Illegitimacy

This is a background article. See Psychological issues in illegitamacy for its psychological impact.

"Illegitimacy" is a term that was once in common use for the status of being born to parents who were not validly married to one another. A legal term was "bastardy." That status could be changed in either direction by civil or canon law (a case of the former occurred with the Princes in the Tower). In some jurisdictions, marriage of an illegitimate child's parents after its birth resulted in the child's legitimation, changing its legal status to that of "special bastardy."

History
In many societies, present as well as historical, law 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, as late as the 1960s, illegitimacy carried a strong social stigma. 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 nor, generally, much 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 certa est" ("The mother is 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 Einstein— 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, or abides in a state of sin, due to the marital status of its parents, would be viewed as dubious. Many religions continue to regard premarital or extramarital sex as a sin, but generally do not hold that a resultant child itself dwells in a state of sin.

Nevertheless, the late-20th-century demise, in the advanced world, 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, Alexander Hamilton, Sarah Bernhardt, T.E. Lawrence or 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 and its constitutionality was upheld by the Supreme Court in Nguyen v. INS, 533 U.S. 53 (2001). 

The proportion of children born 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%.

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.

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, 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 cultural commentator and radio talk-show host Michael Medved advocates this stigmatization, especially in the case of "Celebrity Bastard Parents."

The term "bastard"
The word "bastard" is said to derive from the Old French for "child of a packsaddle," being formed from "bast" (modern "bât") = "packsaddle": when muleteers stopped for the night and unpacked their mules, they used the packsaddles as beds, and sometimes there might ensue a liaison with a local female, with the resultant conception of a child. The French suffix "-ard" and the cognate Italian "-ardo," seen in English words such as "coward," was formed in post-Roman times by extracting it from invading Germanic tribesmen's names that ended in "-hard" or "-ward."

Today the word "bastard" remains:
 * a pejorative epithet (comparable to "bitch"). It is, however, also sometimes used in a non-pejorative sense:  in Australian English, it frequently serves as "the great Australian endearment" (e.g., "He's a lucky bastard").  Bastard Nation, an advocacy group for the rights of child and adult adoptees, has attempted to reclaim the word "bastard" as a neutral or self-respecting term;
 * an acceptable adjective for describing odd-sized objects or parts, such as bolts with non-standard threads. A particular type of engineer's coarse file is known in the trade as having a "bastard cut," and is referred to as a "bastard."