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

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). The corresponding rate for single-parent families was 53.3% -- a gap of 35.4%. In Sweden, by contrast, the poverty rates of both groups were very low and nearly indistinguishable, 5% and 5.5% respectively, in 1987. According to these data the poverty rate of traditional families was more than three times as high in the United States as that of lone-parent families in Sweden. For other European nations the discrepancy in poverty rates of families headed by couples and single parents fell somewhere in between these extremes: in the Netherlands: 7.2% vs. 7.5%, in France 10% vs. 15.8%, in the UK 16.6% vs. 18%, an d in West Germany 7.1% vs. 25.5%. Using a slightly different definition of poverty, another cross-national comparison by Timothy M. Smeeding (1992) leads to similar conclusions.

Many participants in the policy debate, and many social scientific studies that examine the effects of family status for that matter, assume that the desirable correlates of marriage are also causally attributable to it. This is not necessarily so. Before one can prescribe marriage as a remedy for problems attributed to illegitimacy one has to consider that existing marriages (upon which inferences about the beneficial effects of marriage are based) involve not just self-selection into the pool of married people, but a mutual selection of partners, and that the attributes of individuals that play a role in partner-selection are likely to be the same that account for more favorable indicators of well-being in married families. Further, studies comparing marriage with non-marriage (or married with non-married individuals) do not usually take account of de-selection, i.e. they do not include failed marriages that were ended, either unilaterally or by mutual agreement, and would lower indicators of well-being fo r the ever-married population as a whole.

Marriage, non-marriage and divorce decisions as well as reproductive and parenting choices are also influenced by public policies. Both the behaviors and the policies affecting them vary dramatically across different jurisdictions. [3] It has been noted many times that AFDC--until the overhaul of the welfare system in 1996 the major antipoverty program targeted at poor children in the US--penalized marriage as well as the parents' co-residence through eligibility rules which required one parent (usually the father) to be absent to make it possible for the family to receive public assistance (Besharov and Sullivan 1996).

It would be reductionist to view child and family welfare merely as a function of marriage or illegitimacy. Instead, it must be seen in the context of complex patterns of interplay of people's choices and behavior, economic conditions, and income, labor, and social welfare policies. In addressing the policy dimensions of illegitimacy one must also consider that it is a status defined by law which is amenable to legal policy change. In many jurisdictions the concept has been abolished and is thus no longer an automatic incident of nonmarital birth. Whether a child born out of wedlock has a legal father depends on the nature of the policy put in place of the old one. Nor does out-of-wedlock birth per se say anything about the incidence of subsequent marriage, or about actual living arrangements and the scope and depth of paternal involvement, whether financial, or social and psychological. In Sweden, one of the countries with the highest rates of births out of wedlock, 95% of babies are born into households in which their biological parents live together (Sandqvist and Andersson, 1992; Tomasson, 1998). In Germany, about half of the children born out of wedlock see their parent marry eventually. [4]

While the arguments presented in this paper are not meant to denigrate the intrinsic value and social utility of marriage, nor the personal benefits to men and women who choose matrimony, the social reality is that many children are not born in a traditional family. The primary objective of this article is to analyze the issues raised by non-marital procreation as a problem of state regulatory policy, i.e. family or parentage law. There is a very pragmatic rationale for this: Whatever the merits of marriage and its benefits to society and children, there is a consensus in the Western world that government cannot force people to wed. It may be true that the decline of 'shotgun marriages' is partially responsible for the surge in nonmarital births (Akerlof et al 1996), but the reinstitution of this custom is not an option available to the state. Individuals' right to freely decide whether to tie the knot legally is seemingly as sacrosanct today as the institution of marriage was in the past. Even the use of in centives and disincentives to marry may be constitutionally suspect -- at least in some jurisdictions -- because such policy measures might be held to interfere with the right of individuals to make their own choices.

Regulating the parent-child relationship outside of marriage, however, is a different matter in practice, if not in principle. The rights and obligations of unwed parents are generally deemed a proper domain of public policy because of the state's interest in the welfare of children. Some of the policy objectives of marriage can thus be furthered by regulatory policy pertaining to the non-marital family.

The purpose of this comparative study is to identify and elucidate the relevant policy issues and survey the array of regulatory options pertaining to the establishment, definition, and preservation of legal parent-child relationships in general, and father-child relationships in particular. From the perspective of the child, the normative guideline is its interest in equality and enjoyment of a legally protected relationship with both parents (with the attendant social welfare implications) irrespective of the parents' failure to marry each other; from the vantage point of the nonmarital father, it is his interest in equal parental rights and responsibilities. The emphasis is placed on the legal father-child relationship because of the inherent problem of paternity establishment and because the father-child bond is the weaker link in the nonmarital family. For obvious biological and practical reasons the legal treatment of the mother-child relationship is less problematic.

In the heated debate over marriage and illegitimacy, the approach here taken may seem to be diametrically opposite to that favored by traditionalists who see the restoration of the marital family as the answer. There is nevertheless some common ground because the ultimate goal is the same. While conservatives push for a return to marriage as a cure to father absence and the plethora of social ills attributed to it, this article explores the option of upgrading the non-marital family to allow children who are born out of wedlock to have a relationship with both parents--regardless of who is "at fault." Of course, this makes it necessary to re-conceptualize fatherhood as a social role. It also takes account of a key constraint faced by men which conservative marriage advocates often fail to acknowledge: women's legally assured unilateral decision making rights (Gromelski, 1999; McCulley, 1998; Meulders-Klein, 1996) in regard to contraception, child-bearing, abortion, marriage, and divorce.

