Legitimacy (family law)

At common law, legitimacy is the status of a child that is born to parents who are legally married to one another, or that is born shortly after the parents' marriage ends through divorce. The opposite of legitimacy is the status of being "illegitimate"– born to a woman and a man who are not married to one another.

In both canon and civil law, the offspring of putative marriages are legitimate.

Legitimacy was formerly of great consequence, in that only legitimate children could inherit their fathers' estates. In the United States, in the early 1970s, a series of Supreme Court decisions abolished most, if not all, of the common-law disabilities of bastardy, as being violations of the equal-protection clause of the Fourteenth Amendment to the United States Constitution.

In April 2009, the National Center for Health Statistics announced that nearly 40 percent of babies born in the United States in 2007 were delivered by unwed mothers. The 1.7 million out-of-wedlock births, out of 4.3 million total births, represented a more than 25 percent jump from five years before.

History

Law in many societies has denied "illegitimate" persons the same rights of inheritance as "legitimate" persons, and in some societies, even the same civil rights. In the United Kingdom and the United States, as late as the 1960s, illegitimacy carried a strong social stigma. Unwed mothers were often encouraged, at times forced, to give their children up for adoption. Often an illegitimate child was reared by grandparents or married relatives as the "sister," "brother" or "cousin" of the unwed mother.

In social and sometimes legal terms, the individual child so born was termed a "bastard." In most national jurisdictions, the status of a child as a legitimate or illegitimate heir could be changed– in either direction– under the civil law (as with the Princes in the Tower). Likewise under canon law, in most religious jurisdictions. In some jurisdictions, a child's birth could be retroactively "legitimated" if the parents married– usually within a specified time, such as a year.

In such cultures, fathers of illegitimate children often did not incur comparable censure or legal responsibility, due to social attitudes about sex, the nature of sexual reproduction, and the difficulty of determining paternity with certainty. In the ancient Latin phrase, "Mater semper certa est" ("The mother is always certain").

Thus illegitimacy has affected not only the "illegitimate" individuals themselves. The stress that such circumstances of birth once regularly visited upon families, is illustrated in the case of Albert Einstein and his wife-to-be, Mileva Marić, who– when she became pregnant with the first of their three children, Lieserl– felt compelled to maintain separate domiciles in different cities.

By the final third of the 20th century, in the United States, all the states had adopted uniform laws that codified the responsibility of both parents to provide support and care for a child, regardless of the parents' marital status, and gave "illegitimate" as well as adopted persons the same rights to inherit their parents' property as anyone else. In the early 1970s, a series of Supreme Court decisions abolished most, if not all, of the common-law disabilities of bastardy, as being violations of the equal-protection clause of the Fourteenth Amendment to the United States Constitution. Generally speaking, in the United States, "illegitimacy" has been supplanted by the concept, "born out of wedlock."

A contribution to the decline of "illegitimacy" had been made by increased ease of obtaining divorce. Prior to this, the mother and father of many a child had been unable to marry each other because one or the other was already legally bound, by civil or canon law, in a non-viable earlier marriage that did not admit of divorce. Their only recourse, often, had been to wait for the death of the earlier spouse(s).

The late-20th century demise, in Western culture, of the concept of "illegitimacy" came too late to relieve the contemporaneous stigma once suffered by such creative individuals, born before the 20th century, as Leone Battista Alberti, Leonardo da Vinci, Erasmus of Rotterdam, d'Alembert, Alexander Hamilton, James Smithson, Ivan Pnin, Vasily Zhukovsky, Howard Staunton, Alexander Herzen, Jenny Lind, Helena Modjeska, Henry Morton Stanley, Sarah Bernhardt, Ramsay MacDonald, Edward Gordon Craig, Guillaume Apollinaire, T. E. Lawrence and Stefan Banach. Pnin, in an 1802 petition to Tsar Alexander I, famously deplored the status of illegitimate children in the Russian Empire. History, indeed, shows striking examples of prominent persons of "illegitimate" birth who have been driven to excel in their fields of endeavor in part by a desire to overcome the social stigma and disadvantage that, in their time, attached to illegitimacy.

At present

Despite the decreasing legal relevance of illegitimacy, an important exception may be found in the nationality laws of many countries, which discriminate against illegitimate children in the application of jus sanguinis, particularly in cases where the child's connection to the country lies only through the father. This is true of the United States, [1] and its constitutionality was upheld by the Supreme Court in Nguyen v. INS, 533 U.S. 53 (2001). [2]

Another exception is that children born via donor sperm are generally not considered legally entitled to a father unless their mother is married to a man who consents to their conception. Children born from donor sperm are considered to be not related at all to their genetic father, and courts generally regard donor-conceived children to have no legal rights of support from parents except for the support that parents agree to supply.

Legitimacy also continues to be relevant to hereditary titles: only legitimate children are usually admitted to the line of succession. However, some monarchs such as Elizabeth I of England, have succeeded to the throne despite the controversial status of her legitimacy after the divorce of her parents (Henry VIII and Anne Boleyn) and during the power struggle for the succession which followed the death of her father.

The proportion of children born extramaritally (outside marriage) varies widely among countries. In Europe, the average is 31.6%; national figures range from 3% in Cyprus to 55% in Estonia. In Britain the rate is 42% (2004); in Ireland, 31.4% [3].

See also

• Bastard (Law of England and Wales)
• Defect of Birth
• Haram zada
• Illegitimacy in fiction
• Legitimacy law in England and Wales
• Marks of distinction
• Non-paternity event (medical concept)

References

• Shirley Foster Hartley, Illegitimacy, University of California Press, 1975.
• Jenny Teichman, Illegitimacy, Cornell University Press, 1982.
• Alysa Levene, Samantha Williams and Thomas Nutt, eds., Illegitimacy in Britain, 1700-1920, Palgrave and Macmillan, 2005.

External links

• Bastard – article on the wiki-version of the Encyclopædia Britannica eleventh edition on the history of the legal situation of “bastard” children.