The law has always been concerned with paternity. Paternity was critical to the
succession of monarchs and the inheritance of property. Paternity was a moral
issue because of the church’s insistence on fidelity in marriage and celibacy
outside marriage. Infidelity could mean disgrace for a man and death for a
woman. The moral taint was so strong that the law punished the child as well
as the mother:
All the disabilities of bastardy are of feudal origin. With us it is of Saxon
origin. The term bastard being derived from a Saxon word, importing a
bad, or base, original. The disabilities of bastardy are the same under
the civil as under the common law, and in all ages and nations. He has
no ancestor; no name; can inherit to nobody, and nobody to him; can
have no collaterals nor other relatives except those descended from
him. He can have no surname, until gained by reputation. [
Stevesons’s
Heirs v. Sullivant, 18 U.S. 207 (1820).]
The stigma of bastardy lasted a lifetime and could blight the lives of the next
generation, as witnessed by the heraldic bend (or bar) sinister on the family
crest, designating bastardy. In addition to inheritance, a bastard was denied
entrance into several callings and certain civil rights. These harsh laws
persisted until relatively recent times in England and the United States. The
stigma of bastardy was such that the common law developed legal
presumptions in favor of legitimacy.
The presumption of legitimacy was a fundamental principle of the
common law. Traditionally, that presumption could be rebutted only by
proof that a husband was incapable of procreation or had had no access
to his wife during the relevant period. As explained by Blackstone,
nonaccess could only be proved “if the husband be out of the kingdom
of England (or, as the law somewhat loosely phrases it, extra quatuor
maria [beyond the four seas]) for above nine months.…” And, under the
common law both in England and here, “neither husband nor wife
[could] be a witness to prove access or nonaccess.” The primary policy
rationale underlying the common law’s severe restrictions on rebuttal of
the presumption appears to have been an aversion to declaring children
illegitimate, thereby depriving them of rights of inheritance and
succession, and likely making them wards of the state. A secondary
policy concern was the interest in promoting the “peace and tranquillity
of States and families,” a goal that is obviously impaired by facilitating
suits against husband and wife asserting that their children are
illegitimate. Even though, as bastardy laws became less harsh,
“[j]udges in both [England and the United States] gradually widened the
acceptable range of evidence that could be offered by spouses, and
placed restraints on the ‘four seas rule’…[,] the law retained a strong
bias against ruling the children of married women illegitimate.” [
Michael
H. & Victoria D., Appellants v. Gerald D., 491 U.S. 110 (1989).]
The Michael H. case is a good, if unusual, example of this legal rule. Carole and
Gerald were married. During this marriage, Carole had an adulterous affair
with Michael. Sometime after this affair, the child Victoria was born. During a
brief separation from her husband, Carole and Michael had blood tests
performed to determine Victoria’s paternity. The tests established, according to
the evidence presented to the court, a 98% probability that Michael was
Victoria’s father. After a period of living with Michael and treating Victoria as
Michael’s daughter, Carole reconciled with Gerald. Michael, as probable biologic
father of Victoria, sought visitation rights with Victoria.
The California law, which was more than a century old, held that “the issue of a
wife cohabiting with her husband, who is not impotent or sterile, is conclusively
presumed to be a child of the marriage.” Subsequent revisions allowed this
presumption to be “rebutted by blood tests, but only if a motion for such tests
is made, within two years from the date of the child’s birth, either by the
husband or, if the natural father has filed an affidavit acknowledging paternity,
by the wife.”
Gerald had always acknowledged Victoria as his daughter. Carole, having
reconciled with Gerald, also refused to request the court to examine Victoria’s
paternity. Michael, as the probable biologic father, argued that this law denied
him a constitutional right to establish a parental relationship with his daughter.
The U.S. Supreme Court upheld the California law as a valid exercise of the
state’s right to protect the family relationship. The Court made it clear that
biologic parenthood did not supersede legal parenthood as defined by a state
statute reflecting the common law tradition.
