Illegitimacy

Family law
Entering into marriage
Marriage
Common-law marriage
Dissolution of marriage
Annulment
Divorce
Alimony
Issues affecting children
Illegitimacy
Adoption
Child support
Foster care
Areas of possible legal concern
Domestic violence
Child abuse
Adultery
Polygamy
Incest

Illegitimacy is the status that is commonly ascribed to individuals born to parents who are not married. In legal terminology, bastardy carries the same meaning. The child's status can be changed by civil or canon law. In some jurisdictions, marriage of an illegitimate child's parents after the birth results in the child's legitimation, the child's legal status then changing to "special bastardy." This status has been important historically, as only legitimate offspring had rights of inheritance. Mothers who gave birth to illegitimate children were often severely censured by society, leading many families to force unmarried pregnant daughters to give up their infants for adoption or place them in an orphanage.

Treatment of parents and their illegitimate offspring has become much more humane as humankind has advanced in social awareness and concern for human rights for all. However, the value of being born into a family where the parents are committed to each other and their children must also be taken into account. Thus, legitimacy for children remains a serious matter.

Definition

Legitimacy is the state of being lawful, rightful, or of undisputed credibility. Illegitimacy is the condition of being unlawful by virtue or of being born to parents who were married. A corresponding legal term is bastardy.

Along the same lines in the Jewish tradition is the concept of being a Mamzer—a child born in a marriage forbidden by Jewish law.

Legal aspects

In the common law tradition, legitimacy describes the status of children who are born to parents that are legally married, or born shortly after a marriage ends through divorce. The opposite of legitimacy is the status of being "illegitimate"—born to unmarried parents, or to a married woman but of a father other than the woman's husband. In both canon and civil law, the offspring of putative or annulled marriages are legitimate.

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

In the United Kingdom the notion of bastardy was effectively abolished by The Children Act 1989, which came into force in 1991. It introduced the concept of "parental responsibility," which ensures that a child may have a legal father even if the parents were not married. It was, however, not until December 2003, with the implementation of parts of The Adoption and Children Act 2002, that parental responsibility was automatically granted to fathers of out-of-wedlock children, and even then only if the father's name appears on the birth certificate.

One area where legitimacy still matters is in lines of succession to titles. For instance, only legitimate children are part of the line of succession to the throne of Monaco.

History

Law in many societies has denied "illegitimate" persons the same rights of inheritance as "legitimate" ones, and in some, even the same civil rights. In the United Kingdom and the United States, illegitimacy carried a strong social stigma as late as the 1960s. 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" or "nephew" of the unwed mother.

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 affected not only the "illegitimate" individuals. 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 residences in different cities.

By the final third of the twentieth 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. 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, was to wait for the death of the earlier spouse(s).

Today, in the Western world, the assertion that a child is less entitled to civil rights due to the marital status of its parents would be viewed as dubious. Nevertheless, the late twentieth century demise, in Western culture, of the concept of "illegitimacy" came too late to relieve the contemporaneous stigma once suffered by such creative individuals as Leone Battista Alberti, Leonardo da Vinci, Erasmus of Rotterdam, d'Alembert, Jesus Christ, Alexander Hamilton, Sarah Bernhardt, T. E. Lawrence, and Stefan Banach.

Despite the decreasing legal relevance of illegitimacy, an important exception may be found in the nationality laws of many countries, including the United States, which have special requirements for illegitimate children in the application of jus sanguinis, particularly in cases where the child's connection to the country lies only through the father. The constitutionality of this discriminatory requirement was upheld by the Supreme Court in Nguyen v. INS, 533 U.S. 53 (2001).

History shows striking examples of prominent persons of "illegitimate" birth. Often they seem to have been driven to excel in their fields of endeavor in part by a desire to overcome the social disadvantage that, in their time, attached to illegitimacy. A notable example Henry Morton Stanley, the explorer of Africa.

