ILLEGITIMACY

Until the 1960s, it was widely assumed that marriage was a universal or nearly universal institution for licensing parenthood. Marriage assigned paternity rights to fathers (and their families) and guaranteed social recognition and economic support to mothers and their offspring. According to Malinowski (1930), who first articulated "the principle of legitimacy," and to Davis (1939, 1949), who extended Malinowski's theory into sociology, marriage provides the added benefit to children of connecting them to a wider network of adults who have a stake in their long-term development.

This functional explanation for the universality of marriage as a mechanism for legitimating parenthood became a source of intense debate in anthropology and sociology in the 1960s. Evidence accumulated from cross-cultural investigations showed considerable variation in marriage forms and differing levels of commitment to the norm of legitimacy (Bell and Vogel 1968; Blake 1961; Coser 1964; Goode 1961). More recently, historical evidence indicates that the institution of marriage was not firmly in place in parts of Western Europe until the end of the Middle Ages (Glendon 1989; Goody 1983).

The accumulation of contradictory data led Goode (1960, 1971) to modify Malinowski's theory to take account of high rates of informal unions and nonmarital childbearing in many New World nations and among dispossessed cultural minorities. Goode (1971) argued that the norm of legitimacy was likely to be enforced only when fathers possessed wealth and property or when their potential economic investment in child rearing was high. Therefore, he predicted that when Agiving a name" to children offers few material, social, or cultural benefits, the norms upholding marriage will become attenuated.

So vast have been the changes in the perceived benefits of marriage since the 1960s in the United States and most Western nations that even Goode's modification of Malinowski's theory of legitimacy now seems to be in doubt (Cherlin 1992; Davis 1985). Indeed, the term "illegitimacy" has fallen into disfavor precisely because it implies inferior status to children born out of wedlock. Both legal and feminist scholars have been critical of the notion that the presence of a father confers status on the child (Burns and Scott 1994; Mason et al. 1998). The nuclear unit (biological parents and their offspring)—once regarded as the cornerstone of our kinship system—remains the model family form, but it no longer represents the exclusive cultural ideal, as was the case in the mid-1960s. The incentives for marriage in the event of premarital pregnancy have declined, and the sanctions against remaining single have diminished (Cherlin 1999; McLanahan and Casper 1995). In the 1990s, considerable scholarly attention and public policy debate has been devoted to ways of restoring and reinvesting in the institution of marriage (Furstenberg 1996; McLanahan and Sandefur 1994; Popenoe et al. 1996).

TRENDS IN NONMARITAL CHILDBEARING

Premarital pregnancy has never been rare in the United States or in most Western European nations (Burns and Scott 1994; Goode 1961; Smith 1978; Vinovskis 1988). Apparently, the tolerance for pregnancy before marriage has varied over time and varies geographically at any given time. Throughout the first half of the twentieth century, premarital pregnancy almost always led to hasty marriages rather than out-of-wedlock births—even for very young women (O'Connell and Moore 1981; Vincent 1961). In 1940, illegitimacy was uncommon in the United States, at least among whites. Nonmarital births were estimated at about 3.6 per 1,000 unmarried white women, while the comparable rate for nonwhites was 35.6. For all age groups, among whites and nonwhites alike, a spectacular rise occurred over the next five decades (Clague and Ventura 1968; Cutright 1972; McLanahan and Casper 1995).

In the 1960s and the 1970s, nonmarital childbearing rates continued to increase for younger women, albeit at a slower pace, while for women in their late twenties and thirties rates temporarily declined. Then, in the late 1970, nonmarital childbearing rates rose again for all age groups and among both whites and African Americans. This rise continued until the mid-1990s, when levels of nonmarital childbearing stabilized or even declined (Ventura et al. 1996). Since the early 1970s, rates of marriage and marital childbearing have fallen precipitously. Thus, the ratio of total births to single women has climbed continuously (Smith et al. 1996). Nearly a third of all births (32.4 percent) in 1996 occurred out of wedlock, more than seven times the proportion in 1955 (4.5 percent) and more than twice that in 1975 (14.3 percent). The declining connection between marriage and parenthood is evident among all age groups but is especially pronounced among women in their teens and early twenties. Three out of four births to teens and nearly half of all births to women ages twenty to twenty-four occurred out of wedlock. Virtually all younger blacks who had children in 1995 (more than 95 percent) were unmarried, while two-thirds of white teens and more than a third of white women twenty to twenty-four were single when they gave birth.

Nonmarital childbearing was initially defined as a problem among teenagers and black women (Furstenberg 1991). But these recent trends strongly suggest that disintegration of the norm of legitimacy has spread to all segments of the population. First the link between marriage and sexual initiation dissolved, and now the link between marriage and parenthood has become weak. Whether this trend is temporary or a more permanent feature of the Western family system is not known. But public opinion data suggest that a high proportion of the population finds single parenthood acceptable. A Roper study ("Virginia Slims American Women"s Opinion Poll" 1985) revealed that 49 percent of women agreed that "There is no reason why single women should not have children and raise them if they want to."

Citing similar attitudinal evidence from the National Survey of Families and Households in 1987–1988, Bumpass (1990) concludes that there has been an "erosion of norms" proscribing nonmarital childbearing. He concludes that this behavior is not so much motivated by the desire to have children out of wedlock as it is by the reduced commitment to marriage and the limited sanctions forbidding nonmarital childbearing. Bumpass argues that much of the nonmarital childbearing is unplanned and ill timed.

THE CONSEQUENCES OF NONMARITAL CHILDBEARING

Although extensive research exists on the economic, social, and psychological sequelae of single parenthood for adults and children, relatively little of this research has distinguished between the consequences of marital disruption and nonmarriage (Furstenberg 1989; Furstenberg and Cherlin 1991; Garfinkel and McLanahan 1986; Maynard 1997). A substantial literature exists on the consequences of nonmarital childbearing, but it is almost entirely restricted to teenage childbearers (Chilman 1983; Hofferth and Hayes 1987; Institute of Medicine 1995; Miller and Moore 1990; Moore et al. 1986). It is difficult, then, to sort out the separate effects of premature parenthood, marital disruption, and out-of-wedlock childbearing on parents and their offspring.