The thrust of the policy approach adopted by the U.S. to deal with nonmarital childbearing and child poverty has been to go after biological fathers to collect financial child support in order to reduce the welfare burden (Levesque, 1993-94; Krause, 1990-91; Hansen, 1999). In contrast to this narrow and fiscally motivated policy goal, and unlike much of the child support policy literature, the concern here is a different one. Rather than identifying better or more efficient ways of extracting money from absent bio-dads, the questions tackled in this analysis are these: How does the law hinder these fathers in the way it defines legal parent status and the rights and responsibilities incident to it? How can the law help them become involved parents for the benefit their children? What can be done to support and reinforce the role or unwed fathers as parents? In sum, the overarching concern is to examine how legal reform can serve children by supporting fatherhood outside the traditional context of marriage an d what policymakers can do to remedy, and ideally prevent, the deleterious effects of father absence, which are now being recognized as a serious social problem (Angel and Angel, 1994; Bennet, 1995; Daniels 1998; Davidson, 1990; Horn, 1997; McLanahan and Sandefur, 1994; Vosler and Robertson, 1998).

The normative premises informing this analysis of out-of-wedlock children are not undisputed. Some feminists argue that single mothers are adequate parents by themselves, and deny the necessity of a paternal role despite much evidence that single mothers experience role strain and task overload (Richards and Schmiege, 1993) and that being raised in a single-parent household harms children (cf. Gringlas and Weinraub, 1995; McLanahan and Sandefur, 1994). Men's rights advocates may similarly profess the belief that fathers are competent to raise kids alone, while a number of gay activists promote the idea that lesbians and homosexuals, either as singles or as same-sex couples, should be allowed to have and raise children (cf. Polikoff 1996). Even among those who support the principle that a child has a right to a mother as well as a father, there is disagreement as to whether the genetic tie should be the sole basis for determining who the law should recognize as a parent. This problem arises not only in the ca se of extramarital (adulterous) conception, but has become more and more salient with the development and increasing popularity of technology-assisted forms of reproduction (Hill, 1991; Roberts, 1995). Given such value conflict, the policy debates over the legal treatment of family relationships are waged not only over the best means to promote agreed-upon social ends, but over the appropriate definition of what the goals of family policy and family law ought to be in the first place.

The cross-national comparison of the law of parentage in Western democracies will highlight the nature of the policy problems to be addressed, and the array of options available for policy choice. Part I will examine the issue of discrimination both in regard to the nonmarital child and the nonmarital father, review the historical origin of the legitimacy principle, and examine the underlying problem of establishing the father-child relationship in the past and in the present. Part II will be devoted to an examination of the legal position of the child born out of wedlock, followed by a similar analysis of the legal status, rights and responsibilities of nonmarital fathers in Part III. The concluding section will present an overall assessment of the contemporary status of nonmarital children and unwed fathers and highlight implications for legal reform. The discussion of different countries' policies is not meant to be comprehensive, but illustrative of different regulatory models actually used today or hist orically in a variety of jurisdictions. Given the philosophical conflicts inherent in debates over the family and family policy, there are no easily identifiable objective criteria by which policy performance can be measured empirically. Unlike a study geared toward identifying the most effective ways to reduce out-of-wedlock births, an inquiry of this kind cannot yield clear conclusions as to what works and what does not. For in this area of policy there is simply no consensus on the appropriate evaluative standard. The very essence of the problem involves the collision of competing ideas, interests, and rights.

What a comparative investigation of the laws of parentage can accomplish, however, is to reveal how different legal regimes affect the interests of out-of-wedlock children and their fathers, and the degree to which they further or impede the normative objectives of non-discrimination and strong father-child ties. Any policy lessons to be learned from the cross-national inquiry will in part depend on whether one agrees with the normative premises.

THE CHANGING SOCIAL CONSTRUCTION OF ILLEGITIMACY

Discrimination on the Basis of Illegitimacy

As the philosophy of individual rights and equality has evolved, the notion has taken hold that individuals should not be discriminated against on the basis of personal attributes over which they have no control. Illegitimacy, like race and sex, is a characteristic that attaches to a child at birth. Contrary to the antiquated notion that a "bastard" was "sin become flesh," and that it was acceptable that the moral failings of the parents be visited upon the progeny, our contemporary sense of justice, equality, and individual rights demands that a person be judged on his or her own merits, and not be punished for the misdeeds or choices of others. There is widespread support for the notion that children are innocent and should not suffer because of their parents' failure to marry, whatever one might think about the morality of nonmarital sexual activity. The U.S. Supreme Court has adopted this position in its equal protection analysis of discrimination on account of illegitimacy in a string of cases starting in l968. [5] The European Court of Human Rights has interpreted

Article 8 of the European Convention on Human Rights in a strikingly similar way (Meeusen, 1995). Germany even has a constitutional provision, Article 6, Section 5 of the Basic Law, that mandates specifically that "illegitimate children shall be provided by legislation with the same opportunities for their physical and spiritual development and their place in society as are enjoyed by legitimate children" (Rabl, Stoll, and Vasold, 1988:190).

Discrimination based on illegitimacy, however, is different from that based on race or sex, as are the implications for ending it. The status of being illegitimate, unlike race and sex, is not visible. Indeed the distinction between legitimate and illegitimate is a legal construct entirely. As such the reach of legitimacy can be extended by legislative action to cover children of void, voidable, and attempted marriages. Laws may provide for legitimation by subsequent marriage, by official acknowledgement, or judicial decree. The status distinction between legitimate and illegitimate can also be abolished altogether. Eliminating the concept of illegitimacy, of course, is one thing; assuring each child of a legal and substantive relationship with both parents poses a much greater challenge.

