranteeing the right to identity.
3 – Parties to the Paternity Lawsuit
A) Plaintiffs
The persons who can file a paternity lawsuit are the mother and the child (Turkish Civil Code Art. 301/para. 1). The mother and the child have the right to file a lawsuit independently of each other. Therefore, the loss of the case by one does not constitute a final judgment for the other; the waiver of one does not affect the other.
a – Mother
The mother uses her right to file a paternity lawsuit, which she has independently of the child, on her own behalf, not on behalf of the child. Since the right to file a paternity lawsuit is a strictly personal right, the mother does not need to have full capacity to act, having the capacity to distinguish is sufficient. However, if she does not have the capacity to distinguish, a representative can file this lawsuit on behalf of the mother. Besides, the mother cannot file a lawsuit as a representative of the child.
b – Child
For the child, it is accepted that the paternity lawsuit will be filed by a guardian on behalf of the minor child. (Turkish Civil Code Art. 301/para. 3). The guardian can request not only a decision on paternity in this lawsuit but also alimony for the child. Besides, if the child has the capacity to distinguish, the child himself will request the alimony, not the guardian.
A child who is of legal age and has the capacity to distinguish can file and conduct the paternity lawsuit personally.
Note: In old Supreme Court decisions, there were decisions stating that the father could also file this lawsuit. The reason given was that the purpose of the relevant article should be interpreted broadly. However, over time, it is seen that there is a dominant trend in Supreme Court decisions that it is invalid for the father to file this lawsuit. Therefore, considering both the explicit provision of the Law and the Supreme Court decisions given in recent years, it should be accepted that the father cannot file this lawsuit.
B) Defendants
a – Father
According to Turkish Civil Code Art. 301, the paternity lawsuit is filed primarily against the father. If the father lacks the capacity to distinguish during the lawsuit, he is represented by a legal representative. Besides, even if the father is minor or restricted during the lawsuit, he can follow the lawsuit. The reason for this is that the paternity lawsuit is a strictly personal right.
According to the Turkish Civil Code, a “minor” is a person who has not yet turned 18 and is not of legal age. Minors are in the category of limited incapacity, meaning they can perform some everyday transactions but need the approval of their parents or guardians for important legal decisions. This status limits the person’s rights and capacity to act, aims to protect them, and continues until the age of 18 (except in exceptional cases).
b – Heirs
If the father has died, the lawsuit is then directed against the father’s heirs. After the notification to the heirs, they continue as defendants in the lawsuit. Plaintiffs cannot claim alimony from the heirs. The reason for this is that the alimony to be given for the child is a right that concerns the mother and father.
c – Notification Situation
The paternity lawsuit is notified to the Public Prosecutor and the Treasury; if the lawsuit is filed by the mother, to the guardian; if filed by the guardian, to the mother.
The Supreme Court emphasized in a decision that not notifying is a reason for reversal: ” (…) In the concrete case, the lawsuit was filed by the child, and the decision was made without notifying the Public Prosecutor and the Treasury. Although it is mandatory to notify the Public Prosecutor and the Treasury of the paternity lawsuit (Turkish Civil Code 301/last), continuing the trial and making a decision on the merits without notifying the Chief Public Prosecutor’s Office and the Treasury is contrary to the procedure and law. For this reason, it has been decided to reverse the decision 2nd Civil Chamber Case: 2021/7492 Decision: 2022/9677 Date: 29.11.2022 (…)”
4 – Burden of Proof and Evidence
In a paternity lawsuit, the burden of proof is generally on the plaintiff side. However, Article 302 of the Turkish Civil Code introduces a presumption. Accordingly:
The fact that the defendant had sexual intercourse with the mother between the three hundredth and one hundred and eightieth day before the child’s birth is presumed to be paternity.
This presumption reverses the burden of proof. In other words, if the plaintiff proves the existence of sexual intercourse during this period, it is accepted that the child is from the defendant and the burden of proving otherwise passes to the defendant. Even if it is outside this period, if it is determined that the defendant had sexual intercourse with the mother during the actual conception period, the same presumption applies.
Note: The 300th and 180th days expressed as the pregnancy period indicate the limits within which a woman can biologically become pregnant. Besides, although rarely, a woman can be pregnant for more than 300 days. For this situation to constitute evidence in a paternity lawsuit, it must be proven by medical methods.