Nonmarital childbearing most certainly places mothers and their children at risk of long-term economic disadvantage (Institute of Medicine 1995; Maynard 1997; McLanahan and Booth 1989). Outof-wedlock childbearing increases the odds of going on welfare and of long-term welfare dependency (Duncan and Hoffman 1990). The link between nonmarital childbearing and poverty can probably be traced to two separate sources. The first is "selective recruitment," that is, women who bear children out of wedlock have poor economic prospects before they become pregnant, and their willingness to bear a child out of wedlock may reflect the bleak future prospects of many unmarried pregnant women, especially younger women (Furstenberg 1990; Geronimus 1987; Hayes 1987; Hogan and Kitagawa 1985; Maynard 1997). But is also likely that out-of-wedlock childbearing—particularly when it occurs early in life—directly contributes to economic vulnerability because it reduces educational attainment and may limit a young woman's prospects of entering a stable union (Furstenberg 1991; Hofferth and Hayes 1987; Hoffman et al. 1993; Trussell 1988).

If nonmarital childbearing increases the risk of lengthy periods of poverty for women and their children, it is also likely that it restricts the opportunities for intra- and intergenerational mobility of families formed as single-parent units. Growing up in poverty restricts access to health, high-quality schools, and community resources that may promote success in later life (Ellwood 1988; Wilson 1987). Apart from the risks associated with poverty, some studies have shown that growing up in a single-parent family may put children at greater risk because they receive less parental supervision and support (Amato and Booth 1997; Dornbush 1989; McLanahan and Booth 1989; McLanahan and Sandefur 1994). As yet, however, researchers have not carefully distinguished between the separate sources of disadvantage that may be tied to nonmarital childbearing: economic disadvantage (which could restrict social opportunities or increase social isolation) and psychological disadvantage (which could foster poor parenting practices or limit family support).

Even though nonmarital childbearing may put children at risk of long-term disadvantage, it is also possible that over time the advantages conferred by marriage may be decreasing in those segments of the population that experience high rates of marital disruption (Bumpass 1990; Edin 1998; Furstenberg 1995). Moreover, the social and legal stigmata once associated with nonmarital childbearing have all but disappeared in the United States and many other Western nations (Glendon 1989). Over time, then, the hazards associated with nonmarital childbearing (compared with illtimed marital childbearing) for women and their children may have declined. Whatever the reasons for these trends, it appears that nonmarital childbearing may have peaked by the mid-1990s. Whether the leveling off in rates of nonmarital childbearing signals a shift in family formation patterns or is merely a response to the robust economy of the 1990s remains to be seen.

NONMARITAL CHILDBEARING AND PUBLIC POLICY

Growing rates of nonmarital childbearing in the United States and many other Western nations suggest the possibility that the pattern of childbearing before marriage or between marriages may be spreading upward into the middle class. In Scandinavia, where marriage has declined most dramatically, it is difficult to discern whether formal matrimony is being replaced by a de facto system of informal marriage (Hoem and Hoem 1988). If this were to happen, the impact on the kinship system or the circumstances of children might not be as dramatic as some have speculated. But if the institution of marriage is in serious decline, then we may be in the midst of a major transformation in the Western family.

The weakening of marriage has created confusion and dispute over parenting rights and responsibilities. A growing body of evidence indicates that most nonresidential biological fathers, especially those who never marry, typically become disengaged from their children (Arendell 1995; King and Heard 1999; Seltzer 1991; Teachman 1990). Most are unwilling or unable to pay regular child support, and relatively few have constant relationships with their children. Instead, the costs of child rearing have been largely assumed by mothers and their families, aided by public assistance. A minority of fathers do manage to fulfill economic and social obligations, and some argue that many others would do so if they had the means and social support for continuing a relationship with their children (Marsiglio 1998; Smollar and Ooms 1987).

The uncertain relationship between biological fathers and their children has created a demand for public policies to shore up the family system (Garfinkel et al. 1996; Popenoe 1996). Widespread disagreement exists over specific policies for addressing current problems. Advocates who accept the current reality of high levels of nonmarriage and marital instability propose more generous economic allowances and extensive social support to women and their children to offset the limited economic role of men in disadvantaged families (Ellwood 1988). Critics of this approach contend that such policies may further erode the marriage system (Vinovskis and Chase-Lansdale 1987). Yet few realistic measures have been advanced for strengthening the institution of marriage (Furstenberg and Cherline 1991).

Enforcement of child support has attracted broad public support. A series of legislative initiatives culminating in the Family Support Act of 1988 have increased the role of federal and state governments in collecting child support from absent parents (typically fathers) and standardizing levels of child support. There has been a steady but modest improvement in the collection of child support in the 1990s. It is much less clear whether the strengthening of child support has worked to the benefit of children (Furstenberg et al. 1992; Garfinkel et al. 1996). It is too early to tell whether these sweeping measures will succeed in strengthening the economic contributions of fathers who live apart from their children. And, if it does, will greater economic support by absent parents reinforce social and psychological bonds to their children (Furstenberg 1989; Garfinkel and McLanahan 1990)? The other great experiment of the 1990s was the Welfare Reform Act in 1996, which replaced the longstanding entitlements to public assistance with temporary provisional support. It is much too early to tell what, if any, the effects of this policy will be on marriage and fertility practices. Advocates of welfare reform claimed that it would reduce out-of-wedlock childbearing and help restore marriage (Murray 1984). But the link between welfare payments and marriage patterns has never been strong (Moffitt 1998). Still, it may be possible to devise a test of the consequences of the different policies given the large state variations in program implementation.

As for the future of marriage, few, if any, sociologists and demographers are predicting a return to the status quo or a restoration of the norm of legitimacy. Short of a strong ideological swing favoring marriage and condemning nonmarital sexual activity and childbearing, it is difficult to foresee a sharp reversal in present trends (Blankenhorn et al. 1990). Predicting the future, however, has never been a strong point of demographic and sociological research.

(see also: Deviance Theories; Law and Society)

references

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Frank F. Furstenberg Jr.

Illegitimacy

Extent and variation of illegitimacy

Causes of illegitimacy

Social attitudes and public policy

BIBLIOGRAPHY

The term “illegitimacy” is derived from the Latin illegitimus, meaning “not in accordance with the law.” An illegitimate child is one conceived and born outside of the regulatory sanctions of marriage. Although illegitimacy is a universal phenomenon, all societies prefer procreation only within marriage. This preference is reinforced by laws and customs that provide for a socially recognized and regulated relationship between the sexes serving to legitimize coition as well as births and to denote some responsibility for the rearing of children. Although the customs and laws regulating marriage vary considerably among different societies, they reflect an almost universal disapproval of births out of wedlock. The form and degree of this disapproval, however, vary from society to society as well as from time to time and among different groups within the same society.

