illegitimacy

n.

1. The quality or condition of being illegitimate.
2. Bastardy.

noun

1. The state or quality of being illegal: illegality, illicitness, unlawfulness. See crimes, law.
2. The condition of being of illegitimate birth: bastardy. See kin, law.

The Hebrew term usually translated as "illegitimate child" is mamzer but the meaning is very different from the English term "bastard." Scripture provides that "a mamzer shall not be admitted into the congregation of the Lord" (Deut. 23:3) and while the sages understood this to mean that a mamzer may not marry an Israelite "even to the tenth generation," they disagreed as to who is included in the term mamzer. R. Akiva maintained that it includes the offspring, male or female, of any union forbidden by the Torah because of family relationship. R. Simeon of Timna held that only the offspring of a union for which the Bible provides the penalty of Karet (excision or premature death) or execution is included; i.e., an adulterous or incestuous union. This would mean that one born of intercourse with a menstruating woman would be excepted. R. Joshua's view was that a mamzer is only the issue of a union for which there is the death penalty (see Lev. 18:16-20, 20:10-21). The law as finally accepted follows the opinion of R. Simeon (Yev. 4:12-13). The offspring of any union between a mamzer and one of legitimate birth is also a mamzer (ibid.) The sages disagreed as to whether a child born of a union between a non-Jew and a Jewess is a mamzer (Maimonides, Yad, Hilkhot Issurei Bi'ah; Sh. Ar., EH 4:19). A mamzer, then, is a child born of an adulterous or incestuous union. However, in Jewish law, the child of an unmarried mother is not a mamzer and bears no stigma.

The sages were mindful of the apparent injustice of branding a child illegitimate because of the sin of his/her parents. Commenting on the passage in Ecclesiastes (4:1), "I observed ... the tears of the oppressed, with none to comfort them from the power of their oppressors," they said, "This verse refers to mamzerim, whose fathers sinned yet they are condemned to exclusion from the congregation by the Great Sanhedrin of Israel who act by authority of the Torah. Therefore, the Holy One, blessed be He, says, 'I will comfort them in future life'" (Lev. R. 32:7). In keeping with this sentiment, the sages suggested a way in which this stain of illegitimacy can be removed from their offspring. "R. Tarfon says, 'Mamzerim can purify themselves by marrying a female [non-Jewish] slave; the child born to them has the status of a male slave, who upon being freed from servitude by his master, becomes legitimate'" (Kid. 3:13). The sages also ruled that a proselyte (ger) may marry an illegitimate woman (Kid. 72b), while a mamzer may marry another mamzer. Furthermore, the bar to marriage is in effect only if the illegitimacy is proven; a mere suspicion of illegitimacy does not bar the suspect from marriage (ibid. 73a); and even the parents' claim that their son is illegitimate is not accepted (ibid. 78b).

Most cases of mamzerut nowadays occur when a woman remarries without having received an halakhically valid Divorce (get) from her first husband. In the eyes of Jewish law she remains married to the first husband, hence her second marriage is an adulterous union and any children born therefrom are considered mamzerim. This does not apply among Reform Jews, who do not require a get before remarriage. However, if the first marriage was to a non-Jew, or was performed in a civil but not in a religious ceremony, then it is not recognized as a valid marriage and the second marriage, as well as the children born therefrom, are legitimate.

Except for the bar to marriage, a mamzer is a Jew in all respects and is obliged to observe all the commandments. Therefore he celebrates his bar mitzvah and may be called up to the reading of the law. The Mishnah even asserts, "A mamzer who is a Torah scholar takes precedence over an ignorant High Priest" (Hor. 3:5). He is also recognized as a son and shares with his legitimate brothers in any inheritance left by his parents. If his brother died childless, he is required to perform the ceremony of LEVIRATE MARRIAGE with the widow (Yev. 2:5).

Other types of illegitimacy are cases of "doubtful illegitimacy"---the shetuki (where the mother is unmarried and does not know the identity of the father) and the asufi (the foundling, where neither parent is known). Because of the uncertainty involved, these are restricted in marriage regulations and may only marry among themselves. The ḥallal is the offspring of a priest and a woman whom he is forbidden to marry by virtue of his priesthood; the only restrictions on such a child concern his right to be considered a priest.

In the conservative movement there is a consensus of opinion that in view of the unknown number of children born of second marriages where there was no Jewish religious divorce from the first marriage, the laws of mamzerut are today inoperative. In accordance with this general attitude, inquiries of couples about to be wed stop short of the kind of investigation which could uncover a status of mamzerut in one of the parties to a marriage.

Talmudic warrant is cited for a refusal to investigate too closely, and the rule of probability that the couple wishing to marry are not mamzerim can be relied upon.

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This entry contains information applicable to United States law only.

The condition before the law, or the social status, of a child whose parents were not married to each other at the time of his or her birth.

The term nonmarital child is also used interchangeably with illegitimate child.

English common law placed harsh penalties on an illegitimate child, denying the child inheritance and property rights. Modern law has given the nonmarital child more rights but still differentiates between the marital and nonmarital status. In addition, a rising level of out-of-wedlock births in the United States has engaged the attention of politicians and policy makers.

Common Law and Illegitimacy

A child was considered to be illegitimate at common law if the parents were not married to each other at the time of the child's birth even though the parents were married later.

