dissenting.
I must dissent.
The majority opinion disposes of this appeal by applying a legal presumption and concluding that the evidence was not sufficient to overcome the presumption. I disagree with the conclusion reached regarding *459the evidence, and believe the time has arrived for our courts to speak directly to the role of blood group tests in questioned paternity cases and the relationship of those tests to the legal presumption of legitimacy.
While this appeal presents the question of fitness for custody and charges error in the granting of custody to respondent, this dissent addresses only the issue of paternity of the female child. Reversal is urged for what is believed to be a more accurate determination of the paternity question. Upon rehearing, the issue of fitness could then be weighed in light of the question of paternity.
There is nothing in the record to suggest that the birth of the female child was anything other than the result of a normal term pregnancy. Appellant testified that he and respondent knew each other only one month prior to their marriage. The female child was born six months after the marriage date. Appellant further testified that respondent told both him and his mother that he was not the father of the female child. In his answer, he denied the paternity of the female child.
Respondent, in her petition, alleged appellant was the father of the female child. Respondent testified she and appellant had known each other four months prior to the marriage. This cause was tried to the court on two separate occasions, the interruption being occasioned by the court-ordered blood tests. At the first hearing, respondent stated that appellant was not the father of the female child, and, in fact, identified the real father. However, at the second hearing, she testified that appellant was the father.
During the pendency of the proceedings, the trial court appointed a guardian ad litem for the minor children. The guardian, upon formal motion, secured an order of the trial court directing appellant, respondent and the two minor children to submit to blood tests for blood grouping identification. The parties consented to the testing.
After the blood tests were secured, the proceedings resumed and the guardian ad litem, with the consent of the parties, was permitted to introduce five exhibits. These exhibits consisted of the following: (a) blood test of appellant showing blood type 0 positive & RH, (b) blood test of the minor male child showing blood type O, D neg. D “ neg., & RH, (c) blood test of respondent showing 0 neg. & RH, D neg., D u neg., (d) blood test of the minor female child showing B neg. & RH, D neg., D u neg and (e) an excerpt from a medical journal entitled CLINICAL DIAGNOSIS BY LABORATORY METHODS.1 The pertinent portion of the medical journal declared that Factors A or B could not appear in a child unless present in one or both parents.
The foregoing exhibits were received into evidence by the trial court. The only remaining reference to the exhibits was an on-the-record statement by the guardian that he had requested a physician to appear and testify regarding the blood tests. The physician declined, not because he lacked confidence in blood group testing, but simply because he was not present when the tests were performed.
The trial court entered its judgment and in so doing, dissolved the marriage and declared appellant to be the father of both minor children. On the question of paternity of the female minor child, the court declared that “respondent (appellant at trial), despite the improper admissions of the Guardian ad litem, has failed to overcome the presumption of the legitimacy of the (female child).”
At this juncture, it is important to view the evidence, in sum total, on the issue of paternity of the female child. On the one hand, there was respondent’s declaration that appellant was not the father of the female child, and the identification of the child’s father, followed by a retraction of such testimony. In contrast, there was appellant’s initial and consistent denial that he was the father of the female child. Additionally, five documents were admitted into evidence by agreement of the parties, which on their face conclusively prove that appellant could not have fathered the female child.
*460No exception is taken with the position of the majority opinion in declaring that the presumption of legitimacy has transformed from a rule of substantive law to a rule of evidence. It is the refusal to proceed further to consider the total applicability of blood group tests in paternity proceedings to which exception is taken. The presumption of legitimacy of a child born in wedlock has been declared to be the strongest presumption known to the law, see Rasco v. Rasco, 447 S.W.2d 10 (Mo.App.1969). Rasco declared that the quantum of evidence necessary to overcome the presumption “must be not only clear and convincing ... but it must be such that no conclusion other than that of illegitimacy can be reached,” Rasco at 17, 18. The court, in Rasco, declared that the testimony of a physician witness for the defendant based upon reasonable medical certainty failed to overcome the presumption. The court relied heavily upon the case of Bednarik v. Bednarik, 18 N.J. Misc. 633, 16 A.2d 80 (1940). Bednarik has been criticized in Schatkin, Disputed Paternity Proceedings, 9-48—9-49 (4th rev. ed. 1979). The majority opinion dispenses with Rasco by simply declaring that the evidence in Rasco was not adequate. A closer analysis of Rasco leads to a much stronger conclusion in that testimonial evidence premised upon reasonable medical certainty is not sufficient to establish nonpaternity. If the instant case were reversed to secure additional evidence (the blood tests), two results could be achieved. First, there could be a case decision establishing the conclusive nature of blood group tests in nonpaternity cases. Second, Rasco would no longer be controlling of the issue, thus providing a clearer standard to be adhered to by litigants, members of the bar and the courts. Rasco speaks to the issue of the physician’s evidence based upon reasonable medical certainty. The standard for current times is better served by recognizing the developments in blood group tests and the role they should be permitted to play in current nonpaternity proceedings. By such a new approach, Rasco would then be appropriately placed in legal oblivion where it belongs.
