Illegitimacy

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Illegitimacy is the status that is commonly ascribed to individuals born to parents who are not married. A corresponding legal term is bastardy. The child's status can be changed in either direction by civil (as in the case of the Princes in the Tower) or canon law. In some jurisdictions, marriage of an illegitimate child's parents after its birth results in the child's legitimation, the child's legal status then changing to "special bastardy."

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" or "nephew" 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 due to the marital status of its parents would be viewed as dubious. 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, Jesus Christ, Alexander Hamilton, Sarah Bernhardt, T.E. Lawrence, and 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 [1] and its constitutionality was upheld by the Supreme Court in Nguyen v. INS, 533 U.S. 53 (2001). [2]

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% [3].

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.

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 [4], 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 radio talk-show host Michael Medved advocates this stigmatization, especially in the case of "Celebrity Bastard Parents."

Legitimacy

In the common-law tradition, legitimacy describes the status of children who are born to parents that are legally married, or born shortly after a marriage ends through divorce. The opposite of legitimacy is the status of being illegitimate — born to unmarried parents, or to a married woman but of a father other than the woman's husband.


In both canon and civil law, the offspring of putative marriages are legitimate.

Legitimacy was formerly of great consequence, in that only legitimate children could inherit their fathers' estates. In the United States, a series of Supreme Court decisions in the early 1970s abolished most, but not all, of the common-law disabilities of bastardy as violations of the equal-protection clause of the Fourteenth Amendment to the United States Constitution.

One area where legitimacy still matters is in lines of succession to titles. For instance, only legitimate children are part of the line of succession to the Monegasque Throne.

Legitimacy in England & Wales

Section 1 of the Legitimacy Act 1976 provides as follows:

Subject to the following provisions of this Act, where the parents of an illegitimate person marry one another, the marriage shall, if the father of the illegitimate person is at the date of marriage domiciled in England and Wales, render that person, if living, legitimate from the date of the marriage.

Extract from Hershman McFarlane Section A.5

Father The child's father is in the same position as the mother if he was married to the child's mother at the time of the child's birth(1), in that he also has parental responsibility for his child.

Where the child's parents were not married at the time of the child's birth, the child's father will still have parental responsibility for his child if the child is legitimated by statute(2). The father will acquire parental responsibility by virtue of the legitimation. FLRA 1987 sets out the circumstances where the child's parents are treated in law as having been married at the time of the child's birth, even though they were not(3).

(1) CA 1989, s 2(1). (2) FLRA 1987, s 1(2). (3) Ibid, s 1(3); see also [103].

Bastard law (England and Wales)

A bastard in the law of England and Wales was a person whose parents, at the time of their birth, were not married to each other. A person conceived to a couple not married to each other but who subsequently marry before the birth would not be treated as a bastard.[citation needed]

Unlike many other systems of law, there was no possibility of post hoc legitimisation of a bastard. If the parents married after the birth, the child would remain a bastard.[citation needed]

Common law origin

Bastardy was not a status, like villeinage, but the fact of being a bastard had a number of legal effects on an individual.

  • A bastard was neither a direct nor a collateral heir of their parents — a useful consequence if the parents were

villains.[citation needed]

One exception to the general principle that a bastard could not inherit, occurred when the eldest son (who would otherwise be heir) was born a bastard, but the second son was born after the parents were married. The eldest son is referred to as a bastard eigne, the second son a mulier puisne. [citation needed]

If the bastard eigne entered onto land of his father and became seised of it until his death, the mulier pusine and all other potential heirs of the father would not inherit, rather heirs of the bastard eigne's body would inherit.[citation needed]

The Provisions of Merton 1235 (20 Hen. 3 c. IX), otherwise known as the Special Bastardy Act 1235, provided that except in the case of real actions the fact of bastardy could be proved by trial by jury, rather than necessitating a bishop's certificate.

Reform

Post-hoc legitimisation was introduced under the Legitimacy Act 1926 (16 & 17 Geo. 5 c. 60) and the Family Law Reform Act 1969 (c. 46) allowed a bastard to inherit on the intestacy of his parents.

In Medieval Wales

In Medieval Wales, prior to its conquest by and incorporation in England, a "bastard" was defined solely as a child not acknowledged by his father. All children acknowledged by a father, whether born in or out of wedlock, had equal legal rights including the right to share in the father's inheitance. This legal difference between Wales and England is often referred to in the well-known "Brother Cadfael" series of Medieval detective mysteries, and provides the solution to the mystery in one of them.