If the plaintiff mother had sexual intercourse with more than one man during the pregnancy period, the defendant can refute the paternity presumption by proving that the probability of another man/men being the father is higher.
A) Evidence Tools
To prove paternity, it is important to prove the existence of sexual intercourse between the mother and the potential father. For this, evidence tools such as social media correspondence, frequently staying at each other’s homes, statements of witness friends can be used.
The law gives the judge freedom in using these evidences. In other words, evidence that one of the parties considers strong and presents to the court can be seen as completely or partially weak by the judge. For example; even if a defendant who denies paternity proves that the woman used a contraceptive method when they had sexual intercourse, this may not be considered sufficient evidence alone in this case. The judge needs to support this with other evidence.
Besides, there are also more reliable medical evidence tools:
a – Blood Examination
Paternity determination through blood examination is an old method used in lineage determination and is based on the principle of inheritance of parents’ genes to the child. It requires the joint analysis of blood samples from the mother, child, and potential father. While blood group incompatibility can definitively reject paternity, compatibility alone does not prove paternity and should be supported by other evidence.
b – Similarity Examinations
Similarity examinations (anthropobiological examinations) are another medical method used in lineage determination. In this method, the physical characteristics of the child and the alleged father are compared and the morphological similarities and differences between them are examined. However, these tests cannot be used as evidence if paternity has been definitively rejected as a result of blood tests. If the blood test indicates the possibility of paternity, similarity tests can be evaluated as a supporting element to other evidence. An important point is that these tests can only be performed after the child has turned three years old.
c – DNA Test
The most important evidence tool in paternity lawsuits is the DNA test. With a DNA test, paternity can be determined with 99.99% accuracy. The Supreme Court has also emphasized the importance of DNA testing in many of its decisions.
However, other evidence can also be used besides DNA testing. For example, witness statements, documents showing that the mother lived with the defendant during the period she became pregnant, statements or behaviors of the defendant recognizing the child can also be used as evidence.
DNA testing can be done with various samples such as hair, urine, saliva, and tissue samples in addition to blood. A judge’s decision is required for the test to be performed, and the relevant persons are sent to the examination institution with their arms sealed with a photographed warrant.
The point to note is that if the defendant refuses to have a DNA test, this situation will be evaluated against the defendant.
Note: In case the father has died, a DNA test can be performed with tissue or bone samples taken from the grave.
c – Assisted Reproductive Techniques and the Issue of Paternity Lawsuit
Assisted reproductive techniques are leading to new and complex legal issues in the matter of paternity lawsuits. Especially practices such as sperm donation, egg donation, and surrogacy are challenging the traditional concept of paternity and requiring new legal approaches.
An important point to note is that in Turkish law, only married couples can benefit from assisted reproductive techniques with their own reproductive cells. Practices such as sperm donation, egg donation, and surrogacy are prohibited.
However, in case of resorting to such practices abroad or through illegal means despite this prohibition, the legal status of the children to be born carries uncertainty. In this case, considering the principle of the best interest of the child, each concrete case needs to be evaluated within its own conditions.
For example, in a paternity lawsuit to be filed in Turkey for a child born through sperm donation abroad, how to make the distinction between the genetic father and the legal father constitutes an important problem. In such cases, international private law rules may also come into play.
5 – Competent and Authorized Court in Paternity Lawsuit
A) Competent Court
The Competent Court determines which type of court will handle the case according to the subject of the lawsuit. According to the Law on the Establishment, Duties and Judicial Procedures of Family Courts No. 4787, paternity lawsuits fall within the jurisdiction of Family Courts. In places where independent family courts have not been established, the duty is given to the Civil Court of First Instance assigned by the Supreme Council of Judges and Prosecutors.
Note: Depending on the monetary limit that changes every year, lawsuits below this limit are handled by the Civil Court of Peace, while those above are handled by the Civil Court of First Instance. However, in paternity lawsuits, even if there is a monetary claim, the Family Court handles the case regardless of this monetary limit.
B) Authorized Court
The authorized court determines in which place the lawsuit will be heard. Article 283 of the Turkish Civil Code has brought a special regulation regarding the authorized court in paternity lawsuits:
Lawsuits related to lineage are filed in the court of the place of residence of one of the parties at the time of the lawsuit or birth.
This provision grants the plaintiff an optional jurisdiction. The plaintiff can file a lawsuit in their own place of residence court or in the defendant’s place of residence court.