There are three basic measures of illegitimacy: number, ratio, and rate. The number of illegitimate births indicates the total volume of illegitimacy and is used to compute the ratio and rate. The illegitimacy ratio is the number of illegitimate births per 1,000 live births. This measure indicates the proportion of all reproduction occurring outside of marriage and is used to show whether illegitimacy is increasing or decreasing in a specific population. The illegitimacy rate, in the technical sense of the term, is the number of illegitimate births per 1,000 unmarried females of childbearing ages; it indicates whether illegitimacy is increasing or decreasing in relation to the opportunities for it. The term “rate of illegitimacy” is used frequently in a less technical sense to denote the illegitimacy ratio as a percentage of 100, in which case a “4 per cent rate of illegitimacy” indicates a ratio of 40 illegitimate births per 1,000 live births.

Extent and variation of illegitimacy

The foregoing definition and measures of illegitimacy provide at best only a very general guide for comparing the occurrence of illegitimacy in different countries. Wide variations exist among countries in the statutes and cultural traditions regulating marriage, coition, and reproduction, and it is these statutes and customs that define which births are “not in accordance with the law.” Comparisons among countries, as well as among different socioeconomic groups within a given country, are further complicated by differences in the completeness of birth registration, by the extent of misrepresentation on birth records to conceal illegitimate births, and by variations in the methods used to measure illegitimacy. In some countries illegitimacy rates are based on births to women between the ages of 15-24, and the term “unmarried women” is defined strictly as those who have never married; however, in other countries the rate is based on the entire range of childbearing ages from 10 to 49 and may include adulterine births, as well as children born to widowed or divorced women as a result of extramarital unions.

A few examples based on data for the mid-1950s will illustrate that illegitimacy is understandable only within the context of its entire sociological and historical setting and therefore cannot be viewed as a cross-cultural index of sexual morality. World illegitimacy ratios in 1958 ranged from a low of 4 in Israel to a high of 739 in Panama (Demographic Yearbook 1959, table 10). In a number of Central American countries and Caribbean political units where illegitimacy ratios exceed 500, there are sizable indigenous populations that adhere to tribal and religious marital rites and remain indifferent to the concept of legal marriage. Consequently, a very high illegitimacy ratio based on the concept of legal marriage would include most of the births the parents view as having been legitimized by long-standing tribal and religious rites. An illustrative case is Mauritius, where the illegitimacy ratio decreased from 498 in 1954 to 11 in 1955, when infants born of marriages performed by religious authority but not registered or performed by civil authorities were no longer considered illegitimate (Demographic Yearbook 1954; 1955).

Comparisons among countries also need to take into account such factors as abortions, marriages preceded by conceptions, and the average age at marriage. For example, in the mid-1950s Panama’s illegitimacy ratio was almost fifty times higher than Japan’s (Demographic Yearbook 1959), but in Japan legalized abortions annually exceeded one million—a total approximately equal to the number of all live births (Taeuber 1958). Jamaica’s illegitimacy ratio in the mid-1950s was about fifteen times that of the United States, but the average age at marriage was ten years older in Jamaica than in the United States. In 1957 Denmark’s ratio of 69 was considerably lower than that of Honduras (645), Venezuela (566), Paraguay (455), Ecuador (351), Iceland (250), and Mexico (236); however, in Denmark about one-third of all marital first births occurred within the first six months of marriage (Demographic Yearbook 1959).

Gross historical trends

In highly industrialized countries, illegitimacy generally decreases or is relatively low during periods of economic depression and the early years of a major war. On the other hand, it increases or is relatively high during periods of economic prosperity and the immediate postwar years and is generally highest when prosperity and an immediate postwar period coincide. In many of the industrialized countries of western Europe and North America, illegitimacy ratios in the late 1950s had declined from the high ratios in the postwar period of the late 1940s but were still considerably higher than in the economic depression years of the 1930s. The very limited data available for the World War I period show that illegitimacy ratios followed a pattern similar to that for World War ii (see Vincent 1961, chapter 1).

For countries in the early stages of industrialization, the illegitimacy ratio usually increases very rapidly at first and then fluctuates quite unpredictably. This may be the result of changes in traditional familial patterns and sexual mores and even of more far-reaching changes in basic demographic conditions. Interpretation of such gross trends is subject to many exceptions and limitations of data, some of which may be illustrated with specific reference to the United States.

Illegitimacy in the United States. In the United States during the period 1938-1958, the estimated number of illegitimate births increased from 87,900 to 208,700; the estimated number of illegitimate births per 1,000 live births (the illegitimacy ratio) from 38.4 to 49.6; and the estimated number of illegitimate births per 1,000 unmarried females of childbearing age (the illegitimacy rate) from 7.0 to 21.0 (Vincent 1961, p. 1; for more recent information see U.S. National Vital Statistics Division …, annual issues). The limitations of such data, however, made it difficult to establish whether there had been a true increase in illegitimacy during this period. The number of illegitimate births, on which ratios and rates were based, reflected a marked increase in total live births, and there was also a substantial increase in the number of states not recording illegitimacy status on birth records (from 5 in 1940 to 15 in 1960). The estimates of non-recording states not only complicated national estimates but also may have affected the figures from recording states. For example, the state of Utah had one of the lowest ratios and rates of any recording state during this period; however, Utah is almost encircled by nonrecording states, and it is known that a considerable proportion of unmarried mothers in the United States migrate temporarily from their home states during pregnancy (see, for instance, Vincent 1961, pp. 208-209).

A further complication in assessing the nature and amount of increase in illegitimacy in the United States involves the far greater increase in the number of illegitimate births to nonwhite mothers than to white mothers—an increase of from 46,700 to 147,500 for nonwhites as contrasted with an increase from 41,200 to 93,500 for whites, the years compared being 1938 and 1962 (Vincent 1964, table 2, p. 515). However, during this same period there was also a considerable increase in the proportion of all nonwhite live births taking place in hospitals or attended by physicians elsewhere (50.8 per cent in 1940, compared with 89.1 per cent in 1961); the increase in the proportion of white live births so attended was less than one tenth as great (ibid., table 3). If it is assumed that an illicit birth is more likely to be reported as such when attended by a member of the medical profession than when attended by a midwife, relative, or friend (especially at home), much of the apparent increase in Negro illegitimacy may have represented only a more complete and accurate counting.

In the late 1950s, a greater awareness of such data limitations resulted in increased questioning of the racial, age, socioeconomic, and rural-urban differences in illegitimacy that had been emphasized in the 1930s and 1940s. There was also increased recognition that the focuses of public concern about illegitimacy were not always reliable guides for research. The considerable public concern focused upon the increasing number of very young unmarried mothers in the late 1950s and early 1960s, for example, did not take into account either the marked increase in the total population of young teen-agers or the fact that between 1938 and 1957 the illegitimacy rate had increased least among females aged 15-19 (108 per cent) and most among females aged 25-29 (453 per cent) (adapted from Schachter & McCarthy 1960, tables D and F). During the more recent period of 1957-1962, the illegitimacy rate for females between 15 and 19 years old actually decreased by 4 per cent; for the same period, the rate increases for each five-year grouping of those aged 20 and older ranged from 3 per cent for the 30-34 age group to 23 per cent for the 25-29 age group (Vincent 1964, table 1, p. 514). In 1962 the illegitimacy rate was only 15 per cent for those aged 15-19, whereas it ranged between 27 per cent and 46 per cent for each five-year grouping of those aged 20-34 (ibid.).

