In civil law there are various institutions by which the position of the illegitimate child may be improved; for example, recognition, adoption of the child, and, above all, legitimisation. But of course these will redound to the advantage of those children only towards whom the natural father has no feeling of hostility. By legitimisation, the illegitimate child acquires the position of the legitimate child. There are two chief methods of legitimisation, viz., legitimatio per subsequens matrimonium, and legitimatio per rescriptum principis. About 25 to 30 per cent. of all illegitimate children are legitimised. Of children legitimised[91] during the first year of life, the process is effected in the great majority during the second and third months after birth. The older the child, the less likelihood is there of its legitimisation; and legitimisation is less probable in towns than in the country.
Reasons for these Legal Disabilities.—The defenders of the existing legal order, when asked why it is that the civil law deals so harshly with the illegitimate child, are accustomed to answer as follows. Marriage is the foundation of society; if the legal position of the illegitimate child were as good as that of the legitimate child, this foundation would be shattered. Those who enter into illegitimate sexual relationships, and even the issue of such relationships, must incur serious legal disabilities; for otherwise the principal motive to marriage would be removed, and people would light-heartedly enter into illegitimate sexual unions. Ordinarily, it is only upon the basis of permanent marriage that a groundwork can be erected providing for those moral principles which are the indispensable preconditions of the legal rights and duties of family life; only in permanent marriage, and the family life which is the outcome of permanent marriage, do we obtain adequate guarantees for the fulfilment of these duties and for the proper exercise of these rights. It is only in an insignificant minority of instances that the natural association between an illegitimate child and its father leads to the formation of a more intimate bond between the two. In most cases, the father is indifferent and even hostile to his illegitimate child. He regards it as a burden, and has no interest in its well-being, or in its bodily and mental development. Only in the rarest cases does an illegitimate child share directly in the family life and in the property of the father; and if the father does take over the care for and upbringing of the child, he often does this solely in his own financial interest, in order subsequently to hand over the care of the child to the person who will undertake this at the cheapest rate. In such cases the moral and circumstantial prerequisites to the foundation of true family relationships are utterly lacking; and this is true above all of those cases in which the fatherhood of the child is not voluntarily acknowledged,[92] but is admitted as the sequel of a successful bastardy suit. It has also to be remembered that the proof of the fatherhood of an illegitimate child, though it cannot be regarded as impossible, is nevertheless beset by numerous and considerable practical difficulties; and, in addition, that the adoption of legal measures to enable the paternity of an illegitimate child to be established with comparative ease would involve very grave social dangers, if the acceptance of extensive family responsibilities were to be made consequent upon such proof of paternity. The laws of inheritance protect the institution of private property and the institution of legal marriage; for the integrity of both of these institutions would be threatened if the illegitimate child were endowed with the right to inherit its father’s property.
Advantages and Disadvantages of Illegitimate Birth.—Three different views prevail regarding the relative advantages and disadvantages of illegitimate births. (1) Illegitimate children come into the world favourably equipped, for their parents are young, and their union depends not upon interest, but upon love. (2) Illegitimate children are hereditarily defective, as is clearly manifest in all relationships. Private statistical data show that in respect of body-weight and body-length the illegitimate new-born, boys as well as girls, compare unfavourably with the legitimate. Many illegitimate children exhibit a disposition to various mental disorders (degenerative neuroses and psychoses). Since in most cases the father is unknown, and his qualities therefore elude observation, there would appear to be some ground for the assumption that the hereditary tainting of illegitimate children is even greater than it is actually proved to be. (3) Illegitimate children come into the world with the same equipment as legitimate children.
The first of these views is erroneous, if only for the reason that in men often nothing more than sensuality, and in women often nothing more than self-interest, leads to the formation of an irregular sexual intimacy. But neither the second view nor the third can be accepted without reserve. In interpreting the statistical data relating to illegitimacy, many circumstances have to be considered. Attention must always be paid to the question, which were the intimacies in[93] which the conditions were similar to those of married life, and to the question as to the extent to which the peculiarities apparent in the illegitimate are dependent solely upon the legal disabilities of their status. The material conditions in which illegitimate children are placed must be compared with those of legitimate children belonging to similar social classes. It would be altogether fallacious to compare the condition of illegitimate children with the average condition of legitimate children, instead of with the average condition of children of the proletariat. If these considerations receive due attention, it will become apparent that illegitimacy per se is not a decisive factor, but merely renders more apparent the disadvantages attendant on being brought up under the conditions inevitable for the children of the proletariat.
