ABSTRACT

In many societies, people born out of wedlock did not have the same rights of inheritance as

those within it, 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, extramarital birth

has carried a social stigma. In previous centuries unwed mothers were forced by social pressure

to give their children up for adoption. In other cases extramarital children have been reared by

grandparents or married relatives as the "sisters", "brothers" or "cousins" of the unwed mothers.

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.

This term paper gives an insight definition to bastard, illegitimacy and out of wedlock births. It

takes a comprehensive look at the levels, historical background, legal status, social perception

and current trends

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INTRODUCTION

Wikipedia defines Bastard as a child whose birth lacks legal legitimacy — that is, one born to a

woman and a man who are not legally married.

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.

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

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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.

HISTORY OF ILLEGITIMACY

Certainty of paternity has been considered important in a wide range of eras and cultures,

especially when inheritance and citizenship were at stake, making the tracking of a man's estate

and genealogy a central part of what defined a "legitimate" birth. The ancient Latin dictum,

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"Mater semper certa est" ("The mother is always certain", while the father is not) emphasized the

dilemma.

In English common law, Justice Edward Coke in 1626 promulgated the "Four Seas Rule" (extra

quatuor maria) asserting that, absent impossibility of the father being fertile, there was a

presumption of paternity that a married woman's child was her husband's child. That

presumption could be questioned, though courts generally sided with the presumption, thus

expanding the range of the presumption to a Seven Seas Rule". But it was only with the Marriage

Act 1753 that a formal and public marriage ceremony at civil law was required, whereas

previously marriage had a safe haven if celebrated in an Anglican church. Still, many

"clandestine" marriages occurred.

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.

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 extramarital as well as adopted persons equal

rights to inherit their parents' property. In the early 1970s, a series of Supreme Court decisions

abolished most, if not all, of the common-law disabilities of extramarital birth, as being

violations of the equal-protection clause of the Fourteenth Amendment to the United States

Constitution.[30] Generally speaking, in the United States, "illegitimacy" has been supplanted by

the phrase "born out of wedlock."

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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 children 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). Thus Polish political and military leader Józef Piłsudski

(1867–1935) was unable to marry his second wife, Aleksandra, until his first wife, Maria, died in

1921; by which time Piłsudski and Aleksandra had two out-of-wedlock daughters

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

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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

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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.

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

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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.

SOCIAL PERCEPTION

Social perception refers to the processes through which we use available information to form

impressions of other people, to assess what they are like. Social perception is the study of how

people form impressions of and make inferences about other people. To learn about other people,

they rely on information from their physical appearance, and verbal and nonverbal

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communication. There can be ways in which people communicate without words—including

through facial expressions, tone of voice, gestures, body position and movement, touch, and gaze

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).

Until recently, the public’s image of an out of wedlock child was that of a child with a welfare-

dependent mother and an absent father. This image of illegitimate children as dependent on

welfare was cemented in the 1980s and 1990s as policymakers complained of increasing welfare

caseloads and lazy “welfare queens” who bore additional illegitimate children in order to

increase their public assistance payments.

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Despite these perceptions of illegitimate children as poor, the family structures, racial, ethnic,

and socioeconomic backgrounds of illegitimate children are as varied as the individual children

themselves.

More than 50% of all illegitimate children today are born to cohabiting couples, 15% of which

marry within a year of the child’s birth. Another 14% are born to divorced women, some of

which have children from a previous marriage, and 22% are born to teenage mothers. While

many illegitimate children are born to low-income women, many others are born to financially

successful women.

The societal disapproval that illegitimate families and their children experience depends on a

variety of factors: the age of the mother; whether both parents reside with the child; the child’s

race, cultural background, and socioeconomic status; the parents’ sexual orientation; and the

community in which the family resides.

Despite these differences, when lawmakers and pundits talk about the problem of “illegitimacy,”

they make no distinction between these diverse groups of children and lump them all into one

category—illegitimate or no marital.

Thus, while not all illegitimate children experience the same level of societal disapproval, it is

important to examine any biases that are based, at least in part, on a child’s status as illegitimate.

Many People worldwide believe that it is wrong for unmarried persons to have children.

