Geneza i ewolucja pozycji prawnej dziecka pozamałżeńskiego w polskim ustawodawstwie I połowy XX wieku
Authors:   Katolicki Uniwersytet Lubelski Jana Pawła II, Dworas-Kulik Judyta 
Published: February 2025

The legal status of the illegitimate child would improve gradually, so Polish law until the 1950s retained a distinction between legitimate children and those born out of wedlock in respect of their civil-law status in the family and the inheritance law. As stipulated in the law enacted after the Partition era, the above distinction was intended to favour the permanence and inviolability of the legal family and maintain the patriarchal authority of the father. As a consequence, a child born outside marriage was discriminated against and excluded from the circle of persons with the fullness of rights. The inferior position of the illegitimate child was demonstrated, for example, by the ban on assuming the father’s family name, in the difficulty in acquiring maintenance allowance, in claiming paternity and inheriting only from the mother. Only a voluntary acknowledgement of the child by the father or by a judicial decision included the child among the descendants from the father, allowing inheritance on equal terms with legitimate children. Although work on the draft family law started in the 1920s, a preliminary draft and its explanatory memorandum were not published until 1934. The work of the Subcommittee of the Codification Commission dealing with consanguinity and custody continued for another four years. In 1938, two drafts were published in print: one on the parents–children relations and another on the custody office. The preliminary draft, which specified the legal status of the illegitimate child and the mother, was grounded in modern principles that greatly improved the situation of such a child in comparison with a legitimate one. This sparked criticism and heated debates, also among the proponents of the reform, who called for further-reaching changes. The codification work was interrupted by the outbreak of World War Two. The family law, which was made uniform throughout the country in the first years of the Polish People’s Republic, maintained the distinction between children born within and outside marriage. Only the 1950 Family and Guardianship Code changed the situation of illegitimate children, as their rights were made equal to those of children born in marriage. Illegitimate children were worse-off not only under the civil law. The discrepancy in regulation and the lack of sufficient legal protection for children born out of wedlock was perceived also under the penal law, especially with regard to the crime of abortion and infanticide. The public at the time considered extramarital relationships to be disgraceful for women and deserving damnation. This was reflected in the post-Partition penal legislation, which did not ensure uniform legal protection for children born within and outside marriage. The unification of the penal law did not change much in this regard on account of judicial case law mitigating relevant penal regulations. This article uses the historical-legal method to discuss the assumptions adopted by the Penal Law Section of the Codification Commission from the inter-war period concerning the penal-law protection of the life of an illegitimate child and the regulations contained in Division III of the draft prepared by the Legal Subcommittee concerning kinship and guardianship relations affecting the legal status of a child born outside marriage. Analogous regulations in force in the Polish People’s Republic and the post-Partition civil and penal legislation in force in the interwar Poland were also analysed as a comparative background for the considerations. A comparison of the provisions in force in this area helps to assess the validity and modernity of the codification assumptions of the interwar period. The urgent need for unification of the Polish law in terms of equalling the position of children born in and out of wedlock has been discussed through the prism of the jurisprudence of the Supreme Court and the archival sources concerning, among others, the interwar social and medical aid for single mothers, the family and care policy of the Second Republic of Poland implemented by educational institutions, described on the basis of reports and inspection reports from nurseries and orphanages as well as the interwar files of district courts. The above gives an insight into the genesis of the regulation of the legal position of non-marital children in the Polish law. In the literary scholarship to date, no such study can be found, which justifies this inquiry. The many publications on the legal status of an illegitimate child refer mainly to the period of the People’s Republic of Poland, therefore this publication supplements the current state of research on the title issue.