Abortion, Premature Birth, Still-Birth.—The general causes of abortion, premature birth, and still-birth operate even more frequently in cases of illegitimate than in cases of legitimate birth. The chief causes are the following: (a) Keeping at work up to the time of childbirth. (b) Criminal abortion. (c) Syphilitic infection, which, as is well known, is intimately associated with extra-conjugal sexual intercourse. With regard to (a), unmarried mothers, who are for the most part working-class women, servant-maids, laundresses, sempstresses, &c., are commonly compelled to remain at work until pregnancy is far advanced. With regard to (b), the fear of disgrace and the prospect of poverty impel many unmarried women about to become mothers to attempt to procure abortion. These factors naturally affect town-dwellers to a greater extent than they affect persons living in the country.
In Europe, miscarriages and still-births occur in cases of illegitimate births about 25 per cent. more frequently than in cases of legitimate births. These statistical data must, however, be corrected by the consideration of the following facts: (a) Many live-born illegitimate children are returned as still-born, in order to conceal the manipulations which were effected during or immediately after birth. On the other hand, many still-born children are returned as live-born, for the reason that many material interests may render such a misreport desirable. (b) The larger moiety of illegitimate[94] births are children born to primiparae. For this reason, the percentage of still-births is greater than in the case of all legitimate births taken together—although the effect of the primiparous state of the mother is to some extent counteracted by the fact that the mother of an illegitimate child is commonly quite young.
Childbirth in Unmarried Mothers.—When a married woman is about to become a mother, she makes early preparation of all that will be required during childbirth and the lying-in period. A large proportion of unmarried mothers, on the other hand, spend their last penny before the termination of pregnancy, and are altogether destitute when the time of their delivery arrives. A sense of shame prevents many pregnant women from entering a lying-in hospital, although to do this would provide them with free medical aid. Most women also have a dread of the gynecological clinique, because they think they will be made use of there for the instruction of students. To unmarried mothers, many charitable institutions close their doors. (a) But notwithstanding this, the majority of unmarried mothers are delivered at public lying-in hospitals, gynecological cliniques, and obstetric wards of general hospitals. (b) A small proportion are delivered in private lying-in institutions (and these naturally of a bad class, since such women lack money to pay the fees demanded by the better-class institutions). (c) A third moiety are delivered amid conditions the most unfavourable that can possibly be imagined. All these circumstances combine to exercise a most unfavourable influence upon the morbidity and the mortality of illegitimate new-born infants.
Causes of the Great Mortality of Illegitimate Children.—Owing to causes which come into operation immediately or shortly after birth (syphilis, marasmus, congenital debility, &c.), a much larger percentage of illegitimate children succumb than of legitimate children. The mother returns to work almost immediately after the birth of her child; usually her work takes her away from home, but if otherwise, it is almost certain to be work which will prevent her giving proper care to her child. Hence the great majority of unmarried mothers are forced to separate from their children almost immediately[95] after the birth of the latter. In many cases, the mother does not even commit her child to a foundling hospital, or entrust it to a foster mother, but she kills it or exposes it immediately after birth. It is well known that infanticide and the exposing of infants are almost exclusively the work of unmarried mothers; and in a considerable proportion of cases, criminal abortion is the outcome of an attempt on the part of an unmarried woman to conceal the fact that she has been impregnated.