Seventy-one percent of participants in a recent Pew Research Center study believe that the

increase in illegitimate births is a “big problem” for society and 44% believe that it is always or

almost always morally wrong for an unmarried woman to have a child.

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Some participants agreed with the statement that a man who does not marry the woman he

impregnated is irresponsible. Notably, 42% of the respondents believe that the increase in

illegitimate births is the result of “bad morals,” a “breakdown in family structure,” “irresponsible

/ careless” behavior, or “not taking responsibility.”

While 36% of respondents also attributed the increase in illegitimate births to other factors, such

as “societal changes,” changes in women’s roles, “lack of information,” or “too much sex / sex at

a young age,” it is clear that many Americans make moral judgments about men and women who

have children outside of marriage.

Societal disapproval of illegitimate childbearing is not limited to single parents but also extends

to cohabiting couples. Fifty-nine percent of participants in the study disapproved of cohabiting

couples having children.

They were slightly more supportive of gay and lesbian couples having children—50% thought it

was bad for society—presumably because gay and lesbian couples do not have the option of

marriage in the majority of states.

Not surprisingly, there are generational differences with regard to views on whether illegitimate

childbearing is bad for society. However, the majority (57%) of adults ages 18–64 believe that

unmarried couples having children is bad for society, and 73% of adults who attend church at

least weekly believe the same.

Although few people would want to stigmatize illegitimate children, society seems to have no

objection to stigmatizing their parents. Unmarried mothers are stereotyped as “sexually

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irresponsible,” “lazy and unmotivated,” and low-income unmarried fathers are seen as “uncaring

and irresponsible.”

Low-income unmarried mothers, whom society assumes will rely on public assistance to support

their children, are often demonized.

Single mothers themselves are aware of society’s disapproval. One study found that privileged

single mothers (those who are highly educated, older, and financially secure) are fully aware of

the ways in which single mothers are stigmatized and ostracized.

As a result, they have appropriated the term “Single Mothers by Choice” (SMC) to suggest that

they are different from other single mothers—those that are young, poor, and, in the minds of

SMCs, less responsible.

While SMCs hope that their middle class status will protect them and their children from the

stigma of illegitimacy, they recognize that society disapproves of their decision and try to protect

themselves and their children by figuring out in advance how they will explain their single parent

status to family members, friends, and even strangers.

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THE LEGAL EFFECTS OF CHILDREN BORN OUT OF WEDLOCK

Despite the prevalence of bastard families, the law continues to deprive bastard children of legal

benefits available to their marital counterparts.

Sol angel Maldonado (2011), grouped the legal effects of Bastardy into 3, they are:

A.        Supreme Court Jurisprudence

B.        Continuing Distinctions between Marital and Bastard Children

C.        Harms of Legal Distinctions

A. Supreme Court Jurisprudence

At common law, a child born out of wedlock was fillies nullius (the child of no one). Bastard

children were considered non-persons, incapable of inheriting from a parent, sibling, or any other

relatives, and had no legal rights to parental support.

They were precluded from holding “positions of social visibility and responsibility, and had no

right to wrongful death damages, or government benefits available to marital children of a

deceased or disabled parent.

They were the targets of social opprobrium as evidenced by the terms used to describe them —

bastard or illegitimate and were frequently denied access to social, professional, and civic

organizations.

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Lawmakers and society justified discrimination against bastard children on the ground that it

would deter bastard childbearing and preserve and strengthen traditional family life.

B. Continuing Distinctions between Marital and Bastard Children

1. Intestate Succession

All states maintain distinctions between bastard and marital children for purposes of intestate

succession. Although states may no longer bar bastard children from inheriting from their

fathers, they require them to satisfy evidentiary burdens not required of marital children.

A bastard child must establish paternity before she can inherit a share of her father’s intestate

estate. In contrast, a marital child is entitled to inherit by virtue of her status as a marital child.

For marital children, paternity is presumed and need not be proven.

2. Citizenship

The Supreme Court has upheld distinctions between marital and bastard children in cases

involving acquisition of U.S. citizenship by foreign-born children of U.S. citizen fathers. Section

1409 of the Immigration and Naturalization Act provides that the foreign-born child of an

unmarried father who is a U.S. citizen must be legitimated before the age of eighteen in order to

obtain citizenship through the U.S. citizen father.