Since Rasco, the question of blood group testing, as those tests interrelate to the presumption of legitimacy, has not been raised. It should be noted that the case cited by the majority, S_ v. S_, 520 S.W.2d 652 (Mo.App.1975), while addressing the question of presumption, does not include blood group testing.
In 1972, blood group testing became an issue in a criminal proceeding for failure to support. Concededly this case, by its very nature, did not include consideration of the presumption because the parties were never married. The court, however, in addressing the question of reliability of blood group testing, not only clearly recognized the effect which should be given blood group tests, but provided a basis for a more correct disposition of the instant proceedings if this court would only take the opportunity to face up to the issue in full. In this case, State v. Summers, 489 S.W.2d 225, 228, 229 (Mo.App.1972), the court declared, “the reliability of blood tests properly given to prove nonpaternity in certain cases of blood groupings has become unquestioned in the scientific and medical world ... Our search of the law has caused us to conclude that we must take judicial recognition that although serological blood tests to determine type or group cannot indicate that a particular person is the father of a child, they can be used to establish that a particular person is not the father.” The court went further in pointing out that the “ ‘[t]he Pathologist whose report excludes paternity is not giving “opinion” evidence. He is testifying to ... a fact of life and Nature.’ (citing treatise)”
The rationale which provides the presumption of legitimacy originated at a time when the scientific and medical world could not provide the degree of certainty of non-paternity by blood group testing. The presumption was premised upon (1) the protection of the assumed virtue of the mother and the protection of innocent offspring from the undesirable effects inherent in branding a child illegitimate; (2) the preservation of the integrity of the family and (3) the preference that support of a child is *461to be provided by the husband rather than the state.
At this juncture, it is well to analyze the above three parts of the rationale in light of the evidence in the instant case. The only conceivable reason within the three foregoing reasons is the possible protection of the offspring (female child) from the inherent effects of branding the child illegitimate. Certainly, the virtue of respondent cannot even be supposed when the evidence is considered, because under oath, she denied that appellant was the father and named the real father. She then withdrew from that position and alleged that appellant was the father. Preservation of the family (no. 2 above) provides no basis for imposition of the presumption. The evidence herein discloses that respondent repeatedly reminded appellant he was not the father of the female child on those occasions where appellant attempted to discipline the child. As a further note, the decree of dissolution speaks for itself regarding the matter of family integrity.
The majority opinion satisfies the third and final portion of the rationale of the presumption because of the result reached. The actual fact is that if appellant is not the father of the child, the court has declared him so and has placed the burden (or satisfied the preference) for support of the female child on the wrong biological father. In this case, at least initially, respondent identified the actual father. If, upon rehearing, the blood group tests establish that appellant is not the father, then respondent is left to secure support for the child from the actual father and the third segment of the rationale is satisfied with only one rather important addition — the responsible father of the child is then called to support the child.
The above three segments or parts of the rationale for the presumption are not questioned for their laudable purposes. However, with the passage of time and the development of scientific testing, their immutable stance must be questioned individually and in total. There is an ever-increasing amount of literature and authority which recognizes the authenticity of blood tests as evidencing nonpaternity, see Schat-kin, supra; 1 Wigmore, Evidence, Section 165a (1940); Richardson, Modern Scientific Evidence, Sections 12.16-12.19 (2d ed. 1974); McCormick, Evidence, Section 211 (2d ed. 1972); Annot., 46 A.L.R.2d 1000, 1028 (1956); Uniform Act on Paternity, Sections 7-10; Uniform Act on Blood Tests to Determine Paternity and R. Gradwohl, Legal Medicine (1954), pp. 524-592. For a critical analysis of the Rasco decision and the above rationale, see Children Born in Wedlock: Blood Tests and the Presumption of Legitimacy in Missouri, 39 U.M.K.C.L.Rev. 121 (1970) and The Presumption of Legitimacy is Rebuttable?, 35 Mo.L.Rev. 449 (1970).
