Legitimacy (family law)

"Love child" redirects here. For other uses, see Love child (disambiguation).

At common law, legitimacy is the status of a child who is born to parents who are legally married to one another, or who 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 considered 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 earlier. Europe shows a similar rapid increase in the number of out-of-wedlock births. In several countries, including Bulgaria, France, Scotland and Wales, Slovenia, and all of Scandinavia except for Denmark, more than half of births in 2007 were extramarital. In other countries, such as Austria, Czech Republic, the Netherlands, Denmark, and parts of England, more than half of first births were.

History

Alberti

Leonardo

In many societies, law has denied persons of illegitimate birth the same rights of inheritance as those of legitimate birth, and in some societies, even the same civil rights. In the United Kingdom and the United States, as late as the 1960s and in certain social layers even up to today, illegitimacy has carried social stigma. In previous centuries unwed mothers were forced by social pressure to give their children up for adoption. In other cases illegitimate children have been reared by grandparents or married relatives as the "sisters", "brothers" or "cousins" of the unwed mothers.

In social and sometimes legal terms, the child so born was called a "bastard". In polite society, terms such as "natural child" were preferred. 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. For instance, annulment of a marriage would render the children born from such a marriage illegitimate (as with the sons of Edward IV of England), whereas a marriage between the previously unmarried parents, usually within a specified time, such as a year, could retroactively legitimate a child's birth.

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"), while the father is not.

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 phrase "born out of wedlock."

A contribution to the decline of the concept 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).

Some persons of illegitimate birth have been driven to excel in their endeavors, for good or ill, by a desire to overcome the social stigma and disadvantage that attached to illegitimacy. Nora Titone, in her book My Thoughts Be Bloody, recounts how the shame and ambition of the brilliant actor Junius Brutus Booth's two illegitimate actor sons, Edmund and John Wilkes Booth, spurred them to strive, as rivals, for achievement and acclaim.

The 20th-century decline, in western culture, of the concept of illegitimacy came too late to relieve the stigma suffered by countless other creative individuals such 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.

Illegitimacy has for centuries provided a motif and plot element to works of fiction by prominent authors, including William Shakespeare, Benjamin Franklin, Henry Fielding, Jane Austen, Alexandre Dumas, père, Nathaniel Hawthorne, Charles Dickens, Anthony Trollope, George Eliot, Leo Tolstoy, Ivan Turgenev, Fyodor Dostoyevsky, Thomas Hardy, C.S. Forester, Marcel Pagnol, Grace Metalious and John Irving.

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, and its constitutionality was upheld by the Supreme Court in Nguyen v. INS.

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 his or her legitimacy.

The proportion of children born outside marriage is rising in all EU countries, the USA, and Australia. In Europe, besides the low levels of fertility rates and the delay of motherhood, another factor that now characterizes fertility is the growing percentage of live births outside marriage. In the EU, this phenomenon has been on the rise in recent years in almost every country and in seven countries, mostly in northern Europe, it already accounts for the majority of live births.

In Europe, the average has risen from one out of four in 1997 to one out of three children born outside wedlock. Nowadays, national figures in Europe range from 5% in Greece and 9% in Cyprus to 58% in Estonia and 64% in Iceland. In Britain the rate increased to 44% (2006) and further to 46 % (2009); in Ireland the percentage increased to 33.2% (2006). In the USA, the percentage born extramaritally increased. The percentage of first-born children born outside wedlock is considerably higher (by roughly 10% for the EU), as it often occurs that a marriage takes place after the first baby has arrived.

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.