3. Child Support

As shown, bastard children are less likely than marital children to inherit from their fathers or to

attain citizenship rights through them. They are also less likely to receive financial support from

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their noncustodial parents. Although parents are legally required to support their children until

they reach the age of majority, without regard to birth status, bastard children are significantly

less likely than marital children to have a child support order or to receive any payments.

Bastard children are also less likely to receive support for college. Divorcing parents increasingly

include provisions for post-majority educational support in their enforceable property settlement

agreements. Parents of bastard children, however, are unlikely to have a child support agreement

of any kind, especially one that addresses college expenses.

C. Harms of Legal Distinctions

In short, the law continues to make distinctions between marital and bastard children, to the

detriment of bastard children. The presumption of legitimacy facilitates much of this

discrimination against bastard children by allowing marital children to automatically receive

benefits that are not available to bastard children, including child support, inheritance, U.S.

citizenship, and wrongful death damages for the death of the father, government benefits, and

many other benefits.

 

THE SOCIOLOGICAL EFFECTS OF CHILDREN BORN OUT OF WEDLOCK

Until recently, the American public’s image of a bastard child was that of an African-American

child with a welfare-dependent mother and an absent father. This perception of bastard children

as nonwhite was reinforced by the 1965 report The Negro Family: The Case for National Action

(known as the Moynihan Report), which argued that the widening educational attainment and

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wage gap between African-Americans and other groups was the result of the “family structure of

lower class [African-Americans].”

The Moynihan Report focused on high rates of bastard births to African-American women and

concluded that the “typical” mother receiving public assistance was African-American and had

an “illegitimate child.” This image of bastard children as African-American and dependent on

welfare was cemented in the 1980s and 1990s as policymakers complained of increasing welfare

caseloads and lazy “welfare queens” who bore additional bastard children in order to increase

their public assistance payments.

Despite these perceptions of bastard children as nonwhite and poor, the family structures, racial,

ethnic, and socioeconomic backgrounds of bastard children are as varied as the individual

children themselves. More than 50% of all bastard children today are born to cohabiting couples,

15% of which marry within a year of the child’s birth. Another 14% are born to divorced

women, some of which have children from a previous marriage, and 22% are born to teenage

mothers. While many bastard children are born to low-income women, many others are born to

financially successful women. Bastard birth rates also vary by race and ethnicity. Twenty-nine

percent of children born to white women in 2008 were bastard, as were 53% of children born to

Latinas, and 72% of children born to African-American women.

The societal disapproval that bastard families and their children experience depends on a variety

of factors: the age of the mother; whether both parents reside with the child; the child’s race,

cultural background, and socioeconomic status; the parents’ sexual orientation; and the

community in which the family resides. Despite these differences, when lawmakers and pundits

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talk about the problem of “illegitimacy,” they make no distinction between these diverse groups

of children and lump them all into one category—bastard or illegitimate.

Thus, while not all bastard children experience the same level of societal disapproval, it is

important to examine any biases that are based, at least in part, on a child’s status as bastard.

Many Americans believe that it is wrong for unmarried persons to have children. Seventy-one

percent of participants in a recent Pew Research Center study believe that the increase in bastard

births is a “big problem” for society and 44% believe that it is always or almost always morally

wrong for an unmarried woman to have a child. Some participants agreed with the statement that

a man who does not marry the woman he impregnated is irresponsible. Notably, 42% of

Americans believe that the increase in bastard births is the result of “bad morals, ”a “breakdown

in family structure,” [irresponsible / careless” behavior, or “not taking responsibility.” While

36% of respondents also attributed the increase in bastard births to other factors, such as

“societal changes,” changes in women’s roles, “lack of information,” or “too much sex / [s]ex at

a young age,” it is clear that many Americans make moral judgments about men and women who

have children outside of marriage.

