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regard to that system, describing the C, D, E, c, d, e designations developed by the British doctors Race and Sanger, and the Rh-hr symbols, developed by Dr. Weiner in this country. Dr. Steiner prefers to use the designations C, D, E, c, d and e for purposes of simplicity, rather than the Rh-hr designations. The subject of bloodgroup nomenclature is discussed in the "Supplementary Report of the Committee on Medicolegal Problems, American Medical Association," reprinted from the Journal of the American Medical Association, August 31, 1957, vol. 164, pp. 2036-2044. It is a controversy with which we need not concern ourselves here.

Dr. Steiner testified that exclusion of paternity based on what he terms the big E factor (rh") alone is too controversial to be fair. He considers it to be "a matter of doubt." It is his belief that the “big E factor” may consist of several factors, and that not enough is known about it at this time to justify basing an exclusion of paternity on that test. He quoted from several publications he believes support his view. He read from the American Journal of Human Genetics, December 1952, an article by Dr. Weiner, whom he quotes as saying, "The existence of individuals with the red cells lacking both factors Rh" and Hr" has an important implication for the medical-legal application of these tests in cases of disputed parentage, and this could lead to erroneous exclusions of parentage." It seems to us that this statement is not pertinent to the instant case. These persons are not lacking both Rh" and Hr"; the respondent's blood has in it the factor Rh" and, judging from Dr. Steiner's own test reports, he found the reaction to the anti-e (hr") serum to be "positive as to all three parties." The tests done by Dr. Ortega did not include the "e" (hr") test which is not recommended by the American Medical Association Committee.

Dr. Steiner continued his testimony by reading from the Supplementary Report of the Committee on Medicolegal Problems, American Medical Association, referred to above. The Committee consisted of Dr. Weiner, Chairman, and three other persons. Assuming the record we have to be correct, Dr. Steiner did not read the report accurately. The record we have quotes him as follows:

* and finally the Journal of the American Medical Association of August 31, 1957 in a report of the Committee on Medical-Legal Problems in an article Medical-Legal Applications of Blood Grouping Tests, says here, 'With regard to the Rh system and particularly to the Rh" factor obviously the medical-legal application of such factors is premature. Indeed because the lack of availability of adequate amounts of suitable anti-serums and the limited knowledge due to the small number of investigations carried out to date the routine use in medical-legal work of the Factors Rh" is inadvisable.' (Emphasis added.)

The report Dr. Steiner quotes from was not placed in evidence. The special inquiry officer should have requested that it be made

part of the record. However, the report is available to us and it is clear that Dr. Steiner misread the paragraph quoted, and taken out of context the meaning is changed. The quoted paragraph, in toto, read as follows:

Recent work has revealed the existence of still other factors belonging to the Rh-Hr system, notably, factor V, often found associated with the genes r and R, especially in Negroes. In addition, a series of new Rh factors has been discovered that, with rare exceptions, occur in association with the factor Rh. (similar to the association of factor rhw with rh') and that have tentatively been designated as RhA, RhB, and so forth. Obviously, the medicolegal application of such factors is premature. Indeed, because of the lack of availability of adequate amounts of suitable anti-serums and the limited knowledge due to the small number of investigations carried out to date, the routine use in medicolegal work of factors rh", hr", and hr is inadvisable. This Committee recommends, therefore, that for routine medicolegal work, for the present, the Rh-Hr test be limited to the factors Rh。, rh', rh", and hr'. (Emphasis added.)

The Committee report had already discussed the fact that there are at the present time four principal Rh blood factors and three principal Hr factors recognized. It states, "However, anti-serums for only four of these seven factors are readily available for routine clinical and medicolegal work, namely, anti-Rh。, anti-rh', anti-rh", and anti-hr'." The report discusses many rh and hr factors, some of them rarely encountered, and clearly is discussing these factors in the paragraph read by Dr. Steiner (quoted above) when they recommend that the tests for the rare and newly-discovered factors not be used in routine medicolegal work. The Committee again says, "As has already been pointed out, in medicolegal cases the paternity blood tests are generally limited to the factors Rho, rh', rh" and hr'. Actually many more Rh-Hr factors have been found."