There is a split of authority in determining the weight to be given blood tests as evidence. Those jurisdictions which hold such tests to be conclusive reason that to hold otherwise would be to reject established scientific fact and accuracy, see Anonymous v. Anonymous, 1 A.D.2d 312, 150 N.Y.S.2d 344 (1956); Beck v. Beck, 384 P.2d 731 (Colo.1963); Commonwealth v. Stappen, 336 Mass. 174, 143 N.E.2d 221 (1957) and Ross v. Marx, 21 N.J.Super. 95, 90 A.2d 545 (1952). Jurisdictions holding blood tests should be entitled to the same weight as other evidence emphasize the fallibility of science and scientists and the risk of error in the taking and analyzing of the tests, see State v. Camp, 286 N.C. 148, 209 S.E.2d 754 (1974) and Langel v. Langel, 175 N.E.2d 312 (Ohio App.1960).
Two recent decisions dealing with blood tests, while not exactly applicable to the instant case because nonpaternity is the issue, are of special note because they show recent further development in both science and the law. Washington v. Meacham, 93 Wash.2d 738, 612 P.2d 795 (banc 1980) declares that compulsory blood tests of a putative father are not unconstitutional concerning the violation of the right to privacy, freedom of religion and freedom from unreasonable searches and seizures. Blood group tests have expanded to the point of admissibility to prove paternity. The Human Leukocyte Antigen (HLA) blood test, *462having been shown to be 98% accurate, has been held admissible to prove paternity, see Miller v. Smith, 6 F.L.R. 2660 (decided by the Circuit Court of Cook County, Illinois on 5-27-80), citing Cramer v. Morrison, 88 Cal.App.3d 873, 153 Cal.Rptr. 865 (1979); County of Fresno v. Superior Court, 92 Cal. App.3d 133, 154 Cal.Rptr. 660 (1979); Camden County Board of Social Services v. Kellner, 6 F.L.R. 2412, (opinion released by the New Jersey Juvenile Domestic Relations Court on 3-14-80); Malvasi v. Malvasi, 167 N.J.Super. 513, 401 A.2d 279 (N.J.1980); and Commonwealth v. Blazo, - Mass. App. —, 406 N.E.2d 1323 (1980).
It serves no purpose to restate the factual matter of the instant case, and it suffices to state that this dissent does not agree with the conclusion of the majority opinion regarding the evidence. This dissent expresses the view that there is sufficient evidence upon the record of these proceedings to warrant a reversal of this case with directions to the trial court to conduct a rehearing to obtain further competent evidence related to the taking, evaluation and presentation (as evidence) of blood tests of the four persons involved herein.
The majority opinion is satisfied with declaring the status of legitimacy of the female child by the invocation of the legal presumption of legitimacy. While the purpose of the majority opinion is not the main concern of this dissent, by the same token, this dissent expresses a view that determination of the legitimacy of this female child upon the particular posture of the evidence is untenable. A more proper manner of disposition, and not predisposition, as is called for in the majority opinion, could be achieved upon reversal and rehearing. In addition, the legal presumption could be put to a more valid objective test.
It is neither the desire nor the wish of this dissent to presuppose the illegitimacy of this female child. Upon the evidence in this case, such conclusion could not be reached. It is submitted as well that the predetermined legitimacy of said child under the majority opinion elects to ignore what appears on the surface to be evidence that appellant cannot be the child’s father.
The issue herein is far too important, not only to the parties herein, but as an issue of general importance, to dispense with it upon the basis set forth by the majority opinion.
What this dissent calls for is further consideration of the evidence in this case in order to fully answer the question of paternity demanded herein because of the particular posture of the evidence, a directive to the trial court upon rehearing to secure competent evidence on the question of the blood group tests and the recognition of blood group tests as conclusive evidence in nonpaternity cases.
The judgment should be reversed and the cause remanded for further proceedings in conformity with the reasons set forth in this dissent.
. I. Davidson & J. Henry, Clinical Diagnosis by Laboratory Methods (15th ed.)