If none of the parties have a place of residence in Turkey in a paternity lawsuit, the authorized court is determined according to Article 41 of the International Private and Procedural Law (MÖHUK).
ARTICLE 41 – (1) Lawsuits related to the personal status of Turkish citizens shall be heard in the court with territorial jurisdiction in Turkey if they are not or cannot be filed in foreign country courts, in the absence of such a court, in the court of the place where the person concerned resides, if not residing in Turkey, in the court of their last place of residence in Turkey, and if that is also not available, in one of the courts of Ankara, Istanbul or Izmir.
6 – Judicial Procedure in Paternity Lawsuit
In paternity lawsuits, special judicial rules regulated in Article 284 of the Civil Code are applied. The purpose of these rules is to determine the material truth without any doubt in matters related to lineage.
One of the important points is that the judge will investigate the material facts ex officio and freely appreciate the evidence (Turkish Civil Code Art. 284/b.1). In addition, the parties and third parties are obliged to consent to investigations and examinations that do not pose a danger to their health and are deemed necessary by the judge for the conclusion of the case (Turkish Civil Code Art. 284/b. 2).
7 – Temporary Measures in Paternity Lawsuit
Article 333 of the Turkish Civil Code allows for temporary measures to be taken to protect the child during the paternity lawsuit process. Accordingly:
If alimony is requested along with the paternity lawsuit and the judge finds the possibility of paternity strong, they may decide on appropriate alimony for the child’s needs before the judgment.
This provision has been introduced to prevent the child from being victimized during the lawsuit process. If the judge finds the possibility of paternity strong, they can rule for temporary alimony for the child even before making a final judgment.
Point to Note: This temporary alimony can be requested back according to the provisions of unjust enrichment if paternity is not ruled as a result of the lawsuit.
8 – Party Transactions Ending the Lawsuit
A paternity lawsuit is a special type of lawsuit that concerns public order. The unique nature of this lawsuit significantly limits the parties’ power of disposition over the subject of the lawsuit. However, there is a possibility for the parties to end the lawsuit under certain conditions. In this section, we will examine the party transactions that end the paternity lawsuit.
A) Waiver
Waiver is the plaintiff’s renunciation of the claim. This transaction, defined in Article 91 of the Code of Civil Procedure, is also possible in paternity lawsuits. The plaintiffs, namely the mother or the child, can end the lawsuit by waiving the request for a paternity ruling.
Characteristics of Waiver:
a) Unilateral declaration of will: Waiver is realized by the unilateral declaration of will of the plaintiff. The defendant’s acceptance is not needed.
b) Effect of final judgment: Waiver constitutes a final judgment in the material sense. Therefore, the waiving party cannot file a lawsuit with the same claim again.
c) Partial waiver is possible: Plaintiffs can waive not only the request for a paternity ruling but also a part of their compensation and alimony claims.
Important points:
- Waiver can be made until the judgment becomes final.
- Waiver can be made orally at the hearing or submitted to the court in writing.
- When a lawsuit is filed by a guardian on behalf of the child, the guardian needs to obtain permission from the Civil Court of Peace to waive.
Note: As we mentioned in our “Parties to the Lawsuit” section, in cases where the mother and child are plaintiffs together, the waiver of one does not affect the other.
Consequences of Waiver:
- The court decides to dismiss the case upon waiver.
- The waiving party cannot file a lawsuit again with the same claim.
- Waiver has retroactive effect.
B) Acceptance
Acceptance is the defendant’s consent to the plaintiff’s claim. Acceptance, regulated in Article 92 of the Code of Civil Procedure, normally ends the lawsuit. However, since the paternity lawsuit concerns public order, acceptance in this lawsuit does not have legal consequences.
Status of Acceptance in Paternity Lawsuit:
- The defendant’s acceptance of the lawsuit does not prevent the court from collecting evidence and conducting an examination.
- Despite the defendant’s acceptance, the court is obliged to investigate whether paternity is really in question.
C) Settlement
Settlement is the parties of an ongoing lawsuit ending the dispute that is the subject of the lawsuit by mutual agreement. Since the paternity lawsuit concerns public order, the parties cannot completely end the lawsuit through settlement.
Application of Settlement in Paternity Lawsuit:
- Settlement cannot be made on the issue of paternity claim.
- However, settlement is possible on alimony and compensation issues requested along with the lawsuit.
Conditions for the Validity of Settlement:
- Settlement can only be made on side issues such as alimony and compensation.
