I dissent. Under section 621 of the Evidence Code, “Notwithstanding any other provisions of law,” defendant's baby son, bom as “the issue of a wife cohabiting with her husband, who is not impotent, is conclusively presumed to be legitimate. ’ ’
The opinion of the majority declares otherwise. It rules that such a child may be declared. illegitimate if blood tests indicate that the husband could not have fathered the child. This ruling jeopardizes the integrity of the marriage state. It pierces the protective shield which the law has heretofore placed around children born to married couples and subjects their status as the legitimate issue of their parents to the vagaries of test tubes and chemistry. Heretofore it has been the public policy of this state, supported by the courts (see Kusior v. Silver (1960) 54 Cal.2d 603 [7 Cal.Rptr. 129, 354 P.2d 657]) that the greater good to be served is to preserve the legitimacy of children born to married people cohabiting together from attack.
However, the effect of today’s ruling is to add another exception, based on blood test evidence, to the conclusive presumption of legitimacy set forth in section 621 of the Evidence Code, and this despite the most convincing proof— recognized and spelled out in Kusior—that the Legislature considered and rejected such an exception. In Kusior this court declined to accept the argument that blood test results allegedly showing that the husband could not have fathered the child should be made an exception to the rule, and specifically held (pp. 616-620 of 54 Cal.2d) that such tests may not be used to controvert the conclusive presumption of paternity created hy the Legislature. (See also Hill v. Johnson (1951) 102 Cal.App.2d 94 [226 P.2d 655].) When the Evidence Code was adopted in 1965 (following our decision in Kusior) former subdivision 5 of section 1962 of the Code of Civil Procedure was restated as section 621 of the Evidence Code with no change whatever in substance, thereby further demonstrating a lack of intent on the part of the Legislature *250to allow the conclusive presumption to be negated by blood lest evidence.1
Plaintiff in the present case does not contend that he was impotent or that he did not cohabit with his wife, the only two situations in which the statute by its own terms makes the conclusive presumption inapplicable. The child was coneededly born approximately nine months after cohabitation of the parties, i.e., the period of gestation was a normal one. I am convinced that the trial court was correct in ruling that under such circumstances the conclusive presumption of legitimacy precluded consideration of any blood tests whatever.
The order appealed from should he affirmed.
Tobriner, J., and Sullivan, J., concurred.
It may be noted that the following excerpt from plaintiff's brief discloses certain of the factors which may have motivated the Legislature in failing to make blood test evidence admissible as against the conclusivo presumption: “It is submitted that in a search for tho truth our modem procedure should be to admit the blood tests and also admit a searching cross-examination, because, as with any other item that may be taken or sent to a laboratory for examination, there is always a possibility of error. Such matters as (1) although not a great possibility, the containers could have been mislabeled; (2) the failure to see the agglutenation, particularly if it is weak; (3) proper control of temperatures; (4) use of too concentrated or diluted an antiserum, or red cell suspension solution; (5) allowing too much or too little time for the reaction to occur; (6) too much or too little centrifugal force which is required in some tests; (7) the deterioration or contamination of anti-serums; (8) deterioration of blood tested, especially if it has been stored too long or exposed to extreme hot or cold; (9) chemical solutions in which tho agglutenation takes place being improper for the specific anti-serum; and (10) biological errors, using in [sic] rare groupings of blood and lacle of information on these types. ’ ’