STUDY ON THE LEGAL POSITION OF THE ILLEGITIMATE

CHILD
HISTORICAL BACKGROUND
In the Roman Empire, for example, the conception of the family introduced by the Christian
Church completely transformed the legal and social position of illegitimate children.
Concubinage was disavowed and, to bring about its disappearance, the emperors introduced
various restrictive measures preventing illegitimate and legitimate children from being placed on
the same footing. Thus, the children were made to suffer as a means of indirectly penalising
extra-marital relations.

The first step was to place illegitimate children under legal disabilities. The existence of
legitimate ascendants might entail the reduction of dispositions made in their favour. Justinian
was the first to allow children nati ex concubinatu certain limited rights of inheritance
(maintenance, side by side with the legitimate wife or issue ; inheritance from a father dying
intestate; and, in the absence of legitimate children, limited testamentary inheritance).

Children born of adulterous or incestuous relations were denied even the right to maintenance.
With a view, however, to the social and legal rehabilitation of natural children individually, the
emperors introduced various forms of legitimation. Bearing in mind the original reason for
illegitimacy, the Emperor Constantine introduced legitimation by subsequent marriage, thus
placing a kind of premium on matrimony.
The following restrictions were successively abolished :
tha t there should be no children of a previous marriage, th at the
m other should be free-born and th at the privilege should be
granted only to children already born. Justinian made legitimation a perm anent normal
institution subject to the three following
conditions :
(i) That at the time of conception there was no legal bar to the marriage of the father with the
mother ;
(ii ) That there should be an instrumentum dotale or nuptiale proving the transformation of the
concubinage into marriage ;
(iii) That the children should consent to, or at least not oppose, legitimation, as, in spite of the
advantages of legitimacy, the paternal power is not established in their interests and they are
entitled to refuse to submit to the capitis diminulio.

This mode of legitimation gave natural children the same legal status as legitimate children, but
without retroactive effect.
For cases in which the legitimation by subsequent marriage was rendered impossible by the
death, absence or refusal of the concubine, Justinian introduced legitimation by imperial rescript.
A father without legitimate children who was unable to marry the mother of his child applied to
the Emperor for a rescript providing for the desired legitimation; alternatively, if the father
expressed such a desire in his will, the child could himself apply
for a rescript.

There was still another form of legitimation, the legal effects

of which were, however, less complete—legitimation by oblatio curiœ. The mode and purpose of
such legitimation was the enrolment of children in the corps of fiscal officials, whose duties
under the Lower Empire were particularly arduous.

Canon law took over the rules introduced by the emperors in the matter of legitimation by
subsequent marriage, but such marriage was permitted only if there was no bar at the time of
the conception. In the case of children born of adulterous or incestuous intercourse, legitimation
by Papal rescript was practised down to the end of the sixteenth century ; it was used,
however, only to enable illegitimate children to accede to ecclesiastical office. Incapacity in this
respect, which wras then an incapacity ex delictu, ultimately became an incapacity
ex defecto, so that it can now be remedied by taking the vows of a religious order.

In the Middle Ages, the Church, being universal, was able to secure the fullest acceptance for its
rules. I t was even assisted in this respect by the Germanic customs and laws. Among the
common people, the social position of illegitimate children,— “ bastards ”,—became worse and
worse. Legally, their only right was the right to maintenance, in the first place as towards their
mother, and in the second place towards their father, and even as towards their parents’ heirs.
The establishment of paternity was permitted and quite easy, as its only effect was the right to
maintenance. It was, moreover, favored by the parishes, which otherwise were responsible for
the maintenance of bastards. The practice led, however, to grave abuses which ultimately
brought about its abolition in countries governed by customary law.

In virtue of their illegitimacy, bastards were serfs of the feudal lords, so that the question of any
rights other than maintenance did not arise. On the other hand, the lords themselves attached the
greatest importance to the continuation of their line, and as a result, in default of legitimate male
issue, welcomed bastards as heirs.

Towards the end of the Middle Ages, Roman law began to be introduced in a great many
countries. This development took the form, amongst others, of a more favourable attitude
towards illegitimate children : the principle that every child is the legitimate child of its mother
was recognised and the establishment of paternity was permitted, though its effects were limited
to maintenance rights, as “ the child and its father are not deemed to be kin ”.
The French Revolution introduced the acknowledgment of natural children subject to very strict
conditions, and gave children thus acknowledged the same rights as legitimate children.
On the other hand, proceedings to establish paternity were no longer permitted, and the same is
true of the maintenance rights of unacknowledged children. The Code Napoléon incorporated
this conception, prohibiting proceedings to establish paternity and considerably restricting rights
of inheritance. It would appear that, in countries whose laws are based on that Code, the number
of illegitimate children must be very considerable.

