From Bastardy to Equality: The Rights of Nonmartial Children and their Fathers in Comparative Perspective

Abstract

This paper examines nonmarital childbearing, which has become more prevalent in many industrialized nations, as a problem of state regulatory policy. Illegitimacy is here treated as a legal construct that has outlived its justification because discrimination on the basis of birth cannot be reconciled with modern notions of fairness and individual rights. Policies adopted in the U.S. and in Europe are reviewed and evaluated based on the criterion of nondiscrimination. Universal and mandatory paternity establishment, combined with a guarantee of equality in parent-child relationships irrespective of marriage, best protect the interests of non-marital children and their fathers. It is also good social policy in that it affirms procreation and childrearing as joint parental endeavors, protects the child’s right to a relationship with both parents, and furthers some of the state’s interests in marriage by making out-of-wedlock birth similar in its legal and actual consequences to a decision to marry, which the State cannot compel.