Causes of illegitimacy

Prior to about 1960, explanations of illegitimacy in western Europe and the United States were limited primarily to descriptions of social, familial, and psychological factors found to be associated with selected groups of unmarried mothers. These descriptions reflected historical trends in the choice of etiological scapegoats. In the 1920s the descriptions of unmarried mothers found in rescue homes and other charitable institutions were consistent with the contemporary emphasis upon immorality and mental deficiency as causes of illegitimacy. In the 1930s the official records of unmarried mothers found in domestic court files and homes for wayward girls reinforced the popular emphasis upon broken homes, poverty, and disorganized neighborhoods as “causes” of illegitimacy. In the 1940s and early 1950s the histories of unmarried mothers studied by psychiatric social caseworkers and psychotherapists appeared to support the fashionable emphasis on emotional disturbances. However, such descriptions, although applicable to the groups studied, did not explain why the majority of all females who fitted the descriptions did not become unwed mothers. In the late 1950s studies of unmarried mothers made from multiple sample sources at last provided tentative evidence that within given age and social groups such mothers were fairly representative of the general population of unmarried females with respect to education, intelligence, and socioeconomic status (Vincent 1961).

In the early 1960s research on illegitimacy showed a definite trend toward a more comprehensive focus. Improvements in vital statistics as well as their availability from an increasing number of countries were beginning to stimulate cross-culture analyses (see especially Goode 1960; 1961). These studies were guided by more sophisticated, sociocultural theories of illegitimacy and indicated modifications of Malinowski’s “principle of legitimacy.” This principle involved what Malinowski interpreted to be a universal social rule, that “no child should be brought into the world without a man—and one man at that—assuming the role of sociological father, that is, guardian and protector, the male link between the child and the rest of the community” (1930, p. 137). Goode’s analysis of attitudes and social practices in a number of Caribbean political units—where illegitimacy rates exceed 50 per cent and where there exists differential status placement for legitimate and illegitimate children, as well as for illegitimates of different social strata—underlies his modifications of Malinowski’s principle. According to Goode, the principle of legitimacy rests primarily upon the function of status placement rather than upon that of locating a father as “protector”; and he argues that Malinowski’s interpretation does not take into account the differences in norm commitment among different strata.

Additional evidences of the trend toward more comprehensive research include the long-neglected study of males who have impregnated unmarried mothers; longitudinal studies of young, unmarried, and never pregnant females to ascertain factors associated with those who subsequently become unmarried mothers; follow-up studies of mothers who keep their illegitimate children and of recidivistic unmarried mothers; and studies of the more inclusive category of unwanted pregnancies, legitimate as well as illegitimate. Studies are now in progress in each of these areas.

Social attitudes and public policy

One gross historical trend in social attitudes and public policy concerning illegitimacy has been the gradual change from the child to the mother (and quite recently to the father) as the target of censure. In the Middle Ages, the common law of England was ruthless in its denial of rights to illegitimate children. The bastard was scorned, derided, and punished to such an extent that in retrospect it would almost appear that he was held responsible for the circumstances of his own birth. The English Poor Law Act of 1576 made the mother and putative father responsible for the child’s maintenance; bastardy was not an offense against the criminal laws, but bearing an illegitimate child who might become a public charge became an offense against the poor laws. The purpose of the Poor Law Act, as well as that of the legislation on the support of bastards enacted early in the history of the United States, was to prevent the child from becoming dependent on the community. Under early Germanic law, bastards had to be cared for and supported by the mother under the kinship group. In France, prior to the early 1800s, the illegitimate child had the right to support by the father; however, from the adoption of the Code Napoleon until 1912, the investigation of paternity was expressly forbidden, and neither the unmarried mother nor the illegitimate child had any legal recourse (Brinton 1936).

Modern developments

During the second decade of the twentieth century, however, a new philosophy began to make itself felt. A Norwegian law of 1915 pioneered in making the state, rather than the mother, responsible for establishing paternity and for fixing maintenance, and the Scandinavian countries led the industrialized societies in establishing statutes by which the state sought to provide greater equality of rights for the illegitimate child. In the U.S.S.R. the elimination of illegitimacy by fiat in the Family Code of 1918, which recognized no legal or social distinction between a child born in and one born out of wedlock, was consistent with other familial and social changes following the 1917 revolution. U.S.S.R. family law now provides financial gratuities and honorific titles for unwed as well as married mothers who bear three or more children and gives the state responsibility for rearing all children of unwed and married mothers unable to do so. However, article 19 of the 1944 Family Decree provides that only registered marriages create legal obligations and rights. Thus, if the mother remains unmarried, she can either receive a small monthly stipend to assist in rearing her child or she can place the child in a special government institution established for this purpose; but the child cannot claim either the father’s property or his name (Field 1955). This denial of inheritance, with its resulting differential status placement for legitimate and illegitimate children, is consistent with the observations by David and Vera Mace (1963, pp. 240-244) that there is a trend toward harsher attitudes concerning the unmarried mother and her child in the U.S.S.R.

There was an apparent temporary reversal of the liberal trend in attitudes toward illegitimacy in Japan, Germany, and England during the immediate post-World War ii period, but this reversal was selective in that it involved far greater censure of illegitimacy resulting from the presence of United States troops than of indigenous illegitimacy and was probably more indicative of feelings among the respective countries than of Western attitudes in general. Increasingly in the twentieth century the legislation formerly concerned with protecting citizens from having to support illegitimate children has now turned to emphasizing the enforcement of parental responsibility for them; to this end, public funds have been appropriated to help in assuring the rights and well-being of illegitimate children.

United States. In the United States the liberal trend became apparent between 1930 and 1960. There were increased efforts to accord to illegitimate children the same care and legal and social rights accorded to other children; for example, an increasing number of states no longer recorded illegitimacy status on birth records. The number of illegitimates in the United States was estimated in 1960 at seven million. By that time more than 150 maternity homes had been developed under private auspices to care for unmarried mothers, and federal social security benefits under the Aid to Dependent Children (ADC) program had been made available for illegitimate children.