Judaism

A mamzer (Hebrew: ממזר) in Halakha (Jewish religious law) is a person born of certain forbidden relationships between two Jews. That is, one who is born from a married woman as a product of adultery or someone born as a product of incest between certain close relatives. The mamzer status is inherited by children; a child of a mamzer (whether mother or father) is also a mamzer. While the word mamzer is often translated as "bastard," unlike the colloquial usage of bastard, a child born out of wedlock or between people of two different faiths is not a mamzer.

Laws of Mamzerim

Other than with respect to the laws of marriage and other minor differences, a mamzer is a full-fledged Jew. A mamzer is not a second class citizen and is treated with as much respect as other Jews. It is written in the Mishnah (Horayot 3:8) that "A learned mamzer takes precedence over an ignorant high priest (Kohen Gadol)."

The children of a mamzer, whether male or female, are mamzerim; likewise their children are mamzerim forever. A mamzer and his or her descendants are not allowed to marry a regular (non-mamzer) Jewish spouse. He or she is permitted to marry only another mamzer, a convert to Judaism, or (in the case of a man) a non-Jewish female slave.

According to the Shulkhan Arukh, "if there are rumors that a married woman is having an affair we do not suspect the children of being mamzerim since the majority of her relations are still with her husband, unless she is exceptionally adulterous." The woman herself is not believed to turn her children into mamzerim.

In a related ruling, Rabbi Joel Teitelbaum declared that children born to a married woman artificially inseminated with the sperm of a man that is not her husband are mamzerim. However, there are poskim who dispute this ruling.

The child of a married woman and a gentile man is not a mamzer. However, the child of a woman who is mamzer is a mamzer regardless of who is the father.

Modern approaches

The modern world, in which civil divorce and remarriage without a Get (Jewish Bill of Divorce) has become commonplace, has created a crisis threatening to create a large subclass of mamzer individuals ineligible to marry other Jews, threatening to divide the Jewish people. Decision-makers have approached the problem in two ways.

The principal approach in Orthodox Judaism has been to follow strict rules of evidence that typically render it impossible to prove either that a prior marriage ever existed or that a child was born of relations outside that marriage.

The Committee on Jewish Law and Standards (CJLS) of the Rabbinical Assembly of Conservative Judaism has declared that Conservative Rabbis should not inquire into or accept evidence of mamzer status under any circumstances, rendering the category inoperative. In doing so, the CJLS distinguished the Conservative approach to Jewish Law from the Orthodox approach, noting that Conservative Judaism regards Biblical law as only the beginning of a relationship rather than a final word, and that the Conservative movement regards it as its role and responsibility to revise Biblical law from time to time when such law conflicts with evolving concepts of morality. The category of mamzer has no role in Reform Judaism or Reconstructionist Judaism, as these more liberal branches regard it as an archaism inconsistent with modernity.

In the State of Israel, religious courts handle matters of marriage, divorce, and personal status in accordance with religious law, so the law of Mamzerut is also Israeli law for Jews, including secular Jews. Because of the severe disabilities of mamzer status with respect to marriage, the Israeli civil authorities have taken the position that the paternity of a child born within a marriage should not be challenged in any court, in order to avoid creating a body of evidence that might be used to declare the child a mamzer or create difficulties for a future marriage.

References

ISBN links support NWE through referral fees

• Heywood, Colin. A History of Childhood: Children and Childhood in the West from Medieval to Modern Times. Polity Press, 2001. ISBN 0745617328
• Laslett, Peter. Family Life and Illicit Love in Earlier Generations: Essays in Historical Sociology. Cambridge University Press, 1977. ISBN 0521214084
• Levene, Alysa, Samantha Williams, and Thomas Nutt. Illegitimacy in Britain, 1700-1920. Palgrave and Macmillan, 2005. ISBN 1403990654
• Zingo, Martha. Nameless Persons: Legal Discrimination Against Non-Marital Children in the United States. Praeger Publishers, 1994. ISBN 0275947114

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