There was a common-law presumption that a child born of a married woman was legitimate. This presumption was rebuttable, however, upon proof that her husband either was physically incapable of impregnating her or was absent at the time of conception. In addition, a child born of a marriage for which an annulment was granted was considered illegitimate, since an annulled marriage is void retroactively from its beginning. Furthermore, if a man married a second time while still legally married to his first wife, a child born of the bigamous marriage was illegitimate.

At common law an illegitimate child was a fillius nullius (child of no one) and had no parental inheritance rights. This deprivation was based in part on societal and religious beliefs concerning the sanctity of the marital relationship, as well as the legal principles that property rights were determined by blood relationships. The legal rights and duties of a person born of married parents could be ascertained more accurately than those of a child with an unknown or disputed father. Public policy in favor of maintaining solid family relationships contributed significantly to the preference for a legitimate child.

Modern Law

The harsher aspects of the common law dealing with an illegitimate child have been eliminated, primarily through the application of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. In Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 436 (1968), the Supreme Court ruled that a state statute (La. Civ. Code Ann. Art. 2315) that barred illegitimate children from recovering damages for the wrongful death of their mother, but allowed legitimate children to recover in similar circumstances, was invalid because it denied illegitimate children equal protection of the law.

The Supreme Court also enhanced the right of an illegitimate child to inherit property. Whereas most states had given legitimate and illegitimate children the same right to inherit property from the mother and her family, a number of states did not allow an illegitimate child to inherit property from the father in the absence of a specific provision in the father's will. In Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), the Supreme Court ruled such provisions in an Illinois statute invalid.

A majority of states now subscribe to the theory that a child born of any union that has the characteristics of a formal marriage relationship is entitled to legitimate status. This theory includes children born of marriages that fail owing to legal technicalities as well as children of void or voidable marriages.

Some states still recognize the validity of common-law marriage, which takes place when a man and woman cohabit for an extensive period, and hold themselves out to the public as being husband and wife even though they were never formally married. In such states children born of such arrangements are considered legitimate. Common-law marriages were a convenient mechanism in the nineteenth century for establishing property rights and legitimating children. Frontier society accepted the economic necessity for permitting such marriages because it was difficult for people on the frontier to obtain a formal marriage license; without common-law marriages, many children would have been declared illegitimate.

Legal Presumption of Legitimacy

The presumption of legitimacy is a strong legal presumption because public policy favors legitimacy to preserve stable family groupings. This presumption can be rebutted only if it can be clearly established that the child in question is illegitimate. A child born to a married couple is presumed to be their legitimate offspring in the absence of a clear demonstration that the husband could not possibly be the father.

Legitimation is the process whereby the status of a child is changed from illegitimate to legitimate. Some statutes provide that a child becomes legitimated upon an open acknowledgment of paternity by the alleged father. In some states an oral admission is sufficient, but in other states a written statement is required. A majority of states prescribe that an acknowledgment must be coupled with an act in order for the child to be declared legitimate. An adequate act in some states is the marriage of the child's natural parents. Once a child has been determined to be legitimate, she or he is entitled to the same rights and protections as any individual whose legitimacy has never been questioned.

Paternity Actions

A paternity suit, or affiliation proceeding, may be brought against a father by an unmarried mother. This civil action is intended not to legitimate the child but to obtain support for the child and often to obtain the payment of bills incident to the pregnancy. Ordinarily, the mother starts the civil lawsuit, but some states allow public authorities to bring a paternity action for the mother if she refuses to do so. If the mother is on welfare, a paternity action is a vehicle for the local government agency to obtain financial assistance from the father.

A paternity action must start within the time prescribed by the statute of limitations, or the mother's right to establish the putative father's paternity and corresponding support obligation will be lost. The evidence needed to establish paternity includes the testimony of the mother, blood and DNA tests, and in some states photographs from which to determine similar facial characteristics of the alleged father and the child.

Legal Rights of Fathers

Whether a father acknowledges paternity or is adjudged to be the father in a paternity action, he has more custody rights today than at common law. At common law fathers were assumed to have little concern for the well-being of their illegitimate offspring. Historically, in most jurisdictions, if a child was illegitimate, the child could be adopted with only the consent of his or her natural mother.

This assumption, as embodied in a New York statute (N.Y. Domestic Relations Law § 111), was challenged in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979). The key issue was whether the consent of an unwed biological father had to be obtained before an adoption could be finalized. The Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitutional and a form of sex discrimination.

Artificial Insemination

Legitimacy issues have arisen when a child is conceived by artificial insemination. This process involves impregnating a woman, without sexual intercourse, with the semen of a donor who might be her husband or another party. Some states adhere to traditional views and consider any child conceived in this manner to be illegitimate, regardless of whether the husband gave his consent to the procedure. Other courts declare that a child is legitimate if the husband consented. A child is most likely considered illegitimate when the mother was unmarried and was artificially inseminated by an unknown donor, and remains unmarried. In most cases of artificial insemination, the father has donated semen anonymously, and his identity is not known.

Current Trends

The rate of illegitimate births in the United States has risen sharply since the early 1970s. In the 1940s fewer than five percent of the total births were out of wedlock. By the 1990s, according to statistics compiled by the Center for Health Statistics at the U.S. Department of Health and Human Services, births to unmarried mothers accounted for nearly one-third of all U.S. births.

See: Child Custody; Child Support; DNA Evidence; Family Law; Parent and Child.

The condition of being born to unmarried parents. It was once considered a mark of disgrace but is generally more accepted now.

Common misspelling(s) of illegitimacy

• illegimacy