There were a few exceptions to this liberal trend in the United States in the early 1960s, including considerable criticism of low-income Negro females who had repeated illegitimate births. Two southern states (North Carolina and Louisiana) attempted to legislate provisions for the sterilization of females having more than one illicit pregnancy, although repeated illegitimate births had been condoned if not encouraged as a subcultural pattern in the South at an earlier time, when economic practices placed a higher value on Negro females as reproducers (in or out of wedlock) of future plantation workers than as wives to their husbands. In the early 1960s there was also increased criticism that the ADC program was providing an indirect subsidy of illegitimacy, and some states considered excluding illegitimate children of recidivistic unwed mothers from ADC benefits, although evidence indicated that less than 10 per cent of all illegitimate children received such benefits (U.S. Bureau of Family Services 1960).

Future world trends. The apparent world-wide liberal trend in social policy concerning illegitimacy during the first six decades of the twentieth century faced some opposition at the beginning of the 1960s. The demand for adoptable infants exceeded the supply during the late 1940s and early 1950s, when the higher birth rates for many countries were viewed initially as compensating for the population losses of World War ii and the low birth rates of the 1930s. During the postwar period this demand minimized the censure of unwed mothers, who provided childless couples with adoptable infants, and stimulated at the international level a variety of laws and activities concerned with the adoption and rights of illegitimate children. Beginning in the late 1950s and early 1960s, however, a marked decrease in the demand for adoptable infants and a growing concern about the “population explosion” have had the potential to reverse this liberal trend of social policy.

Clark E. Vincent

[See alsoAdoption; Fertility Control; Population, article onPopulation Policies.]

BIBLIOGRAPHY

Brinton, Crane 1936 French Revolutionary Legislation on Illegitimacy: 1789-1804. Cambridge, Mass.: Harvard Univ. Press.

Davis, Kingsley 1939 Illegitimacy and the Social Structure. American Journal of Sociology 45:215-233.

Demographic Yearbook. → Issued annually by the United Nations since 1948. See especially the yearbooks covering 1954, 1955, and 1959.

Field, Mark G. 1955 Social Services for the Family in the Soviet Union. Marriage and Family Living 17: 244-249.

Goode, William J. 1960 Illegitimacy in the Caribbean Social Structure. American Sociological Review 25: 21-30.

Goode, William J. 1961 Illegitimacy, Anomie, and Cultural Penetration. American Sociological Review 26: 910-925.

Mace, David R.; and Mace, Vera 1963 The Soviet Family. Garden City, N.Y.: Doubleday.

Malinowski, Bronislaw 1930 Parenthood: The Basis of Social Structure. Pages 113-168 in Victor F. Calverton and Samuel D. Schmalhausen (editors), The New Generation: The Intimate Problems of Modern Parents and Children. New York: Macaulay.

Reed, Ruth 1934 The Illegitimate Family in New York City: Its Treatment by Social and Health Agencies. New York: Columbia Univ. Press. → Contains an annotated bibliography of 384 references published between 1912 and 1933.

Schachter, Joseph; and Mccarthy, Mary 1960 Illegitimate Births: United States, 1938-1957. Washington: Government Printing Office.

Shapiro, Sam 1950 Illegitimate Births: 1938-1947. U.S. National Office of Vital Statistics, Vital Statistics —Special Reports 33:69-106.

Taeuber, Irene B. 1958 The Population of Japan. Princeton Univ. Press.

U.S. Bureau of Family Services 1960 Illegitimacy and Its Impact on the Aid to Dependent Children Program. Washington: Government Printing Office.

U.S. National Vital Statistics Division 1939—Vital Statistics of the United States. Washington: Government Printing Office. → Published since 1939; the 1939 issue covers the year 1937.

Vincent, Clark E. 1961 Unmarried Mothers. New York: Free Press. → Contains a bibliography of 191 items.

Vincent, Clark E. 1964 Illegitimacy in the Next Decade: Trends and Implications. Child Welfare [1964]: 513-520.

Bastardy

Writing the first comparative history of bastardy in 1980, Peter Laslett introduced the phenomenon by stating that it had been called a social problem for the last two centuries and a moral problem from time immemorial. In 1980, however, bastardy had long ceased to be a common term–in France, for example, it had been abandoned in 1793 during the Revolution. At the threshold of the twenty-first century, not only bastardy but also illegitimacy are words in rare use, which should serve as a reminder that these are legal, social, and cultural constructions. The most common definition of illegitimacy is to be born out of wedlock, but throughout history, the legal and social status of children in that position has changed. Differences can be found also between canon and secular law and between and within states and continents. The following contains a brief survey on some legal aspects, the main issue, however, being the social and cultural significance of illegitimacy in the Western world.

Levels of Illegitimacy

Giving a general overview of levels of illegitimacy is not easily done. As several authors have discussed, the disparity in definitions poses a problem and the reliability of the registration varies according to time as well as place. Nevertheless a few main tendencies have been established.

The rate of extramarital births during the sixteenth century is generally perceived to be quite high, but it later sank during the age of absolutism. It is stipulated that only 2 to 3 percent of all births in the mid-1700s were extramarital, but a century later numbers hovered between 7 and 11 percent in the Nordic countries and around 7 percent in France and England. Certain countries and regions had higher figures; in Iceland more than 14 percent of all births occurred outside of marriage, and in the Basque Country the illegitimacy rate was exceptionally high. The following century or so, from the 1840s to 1960, witnessed a new decline of illegitimate births, particularly conspicuous around the turn of the century. Regional differences, however, were still to be found.

Comparing western and northern European countries to those in the South and East, the overall pattern at the beginning of the twentieth century seems to be that the former had a lower level of illegitimacy than southern and eastern areas. In America it has been claimed that illegitimate births during colonial times were relatively rare, and that the ratio remained low at the beginning of the twentieth century. However, all slave children were considered illegitimate, and there were large disparities. In 1938, 11 percent of black children and only 3 percent of white were born by unwed mothers.

A high level of tolerance for extramarital births has been found to characterize some societies with high illegitimacy ratios. This tolerance can be connected with morals, religion, and culture but not least with economic conditions and household structures. Lola Valverde has explained the high portion of illegitimate births found in the Basque Country is explained by the lack of shame appending to such births and the fact that engagement was perceived as the same as marriage. Thus a legally illegitimate child could be socially legitimate. Further, irregular unions, as between priests and unmarried women, were widely accepted, and a father had economic responsibilities for his children even though he was not married to the mother.

On the other hand, abrupt economic changes and reduced means of livelihood have led to fewer marriages and an increase in the number of illegitimate births. The increase after 1750 has in some countries, though far from in all, been seen in this perspective.