Societal disapproval of bastard childbearing is not limited to single parents but also extends to

cohabiting couples. Fifty-nine percent of participants in the study disapproved of cohabiting

couples having children. They were slightly more supportive of gay and lesbian couples having

children—50% thought it was bad for society—presumably because gay and lesbian couples do

not have the option of marriage in the majority of states. Not surprisingly, there are generational

differences with regard to views on whether bastard childbearing is bad for society. However, the

17

majority (57%) of adults ages 18–64 believe that unmarried couples having children is bad for

society, and 73% of adults who attend church at least weekly believe the same.

Although few people would want to stigmatize bastard children, society seems to have no

objection to stigmatizing their parents. Unmarried mothers are stereotyped as “sexually

irresponsible,” “lazy and unmotivated,” and low-income unmarried fathers are seen as “uncaring

and irresponsible.” Low-income unmarried mothers, whom society assumes will rely on public

assistance to support their children, are often demonized. Single mothers themselves are aware of

society’s disapproval. One study found that privileged single mothers (those who are highly

educated, older, and financially secure) are fully aware of the ways in which single mothers in

the United States are stigmatized and ostracized. As a result, they have appropriated the term

“Single Mothers by Choice” (SMC) to suggest that they are different from other single mothers

— those that are young, poor, and, in the minds of SMCs, less responsible. While SMCs hope

that their middle class status will protect them and their children from the stigma of illegitimacy,

they recognize that society disapproves of their decision and try to protect themselves and their

children by figuring out in advance how they will explain their single parent status to family

members, friends, and even strangers.

Although policymakers never publicly denigrate bastard children, they denigrate unmarried

parents and, in the process, indirectly stigmatize the children that are the fruits of the parents’

allegedly “irresponsible” behavior.

Despite recognition that children are not responsible for the actions of their parents, individuals

make assumptions (conscious and unconscious) about children’s behavior, values, and likelihood

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of success based on their family background. They assume, for example, that bastard children

will themselves bear bastard children that they cannot support.

Individuals may also assume that bastard children will experience greater behavioural problems

and worse outcomes than marital children. One reason for this assumption is that studies suggest

that children who grow up in a single-parent home (or a home with a biological parent and a

stepparent) are more likely than children who live with married biological parents to suffer

emotional and behavioral problems, be poor, underachieve academically, drop out of high

school, become teen parents, and engage in delinquent behavior.

However, social scientists cannot explain the reasons for these poorer outcomes. Some

researchers have speculated that “the effect of marriage on child well-being is derived not from

marriage itself, but rather from the distinctive characteristics of the individuals who marry and

stay married.”

In other words, people who marry may be more committed and future-oriented—characteristics

that are associated with the relationship stability that children need. Marital children may also

benefit from individuals’ positive attitudes towards them. Society values marriage and marital

families derive numerous tangible and intangible benefits, including psychological benefits from

the legal and societal approval of their family structure. For example, married couples receive

more support, including financial support, from relatives than do cohabiting couples.

Other scholars argue that these poorer outcomes are the result of growing up with fewer

resources, which is positively correlated with negative outcomes for children. Single-parent and

cohabiting-parent families are more likely to be poor, in part, because they tend to have lower

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levels of educational attainment than married parents. They also lack access to legal benefits,

such as health insurance through their partner and tax benefits that are available to married

couples only.

As the court concluded in Good ridge v. Department of Public Health, “marital children reap a

measure of family stability and economic security based on their parents’ legally privileged

status that is largely inaccessible, or not as readily accessible, to bastard children.”

Recent studies suggest that marriage’s positive effect on children may be almost entirely the

result of factors other than marriage itself. Regardless of the reasons why children with married

parents have better outcomes, the majority of children who grow up in single-parent families do

not experience emotional or behavioral problems and most become productive adults.

However, individuals assume that bastard children will experience significantly poorer outcomes

than children with married parents and may have lower expectations with regard to their ability

to achieve academically, economically, and socially.

Although some commentators state that there is no longer any social stigma attached to

illegitimacy, some courts and scholars have recognized that societal biases against bastard

children persist.

For example, in a 2003 article, Professor John Witte Jr. acknowledged that “the social and

psychological burdens of illegitimacy remain rather heavy.”