Discrimination Against Unwed Fathers

The equal rights analysis of discrimination against nonmarital children can also be applied to their fathers. There is a significant difference, however. While the child has no choice in determining his or her status at birth, the father has choice and can therefore be held responsible for his sexual behavior and its consequences. It can be argued that discriminatory treatment of unwed fathers in family law is based on the latter's conduct, and that--given society's interest in marriage and family--such discrimination is defensible. But a distinction must be drawn between the decision to engage in sex, and the decision to marry. Traditionally, men may have had to marry a woman they had impregnated as a matter of moral obligation (or at the prodding of a shotgun), if not as a matter of legal duty. Under canon law a "compromised" woman even had a right to marriage and/or compensation as long as she was not a woman of ill repute. In some jurisdictions subsequent marriage was a defense to criminal charges of for nication. Moreover, a policy preference in favor of marriage as the appropriate setting for procreation and child rearing is virtually universal.

To the extent that ideas regarding life-style choices, personal autonomy, and sexual mores have changed, however, the victim-status of the mother and her consent to marriage in the event of unplanned pregnancy (and intentional pregnancy for that matter) can no longer be taken for granted. For many pregnant women the choice not to marry is a viable one today. It follows that fathers of children born out of wedlock cannot categorically be held accountable for not legitimating the child by marrying the expectant mother. Therefore, the fact that the father is not married to the child's mother can not by itself justify the denial of equal rights under the laws governing parentage.

A case can of course be made that the failure of the biological parents to marry each other constitutes a legitimate rationale for de jure denial (or restriction) of full parental rights. After all, the child may suffer as a result. The principle of sex equality would then require, however, that this policy be applied to both parents.

Establishing the Parent-child Relationship: Blood, Bond, and Wedlock

The legitimacy principle is one of long standing and found in most if not all societies and cultures--past and present. It has even be argued that it underlies and is intertwined with other purported family universals, such as marriage and family itself, male dominance, division of labor by sex, the incest taboo, and exogamy (Hendrix, 1993).

In both the Common Law and the Roman Law traditions the filial relationship between father and child was created by birth in marriage based on the presumption of legitimacy (paler is est quem nuptiae demonstrant). The criterion to govern illegitimacy was thus the marital status of the mother. Any child born to a married woman was legally presumed to be the biological child of her husband. If the presumption was not absolute, it was difficult to overcome without the benefit of modem paternity tests. Under Lord Mansfield's Rule in England the spouses were even prohibited from testifying about non-access. If the mother was not married, the child was illegitimate and thus did not automatically acquire a legal father. Under English common law the illegitimate child had no legal rights, while under the civil law on the European continent the mother had a claim against the "perpetrator."

It is clear that the classification of children as legitimate or illegitimate at birth is discriminatory and works to the detriment of the latter. On the surface the simplest solution would be to substitute the criterion of biological parentage for that of the mother's marital status to determine legal parenthood and all attendant rights and obligations. The genetic connection links any one child with a unique set of two parents. Determination of parent status would merely require a finding of facts.

Establishing maternity has never posed a great legal policy problem since the link between mother and child is clear by virtue of pregnancy and birth, an event that is usually well-documented (mater semper certa est). [6] As for matching the child with its biological father for the purpose of creating the father-child relationship for all purposes, matters are more difficult. The biological link between father and child is not evident by any event comparable to birth. While modern technology provides tools (HLA and DNA tests) to establish paternity with high accuracy, testing of all new borns would be costly and impractical (although not infeasible, especially where most births are in hospitals and where fathers are routinely present).

Legal policy everywhere thus still avails itself of presumptions of paternity as efficient mechanisms to create father-child relationships without the need for individual fact determinations. The marital presumption is simply the oldest and best known of these. In many jurisdictions in the U.S. a host of fact scenarios or acts by the putative father other than marriage to the child's mother now give rise to a presumption of paternity. [7] In some jurisdictions sexual intercourse of a man with a woman during the legally defined period of conception results in a presumption of biological paternity.

From the perspective of the state, presumptions are expedient. The main problem arises where the presumptive father is not in fact the biological father (and the true biological father may be unknown), where multiple

presumptions identify different men as fathers of the same child, or where conflicting paternity claims are advanced. Scientific means to end such factual uncertainty are available today. Nevertheless, family circumstances where ties based on blood, bond, and wedlock no longer coincide raise troubling questions of policy. Who should be allowed to challenge the legal presumptions of paternity, when, under what circumstances, and how?

Many jurisdictions do in fact allow husband and wife to challenge the presumption that their child is a child of their marriage. [8] In cases of this nature the husband may want to deny his paternity in order to free himself from the obligation to support an adulterine child; the wife may resort to this legal strategy to terminate the husband's parental rights, thereby preventing him from gaining custody in a divorce proceeding. For the child, much is at stake. Once the biological link has been made the sole arbiter of legal parentage, successful rebuttal of the presumption will void existing father-child relationships and the attendant rights and obligations. A child might thus be deprived of a legal and substantive paternal relationship as well as support and inheritance rights. Indeed, if the biological father is not identified, the child may be left fatherless [9] The husband may lose all parental rights to a child he has raised and believed to be his, or accepted as if he had formally adopted it. [10] O n the other hand, some children will suffer the confusion of multiple paternity (be it contemporaneous or serial), depending on which presumption applies or is rebutted at which time.

