At common law, legitimacy is the status of a child who is born to parents who are legally married to one another; and of a child who is born shortly after the parents' divorce. In canon and in civil law, the offspring of putative marriages have been considered legitimate children. Analogously, illegitimacy is the status of a child born to parents who are unmarried to one another; contemporary usage of the term illegitimate child is infrequent, even in legal usage, example euphemisms are extramarital child and love child. The concept of Legitimacy was formerly of great consequence, in that only a legitimate child could inherit the estate of the father. In the United States, in the early 1970s, a series of Supreme Court decisions abolished most common-law disabilities imposed upon bastardy (illegitimate-child status), as violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.[1]
In April 2009, the National Center for Health Statistics announced that nearly 40 percent of American infants born in 2007 were borne by an unwed mother; that of 4.3 million children, 1.7 were born to unmarried parents, a 25 percent increase from 2002.[2] In Europe, there is a like increment in the number of extramarital children; in Bulgaria, France, Scotland, Wales, Slovenia, and Scandinavia (excepting Denmark), more than 50 percent of the children born in 2007 were extramarital. In parts of England, the Netherlands, Denmark, Austria and the Czech Republic more than 50 percent of first-born children were born extramaritally.[3]
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In many societies, law has denied persons of illegitimate birth the same rights of inheritance as those of legitimate birth, and in some societies, even the same civil rights. In the United Kingdom and the United States, as late as the 1960s and in certain social strata even up to today, illegitimacy has carried social stigma. In previous centuries unwed mothers were forced by social pressure to give their children up for adoption. In other cases illegitimate children have been reared by grandparents or married relatives as the "sisters", "brothers" or "cousins" of the unwed mothers.[4]
In social and sometimes legal terms, the child so born was called a "bastard". In polite society, terms such as "natural child" were preferred. In most national jurisdictions, the status of a child as a legitimate or illegitimate heir could be changed - in either direction - under the civil law: A legislative act could deprive a child of legitimacy (as in the cases of the sons of Edward IV of England); conversely, a marriage between the previously unmarried parents, usually within a specified time, such as a year, could retroactively legitimate a child's birth.
Annulment of a marriage does not impose the status of illegitimacy upon children born to a couple during their putative marriage, i.e., between their marriage ceremony and the legal annulment of their marriage. For example, canon 1137 of the Roman Catholic Church's Code of Canon Law specifically affirms the legitimacy of a child born to a marriage that is declared null following the child's birth.
Fathers of illegitimate children often did not incur comparable censure or legal responsibility, due to social attitudes about sex, the nature of sexual reproduction, and the difficulty of determining paternity with certainty. In the ancient Latin phrase, "Mater semper certa est" ("The mother is always certain"), while the father is not.
Illegitimacy has affected not only the illegitimate individuals themselves. The stress that such circumstances of birth once regularly visited upon families, is illustrated in the case of Albert Einstein and his wife-to-be, Mileva Marić, who—when she became pregnant with the first of their three children, Lieserl—felt compelled to maintain separate domiciles in different cities.
Some persons of illegitimate birth have been driven to excel in their endeavors, for good or ill, by a desire to overcome the social stigma and disadvantage that attached to illegitimacy. Nora Titone, in her book My Thoughts Be Bloody, recounts how the shame and ambition of actor Junius Brutus Booth's two illegitimate actor sons, Edwin and John Wilkes Booth, spurred them to strive, as rivals, for achievement and acclaim—Edwin, a Unionist, and John Wilkes, the assassin of Abraham Lincoln.[5]
Similarly, T. E. Lawrence's biographer Flora Armitage writes about his illegitimacy: "The effect on [T.E.] Lawrence of this discovery was profound; it added to the romantic urge for heroic conduct—the dream of the Sangreal—the seed of ambition, the desire for honor and distinction: the redemption of the blood from its taint."[6] Another biographer, John E. Mack, writes in a similar vein: "[H]is mother required of him that he redeem her fallen state by his own special achievements, by being a person of unusual value who accomplishes great deeds, preferably religious and ideally on an heroic scale. Lawrence did his best to fulfill heroic deeds. But he was plagued, especially after the events of the war activated his inner conflicts, by a deep sense of failure. Having been deceived as a child he was later to feel that he himself was a deceiver—that he had deceived the Arabs..."[7] "Mrs. Lawrence's original hope that her sons would provide her personal redemption by becoming Christian missionaries was fulfilled only by [Lawrence's brother] Robert."[8] Mack elaborates further: "Part of his creativity and originality lies in his 'irregularity,' in his capacity to remain outside conventional ways of thinking, a tendency which... derives, at least in part, from his illegitimacy. Lawrence's capacity for invention and his ability to see unusual or humorous relationships in familiar situations come also... from his illegitimacy. He was not limited to established or 'legitimate' solutions or ways of doing things, and thus his mind was open to a wider range of possibilities and opportunities. [At the same time] Lawrence's illegitimacy had important social consequences and placed limitations upon him, which rankled him deeply... At times he felt socially isolated when erstwhile friends shunned him upon learning of his background. Lawrence's delight in making fun of regular officers and other segments of 'regular' society... derived... at least in part from his inner view of his own irregular situation. His fickleness about names for himself [he changed his name twice to distance himself from his "Lawrence of Arabia" persona] is directly related... to his view of his parents and to his identification with them [his father had changed his name after running off with T.E. Lawrence's future mother]."[9]
By the final third of the 20th century, in the United States, all the states had adopted uniform laws that codified the responsibility of both parents to provide support and care for a child, regardless of the parents' marital status, and gave illegitimate as well as adopted persons the same rights to inherit their parents' property as anyone else. In the early 1970s, a series of Supreme Court decisions abolished most, if not all, of the common-law disabilities of bastardy, as being violations of the equal-protection clause of the Fourteenth Amendment to the United States Constitution.[10] Generally speaking, in the United States, "illegitimacy" has been supplanted by the phrase "born out of wedlock."
