The Passing of Illegitimacy

Berkeley Davids

A CHILD born out of wedlock has been deemed by our law to be illegitimate offspring—not lawful issue—not entitled to the legal rights of a child born of parents that have submitted themselves to the form of marriage. If born the day after the performance of the ceremony the child will be legitimate, but if born the day before such event it will be forever damned as a "bastard"—a rather fine line of demarcation.

One of the principal distinctions, if not the most important distinction, between legitimate and illegitimate offspring, is the right of the child to inherit from its parents. No matter how certain it may be that a man is father of an illegitimate child, the child may not under the common-law doctrine take the parent's property on the latter's death. Father and mother may have lived together during all their mature years,—they may have been models of fidelity,—yet if the element of marriage was lacking, the offspring will be incapacitated to have or share in his parent's personal and real property. The hardship of this rule of the common-law courts is very obvious, and there has been a tendency on the part of legislatures to modify it in some respects at least.

Especially in the more advanced countries of Continental Europe have the disabilities of birth out of wedlock been abolished. In some of the Continental nations, from eight to ten per centum of children horn are the offspring of parents who have not been married. It is said that in Germany at the outbreak of the Great War there were one million illegitimate children under fourteen years of age. There seems to be a steady tendency to dis-

(144) -pense with marriage. Nor is this practice peculiar to people of any particular class, trade or profession, though it exists almost entirely in the cities. In the fact of increasing illegitimacy no doubt may be found the reason for ameliorating the harsh rule against illegitimates. The law finds it necessary to modify itself to meet changed social conditions. What seems to be a most advanced position is that of a law recently enacted in the kingdom of Norway. This law, which was framed by the Norwegian Department of Justice, contains in substance the following declarations:

A child whose parents have not married each other has a right to the surname of the father. The child is entitled to demand from his parents support and education in accordance with the financial circumstances of the one who is economically the better situated of the two. The parent with whom the child does not live discharges his obligations by paying a sum of money, the amount to be fixed by the court. In general, the child is entitled to receive from his father and mother the same kind of support as if he were a legitimate child. The amount to be paid by the parent with whom the child does not live, or by both parents in case the child lives with neither but with some other person, shall be fixed by the authority designated for that purpose. The cost of the child's education shall fall, so far as possible, on both parents. If one of them dies without leaving any property, the other must assume the full responsibility. Also, if one of the parents is unable to pay his share and the other is in a position to bear the whole expense, the latter may be required to do so.

The child is entitled to support and education until the age of sixteen. However, the authority may extend this period if he is mentally or physically incompetent, or if there is reason for continuing the child's education and the parents are able to afford it. The father is required to pay the expenses of the mother's confinement. This is also obligatory in the case of a ,still-birth. The father is further required to maintain the mother, if, by reason of pregnancy or confinement, she is compelled to give up her work. She is entitled to this maintenance only during three months of pregnancy and six weeks following confinement. But if the mother keeps the child with her and nurses it for nine months, the support may be continued for this length of time. In case it is not possible to determine who is the father of the child, the foregoing parental obligations shall rest upon the person who has had sex intercourse with the mother at such a time that in the course of nature he may be the father of her child. If it happens that several persons answer to this definition, then each of them must contribute to the child's support, the amount paid by each to be determined by the authority prescribed. The same pro rata rule applies to the payment of the mother's confinement expenses.

The court has full power to clear up doubtful paternity by inquiry and the summoning of the necessary evidence. If the man whom the mother has named as the father is found to have had sex intercourse with her at the probable time of the impregnation and if there is no reason to suppose that any other man has had sex intercourse with her during this period, the court may declare the man to be the father. If the court continues in doubt of the actual paternity of the child, the man is still held responsible for the child's support if it is found that he had sex intercourse with the mother at the probable time of impregnation. In all those cases in which actual paternity has been established and the court's final decision to that effect has been made, the child whose parents have not married each other has exactly the same rights of inheritance as the legitimate child. The law requires the mother of the illegitimate child to name its father under oath and makes her liable to a heavy fine and imprisonment, as well as a suit for damages by the man, if she makes a false accusation.

What will be the tendency of this legislation toward the formation of the loose unions that are so numerous in some Continental cities ? The advocates of the statute above set forth assert that it will not undermine marriage. According to their argument anonymous paternity is an offense against the child and against the State. The child has a right to know who his father is, has a right to be supported by his father, and a right to inherit from his father if the latter is a man of property. Therefore the mother should not be permitted, by concealing the child's paternity, to connive at its disinheritance. The State has the obligation to inquire officially into the circumstances of the child's birth, and to protect him against one of the greatest cruelties to which childhood can be exposed, the suffering which comes from not knowing its parentage. War, as everyone knows from the experience of the existing conflict in Europe, is a startlingly efficient promoter of illegitimate births, and it may be expected as one of the results of this war, that the legislatures of all the European nations will adopt laws similar to the statute referred to above.



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