THE LEGAL POSITION OF THE CHILD BORN OUT OF WEDLOCK

The nonmarital child has two key interests at stake: firstly, not being subject to the stigmatizing classification and secondly, not being denied rights and benefits enjoyed by children born in wedlock. The principle of non-discrimination should essentially assure the child of treatment similar to that of marital children where its parents cohabit, and that of children of divorce where the biological parents do not share the same household. Of course, legal provisions defining the rights and obligations of parents married to each other vary across jurisdictions. The same is true of provisions governing access, visitation, and support after divorce. The substantive consequences of the application of the equal rights principle to nonmarital children and their fathers will therefore vary correspondingly across jurisdictions.

Classification of Children on the Basis of Parents; Marital Status

To determine how much progress has been made toward equality for nonmarital children, we need to ask whether they are classified on the basis of out-of-wedlock birth and what this entails. In the United States, the Uniform Parentage Act (UPA), a model act drafted by the National Conference of Commissioners on Uniform State Laws, dispenses with the concept of illegitimacy altogether. Undoubtedly this represents a vast improvement over the demeaning term bastard used in the past. The UPA, which has been adopted by nearly half of the U.S. states, provides that all children are equal in their relationship with both parents, whether the latter are married or not. The law only distinguishes between children with and without a presumed father.

Most European countries whose laws were reviewed for this article have retained the status division between legitimate and illegitimate in one form or another, even though major efforts have been undertaken to improve the legal position of the non-marital child. Policymakers have become more sensitive to the stigmatization inherent in the classification. In an effort to reduce it, the German Bundestag, for example, changed the name of the legal status to nichtehelich (nonmarital) as opposed to the more negative au[beta]erehelich (extra-marital) and unehelich (which implies immorality) in 1969. [11] The problem with such cosmetic change is that the new terms or euphemisms may

acquire the negative connotations of the terms they replace as long as a sense of immorality continues to attach to the phenomenon itself. This tendency for novel terminology to become tainted with the very disapprobation and stigma it was coined to eliminate will doubtlessly diminishes as procreation and child rearing in nontraditional settings becomes more prevalent and acceptable. In a major overhaul of the German family law by the German Bundestag in 1997, the term nichtehelich and the status distinction based on marriage were dropped altogether. [12]

The Substantive Legal Rights of the Nonmarital Child Compared to the Marital Child

The second question to ask is whether the nonmarital child enjoys the same rights as a marital child, assuming paternity has been established either by presumption, by administrative legitimation, or by judicial decree. In civil law countries the nonmarital child (and/or the mother as its representative) has long had a claim for support once paternity was acknowledged or adjudicated. Under old English common law a "bastard child" had claims neither in relation to the father, nor to the mother, because it was deemed nullius filus--literally child of no one. Things have much improved for children born out of wedlock in recent times even in the jurisdictions still shaped by the common law. In the U.S. many types of de jure discrimination against "illegitimates" were struck down as unconstitutional by the Supreme Court. States that adopted the Uniform Parentage Act no longer use the marital status of the parents as a criterion in defining the rights of children at all. As a practical matter, the old dichotomy ha s been supplanted by one differentiating between children whose legal paternity is established automatically by presumption, and those requiring special procedures to establish paternity in a court of law or through an administrative process. It is obvious that the factually distinct situation of a child born outside the reach of a presumption of paternity requires special legal mechanisms to produce equality in substantive rights.

Six major substantive rights or interests of the child are affected: the right to know the identity of the father, the right to take the father's name, the right to have an actual relationship with the father (custody, visitation, access, contact), the right to support, the right to inherit, and the right to acquire the father's citizenship. Different jurisdictions vary in the degree to which they grant the nonmarital child equality with marital children in these areas. The general trend is toward equalization. The last remaining vestige of discriminatory treatment was frequently the right to inherit, in part undoubtedly because of the collision with the interests of marital children and because of problems of proof. Inheritance rules are of particular significance in civil law countries which limit the freedom to testate and assure family members (including children) of mandatory shares.

The primary focus of the discussion below will be on the child's right to establishment of legal paternity, since this is the prerequisite for enjoyment of any other substantive rights arising from the legal father-child relationship.

The Child's Right to Its Father

The ability of a child to enjoy equal (or even limited) rights with respect to its father is contingent on identification of the father and establishment of legal paternity. Children whose parentage is not established by operation of a presumption of paternity need to rely on others, be it the mother, an agency of the state, or the father (assuming the latter has an independent right to recognize the child or sue for paternity) to factually enjoy their legal rights. If parents will not take the initiative to establish paternity, who will? How can the child's right be given effect? Should the authorities step in to do so? If not, should the father be given an independent right of action? What about a scenario where the mother refuses to name the father and/or explicitly opposes establishment of her child's paternity?

Should the child, the state on its behalf, or the putative biological father have the right to establish his paternity over the mother's objection? On these questions the relevant policymakers--whether they be courts or legislatures--have given widely differing answers in different jurisdictions.

Germany did in fact limit the rights of the unwed mother in order to further those of the child until recently. As provided by law, the youth welfare offices (Jugend[ddot{a}]mter) intervened on behalf of a child born out of wedlock and assumed mandatory state guardianship (gesetzliche Amtspflegschaft). The rationale for the regime was to extend assistance to the mother to ascertain paternity, obtain child support from the father, and to bring inheritance claims against his estate, thereby promoting the interests of the child. This policy eventually became the subject of criticism by legal commentators on the grounds that it involved unjustifiable interference, stigmatization, and discriminatory treatment of unwed mothers. Mandatory Amtspflegychaft for nonmarital children was also challenged as inconsistent with the German Basic Law and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Broetel, 1991). Critics argued that the automatic imposition of Amtspflegschaft reflected a categorical presumption of incompetence applied to unwed mothers as a class, but not to divorced, separated, or widowed mothers, who might also be in need of legal assistance. Moreover the rationale of securing the child's rights vis-a-vis its biological father had weakened because cohabitation by the parents had become more common. Many unwed parents would eventually legitimate the child by subsequent marriage or by formal voluntary acknowledgment. These arguments did not fall on deaf ears. As part of a sweeping reform of German family law, Amtspflegschaft became a thing of the past in 1998.