A contribution to the decline of the concept of illegitimacy had been made by increased ease of obtaining divorce. Prior to this, the mother and father of many a child had been unable to marry each other because one or the other was already legally bound, by civil or canon law, in a non-viable earlier marriage that did not admit of divorce. Their only recourse, often, had been to wait for the death of the earlier spouse(s).
Illegitimacy has for centuries provided a motif and plot element to works of fiction by prominent authors, including William Shakespeare, Benjamin Franklin, Henry Fielding, Jane Austen, Alexandre Dumas, père, Nathaniel Hawthorne, Charles Dickens, Wilkie Collins, Anthony Trollope, Alexandre Dumas, fils, George Eliot, Leo Tolstoy, Ivan Turgenev, Fyodor Dostoyevsky, Thomas Hardy, C.S. Forester, Marcel Pagnol, Grace Metalious and John Irving.
Famous persons of extramarital birth have included:
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,[17] and its constitutionality was upheld by the Supreme Court in Nguyen v. INS.[18]
Legitimacy also continues to be relevant to hereditary titles: only legitimate children are admitted to the line of succession. However, some monarchs such as Elizabeth I of England succeeded to the throne despite the controversial status of their legitimacy, due to special provisions.
In USA, most births to teenagers (86% in 2007) are nonmarital, 60% of births to women 20–24 and nearly one-third of births to women 25–29 were nonmarital in 2007.[16] Teenagers accounted for just 23% of nonmarital births in 2007, down steeply from 50% in 1970.[16]
The proportion of children born outside marriage is rising in all EU countries, the USA, and Australia.[19] In Europe, besides the low levels of fertility rates and the delay of motherhood, another factor that now characterizes fertility is the growing percentage of live births outside marriage. In the EU, this phenomenon has been on the rise in recent years in almost every country and in seven countries, mostly in northern Europe, it already accounts for the majority of live births.[20]
In Europe, the average has risen from one out of four in 1997 to one out of three children born outside wedlock. Nowadays, national figures in Europe range from 5% in Greece and 9% in Cyprus to 58% in Estonia and 64% in Iceland. In Britain the rate increased to 44% (2006) and further to 46 % (2009);[21] in Ireland the percentage increased to 33.2% (2006).[22] In the USA, the percentage born extramaritally increased 21% during 2002–2007, reaching an historic peak in 2007, at 1,714,643 (or nearly 4 in 10 U.S. births).[16] The percentage of first-born children born outside wedlock is considerably higher (by roughly 10% for the EU), as it often occurs that a marriage takes place after the first baby has arrived.
In Latin America, out-of-wedlock births are also common: in 2007 the rate in Mexico was 38%; in the Dominican Republic, 63%; in Paraguay, 70%; in El Salvador, 73%.[23]
In 2009, 41% of children born in the USA were born to unmarried mothers (up from 5% a half-century ago). That includes 73% of non-Hispanic black children, 53% of Hispanic children and 29% of non-Hispanic white children.[24][25]
| Family law |
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| Entering into marriage |
| Prenuptial agreement Marriage Common-law marriage Same-sex marriage |
| Legal states similar to marriage |
| Cohabitation · Civil union Domestic partnership Registered partnership Putative marriage |
| Dissolution of marriage |
| Annulment · Divorce · Legal separation (Alimony) |
| Issues affecting children |
| Adoption · Child abduction · Child abuse Child custody · Child marriage Child Protective Services (United States) Child support · Contact (including visitation) Emancipation of minors Foster care · Grandparent visitation Legal guardian · Legitimacy Parental responsibility · Parenting coordinator Parenting plan · Paternity Residence in English family law · Ward |
| Conflict of laws |
| Divorce · Marriage · Nullity International child abduction (Convention) |
| Related areas |
| Adultery · Bigamy Domestic violence · Incest |