- The settlement made must be in the interests of the child.
- The settlement must be approved by the court.
Point to note: The court is obliged to consider the interests of the child while approving the settlement. Any settlement agreement that harms the rights of the child will not be approved.
D) Retrial
Retrial is an extraordinary legal remedy that allows a finalized court decision to be heard again due to some serious procedural errors or deficiencies. In paternity lawsuits, the issue of retrial has gained special importance, especially with the widespread use of advanced scientific methods such as DNA testing.
a – Evaluation of DNA Test as a Reason for Retrial
It is a controversial issue whether a retrial can be sought based on a DNA test conducted later and showing the opposite of the court decision, against paternity lawsuit decisions that were given and finalized before the widespread use of DNA testing, which is currently the most effective and definitive evidence used in lineage lawsuits.
Views in Doctrine:
- According to one view, the DNA test result is new evidence and should be accepted as a reason for retrial.
- Another view argues that accepting DNA testing as a reason for retrial would undermine the principle of legal security.
b – Consequences of Retrial in Paternity Lawsuits
When a retrial request is accepted and a new decision is made, the effects of this decision can be as follows:
a) Cancellation of the previous paternity decision
b) Correction of lineage
c) Re-evaluation of retroactive alimony and compensation payments
d) Rearrangement of inheritance rights
In conclusion, retrial in paternity lawsuits has gained importance especially with the development of scientific methods that give definitive results such as DNA testing. However, a balance needs to be struck between the principle of legal security and revealing the material truth.
9 – Consequences of the Lawsuit
The judgment given as a result of a paternity lawsuit has very important consequences for the child, mother, and father. In this section, we will examine the effects of the paternity judgment on the parties and the resulting legal situation.
A) Consequences for the Child
Establishment of Lineage: When the paternity lawsuit is accepted and the judgment becomes final, a lineage relationship is established between the child and his father. This relationship is valid from the date the child was conceived.
Surname: According to the general rule regulated in Article 321 of the Turkish Civil Code, if the child’s parents are married, they can take the surname of their family, if not, they can take their mother’s surname. However, if a child born out of wedlock is recognized by the father through a paternity lawsuit or by recognition, they take the father’s surname.
Citizenship: A child born out of wedlock to a Turkish citizen father and a foreign mother acquires Turkish citizenship if the procedures and principles for establishing lineage are fulfilled (Turkish Citizenship Law Art.7/3).
Custody: Even if lineage is established between a child born out of wedlock and the father, custody will continue to remain with the mother.
Exception: If the mother is minor, restricted, dead, or custody has been taken from her, the judge can give custody to the father or appoint a guardian according to the child’s interest.
Inheritance Right: According to Article 498 of the Turkish Civil Code, a child whose lineage is established as a result of a paternity lawsuit becomes an heir like in-marriage relatives on the father’s side. In other words, there is no difference between children born in and out of wedlock in terms of inheritance.
Alimony: The child gains the right to claim alimony from his father. This alimony continues until the child reaches majority. According to Article 328 of the Turkish Civil Code, if the child continues his education even though he has reached majority, the alimony can continue until the education ends.
Note: The date to start paying alimony is the date of the lawsuit.
For example, in a paternity lawsuit filed against the biological father, the Supreme Court reversed the Court’s decision that the alimony to be paid should start “after the paternity judgment becomes final“, with the justification that the alimony should be paid “from the date of the lawsuit“:
“(…) The case is related to paternity and temporary and child support alimony claims which are ancillary to the paternity lawsuit. The court of first instance obtained a DNA report from an ordinary medical institution, investigated the economic and social situations of the parties, accepted the case and ruled on the determination of paternity, and 1,000 TL monthly child support alimony from the date of the lawsuit for the common child. The defendant man appealed against this decision, and the regional court of appeal, which conducted the appeal examination, decided that the child support alimony should be paid from the date the paternity judgment becomes final.
As clearly regulated in Article 333 of the Turkish Civil Code, alimony can be requested together with the paternity lawsuit, and if the judge finds the possibility of paternity strong, they may decide on an appropriate alimony for the child’s needs before the judgment. For these reasons, since it is also established that the defendant is the father of the child, it is necessary to rule for alimony from the date of the lawsuit, and the decision has been reversed for this reason 2nd Civil Chamber Case: 2021/10407 Decision: 2022/1840 Date: 28.02.2022 (…)”
B) Consequences for the Mother
a – Material Compensation:
According to Article 304 of the Turkish Civil Code, the mother can request the reimbursement of certain expenses from the father together with the paternity lawsuit or separately.