Policy evolved in a similar fashion in Austria. There the youth welfare authorities exercised legal representation of all illegitimate children until 1989, when an amendment of the law of filiation gave the unwed mother full and unrestricted parental control of her illegitimate child, except where the mother was herself a minor. The new law also provided for the possibility of joint custody by cohabiting unwed parents. It remained the youth welfare authorities' task to inform the mother about her rights regarding establishment of paternity and child support, and to take legal action on behalf of the child if authorized to do so by the mother in writing (Bernat, 1990-91; Schwimann, 1990).

These reforms promoted the interests of unwed mothers--even to the extent of conferring greater parental rights on them compared to their married counterparts--but at a price. The crux of the matter is that the nonmarital child will always remain at a disadvantage as long as identification and adjudication of the father remains within the purview of the mother's discretion. Her wishes and interests are not always congruent with those of the child. State intervention on behalf of the minor child would appear to be the only way in which such rights could be vindicated for all, or at least most, nonmarital children. This was the rationale underlying the German approach. Its reach was even extended to foreign children who had their habitual residence in Germany.

Policymakers do not have to go as far as placing the child under the state's control through mandatory guardianship, thereby curtailing the parental rights of the mother. The goal of promoting the interest of the child in having two parents can be served by limiting the role of the public agency to that of bringing paternity suits (or functionally equivalent administrative action) on behalf of children born outside marriage. Sweden has long had such a policy (Bergman/Fend, 1989). Its parentage act provides for the local social welfare committee to initiate investigations as to the identity of the father and obtain establishment of paternity either by voluntary legitimation or adjudication within a year of the child's birth. If the allegation is contested, scientific paternity testing is undertaken. The same applies where the mother has had several sex partners. Action can be taken against all such potential fathers at the same time. Unmarried couples may be granted joint custody of their children upon applic ation (Saldeen, 1990-91:436). The overall policy regime appears to be working very well. Paternity determination is not viewed as a major issue and is accomplished in all but about 5.4% of the cases. Nor do child support and the system of advanced maintenance payments, introduced in Sweden as early as 1937, engender much public debate. The program is simply taken for granted. [13]

In Germany too, paternity establishment was remarkably successful. In 1996 the youth welfare authorities were able to identify the father in 93.5% of a total of 137,400 paternity cases. The voluntary acknowledgment rate was 87.5%. In the eastern states (i.e., the territory of the former GDR), the record is even more impressive. In only 2.6% of the cases could the father could not be found (compared to 7.8% in the West), and court action was necessary in a mere 3.5% (7%). [14] This is all the more surprising in light of the fact that at 42.4%--compared to 13.7%--the nonmarital birth rate is much higher in the East. [15]

Several other countries, among them Denmark, Switzerland and Austria, also use public agencies to bring paternity actions on behalf of children born out of wedlock. Although the mother is not under a formal duty to name the putative father in Sweden, Denmark imposed such an obligation (Dopffel, 1988:210). In Austria the mother is instructed about the importance of naming and establishing the paternity of the father, but her right to withhold his name is indirectly recognized. Nor will the youth protection office pursue paternity if it would adversely affect the child (Hopf, 1988:96).

Arguments For and Against Automatic and Mandatory Paternity Establishment

One could argue that mandatory paternity proceedings inevitably collide with the privacy rights of the mother where she is unwilling to name the biological father (or several possible candidates). Upon closer scrutiny, however, the privacy argument loses its inherent appeal. Not only would the mother's exercise of such a privacy right obviate the fundamental rights of the child, it also clearly offends the principle of sex equality. After all, men cannot evade a paternity suit on privacy grounds. While mandatory disclosure of the potential father (or fathers) may be perceived as invasion of mothers' sexual privacy, its effect is rather gender-neutral, since both participants in the sexual union are identified. One could even argue that the effect on men may be more severe because their sexual liaisons would otherwise remain under the veil of secrecy. The pregnancy of a woman will usually be attributed to sexual intercourse (rather than artificial insemination) while the identity of her male partner in concep tion will often be unknown to others. Paternity suits may also be brought against married men (possibly highly embarrassing for the latter). Multiple paternity suits can be filed against the same man where he engaged in several liaisons resulting in births. If the privacy rights of men are not considered weighty enough to deny the rights of the child, why should those of mothers? The crux of the matter, however, is this: There can be no equality for children born out of wedlock as long as identification of the father can be blocked for any reason. The case of small children is even more compelling than the question of inheritance rights because paternal deprivation early in life can never be remedied retroactively. The state remains the only agency that can assure nonmarital children of the actual enjoyment of their right to their father which they now have as a matter of law in many jurisdictions.

Privacy concerns have also been raised in the context of AFDC [16] eligibility rules in the United States. Mothers were required to name the biological father and sign over their legal claims so that the state could collect child support and reimburse itself for the benefits paid to her. The requirement was only to be waived for good cause (Gromelski, 1999). Mandatory disclosure as a condition of public assistance is not so much troubling on the grounds of the mother's interest in privacy, [17] but because of its selective application to the underclass. Whereas poor mothers had to name the putative father, well-to-do mothers had the "right" to create and raise a fatherless child (cf Miller, 1992). An across-the-board duty to identify the father upon registration of birth and naming of the newborn is a better approach. It eliminates such class bias and assures nearly all children of a legal tie with both of their parents. Such a regime could be linked to vital records systems already in place. In the absence of the father's signature on the birth record, the registrar or other relevant agency could be required to contact the man named by the mother, provide him with the option to acknowledge the child voluntarily, or have the question resolved through paternity testing. This policy can be applied equally to married and unmarried fathers. In case of nonpaternity, further steps can be taken to seek out the true biological father.