Baby-farming is in actual practice nothing but a cruel method of infanticide—a method whose causation is apparent on brief consideration. It has been pointed out that the great majority of unmarried mothers belong to a social stratum in which the average income is extremely low. A maid-servant receives at best [in Germany and Austria] an annual wage of from ￡10 to ￡15, a female factory-hand from ￡25 to ￡30. The maintenance of an infant, if the elementary principles of the hygiene of childhood are to be observed, and if the foster-parents are to make any profit at all, costs at the very least ￡15 a year. The mere nutriment of a child during the first year of life costs 4d. per day, or a little more than ￡6 per annum. When allowance is made for house-room, clothing, and necessary incidental expenses, we reach a minimal total of ￡10 to ￡11. How is it possible for the average unmarried mother to find the sum asked by the foster-parents? Those who, as foster-parents, assume the charge of an illegitimate child, cannot reckon on the child’s remaining permanently in their care, and ultimately becoming a useful member of the family. The mother’s payments are scanty and irregular. Her intentions may be good at the outset, and perhaps she has not yet completely exhausted her savings. At first too, perhaps, the father gives, or at least promises, a little pecuniary aid. But when the child is out of sight, his willingness to make sacrifices on its behalf soon wanes. Nothing more is heard of the father. The mother is perhaps out of work for a time, and a fresh pregnancy may ensue. The foster-parents know very well that if this particular child dies, they will readily find another to be entrusted to their care. Sometimes the mother’s own interest in the life of her child fades. How,[96] indeed, can she continue to love it, when it is kept at a distance from her, and when to provide the money needed for its maintenance demands the greatest possible sacrifices? Why should she not desire the child’s death, when this would not merely remove a difficulty from her own path, but might well be regarded as the best possible thing for the child itself, ailing and in lack of proper and loving care? Thus there is often a tacit understanding between the mother and the foster-mother, that the child’s life shall be as short as possible. Unfortunately in such cases it is rarely possible to punish the foster-parents, since in the case of infants it is so difficult to determine precisely where ignorance, stupidity, and poverty end and infanticide by deliberate neglect begins. The law rightly prescribes severe penalties for infanticide; but we may well ask whether it is worse for a mother to suffocate her child immediately after its birth, or, by the lack of proper care, to inflict upon the infant a more tedious but no less certain doom. We often hear it asserted that such murderous baby-farming is in Europe a thing of the past. My own opinion is that France is the only European country of which this assertion may possibly be true.
The food and other necessaries supplied to illegitimate children are commonly inadequate. The more important contributory causes of the enormous mortality of illegitimate children (the primiparous condition of the mother, syphilis, and intra-uterine influences) have previously been mentioned. It is owing to the co-operation of these various unfavourable factors that the death-rate of illegitimate is so much higher than that of legitimate children—the ratio between the two death-rates in the civilised countries of Europe during the twentieth century being, according to my calculations, as 1·4:1. Only in those countries in which the mortality among legitimate infants or the general infant mortality is higher, does a comparison between the infantile death-rates of the legitimate and the illegitimate, respectively, furnish a result which appears less unfavourable to the latter. What this high death-rate of illegitimate children really means becomes apparent when we recall the fact that every year in Europe no fewer than 600,000 illegitimate children are born. In reality the infantile[97] death-rate among the illegitimate is even greater than these figures would appear to show; for a proportion of those born as illegitimate are subsequently legitimised, and, in consequence of this, many infants which at birth were included among the illegitimate, appear in the mortality lists among the legitimate. In the country, the infantile death-rate is greater than in the towns. The differences in the death-rates of illegitimate and of legitimate children, respectively, are greatest in the first month of life, and diminish month by month as age advances. In other words, the expectation of life of an illegitimate infant increases month by month after birth. After the first year of life, the ratio between the death-rates of illegitimate and legitimate children is less unfavourable to the former than in infants under one year of age.
Criminality in the Illegitimate.—Private and official statistical data combine to prove that in illegitimate children criminality is considerably more common than it is in the legitimate. In individual countries, and in respect of different criminal offences, the relationships are very variable; but there is not a single civilised country in which we fail to find that the average criminality-rate of illegitimate children is considerably higher than the average criminality-rate of the legitimate. We see this difference maintained, alike in respect of the number of punishable offences committed on the average by each convicted person, in respect of particular offences in the case of those who experience only one conviction, and finally in respect of the percentage of convicted offenders among the two respective classes. Not a single punishable offence can be mentioned, in respect of which we fail to find that the percentage of illegitimates convicted of that offence is larger than the percentage of legitimates so convicted. Moreover, if we compare recidivists and major offenders with other criminals, we find that the unfavourable influence of illegitimacy is especially marked in the case of the former. The conclusions drawn from the criminal statistics are confirmed by those obtained from reformatories and similar institutions; everywhere we find a higher criminality-rate among the illegitimate.