Legal Status

Illegitimacy is connected with the parents' legal obligations toward their children not only with regard to maintenance but also to the right to family name and inheritance. Such rights have been limited, even quite absent in some places. Illegitimacy could also dictate the nature of the individual's relation to society. A career in the Roman Catholic Church for illegitimate children, for instance, was only feasible through papal dispensation, and a person of illegitimate birth had limited or no access to several guilds. However, there are no absolute rules, and stories of illegitimate heirs who managed to fight their way to European thrones are well known.

The criteria for being recognized as legitimate differed before and after Christianity, but according to canon law the status of illegitimate children changed if the parents married. This was the usual principle in the Nordic countries, but in England and Iceland, later in the United States, the principle was not immediately acknowledged. Furthermore, the Pope had the ability to change a child's status.

In many European countries, particularly Catholic ones, illegitimate births were first and foremost a matter for the church. The church and charitable institutions established several large orphanages in major cities, especially in southern Europe. However, the fact that many legitimately born children were also brought to these orphanages illustrates that problems of familial connections were not restricted to children born of unwed parents. In the Nordic countries illegitimate births were handled by the state and could lead to criminal persecution. In early modern times the persecution of unwed mothers especially became more severe.

Population Policies

Toward the end of the nineteenth century the question of illegitimacy versus legitimacy was closely linked with population policies. International rivalries combined with a decline in birthrates led several states to become interested in infant mortality. Demographic statistics showed that mortality rates were far higher among illegitimate children than among those born within wedlock. Political leaders with a stronger interest in the power of the state than the morals of its population combined forces with philanthropists in order to better the conditions for illegitimate children. In some countries, such as Great Britain and Germany, experiences from World War I were decisive in making the issue a subject for debate at high political levels.

According to Edward R. Dickinson, radical feminists in Germany had argued for state maintenance and paternal contributions in addition to a right for the child to the father's name and limited inheritance since the turn of the century. German fathers already had a certain legal obligation to contribute economically, but more than half of them sought reprieve from these obligations. Furthermore, fathers were only obliged to pay until the child reached sixteen years of age, and the amount was to be in compliance with the mother's standard of living. Accordingly the children were more often than not raised in poverty with no means of receiving further education. All over Europe unwed mothers and their children faced similar problems.

New legislation was in Germany strongly opposed by Christian politicians in defense of family values and female sexual morality, and legal equality was in many countries long in coming. The disparities between culturally similar areas could be significant. A law giving illegitimate children the right to inheritance and name after the father was passed in Norway as early as in 1915, while legislation in Denmark and Sweden was based on principles of differentiation until the 1960s.

In Norway the economic rights appending to the legal ones were for a long period of time limited. The German state took a certain economic responsibility, while France appeared among the most liberal and generous states by placing a great deal of importance on equal rights for all children to welfare and health benefits. On the other hand, the legal rights of illegitimate children were especially limited in France.

Social Inclusion and Exclusion

The law and practice have not always been in sync with each other, and many children born out of wedlock were socially included within families and local communities: their parents married, their mothers married someone else, or the children were taken in by extended family. That leaves those children who were not integrated by family or local community. The size of this group has varied, but it has been large enough to ensure that illegitimacy throughout history has been connected with poverty, shame, and cultural exclusion from local communities. These children more often than others risked being abandoned in orphanages and institutions or becoming foster children. They were also put up for adoption more often than other children when this became an option in several countries in the early twentieth century.

As the twentieth century advanced, the idea that a child belonged with its mother, married or unmarried, became gradually more dominant. The conflict between the mother as caretaker and the mother as breadwinner has nevertheless seemed particularly strong with unwed mothers, since in most countries they were granted economic support for their children much later than widows. The differentiation was based on moral judgments. Widows were regarded as worthy, unwed mothers as unworthy.

The intertwining of the legal, cultural, and economic aspects can be clearly identified in the Western world after 1960. The number of children born of unwed parents increased dramatically as public and private economies improved, public welfare programs were expanded, and the state inflicted economic responsibilities upon the fathers. Another vital factor was the increase in couples living together without being married. Legal equality has since then in most countries been established between children born within or out of wedlock, and the profound cultural, economic, gender, and social changes of Western society has made differentiating between children on the basis of their parents' marital status irrelevant.

The most disquieting feature in the early twenty-first century seems to be that children with single parents, whether born within or outside of wedlock, generally have a lower standard of living than children in a two-parent family. This is the situation in Europe as well as the United States.

See also: Children's Rights; Fertility Rates; Inheritance and Property; Law, Children and the.

bibliography

Anderson, Michael, ed. 1996. British Population History from the Black Death to the Present Day. Cambridge, UK: Cambridge University Press.

Dickinson, Edward Ross. 1996. The Politics of German Child Welfare from the Empire to the Federal Republic. Cambridge, MA: Harvard University Press.

Gordon, Linda. 1994. Pitied But Not Entitled: Single Mothers and the History of Welfare 1890-1935. New York: Free Press, Macmillan.

Hansen, Lars Ivar, ed. 2000. Family, Marriage and Property Devolution in the Middle Ages. Tromso §, Norway: University of Tromso§.

Henderson, John, and Richard Wall, eds. 1994. Poor Women and Children in the European Past. London and New York: Routledge.

Klaus, Alisa. 1993. Every Child a Lion: The Origins of Maternal and Infant Health Policy in the United States and France, 1890-1920. Ithaca, NY, and London: Cornell University Press.

Laslett, Peter, Karla Osterveen, and Richard M. Smith, eds. 1980. Bastardy and Its Comparative History. London: Edward Arnold.

Lo§kke, Anne. 1998. Do § den i barndommen. Copenhagen, Denmark: Gyldendal.

Valverde, Lola. 1994. "Illegitimacy and the Abandonment of Children in the Basque Country, 1550-1800." In Poor Women and Children in the European Past, ed. John Henderson and Richard Wall. London and New York: Routledge.

Astri Andresen

ILLEGITIMACY

The condition before the law, or the social status, of a child whose parents were not married to each other at the time of his or her birth.

The term nonmarital child is also used inter-changeably with illegitimate child.

English common law placed harsh penalties on an illegitimate child, denying the child inheritance and property rights. Modern law has given the nonmarital child more rights but still differentiates between the marital and nonmarital status. In addition, a rising level of out-of-wedlock births in the United States has drawn the attention of politicians and policy makers.

Common Law and Illegitimacy

A child was considered to be illegitimate at common law if the parents were not married to each other at the time of the child's birth even though the parents were married later.