Similarly, courts have refused to abolish certain doctrines, such as the marital presumption of

legitimacy, partly to protect children from the stigma of illegitimacy. The presumption of

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legitimacy has been weakened significantly and many states now allow it to be rebutted with

blood test evidence.

However, some courts allow its rebuttal only if it is in the child’s best interests and will consider

the potential harm to the child such as the “societal stigma that may result or be perceived by . . .

placing the child’s birth outside of the traditional wedlock setting.”

In rejecting a husband’s petition for paternity testing in order to rebut the presumption, one court

recently held that although . . . illegitimacy is not nearly as stigmatizing as it was in the past,” the

court must “consider the silent societal stigma attached to illegitimacy.”

Another court similarly refused to allow a mother to challenge her husband’s paternity of the

child, in part, “to avoid the stigma of illegitimacy.” The Supreme Court has upheld the

presumption of legitimacy, noting that “‘the law retain[s] a strong bias against ruling the children

of married women illegitimate.’”

Courts have sought to protect children from the stigma of illegitimacy in other contexts. For

example, in cases where a bastard child has no legal father, courts have allowed the child to

establish paternity after the putative father’s death, partly because doing so may help eliminate

the stigma of illegitimacy.

In Estate of Greenwood, the court allowed a bastard child to obtain samples of his deceased

putative father’s blood for purposes of establishing paternity, reasoning that “public policy is in

favour of eliminating the stigma of illegitimacy.” In other words, proving that the decedent was

his father would not only potentially entitle the child to a pecuniary benefit—a share of his

father’s estate—but would also help eliminate the stigma of illegitimacy.

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The New Jersey Catholic Conference, as recently as 2010, cited protecting children from any

remaining stigma of illegitimacy as one reason for opposing a bill that would allow adult

adoptees to learn the identity of their birth parents.

Courts have also recognized the “stigma of illegitimacy” in cases involving children’s surnames.

In cases where a divorced father has little or no contact with his child, some custodial mothers

have petitioned the court to change the child’s surname from that of the absent father to the

mother’s surname.

Courts in these cases have considered the stigma that may arise when people assume that the

child must be illegitimate since the majority of marital children bear the father’s surname.

Fathers opposed to the child taking the mother’s surname have argued that “the child will suffer

societal opprobrium as an apparent ‘bastard.’”

Judges have expressed similar concerns. When courts and society think about bastard children,

they often imagine single-parent homes. As noted, however, the majority of bastard children are

born to cohabiting couples. These couples include same-sex couples who cannot marry in the

majority of states. Their children are stigmatized as illegitimate because their parents are not

married.

The plaintiffs challenging California’s Proposition 8 argued that denying same-sex couples the

right to marry harms their children because it deprives them of “the legitimacy that marriage

confers on children and the sense of security, stability, and increased well-being that accompany

that legitimacy.”

22

They also argued that “certain tangible and intangible benefits flow to a married couple’s

children by virtue of the State’s (and society’s) recognition of that bond.” Thus, these plaintiffs

recognize that society confers certain approval on marital children that is denied to bastard

children.

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

23

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.

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

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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).

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CONCLUSION

There are two popular narratives of late medieval bastardy: that of the villainous bastard of later

literature and that of the ‘golden age’ of bastards. The evidence shows a far more nuanced

picture. Whilst bastards did not have the same rights as legitimate children, they were generally

recognised and accepted as part of the family. Whilst few achieved quite the same place in

society that they would have enjoyed had they been legitimate, a combination of developments

in property law and the demographic effects of the Black Death meant that there were more

opportunities for advancement in the fourteenth century than later.

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.

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REFERENCES

Astri Andresen http://www.faqs.org/childhood/Ar-Bo/Bastardy.html

Helen Sarah Matthews, Illegitimacy and English Landed Society c.1285-c.1500

Myers; Michener et al http://www3.nd.edu/~rwilliam/xsoc530/attribution.html

Solangel Maldonado, Illegitimate Harm: Law, Stigma, and Discrimination Against Bastard

Children, 63 Fla. L. Rev. 345 (2011).

Wikipedia www.wikipedia.com

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.

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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.

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Vincent, Clark E. 1964 Illegitimacy in the Next Decade: Trends and Implications. Child Welfare

[1964]: 513-520.

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