One circumstance, however, which is commonly overlooked,[98] has to be taken into account. Among those convicted of criminal offences, a certain percentage are persons of illegitimate birth (a); a certain percentage of all births are those of illegitimates (b); a certain percentage of persons who have attained the age at which they become legally liable to punishment for their actions are persons of illegitimate birth (c). It is not the ratio between the numbers in class (a) and the numbers in class (b) that we have to consider, but the ratio between the numbers in class (a) and the numbers in class (c). For the death-rate among illegitimate children is much higher than the death-rate of the legitimate; and the number of the illegitimate diminishes through legitimisation. Thus a much smaller proportion of young persons and of adults consists of persons of illegitimate birth than in the case of the new-born. The proper method of comparison would be to ascertain whether the percentage of illegitimate children at a certain age convicted of criminal offences or undergoing education in a reformatory is greater than the percentage of legitimate children of like age found to be undergoing the same punishment or the same education.
All the causes of crime—imperfect education, poverty, hereditary taint—are present to a greater extent in the illegitimate than in the legitimate. How can we expect that an illegitimate child will be properly brought up when the father commonly accepts no responsibility for the matter, and the mother is usually forced to commit her child to the care of a baby-farmer or to send it to a foundling hospital? By the contemptuous attitude of the general public towards him, and by his inferior legal, social, and economic position, the person of illegitimate birth is, as it were, forced to seek revenge from society for the wrongs which, in his opinion, society has inflicted upon him. Medical statistics establish beyond dispute the fact that among illegitimate children the proportion of feeble-minded is larger than among the legitimate.
Illegitimacy and Prostitution.—I have not been able to obtain trustworthy statistical data as to what percentage of prostitutes are persons of illegitimate birth, but it is generally supposed that the proportion is as high as 30 per[99] cent. A very brief examination of the matter shows that among prostitutes there is a higher percentage of illegitimates than among the general population. The reason for this state of affairs is doubtless the inferior legal position of illegitimate children under the conditions of our time. Illegitimate girls are not properly brought up; they are despised by the world even if their conduct is irreproachable, and thus one of the most potent reasons for remaining respectable—the fear of the loss of good repute—is lacking in their case. A woman who receives no help, or inadequate help, from the father of her illegitimate child, is very apt to become a prostitute.
Occupation in Relationship to Illegitimacy.—The illegitimate originate in the ranks of the proletariat, and remain in those ranks. The statistics of the subject show that about 90 per cent. of adult persons of illegitimate birth are manual workers, and that not more than a fourth of these are skilled artisans. Statistics prove also that about 10 per cent. more of legitimate males are able to qualify by examination for a reduction of the term of military service to one year, than in the case of illegitimate males.
The Different Classes of the Illegitimate.—Those who wish to understand the position of illegitimate children must consider the different classes of the illegitimate. (a) There are many differences in these respects in various countries. For example, in certain countries the children born to a betrothed pair have a better legal position than other illegitimate children. In some countries, again, the legal position of children born of an adulterous or of an incestuous union is worse than that of other illegitimate children.
The social position of the parents, and the existence or non-existence of differences in social rank between father and mother, are circumstances which may exercise a decisive influence upon the position of an illegitimate child. It might almost be maintained that the higher the social position of the unmarried mother, the worse will be the position of her child. For the higher the social position, the more sinful is sexual indulgence considered on the part of a woman except under the forms of marriage; the unmarried mother,[100] when her social position has been a good one, is apt to be driven from her family, boycotted by society, and abandoned by her seducer. The greater the difference in social rank between the two parents, the worse will be the position of the child; when the father’s position is much better than the mother’s, he usually refuses to acknowledge the child at all. (c) The assumption that those women who marry after bearing an illegitimate child, marry in most cases the father of their child, is erroneous. Erroneous also is the assumption that the position of an illegitimate child with a step-father is less favourable than the position of the illegitimate child which has been legitimised through the subsequent marriage of its true parents. As regards Germany, we learn from private statistical data, on the one hand, that nearly 50 per cent. of the women who marry after giving birth to an illegitimate child, marry another man than the father of that child; and, on the other hand, that the position of illegitimate children who thus acquire a step-father is about as good as that of legitimate children in similar classes of society; and their position is certainly much better than that of those illegitimate children whose mothers remain unmarried. We should be led to expect this from the fact that the step-father in such cases marries the woman because he loves her, and does not regard the child as a serious objection; moreover, the records show that such marriages are commonly effected when illegitimate children are still quite young, so that from its early youth upwards the child is a member of the family circle. It seems almost incredible that it should be better for an illegitimate child for its mother to die than for her to remain alive, but unmarried; and yet this may very well be the case, for the upbringing the illegitimate child receives from its own mother is apt to be most unsatisfactory; but should the mother die, the child will usually be cared for by the poor-law authorities.