Mamzer

Mamzer (Hebrew: ממזר) in Halakha (Jewish religious law) is a person born of certain forbidden relationships between two Jews. That is, one who is born from a married woman as a product of adultery or someone born as a product of incest between certain close relatives. The mamzer status is inherited by children; a child of a mamzer (whether mother or father) is also a mamzer. While the word mamzer is often translated as "bastard," unlike the colloquial usage of bastard, a child born out of wedlock or between people of two different faiths is not a mamzer.

Laws of Mamzerim

Other than with respect to the laws of marriage and other minor differences a mamzer is a full-fledged Jew. A mamzer is not a second class citizen and is treated with as much respect as other Jews.[1] It is written in the Mishnah (Horayot 3:8) that "A learned mamzer takes precedence over an ignorant high priest (Kohen Gadol)."

A mamzer and his or her descendants are not allowed to marry a regular (non-mamzer) Jewish spouse. He or she is permitted to marry only another mamzer, a convert to Judaism, or (in the case of a man) a non-Jewish female slave.

Since all marriages involving Jews in the State of Israel are in accordance with Halacha, a mamzer is only allowed to marry another mamzer or a convert. Often in these situations, the mamzer marries abroad and the marriage is recognized in Israel. In order to enforce this statute the Rabbinate of Israel keeps a list of mamzerim.

According to the Shulkhan Arukh, if there are rumors that a married woman is having an affair we do not suspect the children of being mamzerim since the majority of her relations are still with her husband, unless she is exceptionally adulterous. The woman herself is not believed to turn her children into mamzerim.

According to the opinion of Rabbi Moses Feinstein a product of artificial insemination from a mamzer is not a mamzer; there are, however, those that disagree with him.

In a related ruling, Rabbi Joel Teitelbaum declared that children born to a married woman artificially inseminated with the sperm of a man that is not her husband are mamzerim. There are poskim who dispute this ruling. [2]

The children of a mamzer, whether male or female, are mamzerim; likewise their children are mamzerim forever.

There are, however, a few exceptions. The product of a male mamzer and a female gentile slave is a gentile slave. This relationship is sanctioned by Halakha, even though it is forbidden for any other Jew to marry a gentile slave. In historical practice, this was the only method acceptable to Halakha to stop the mamzer status from continuing to the next generation. A convert who wished to marry a mamzer could convert to be a gentile slave and have many of the laws of a regular Jew. The children of the relationship are slaves, and can be freed. After they are freed they are regular Jews and are permitted to marry other Jews. This law is not currently practiced.

The child of a mamzer and a gentile woman is a gentile, who can in theory convert and be a regular Jew. However the relationship between the mamzer and the gentile is not permitted, as no Jew (and a mamzer is considered a Jew) is permitted to marry a non-Jew. (The case of the gentile slave is different, because non-Jews who became the slaves of Jews were expected to undergo a partial conversion to Judaism.)

An incestuous relationship between two gentiles does not produce a mamzer.

The child of a married woman and a gentile man is not a mamzer. However, the child of a woman who is mamzer is a mamzer regardless of who is the father.

Modern approaches to issue

The modern world, in which civil divorce and remarriage without a Get (Jewish Bill of Divorce) has become commonplace, has created a crisis threatening to create a large subclass of mamzer individuals ineligible to marry other Jews, threatening to divide the Jewish people. Decision-makers have approached the problem in two ways.

Orthodox Judaism

The principal approach in Orthodox Judaism has been to follow strict rules of evidence that typically render it impossible to prove either that a prior marriage ever existed or that a child was born of relations outside that marriage. An example is a contemporary responsum by the well-known Israeli Posek Rabbi Ovadiah Yosef to Rabbi Grubner of Detroit, Michigan, establishing an impossibility to prove mamzer status in a situation where the evidence might appear to be clear-cut. The case involved the daughter of a woman who had been married by a Haredi rabbi to a husband who subsequently converted to Christianity and refused to participate in a Jewish divorce. The mother eventually divorced and remarried civilly and had the daughter years later. The daughter, who had been raised as an Orthodox Jew and attended a Haredi day school, brought up the question of her status herself prior to an impending marriage.

Rabbi Yosef proceeded systematically to disqualify evidence that a prior marriage had ever taken place. The mother's evidence was immediately disqualified as an interested party. The ketubah (Jewish marriage contract/certificate) was mysteriously never found. The rabbi who performed the marriage was contacted, but Rabbi Yoseph wrote that his testimony could not be accepted without the ketubah, and in any event required corroboration by a second witness. Attempts to contact the husband were abandoned after an adversarial conversation with his new, non-Jewish wife. Thus, Rabbi Yosef concluded there was insufficient evidence that a valid prior marriage had ever taken place.