In the nineteenth century, illegitimate children who had been acknowledged continued to bear
the stigma of illegitimacy, as acknowledgment did not in any way constitute legitimation, while
the social and legal position of unacknowledged children was deplorable. In certain parts of
Europe, illegitimate births amounted to 50% of the total births.

The laws of the various countries were gradually amended so as to give children born out of
wedlock an equitable position, in the first place legally, and in the second place socially; the
reforms were designed to relieve them of the disabilities to which they
were unjustly exposed, while at the same time safeguarding the rights of the legitimate family.
The measures introduced have differed widely according to the prevailing conception of the
bonds between the child and his parents.

PRESENT SITUATION (1939)

Certain States, such as Louisiana and Porto Rico (the United States of America), the Argentine,
Belgium, Bolivia, Brazil, Bulgaria, the Province of Quebec in Canada, Chile, Colombia,
Costa Rica, Ecuador, France, Honduras, Italy, Luxemburg, Mexico, Monaco, the Netherlands,
Peru, Portugal, Spain and Venezuela, base their legislation on acknowledgment as provided
for in the Code Napoléon.
Other States, such as South Africa, the United States of America, certain Australian States,
Austria, China, Danzig, Germany, Estonia,1 Finland, Greece, Hungary, Latvia, Lithuania,
Salvador, Sweden and Switzerland regard all children as legitimate as towards their mothers, but
do not regard them as possessing any relationship to their fathers.

Denmark and Norway, which also belonged to this group, have recently introduced legislation
which proceeds upon the principle of giving illegitimate children the same rights as legitimate
children as against their fathers, provided th a t paternity is clearly established. In Norway, this
question must be decided in respect of all children born out of wedlock. A statistical
investigation carried out some years ago showed that actual paternity is established in respect of
about 90% of such children.
The laws of Poland, Roumania and Yugoslavia contain features of both systems. In the Union of
Soviet Socialist Republics, the differences between legitimate and illegitimate children have
been entirely abolished.
As regards changes in the other great systems of law, those which have taken place in the
countries governed by Mohammedan law all reveal the same fundamental tendency and seem to
be moving towards the original conceptions now to be met with,
for example, in the laws of Afghanistan, Albania, Egypt and Iran.

Under the legal system of the Hindus of India, the problem of illegitimacy manifests itself in two
peculiar ways. While the legislation denies the right of inheritance on the part of the illegitimate
(sons) of the higher castes, like Brahmins, Kshatriyas and Vaishyas, the illegitimate (sons) of the
Sudras are entitled to a portion of the father’s property. But an illegitimate daughter seems to be
entirely excluded from the right of inheritance.2

Turkey had introduced the system of the Code Napoléon, but under its new Civil Code,
illegitimate children enjoy the same rights as legitimate children. In other countries, on the other
hand, the problem would appear to be growing more serious.

Japan, whose laws used to be based on the “house”, has introduced a system similar to that of the
Code Napoléon, though, as a form of private marriage is fairly common, the problem would not
appear to be of great social importance.
In China, where the system of the large family was in force, the problem was virtually non-
existent; recent alterations in the marriage laws, however, have had the effect of bringing the
legal and social problem of illegitimacy into some prominence.
In particular, the new Civil Code, which came into force in 1930, has done much to modernize
the conception of the family. Small families on Western European lines, consisting of husband,
wife and children, are taking the place of what are called families in the wider sense. The change
which is taking place in this respect has led the legislature to introduce certain articles in the
Code to regulate the lot of illegitimate children.

The social insurance laws will lead to considerable progress in favour of the unmarried mother
and her child. The trades unions—the bodies most interested in social insurance—represent the
classes in which illegitimate births are most common. As a result, the rights of illegitimate
children have been better safeguarded by the social insurance laws than by any others.
Furthermore, the fact that mothers and children in receipt of social assistance ceased to be
entitled to such assistance on becoming insured necessitated legislation qualifying them for
social insurance benefits. With the progress of social welfare measures in the various
countries, their practical value for unmarried mothers and their children is seen to be increasingly
great
MEASURES PROVIDED IN SOCIAL INSURANCE LAWS