Expenses That Can Be Claimed:
- Birth expenses: Expenses such as hospital expenses for birth, midwife fee, medicine costs can be counted in this regard.
- Living expenses for six weeks before and after birth: These are the expenses the mother made to live during this period. For example, rent payments, food and drink expenses, expenses arising from the mother’s inability to work can be counted.
- Other expenses required by pregnancy and birth: Examples of expenses made during pregnancy include helpers hired during pregnancy, pregnancy medications, examination fees, abortion expenses made for medical reasons.
b – Moral Compensation
It would not be correct to give a clear answer about whether moral compensation can be requested in the matter of paternity lawsuit. Unlike the previous Civil Code No. 743, Law No. 4721 does not contain an explicit provision that the mother can claim moral compensation. The law only regulates that the expenses made by the mother for the child before and after birth can be requested under the item of “material compensation“. However, when we examine the Supreme Court jurisprudence, we see that decisions are made that directly or indirectly contradict the Law alongside decisions that comply with this provision of the Law.
Changing Jurisprudence of the Supreme Court
The decisions of the Supreme Court on this issue have changed over time and contradictory decisions have been made between different chambers. When we examine these decisions chronologically:
Decision of the 2nd Civil Chamber of the Supreme Court dated 20.04.1976 with Case No. 1976/2112, Decision No. 1976/3465: It was stated that the person who is ruled to be the father of a child born out of wedlock cannot claim moral compensation because there is no provision in the law that makes this possible. This decision emphasized that the moral compensation claim should be rejected.
Decision of the 4th Civil Chamber of the Supreme Court dated 26.09.2018 with Case No. 2018/3586, Decision No. 2018/5675: It was emphasized that moral compensation should be ruled on the grounds that the defendant’s not acknowledging paternity and not caring about the plaintiff despite knowing that the plaintiff was his own child negatively affected the plaintiff’s mental state. This decision, contrary to the example in the previous decision, showed that the moral compensation claim could be accepted.
Decision of the 4th Civil Chamber of the Supreme Court dated 29.11.2018 with Case No. 2016/12466, Decision No. 2018/7427: It was stated that moral compensation should be ruled on the grounds that the defendant caused the plaintiff to grow up as a fatherless child and to feel sorrow and grief by not acknowledging paternity for years despite knowing that it was his own child. This decision is also in favor of accepting the moral compensation claim, similar to the previous decision.
Decision of the 8th Civil Chamber of the Supreme Court dated 11.02.2019 with Case No. 2017/8640, Decision No. 2019/1253: It was stated that there is no regulation regarding moral compensation in paternity lawsuits in the Turkish Civil Code No. 4721. This decision also emphasized the lack of legal regulation, parallel to the first example decision.
Decision of the 4th Civil Chamber of the Supreme Court dated 17.09.2020 with Case No. 2019/1015, Decision No. 2020/2839: It was stated that moral compensation should be ruled in favor of the plaintiff, considering factors such as the defendant’s not acknowledging the common child and causing it to grow up fatherless, the plaintiff having to undertake the parental duty and responsibility alone since the child’s birth, and the defendant’s avoiding paternity responsibility. This decision is in favor of accepting the moral compensation claim and provides more detailed justifications.
Legal Evaluation
In light of these decisions, it is seen that the issue of moral compensation in paternity lawsuits is still a controversial issue and there are differences of opinion even among the chambers of the Supreme Court.
While the absence of an explicit provision in the law constitutes a justification for rejecting the claim in some decisions, in other decisions, it has been decided that compensation should be ruled considering the interests of the child and the moral damages experienced.
In the future, it can be expected that a more clear legal regulation will be made on this issue or a standard will be established through the unification of Supreme Court jurisprudence. However, for now, the outcome of moral compensation claims in paternity lawsuits remains uncertain and a separate evaluation needs to be made for each case.
Other Views on Moral Compensation:
There are views arguing that if the sexual intercourse that caused the birth is an attack on the personal rights of the mother or constitutes one of the “crimes against sexual inviolability” regulated in the Turkish Penal Code, in this case, moral compensation can be claimed due to “tort” regulated in Article 49 of the Turkish Code of Obligations.
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Paternity Lawsuit for a Child Born Out of Wedlock in Turkey
