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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.
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 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.
What is Social Perception?
In a study by Rosenhan, eight pseudopatients who were actually research investigators gained entry into mental hospitals by claiming to hear voices. During the intake interviews, the pseudopatients gave true accounts of their backgrounds, life experiences, and present (quite ordinary) psychological condition. They falsified only their names and their complaint of hearing voices. Once in the psychiatric ward, they ceased simulating any signs of abnormality. They reported that the voices had stopped, talked normally with other patients, and made observations in their notebooks. Although some of the other patients suspected that the investigators were not really ill, the staff did not. Even upon discharge, they were still diagnosed as schizophrenic, though now it was “schizophrenia in remission”.
Rosenhan described his results to other mental hospitals, and their administrators said they could not be taken in by such a ruse. Rosenhan then told them that they would be visited by a pseudopatient in the next 3 months, and he challenged them to identify who it was. During the 3 month period, 193 patients were admitted, and the psychologists identified 41 they thought were pseudopatients. In reality, Rosenhan had not sent anybody!
In deciding how to classify the patients, the staff doctors were engaged in social perception. Socialperception refers to the processes through which we use available information to form impressions of other people, to assess what they are like.
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.
Solangel 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 filius 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.
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 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, 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 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 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 “[b]ad morals,”a“[b]reakdown in family structure,” “[i]rresponsible / [c]areless” behaviour, or “not taking responsibility.” While 36% of respondents also attributed the increase in bastard births to other factors, such as “[s]ocietal changes,” changes in women’s roles, “[l]ack of information,” or “[t]oo 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 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 singleparent 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” behaviour.
Despite recognition that children are not responsible for the actions of their parents, individuals make assumptions (conscious and unconscious) about children’s behaviour, values, and likelihood 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 behavioural problems, be poor, underachieve academically, drop out of high school, become teen parents, and engage in delinquent behaviour.
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 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 Goodridge 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 behavioural 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 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 “[s]ocietal 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 “[a]lthough . . . 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.
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.”
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.
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.
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
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