A Feminist Interpretation of the Law of Legitimacy

Mary Louise Fellows I am actually going to continue Professor Ead's discussion on procreation and think about it in a slightly different way. As an inheritance law scholar, the definition of the parent-child relationship has obvious importance to me because it determines who is an heir. As a feminist scholar, the definition is also significant to me because the legal rules regarding the parent-child relationship provide a unique perspective on the dialectical link between property and family. What I want to do today is to provide for you one possible feminist interpretation of the law regarding legitimacy.I With that feminist interpretation, I want to look at how the law of legitimacy has affected American society at different times in our history and how it has changed over time. I also want to look specifically at the Uniform Parentage Act. Finally, I want to address what changes in the laws of legitimacy might we expect in the future. As I do this feminist interpretation, I am not arguing that it is either the truth or the only feminist interpretation. Rather, what I am going to argue is that this interpretation may provide us with another perspective so that we might look at some things in a different way after we do this analysis. I also have to ask you, before we start, to bear with me because I am going to go through some legal history. I am going to link it up to current law and to future reform, which may not seem so obvious as I am going through it. First, the history. A finding that a child is a legal heir of a married man means that the man is going to be legally responsible for the child's support during the child's minority and that the child will be the man's legal heir. We have talked a lot about child support and other things. I am going to go a step back and look at the question: How do we know this is that man's child? Very early on, the common law established the presumption that a child born to the wife of a married man was his child unless evidence could be shown that he had no access to his wife. In conjunction with that rule of marital presumption was Lord Mansfield's rule of evidence, which was stated in dicta, in 1777, in the case of Goodwright v. Moss.2 In that case, Lord Mansfield stated that although others could testify, the declarations by the husband or wife regarding lack of access should not be admitted. This evidentiary rule stated by Lord Mansfield was widely adopted in the United States in the eighteenth and nineteenth centuries. The marital presumption and the evidentiary rule have been understood as serving the welfare of the child at the expense of a husband who was married to an adulteress. As Lord Mansfield wrote in Goodwright, "It is a rule, founded in decency, morality, and policy, that they shall not be permitted to say after marriage, that they have had no connection and therefore that the offspring is spurious; more especially the mother, who is the offending presumption and the evidentiary rule have served the welfare of the child." The question I think worth investigating is whether the marital presumption and the evidentiary rule have served the welfare of the child. If preventing a child from becoming illegitimate was the court's central concern, then why would the court have allowed anyone to testify that the husband had not had access to the wife? Admission of any testimony of nonaccess suggests that "welfare of the child" was subordinate to the law's interest in protecting the husband from obligations to support a child, and in protecting the husband and the husband's family from having any of their property passed by succession to a child who is not genetically related to them. What, then, can explain the common law's sometime concern for the child's welfare, sometime preference for a child created by blood, and sometime preference for a child created by marriage, and the common law's abhorrence to the couple's testimony, especially the wife's, regarding the nonaccess of the husband? …