Illegitimacy and Child-Protection.—The mortality and the criminality of illegitimate children are important elements in general mortality and general criminality; they are closely dependent upon the legal position of illegitimate children, and one of the principal aims of child-protection is to[101] diminish criminality and mortality. For these reasons, the legal position of illegitimate children exercises a decisive influence in determining the methods and the intensity of child-protection. The history of illegitimate children would, as a rule, be even more tragic than it is, if the community at large and the State intervened only in order to counteract the disadvantages resulting from the inferior legal position of illegitimate children, and if no attempt were made to undertake the work of child-protection from the point of view of criminal law or from that of local administrative activity. But when we study the position of child-protection in the individual countries of Europe, we see at once that that position is influenced mainly by one consideration, namely, the legal status of the illegitimate child. Numerous and important branches of child-protection—the care of foundlings, for instance—are concerned chiefly with illegitimate children; and in other departments of child-protection the protection of the illegitimate must be more vigorous than that of the legitimate. But the more unfavourable the legal status of the illegitimate child, the more energetic must intervention be from the side of criminal law and from that of local administration, not only for the protection of the illegitimate themselves, but also for the protection of society against the illegitimate. Where the status of the illegitimate child is a favourable one, the importance of child-protection by means of criminal law and local administrative activity is much less than elsewhere.
The Teutonic and the Latin methods of dealing with illegitimate children are distinguished by the fact that in the Teutonic States inquiry into paternity is permitted, whilst in the Latin States it is forbidden. Where the Latin system prevails—that is, where inquiry into paternity is forbidden—as in France and Italy, the local authorities find it necessary to board out more children than in those countries in which the inquiry into paternity is allowed; for in the latter a larger proportion of unmarried mothers secure an allowance for maintenance from the fathers of their children, and for this reason more illegitimate children are boarded out directly by the mothers. An assimilation[102] of the legal status of legitimate and illegitimate children would obviate numerous evils, so that a few paragraphs in the code of civil law would render superfluous a considerable proportion of the child-protection now dependent upon criminal law and local administrative activity.
Until the Italian legal code provides for the proper recognition of figli di genitori ignoti, any attempt at administrative reform of the Italian methods of dealing with foundlings would be futile. [In Italy, not even the mother is compelled to recognise her child; recognition must not be confused with legitimisation. A child which is recognised neither by the father nor by the mother is termed figlio di genitori ignoti (the child of unknown parents), and it is only a child recognised by at least one parent which is termed figlio illegitimo (illegitimate child).] As long as Section 340 of the French Civil Code continues to state categorically, “La recherche de la paternité est interdite,” not even the risk of capital punishment will restrain from infanticide the mother of an illegitimate child, more especially in view of the fact that in such cases humanely disposed jurymen now so frequently bring in a verdict of Not Guilty.
It may be hoped that before long it will be generally recognised that any attempt to reform child-protection, and especially our dealings with foundlings, must begin with a reform in the legal status of the illegitimate child. Nevertheless, child-protection by the local authorities and through the instrumentality of the criminal law, and, above all, our ways of dealing with foundlings, exert a great influence upon the position of illegitimate children. It is still in dispute whether these things affect the numbers of illegitimate children. It is widely assumed that the existence of foundling hospitals leads to an increase in the number of illegitimate children. But in reality foundling hospitals are not a cause, but a consequence, of the large numbers of illegitimate children.
