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

Article excerpt

WOLFGANG P. HIRCZY DE MINO [*]

Nonmarital childbearing has become more prevalent in many industrialized nations, raising pressing questions for child welfare policy as well as for the regulatory dimensions of family policy and law. 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, bestprotects the interests of nonmarital children and their fathers. It is also good social policy in that it affirms procreation and childreating 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 many, which the State cannot compel

The decline of the traditional family and the increasing incidence of out-of-wedlock births have of late become hotly debated political issues. In the United States the erosion of family values and traditional morality has been blamed for a variety of social and economic ills not only by conservative politicians, but by a number of prominent scholars as well. Indeed, according to the National Center for Health Statistics the proportion of all children born outside marriage had reached 30% in 1992--a rate four times as high as just 25 years earlier (Ventura, 1994). [1] By 1996, the rate had edged up to 32.4% of all births. As David Murray, an anthropologist at the conservative Heritage Foundation put it: "America is becoming a nation of bastards" (1994:9).

But the phenomenon is by no means limited to the United States. It constitutes a rather widespread--though not universal--demographic trend in industrial societies (Burns and Scott, 1994), with rates in Scandinavian countries exceeding the figure causing alarm in the U.S. by a considerable margin (see Table 1). In the United States the link between out-of-wedlock births and child poverty has played a prominent role in the welfare reform debate, which culminated in passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193). Some commentators have excoriated illegitimacy as the root of all social ills, or at least as a major contributing factor (Wattenberg, 1993; Krauthammer, 1994, Murray D., 1993, 1994; Murray D., 1994). Empirical data showing correlations between out-of- wedlock birth and societal decay serve as ammunition in the ideological and political skirmishes over the family and its future. Along with a calls to re-stigmatize childbearing out of wedlock and t o end welfare dependency, some conservatives tout marriage as the obvious solution and as the best anti-poverty program of all (Blankenhorn, 1995; Popenoe, 1996).

A comparison with other nations readily demonstrates, however, that the relationship between out-of-wedlock births and poverty and is not inevitable. While a surge in non-marital births has occurred in many industrialized nations, child poverty is a more serious and more pervasive problem in the United States. [2] This difference reflects at least in part the greater tolerance for economic inequality in America and comparatively less generous income, welfare, and family support policies.

Cross-national comparisons of poverty rates among lone-parent and two-parent families shows this clearly. A study by the Joint Center for Political and Economic Studies found that American families with children headed by a married couple had a poverty rate of 17.9% in 1986 (where poverty was defined as 50% or less of the median income for all households with heads 20 to 55 years old) (McFate, 1991:32). …