There was a common-law presumption that a child born of a married woman was legitimate. This presumption was rebuttable, however, upon proof that her husband either was physically incapable of impregnating her or was absent at the time of conception. In addition, a child born of a marriage for which an annulment was granted was considered illegitimate, since an annulled marriage is void retroactively from its beginning. Furthermore, if a man married a second time while still legally married to his first wife, a child born of the bigamous marriage was illegitimate.

Robert L. Johnson's Son? The Rights of Illegitimate Heirs

Robert L. Johnson is an important figure in blues music. Though he recorded only twenty-nine songs before his death in 1938, at age twenty-seven, Johnson's songs, voice, and guitar playing have influenced many great musicians, including Muddy Waters, Keith Richards, and Eric Clapton. The Mississippi bluesman's recordings became a commercial success in the late 1960s, and by 1990 his collected works were released on compact discs.

Johnson married twice. Both wives died before he did and left no children. In 1974 Johnson's half-sister, Carrie Thompson, sold the copyrights of his songs and photographs, asserting that she was entitled to his estate. Upon her death in 1983, her half-sister Annye Anderson inherited her purported rights to Johnson's work.

When Anderson finally probated Johnson's estate in 1991, Claud L. Johnson filed a claim stating that he was the illegitimate son of Johnson and the sole heir of the bluesman. Claud Johnson produced a Mississippi birth certificate from 1931 that lists R. L. Johnson as his father.

But for the U.S. Supreme Court's ruling in Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), Claud Johnson could not have made his claim. Until Trimble Mississippi prohibited illegitimate children from inheriting from their father.

Anderson argued that Claud Johnson's claim should be dismissed because he had waited too long to file it. A county court agreed with Anderson, but the Mississippi Supreme Court reversed the lower court's decision, ruling that the intent of state law was to give the same rights to illegitimate as to legitimate children (In re Estate of Johnson, 1996 WL 138615 [Miss.]). The supreme court sent the case back to the county court, which is to determine whether Claud Johnson is the son of Robert Johnson. If so, he is entitled to Robert Johnson's estate.

At common law an illegitimate child was a fillius nullius (child of no one) and had no parental inheritance rights. This deprivation was based in part on societal and religious beliefs concerning the sanctity of the marital relation-ship, as well as the legal principles that property rights were determined by blood relationships. The legal rights and duties of a person born of married parents could be ascertained more accurately than those of a child with an unknown or disputed father. Public policy in favor of maintaining solid family relationships contributed significantly to the preference for a legitimate child.

Modern Law

The harsher aspects of the common law dealing with an illegitimate child have been eliminated, primarily through the application of the Equal Protection Clause of the fourteenth amendment to the U.S. Constitution. In Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 436 (1968), the Supreme Court ruled that a state statute (La. Civ. Code Ann. Art. 2315) that barred illegitimate children from recovering damages for the wrongful death of their mother, but allowed legitimate children to recover in similar circumstances, was invalid because it denied illegitimate children equal protection of the law.

The Supreme Court also enhanced the right of an illegitimate child to inherit property. Whereas most states had given legitimate and illegitimate children the same right to inherit property from the mother and her family, a number of states did not allow an illegitimate child to inherit property from the father in the absence of a specific provision in the father's will. In Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), the Supreme Court ruled such provisions in an Illinois statute invalid.

A majority of states now subscribe to the theory that a child born of any union that has the characteristics of a formal marriage relationship is entitled to legitimate status. This theory includes children born of marriages that fail owing to legal technicalities as well as children of void or voidable marriages.

Some states still recognize the validity of common-law marriage, which takes place when a man and woman cohabit for an extensive period, and hold themselves out to the public as being husband and wife even though they were never formally married. In such states children born of such arrangements are considered legitimate. Common-law marriages were a convenient mechanism in the nineteenth century for establishing property rights and legitimating children. Frontier society accepted the economic necessity for permitting such marriages because it was difficult for people on the frontier to obtain a formal marriage license; without common-law marriages, many children would have been declared illegitimate.

Legal Presumption of Legitimacy

The presumption of legitimacy is a strong legal presumption because public policy favors legitimacy to preserve stable family groupings. This presumption can be rebutted only if it can be clearly established that the child in question is illegitimate. A child born to a married couple is presumed to be their legitimate offspring in the absence of a clear demonstration that the husband could not possibly be the father.

Legitimation is the process whereby the status of a child is changed from illegitimate to legitimate. Some statutes provide that a child becomes legitimated upon an open acknowledgment of paternity by the alleged father. In some states an oral admission is sufficient, but in other states a written statement is required. A majority of states prescribe that an acknowledgment must be coupled with an act in order for the child to be declared legitimate. An adequate act in some states is the marriage of the child's natural parents. Once a child has been determined to be legitimate, he or she is entitled to the same rights and protections as any individual whose legitimacy has never been questioned.

Paternity Actions

A paternity suit, or affiliation proceeding, may be brought against a father by an unmarried mother. This civil action is intended not to legitimate the child but to obtain support for the child and often to obtain the payment of bills incident to the pregnancy. Ordinarily, the mother starts the civil lawsuit, but some states allow public authorities to bring a paternity action for the mother if she refuses to do so. If the mother is on welfare, a paternity action is a vehicle for the local government agency to obtain financial assistance from the father.

A paternity action must start within the time prescribed by the statute of limitations,or the mother's right to establish the putative father's paternity and corresponding support obligation will be lost. The evidence needed to establish paternity includes the testimony of the mother, blood and DNA tests, and in some states photographs from which to determine similar facial characteristics of the alleged father and the child.

Legal Rights of Fathers

Whether a father acknowledges paternity or is adjudged to be the father in a paternity action, he has more custody rights today than at common law. At common law fathers were assumed to have little concern for the well-being of their illegitimate offspring. Historically, in most jurisdictions, if a child was illegitimate, the child could be adopted with only the consent of his or her natural mother.

This assumption, as embodied in a New York statute (N.Y. Domestic Relations Law § 111), was challenged in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979). The key issue was whether the consent of an unwed biological father had to be obtained before an adoption could be finalized. The Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitutional and a form of sex discrimination.

Artificial Insemination

Legitimacy issues have arisen when a child is conceived by artificial insemination. This process involves impregnating a woman, without sexual intercourse, with the semen of a donor who might be her husband or another party. Some states adhere to traditional views and consider any child conceived in this manner to be illegitimate, regardless of whether the husband gave his consent to the procedure. Other courts declare that a child is legitimate if the husband consented. A child is most likely considered illegitimate when the mother was unmarried and was artificially inseminated by an unknown donor, and remains unmarried. In most cases of artificial insemination, the father has donated semen anonymously, and his identity is not known.

