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Illegitimacy is a label once commonly assigned to individuals whose parents were not married. In most European nation-states (Scotland being the most notable exception), the child of unmarried parents was not a legitimate heir in law to its father's estate – hence, the child was " illegitimate ."
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); and likewise, under Canon law in most religious jurisdictions. In some jurisdictions, a child's birth could be retroactively "legitimated" if the parents married afterward - usually within a specified period of time, such as one year. This is still true but it is increasingly unnecessary, as jurisdictions increasingly abolish the concept of illegitimacy.
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", "brother" or "cousin" 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 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 residences 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. 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).
Today, in the Western world, the assertion that a child is less entitled to civil rights, or abides in a state of sin, due to the marital status of its parents, would be viewed as dubious. Many religions regard premarital or extramarital sex as a sin, but generally do not hold that a resultant child itself dwells in a state of sin.
Nevertheless, 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, Sarah Bernhardt, T.E. Lawrence or Stefan Banach.
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, 533 U.S. 53 (2001).
The proportion of children born extramaritally (outside marriage) varies widely between countries. In Europe, figures range from 3% in Cyprus to 55% in Estonia. In Britain the rate is 42% (2004). The rate in Ireland is 31.4%, close to the European average of 31.6% .
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. Examples include Henry Morton Stanley, the explorer of Africa.
Continuing Discrimination in the US Justice System
Every day in the US, defense attorneys will parade young defendants in front of a judge and ask for some kind of clemency noting "this is a kid from a good family..." That such pejorative corollaries are an everyday part of a modern "justice" system suggests that non-Bastardy continues to be weighed by the courts as a mitigating factor at least.
Parental responsibility
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.
Recently, some people in the United States have taken to stigmatizing the parents, rather than the child, by labeling the parents as "Bastard Parents," because it is the parents who are ultimately responsible for the actions that caused an out-of-wedlock pregnancy. Conservative cultural commentator and radio talk-show host Michael Medved advocates this stigmatization, especially in the case of "Celebrity Bastard Parents."
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.