Dr. Steiner again quoted from the Summary and Conclusions of the Committee (Supplementary Report), "It is recommended that routine medicolegal applications of blood grouping be restricted at present to tests for the four blood groups, O, A, B, and AB of the A-B-O system; the three types M, N, and MN of the M-N-S- system; and factors Rh。, rh', rh", and hr' of the Rh-Hr system." Dr. Steiner's comment on this recommendation is, "Now here they omit expressly the factor hr" which is the one present in the two parents." This seems to us to be a non sequitur, since the exclusion of paternity in this case is not based upon the presence of the factor hr" in the two parents, found by Dr. Steiner's tests. This is one of the factors for which the Committee of the American Medical Association recommends routine tests not be made. The exclusion here is based upon the fact that the element rh" is present in respondent's blood and is not present in the blood of the alleged parents.

It is not necessary for us to attempt to resolve the conflict between the conclusions of Dr. Steiner and Dr. Ortega. When it became

apparent to the special inquiry officer, counsel, and the examining officer that the two doctors had conflicting opinions, the examining officer asked Dr. Steiner if he felt that Dr. Weiner is the outstanding authority in this field in this country, and if Dr. Steiner would accept Dr. Weiner's word as final in this case if the tests were submitted to him for decision. Dr. Steiner answered, "Yes I do, not the only one but one of the outstanding authorities. Dr. Philip Levine is probably equally qualified, but he is not as flamboyant as Dr. Weiner is **** The examining officer then moved that the testimony of the two witnesses and the two sets of tests be submitted to Dr. Weiner for a final opinion. Counsel stated that he had no objection to that and stipulated that he was willing to be bound by the results of Dr. Weiner's opinion. The examining officer also so stipulated.

Dr. Weiner's letter addressed to the Immigration and Naturalization Service at New York, July 16, 1958, signed and notarized, is exhibit 3 in the record. Dr. Weiner's table summarizing the results of the blood-grouping tests herein has been set forth above, and will not be repeated here. The rest of Dr. Weiner's certification reads as follows:

Mr. E McG- showed me the records of the above-named case including the report of Dr. L. R. Ortega of the Western Laboratories in Oakland, California, the report of Dr. Paul S. Steiner of the Latham Square Laboratories of Oakland, California, and the testimony of Dr. L. R. Ortega and Dr. P. Steiner, all of which I have read. There appears to be no dispute about the results of the blood tests themselves, but only regarding the interpretation of the findings. While it is against my principles to offer an opinion based on tests which I have not done myself, in the present case, according to the testimony, the tests were done many times, always with the same results, so that it would be unreasonable to challenge the findings.

*

and M

is

is

is not the son -L.

As far as the A-B-O and M-N tests are concerned the results provide no Information as to the question of parentage. The Rh-Hr tests, however, show that J-K▬L▬ cannot be the child of Y-W-L YLL. The reason for this is that two parents both lacking factor rh" (otherwise known as factor E) cannot have a child with factor rh" (or E). In the present case the putative father Y-W- -L is type Rh1rh lacking factor rh" (or E) and the putative mother, M- ·Y -L -L type Rh1Rh1 lacking factor rh", while the putative son, J- -K- -Ltype Rh1Rh2 having factor rh". Therefore J-K-L of the putative parents, Y-W-L and M-Y—L The hearing was reconvened on September 18, 1958, in San Francisco, at which time counsel objected to the acceptance in evidence of Dr. Weiner's report "on the ground that the witness has impeached himself." Counsel, admittedly basing his opinion on the "quoted remarks of Dr. Weiner" as read into the record of hearing by Dr. Steiner, states that he believed "that Dr. Weiner would rule out exclusion of paternity on the basis of the big E factor of the Rh.”

Counsel continued, "However, since Dr. Weiner has now repudiated what he was quoted as saying the previous time I don't feel bound by the stipulation ***" *" (emphasis added). It is apparent that counsel did not study the report of the Committee of the American Medical Association himself, but based his opinion on the reading of it by Dr. Steiner. If our copy of this report is correct, then Dr. Steiner's reading of it cannot be correct.