Current Trends

The rate of illegitimate births in the United States has risen sharply since the early 1970s. In the 1940s fewer than five percent of the total births were out of wedlock. By the early 2000s, according to statistics compiled by the Center for Health Statistics at the U.S. health and human services department, births to unmarried mothers accounted for nearly one-third of all U.S. births.

further readings

Roberts, Patricia G. 1998. "Adopted and Nonmarital Children—Exploring the 1990 Uniform Probate Code's Intestacy and Class Gift Provisions." Real Property, Probate and Trust Journal 32 (winter): 539–70.

Sigle-Rushton, Wendy, and Sara McLanahan. 2002."The Living Arrangements of New Unmarried Mothers." Demography (August).

Terry-Humen, Elizabeth, Jennifer Manlove, and Kristen A. Moore. 2001. "Births Outside of Marriage: Perceptions vs. Reality." Child Trends Research Brief (April).

cross-references

Child Custody; Child Support; DNA Evidence; Family Law; Parent and Child.

ILLEGITIMACY

The Anglo-American law of illegitimacy derives from two interrelated purposes of our institutional progenitors. First, imposing the legal disabilities of illegitimacy on a child was seen as a punishment of the parents for their sin. More importantly, the law of legitimacy supported a system of male control over economic resources. The chief effect of the principle of bastardy-as-punishment was to disable illegitimate children from making claims against their deceased fathers' estates. Similarly, formal marriage was the only basis for a woman's claim to inherit from the man who fathered her children. Thus the punishment was reserved for unmarried women and their children. Unmarried fathers, far from being punished, were strengthened in their power to control the transmission of wealth and status. As the Supreme Court began to recognize in two 1968 decisions, these themes are modern as well as medieval.

The cases were levy v. louisiana and Glona v. American Guarantee & Liability Insurance Co. On equal protection grounds, the Court invalidated provisions of Louisiana's wrongful death statute that allowed damages to a surviving child for the death of a parent, and vice versa, only in cases of legitimate parentage. From that time forward, most of the Court's decisions on illegitimacy have dealt with laws regulating inheritance by illegitimate children (especially from their fathers), and laws restricting the right to death damages or benefits in cases of illegitimacy. Both in their results and in their doctrinal explanations, these decisions have pursued a crooked path.

Much of the early doctrinal uncertainty surrounded the question of the appropriate standard of review. Levy and Glona purported to apply the rational basis standard, but in fact they represented a more demanding judicial scrutiny. There were good reasons for categorizing illegitimacy as a suspect classification that would demand strict scrutiny of the state's asserted justifications. As the Court has said more than once, it is "illogical and unjust" to burden innocent children because their parents have not married. The status of illegitimacy is out of the child's control. Illegitimates have suffered historic disadvantage. The status has been the centuries-old source of stigma; such legislative classifications are apt to be the result of habit, prejudice, and stereotype rather than serious attention to public needs. After a series of cases characterized by doctrinal instability, in Mathews v. Lucas (1976) the Court rejected the assimilation of illegitimacy to the suspect classifications category. The Court did remark, however, that its standard of review in such cases was "not a toothless one."

Part of the reason for the tortuous doctrinal path from Levy and Glona to Mathews v. Lucas was that the Justices were closely divided on the general issue of the Court's approach to illegitimacy as a legislative classification; in these circumstances, trifling factual distinctions tended to affect the decisions of cases. Even after Mathews v. Lucas this pattern continued, as trimble v. gordon (1977) and lalli v. lalli (1978) illustrate—although the Court has identified a verbal formula for its standard of review: An illegitimacy classification must be "substantially related to a permissible state interest." As Justice lewis f. powell said for a plurality in Lalli, the Court's concern for the plight of illegitimates must be measured against a state's interest in "the just and orderly disposition of property at death." A seventeenth century probate lawyer would not be surprised to learn that the justice and order emerging from Lalli offered protection for a father's estate against the claims of illegitimate children, even though paternity had been established beyond question.

The Supreme Court has invoked its intermediate standard of review to invalidate state laws imposing severe time restrictions on suits to establish paternity and compel fathers to support children born outside marriage. But if Lalli validated an ancient tradition of domination through control over the transmission of wealth and status, Parham v. Hughes (1978), just four months later, validated the tradition of the illegitimacy relation as punishment for sin. An illegitimate child and his mother were killed in an automobile accident. State law would have allowed only the mother to sue for wrongful death damages, if she had survived. Given the mother's death, the father would have been entitled to bring the suit if he had formally legitimated the child. Although he had not undertaken formal legitimation proceedings, the father had signed the child's birth certificate, and had supported the child and visited him regularly; the child had taken the father's name. The Court upheld the state's denial of a right to sue, 6–3.

The state court in Parham had said the law was a means of "promoting a legitimate family unit" and "setting a standard of morality." The Parham dissenters, focusing on sex discrimination, faulted the state for doing its promoting and standard-setting selectively, along lines defined by gender. The decision also intruded seriously on the freedom of intimate association. The father-son relationship was complete in every sense but the formal one. Four members of the majority said it was all right, nevertheless, for the state to "express its 'condemnation of irresponsible liaisons beyond the bounds of marriage"' by denying the father the right to damages for the death of his son. In other words, the father should be ashamed of himself.

In Glona, the Court had rejected precisely this sort of reasoning. The fact that the legislature was "dealing with sin," the Court said, could not justify so arbitrary a discrimination as the denial of wrongful death damages. Glona had involved the claim of a mother, and mothers of illegitimate children have been the historic victims of a system of illegitimacy in a way that fathers have not. But Parham involved a man who not only sired a child but was a father to him. What had been protected in Glona was not merely the damages claim of a mother, but the status of the intimate relationship between a mother and her son. The Parham law's arbitrariness lay in its assumption that significant incidents of the parent-child relationship should be denied because of the absence of a formal marriage. Seen in this light, the law's discrimination demands some substantial justification for its invasion of the freedom of intimate association. Glona teaches that the required justification is not to be found in the state's wish to punish "sin." The Supreme Court plainly is not yet prepared to hold that the status of illegitimacy is itself constitutionally defective. When that day arrives, however, Glona will serve as a precedent.

Kenneth L. Karst
(1986)

(see also: Nonmarital Children.)

Bibliography

Perry, Michael J. 1979 Modern Equal Protection: A Conceptualization and Reappraisal. Columbia Law Review 79:1023–1084.

Wallach, Aleta and Tenoso, Patricia 1974 A Vindication of the Rights of Unmarried Mothers and Their Children: An Analysis of the Institution of Illegitimacy, Equal Protection, and the Uniform Parentage Act. University of Kansas Law Review 23:23–90.