Automatic and mandatory legitimation/paternity proceedings also benefit unwed mothers. Such a regime takes the heat off the mother and protects her from duress a recalcitrant father might otherwise use in an effort to dissuade her from bringing a paternity suit. Instead, once this policy is in place, paternity establishment becomes a corollary of out-of-wedlock child-birth. The more far-reaching societal effect of such a policy is to reinforce the parental role of fathers and to engender male responsibility with respect to sex, procreation, and child-rearing, a policy goal that now engages policymakers and social scientists alike and is being promoted under the "Responsible Fatherhood" banner (Doherty, Kouneski, and Erickson, 1998; Halle et al., 1998; Horn and Bush, 1997). [18]

Espousal of the principle that all children have a right to both parents necessarily limits the exclusive parental control of the mothers. It also has important ramification for policy governing artificial insemination. A child's right to two parents could only be guaranteed by restricting heterologous artificial insemination (i.e. with anonymous donor sperm) to couples (married or otherwise), where the male partner would assume the legal status of father. [19] Such a policy would also promote sex equality, for it would preclude a legal situation where men would be dependent on women for procreation, but women could simply obtain sperm for insemination and produce fatherless children subject to their sole control de facto as much as de jure (cf. Meulders-Klein, 1996).

Extending Presumptions of Paternity

An alternative to automatic administrative or judicial establishment of paternity is available. The legal father-child relationship can also be created by legal presumptions of paternity. Such presumptions are typically based on statutory law and define the circumstances and acts by the putative father that give rise to it: e.g. co-residence with mother and child, oral or written statement or admission of paternity, agreement to be named as father on the child's birth certificate or signature on it, receiving the child into his home and holding it out 'to be his, etc. Such presumptions, however, pose a major policy problem even if there is official documentation in written form. It is the legal uncertainty resulting from the possibility that the putative father may not be the biological father, and that a presumption of paternity may subsequently be attacked and rebutted. This may undo father-child relationships and cut the attendant rights and obligations almost as easily as it establishes them. Of course t he problem also applies to the marital presumption, now that Lord Mansfield's rule has been abandoned and modem paternity tests can prove non-paternity conclusively. Once the biological connection is held to be determinative of legal parentage, considerations such as social ties, family stability, and psychological bonding will take second place, at potentially great harm to the children, who thereby lose the relationship with the man they have known as their father. On the other hand, rigid application of the criterion of marital status (i.e., the presumption that the mother's husband is always the biological father) may be no less at odds with realities of personal relationships. The dilemma is highlighted by contradictory decisions in high-profile cases involving extramarital conception. In Michael H. v. Gerald D. [20] a California case decided by the U.S. Supreme Court in 1989, a biological father was barred from having parental rights and contact with his daughter (whose mother was married to another man ) even though he had lived and bonded with her in infancy. By contrast, in In re J W. T [21] the Texas Supreme Court allowed a biological father to challenge the marital presumption by holding that he had a due process right under the state constitution to bring an action to establish his paternity in court irrespective of the mother's marital status and her husband's willingness to raise the child as his own. In the later case, decided in 1994, the biological father had not yet developed a social and psychological relationship with the child, but had acted promptly to assert his parental interest. [22]

THE LEGAL POSITION OF THE NONMARITAL FATHER

Any discussion of the legal rights of the nonmarital father must contemplate alternative scenarios depending on the biological father's wishes. He may or may not desire to have a relationship with his child. What are his rights if he does, and what are his rights if he does not? Nonmarital biological fathers would enjoy the greatest degree of personal autonomy if they had full discretion to decide whether to become a parent or otherwise. Conversely, the worst legal regime from their perspective would hold them liable for support and other parental obligations without granting them substantive parental rights, while also denying them an independent right to sue for legitimation or paternity.

From the perspective of the mother, the best of all worlds would be one in which she would enjoy the right to sue for paternity, but could also block her child's legitimation by its father, and had the right to receive court-ordered child support from the father without being obligated by law to share parental rights with him. In between these extremes there is ample room for variation. Most jurisdictions provide for involuntary establishment of paternity. Diversity exists, however, with respect to exceptions, defenses, and evidential rules and standards. Differences are also found in regard to the legal consequences of legitimation. Legitimation by subsequent marriage of the biological parent will generally equate the status of the child with that of a marital child. Establishment of paternity or acknowledgment outside marriage, however, will not necessarily assure fathers or their children of equal rights, especially with respect to access, custody, and inheritance. I will first address the defendant's rig hts in the context of an involuntary paternity action and then discuss an unwed father's legal position where he wants to be recognized as the child's parent.

Involuntary Fatherhood vs. Involuntary Motherhood

An interesting sex discrimination issue arises in jurisdictions that sanction abortion as a means by which women can end an unwanted pregnancy. Under such a legal regime there is no involuntary motherhood (though availability of abortion providers and cost may be issues). As long as paternity actions can be brought against the father, however, involuntary fatherhood will be a fact of life and a considerable risk of sexual intercourse for men (cf McCulley, 1998).