The special inquiry officer felt that both parties were bound by their stipulation, and accepted Dr. Weiner's opinion into the record over counsel's objection, pointing out that Dr. Weiner had been agreed upon by both parties as arbiter. A good statement on the effect of a stipulation is available in Matter of A, 4 I. & N. Dec. 378, 384 (C.O., May 10, 1951), wherein it was concluded that the decision as to whether or not the parties are bound by a stipulation rests with the court, and that the court may, in its discretion, set aside a stipulation on numerous grounds, such as fraud, undue influence, collusion, mistake, false statement innocently made, inadvertence or improvidence in making the stipulation (Wigmore on Evidence, vol. IX (3rd ed.), sec. 2590). Since these are administrative proceedings, and since citizenship is a precious right, we would not permit anyone to stipulate away his citizenship, if we believed that the record supported a finding of United States citizenship. In the present case the effect of the stipulation is unimportant, because the report of Dr. Weiner is admissible, in any event. Obtaining Dr. Weiner's opinion was a satisfactory solution to the impasse existing at the close of the June 16th hearing. Dr. Weiner's certifications have been accepted by us in a number of cases, and he has been named in other similar proceedings as the ultimate authority on the subject.

The Supplemental Report of the American Medical Association referred to the subject of the qualifications of experts as "a difficult and unsolved problem requiring serious study." It was found necessary in New York City to set up a special panel for this purpose. When blood tests were commenced in New York in 1953, persons to be tested were permitted to choose their own doctors for this purpose. Following complaints of inaccuracy of test results and overcharging, it was discovered that the judges of the Court of Special Sessions, after consultation with the New York Academy of Medicine, had approved a panel of six doctors to conduct blood tests in paternity proceedings before the court. The Immigration and Naturalization Service decided to follow the same procedure and to request the person whose blood was to be tested to choose one of the doctors from this same panel. The panel at that time included Dr. Alexander Weiner, Dr. Philip Levine, and Dr. Sussman.

This is not the first case in which we have had certified an exclusion of paternity based on Rh tests alone, although the others are

562713-61-19

all unpublished cases. In unreported Matter of W—W—Y-
A-10236058, blood tests were performed by Dr. Leon Sussman, New
York, and he certified on January 26, 1954, that the tests demon-
strated that it was impossible for respondent to be the offspring of
the two persons claimed to be his parents, inasmuch as this child
had a blood factor, rh", which he must have inherited from one of
his parents, and as neither of the claimed parents had this
blood factor, parentage could be excluded. In L
In L-SY
A-7873112, unreported (May 19, 1954), Dr. Israel Davidsohn, Chi-
cago, found an exclusion based on the hr' factor. Later, following
a blood test of the mother, he found a triple exclusion, based also
on the N and rh" factors. Dr. Davidsohn was a member of the
Committee of the American Medical Association which wrote the
report on blood-grouping tests in 1952, which evidences no hesitation
about using Rh-Hr tests for these purposes. In unreported Matter
of L-S L—, A-10292624, Dr. Sussman (in a report dated
December 22, 1954) certified an exclusion of paternity based on the
Rh test alone.

It is important in these cases to be able to rely on the Rh tests. It is possible for a person seeking a purchaser for a previously established "immigration slot" to match the blood groups and types of a candidate to those of the alleged father and mother, particularly if the alleged father and mother fall in the common groups and types, as in this case. Here we have an O father and an A mother. They can have either O or A children and this covers approximately 87 percent of the population. According to the MN typing we have an MN father and MN mother. They can have M, N, or MN children, and this is 100 percent of the population. Therefore, in the instant case the A-B-O tests are of limited value, and the MN tests are useless. However, with Rh tests added to O-A-B and M-N tests, blood matching becomes much more difficult.

Even with the use of Rh tests it is not possible to solve all cases of doubtful parentage. In a report of the Committee on Medicolegal Problems, American Medical Association, 1952 (p. 12), the Committee stated, "When a man is falsely accused of paternity, he has better than a 50 percent chance of being exonerated by the combined use of the A-B-O, M-N, and Rh-Hr tests, while more than 90 percent of cases of interchange of infants can be solved by such tests." The factor rh" is the factor which respondent has which his parents do not have. We note that the Supplemental Report of the American Medical Association Committee, 1957, mentions that the factor rh" occurs in less than .5 percent of the population. When the claimant possesses a relatively unusual blood factor, blood matching becomes most difficult.

The special inquiry officer denied the request of counsel to offer the testimony of respondent's alleged father, holding that counsel

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