The Tendency of Evolution.—As time goes on, the position of illegitimate children steadily improves. Formerly, illegitimacy entailed grave civil and ecclesiastical disabilities; to-day, the only differences between illegitimate and[103] legitimate children concern their respective legal status, and even these differences are gradually disappearing. The circumstance that public opinion is taking an ever milder view regarding illegitimate sexual intimacy, exercises a great influence upon the position of the illegitimate child, and a much more extensive mitigation of public opinion in this direction may be confidently anticipated. The fate of the illegitimate child is greatly influenced by the judgment passed upon illegitimate sexual intercourse by the associates, parents, and relatives of the mother. Among the Jews, owing to the sacred character of their family life, the birth of illegitimate children was altogether exceptional. But such a high estimation of marriage is apt to result in complete rupture of relations between the fallen one and her family. Although among the Jews infant mortality in general is lower than among the Gentiles, the mortality of illegitimate children among the Jews is even higher than among the Gentile population.
In most countries to-day we may observe an unmistakable tendency towards the improvement of the legal position of the illegitimate child. This tendency is perceptible in those countries in which inquiry into paternity is permitted. In the Latin countries the necessity of permitting inquiry into paternity is becoming more and more widely recognised. In many countries we find, often in association with foundling hospitals, institutions for the provision of maintenance for illegitimate children.
The reforms of the immediate future, some of which, in certain countries, have actually been effected, are the following: (a) In every country the inquiry into paternity must be permitted. (b) The legal proceedings for the discovery of paternity must be initiated and pursued by the local authorities or some other official body. (c) Where the father fails to pay the necessary maintenance for his illegitimate child, vigorous measures of compulsion must be available (imprisonment, forced labour, &c.). Such measures of compulsion already exist in many countries. (d) The child’s maintenance should not be merely such as will provide what are called “bare necessaries,” but should suffice for its proper[104] upbringing. (e) The natural father should be forced to pay, not for the child’s maintenance only, but also the mother’s expenses in childbed; he should be forced to contribute the last-named expenses, and what is necessary for the child’s maintenance shortly after birth, before the child is actually born—that is, at a time when the needs of mother and child are greatest. (f) The objections which the father is to-day able to raise in bastardy actions should be abolished.
A Radical Reform.—Marriage will best be protected by preventing the birth of illegitimate children. This can only be effected by imposing upon the father of an illegitimate child the same responsibilities that are now imposed upon the father of a legitimate child. Men would be much more careful to avoid the procreation of illegitimate children if they were unable to get off so cheaply as they can to-day. The objection that in the moment of passion no one thinks of consequences is unsound. In most cases, before the sexual act there is a period in which the man has leisure to think of the consequences of what he is going to do. The fact that in countries in which inquiry into paternity is permitted the number of illegitimate children is no smaller than in countries in which such inquiry is forbidden, proves nothing. For other circumstances besides this influence the number of illegitimate children, and in the Teutonic countries it is probable that inquiry into paternity is permitted only in order to counteract these other factors. The objection that such regulations as have been proposed would promote immorality, that they would make women far more ready than they are at present to enter into an illicit sexual relationship, and would thus lead to an increase in the number of illegitimate children, is unsound. The present system tends to render inoperative factors which might exercise a great influence on the conduct of the stronger sex. Moreover, all these objections are rendered nugatory by the fact that hitherto the most severe punishments and the most extreme moral condemnation of illegitimate sexual relationships have not sufficed to hinder these.
It is objected that the proposed reforms could only be introduced in association with the abolition of monogamy and[105] the introduction of free love. If the legal consequences of marriage and of illegitimate sexual union were made identical, there would be no reason for entering the marriage state, for monogamy would be a legal institution without any peculiar legal consequences. But in marriage three distinct legal relationships have to be considered: the mutual relationship of husband and wife, their relationship to persons outside the family, and the relationship of the parents to their children. The fact that the children resulting from a sexual relationship are legitimised does not constitute that relationship a marriage.
In the interest of the illegitimate child the argument is often put forward that it is not right for the illegitimate child to be punished for the errors of its parents. This argument is totally false. If the interest of marriage and that of society really demanded that the legal position of the illegitimate child should be an unfavourable one, the circumstance that the child is blameless is altogether irrelevant. The interest of society is paramount, and in case of need even innocent children must be sacrificed to this interest.