The constitutionality of this sex-based difference in reproductive rights was unsuccessfully challenged in Texas, the largest state of the U.S. that adopted a state constitutional amendment specifically barring sex discrimination in the 1970s. The U.S. constitution does not contain such a provision because the ratification campaign for the federal ERA ultimately failed. In the Texas case, D. WL. v. M.JB. C, [23] a defendant in an involuntary paternity action complained that the Texas Equal Rights Amendment prohibited the selective imposition of involuntary parenthood on men. He argued that the woman's right to abortion breaks the nexus between the act of intercourse and the birth of the child. Since the decision to carry a pregnancy to term belongs, to the woman, the man should not be forced to support the child if the woman chooses to give birth. The court was not impressed, and offered two reasons for rejecting the complaint, namely (1) that the decision to bear children is a fundamental liberty, and (2) t hat the U.S. Supreme Court has also held that illegitimate children have the same rights to support as legitimate children. Upon some reflection it would appear that the first rationale is entirely specious. Whether or not paternity is established has nothing to do with a woman's right to carry a pregnancy to term, and thereby become a parent. The appellant did not seek a court-ordered abortion, but sought to disclaim legal paternity of a child already born. The second rationale is more appealing, but also unconvincing. While the court's concern for the rights of the child is laudable, its reasoning was faulty. A legitimate child, as much as an illegitimate one, runs the risk of having only one parent if the biological father has the right to disclaim parenthood. In D.W.L. v. M.J.B. C it was an unwed father who tried to escape fatherhood, but a husband could have made the same argument with respect to an unwanted child of his marriage. While not logically supported by its reasoning, the court's denial of the equal rights claim is understandable. Had it sustained the defendant's complaint against involuntary fatherhood on equal rights grounds and ruled Texas' paternity statute unconstitutional, it would have torpedoed the policy of recouping welfare payments to single mothers by going after biological fathers. In fact, every defendant in a paternity action could have made the same argument. Divorcing fathers, too, might have sought to dispose of support obligations on the grounds of involuntary parenthood.

A case in Tennessee, dubbed the "Frozen-Embryo Case," also involved the issue of involuntary fatherhood, but did not present the same policy problem. [24] An ex-husband was in effect granted veto power over the implantation of eggs fertilized with his sperm in his ex-wife on the ground that he could not be forced to become a parent against his will. Under the facts of this case the court was apparently more sympathetic to the unwilling father because conception was accomplished by a medical procedure in a petri dish, and no child had yet been born.

In terms of policy choices it is obvious that the would-be father could enjoy the freedom to decline fatherhood only at the expense of an innocent child (even though adoption could compensate an unwanted child for the denial of a legal relationship with the biological father, particularly in a case where the biological mother also relinquishes her parental rights and the child is embraced by a loving adoptive family). The same problem attaches to legal limitations and defenses in paternity actions that are designed to protect the interests of the accused and are contingent on the behavior of the mother, e.g. promiscuity, prostitution, or misrepresentations as to sterility or use of birth control. [25] Such legal provisions would effectively punish the child by limiting his or her rights to a paternal relationship.

The sex discrimination problem with respect to compulsory parenthood only arises in jurisdictions that grant women the right to terminate an unwanted pregnancy, however (McCulley, 1998). The equal rights defect does not exist where abortion is not an option. Such a legal regime holds both sexes at risk of involuntary parenthood in the event of unplanned pregnancy. This line of argument, however, is not usually part of the dominant discourse on abortion and abortion policy.

Evidentiary Safeguards: The Rights of the Defendant

The paternity action has a long history in civil law countries. Generally speaking proof of sexual intercourse gave rise to a presumption of paternity which justified issuance of a temporary support order. Traditional defenses involved the conduct of the mother, most notably prostitution or sexual intercourse with someone other than the defendant. The legal consequences of such a showing varied; the action could be dismissed, biological paternity could be decided based on evidence such as similarity of child and alleged father, or liability could be imposed on all potential fathers under a theory of (quasi-)criminal liability for illicit sex (Coing, 1985:250).

The promiscuity defense is no longer justifiable under the principle of nondiscriminatory treatment of children born out of wedlock. It would allow any alleged father (including the true one) to escape responsibility, thereby depriving the child of any paternal relationship. On the other hand, an alleged biological father must not be denied the best means to disprove the allegation. Since scientific paternity tests are now available, ambiguity about true paternity no longer poses a vexing evidentiary problem. Legal paternity should therefore not be imposed on the accused by operation of a presumption of paternity that arises from sexual intercourse with the mother, but only upon a finding of paternity based on scientific testing, or on the basis of voluntary acknowledgment.

The Right to Establish Parent Status: Legitimation and Standing to Sue for Paternity

Paternity actions are widely available to establish the father-child relationship where the biological father has no interest in assuming parental responsibility. But what about the unwed father who desires a relationship with his child? For such a father a problem arises where he is opposed by the mother, or where official consent (by a court, official legal guardian, or child welfare agency) is also a requirement for legitimation. Should such a father have an independent right to gain recognition as a legal parent that can be enforced over the objection of the mother?

Consent requirements for legitimation by biological fathers in different European countries vary somewhat. With only a few exceptions, however, the mother has veto power. In many jurisdictions the consent of the children themselves is also required if they are of sufficient age. Minimum ages vary from 14 to 18. [26] A variant of the consent requirement is found in Austria, where the father may acknowledge the child before a registrar of vital statistics, while mother and child retain the right to object, but must-within a one-year period--go to court to do so (Klary, 1990:50).

The crucial policy question arises in situations where a mother seeks to block establishment of paternity by a father wishing to do so. Who should prevail in such a conflict? Austria and Texas are examples of jurisdictions that have accorded the putative father an independent right to sue for paternity of a child born out of wedlock. The controlling criterion is biological paternity, established by scientific testing if disputed. In Austria the mother automatically acquires exclusive custody of the nonmarital child, but cohabiting parents can be granted joint custody if it is not detrimental to the child (Bergman/Fend, 1990:63). In Texas the unwed father has essentially the same parental rights as the unwed mother, at least in principle.