Rabbi Yosef then proceeded to establish the possibility that the former husband might be the daughter's father. The mother testified that her former husband occasionally brought alimony payments and came for visitation in person and hence the two were sometimes at least momentarily alone together. Applying an ancient rule that when a husband and wife are known to be alone together behind a closed door the law presumes sexual intercourse may well have taken place, Rabbi Yosef concluded that it was possible the former husband was the daughter's father and hence Jewish law, which very strongly construes all evidence in favor of birth within marriage, had to presume that he was. Thus, Rabbi Yosef concluded that there was insufficient evidence of either a former marriage or that the new husband was the father, and hence he concluded that no evidence of mamzerut had occurred.

Conservative Rabbi Daniel Nevins, commenting on this case, noted that the box of traditional tools Rabbi Yosef brought to bear for discrediting evidence of mamzer status may be sufficiently robust as to cover virtually all cases of inquiry in the types of situations a congregational rabbi would be likely to experience. [3] Nonetheless, Orthodox authorities hold that while contemporary rabbis have authority to refine procedural rules such as rules of evidence, they do not have the authority to abolish biblically mandated categories or procedures entirely.

Another similar issue occurs with ba'alei teshuva: often, former heterodox marriages can be discounted since those who do not keep Shabbat cannot witness a legal document in Jewish law, so the ketubah is considered invalid, and thus the marriage cannot be proven.

Conservative Judaism

The Committee on Jewish Law and Standards (CJLS) of the Rabbinical Assembly of Conservative Judaism has declared that Conservative Rabbis should not inquire into or accept evidence of mamzer status under any circumstances, rendering the category inoperative. In doing so, the CJLS distinguished the Conservative approach to Jewish Law from the Orthodox approach, noting that Conservative Judaism regards Biblical law as only the beginning of a relationship rather than a final word, and that the Conservative movement regards it as its role and responsibility to revise Biblical law from time to time when such law conflicts with evolving concepts of morality. [4]

The CJLS cited cases in the Talmud in which Biblical laws became inoperative, such as when the Sanhedrin stopped meeting at its seat in the Temple in Jerusalem where it was required to meet in order to administer capital punishment, and the abolition of such practices as the rite of Sotah (the ordeal of a suspected adulteress) and the breaking of the heifer's neck in a case of suspected murder as precedents for refusing to administer Biblically mandated procedures on moral grounds. [4] (Other authorities have suggested other reasons, such as the Roman authorities removing the Sanhedrin's ability to administer capital punishment, and the association of certain priestly practices with the existence of a Temple in Jerusalem).

Reform and Reconstructionist Judaism

The category of mamzer has no role in Reform Judaism or Reconstructionist Judaism, as these more liberal branches regard it as an archaism inconsistent with modernity.

In Israeli Law

In the State of Israel, religious courts handle matters of marriage, divorce, and personal status in accordance with religious law, so the law of Mamzerut is also Israeli law for Jews, including secular Jews. Because of the severe disabilities of mamzer status with respect to marriage, the Israeli civil authorities have taken the position that the paternity of a child born within a marriage should not be challenged in any court, in order to avoid creating a body of evidence that might be used to declare the child a mamzer or create difficulties for a future marriage.

A recent case, involving a child born eight months and two weeks after a divorce, indicates that the issue raises strong feelings within Israeli society. [5]

The existence of the category of Mamzer, and the disabilities inherent in it, is one of the arguments frequently used by Israeli secularist such as former Education Minister Shulamit Aloni, who call for separation of religion and state and for the institution of civil marriage - since "it is utterly monstrous and unacceptable that the lives of people be ruined and their basic right to create a family with the spouse of their choice be denied due to antiquated, inhuman religious laws which mean absolutely nothing to them." [citation needed]

An extensive report on the issue of Civil Marriage in Israel, written by Prof. Pinhas Shifman and published in July 2001 by ACRI (Association for Civil Rights in Israel), mentions Mamzerim among the categories of Israelis whose basic right to marry a spouse of their choice is denied by the religious monopoly over marriage [5].

Notes

  1. Silberberg, Naftali. What is the legal definition of a "mamzer"?. AskMoses.com. Retrieved 2007-08-06.
  2. Jakobovits, Yoel (2005). Assisted Reproduction through the Prism of Jewish Law. Jewish Action 65 (3): 26-29.
  3. Rabbi Daniel S. Nevins, A Concurring Opinion Regading Mamzerut, Committee of Jewish Law and Standards, EH 4.2000b, pp. 587-592.
  4. 4.0 4.1 Rabbi Ellie Kaplan Spitz, Mamzerut, Committee of Jewish Law and Standards, EH 4.2000a, pp. 5587-585.
  5. "Better to be a mamzer or to grow up without a father?," HaAretz September 7, 2006


References
ISBN links support NWE through referral fees

  • 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.


External links


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