From the perspective of the willing father the next-best scenario is one where he must at least be given an opportunity to be heard so that he can make his case for being legally recognized as a parent. This is the minimum level of due process protection unwed fathers enjoy throughout the United States. Even though family law is in principle a matter of the states, the law of illegitimacy, like that of abortion, has largely been federalized by the U.S. Supreme Court. Putative fathers have some rights under the federal constitution. [27] The exact scope of those rights is not quite clear, however. Under revised State statutes or judicial decisions fathers may be entitled to bring suit, but may have to show that the best interest of the child would be served by granting them legal parent status, while the mother typically becomes a legal parent simply by giving birth. In Texas, too, the biological father had to meet this burden in the absence of the mother's consent to legitimation, but this changed when the s tate supreme court ruled this requirement unconstitutional in 1987, thus setting a new precedent.

Even where the biological father has an independent right to sue for his paternity of a child born out of wedlock, he must still know of his child's existence to exercise this right (Hamilton, 1988). Only some sort of mandatory reporting or notification system, or mechanism for automatic filiation action initiated by the state in cases of nonmarital birth, could assure all fathers--willing or not--of such knowledge. One could therefore conclude that unwed fathers' interests in knowing and becoming legal parents of their children are best protected in countries which have automatic paternity establishment. The scope of nonmarital fathers' substantive parental rights, however, is not necessarily comparable to that of married fathers.

A man's right to know that he has become a father and to be recognized as such is one thing, the opportunity to establish an actual relationship with the child--and to act as a parent--is quite a different matter.

Substantive Parental Rights of Unwed Fathers

The extent to which a nonmarital father can perform a parenting role will depend on a number of factual and legal circumstances, including the nature of his relationship with the mother. If he lives with her, or both parents are able to make decisions by consensus, he is likely to enjoy most substantive privileges of parenthood as a matter of fact, no matter how weak his legal position may be. In relation to third parties and the state, however, he may find himself at a disadvantage even under such favorable conditions. He may be barred from making important legal decisions for the child, for example, or denied benefits that are contingent upon legal parent status or legal custody. For an unwed father who lives apart from the mother of his child, the situation will likely be different. If divorced fathers without custody have minimal rights under the laws of a state, even formal equality of rights will mean little to nonmarital fathers in substantive terms. The most significant parental right is undoubtedly that of having access and spending time with the child, enforceable by legal means if necessary. After all, legal rights are only meaningful if remedies can be invoked to prevail over an adversarial party infringing upon those rights, most likely the child's mother, her family, or new husband or partner. Policy on this question will therefore be defined by the scope of the father's parental rights vis-a-vis those of the mother and by the availability of legal remedies. The following analysis will therefore look at the issue of custody and co-parenting rights, assuming that the mother, who will most often have custody and control of the nonmarital child, opposes it.

The array of possibilities ranges over a wide spectrum. At one end is a regime which places the father and the mother on an equal footing and allows either to acquire full custody and control of the child in a contested proceeding in which a decision is rendered based on the best interest of the child. At the opposite end would be a categorical rule denying unwed fathers not only standing for custody, but also visitation (save that granted by the mother voluntarily). In between these extremes, policy can take a variety of forms. With respect to custody, fathers may not be barred outright, but may face a greater burden because of a maternal preference. Concerning visitation, differences will pertain to amount and scheduling options (i.e. frequency, duration, summer times, etc.). Texas and Germany will be discussed in some detail because these two jurisdictions illustrate, respectively, the end points on this spectrum of possible legal regimes.

In Texas a biological father not only has an independent right to establish his paternity, over the objection of the mother if necessary, but the nature of his relationship with the child is also legally indistinct from that between the mother and the child, or the relationship of a marital father and his child once the issue is before a court, usually in the context of divorce. A custody dispute between unmarried parents is thus resolved in the same manner, and by application of the same rules, as one involving divorcing spouses with children. This means no discrimination on the basis of sex, at least in theory. As a practical matter, of course, the courts may exercise their discretion and continue the past practice (formerly reflected in the law) of favoring the mother. But even if unwed fathers and unwed mothers are not on an equal footing with respect to custody defacto, the father is nevertheless in a much better position than in many other jurisdictions, especially if he cohabited with the mother and p erformed the role of a hands-on, involved parent. The Texas Family Code (Sampson et al., 1999) provides for a statutory parenting plan called Standard Order of Possession (SOP) that establishes a minimum amount of parenting time for the noncustodial parent and spells out in detail scheduling of periods of visitation that are presumptively in the best interest of the child (Hirczy de Mi[tiled{n]]o, 1997). Indeed, the Code clearly articulates the underlying normative principle in [ss] 153.001: "The public policy of this state is to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage." [ss] 153.003 requires the court to consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining custody and conditions of possession and access to the child.

In Germany, by contrast, the rights of the nonmarital child were expanded with little consideration of the rights of unwed fathers, and little has changed since. The initial reform effort resulting in the Nichtehelichengesetz (Nonmarital Children's Act) of 1969 was primarily geared toward securing the nonmarital child's economic rights vis-a-vis his or her father. It totally lacked an appreciation of the child's interest in forming a close personal attachment with him. Nor was there even a trace of the notion that the child might have a right to a substantive paternal relationship comparable to that enjoyed by children of marriage. No doubt it was premised on the twin stereotypes of (1) unwed fathers as irresponsible and disinterested in the welfare of their offspring and (2) wed fathers playing no more than the role of bread-winners. The legislation therefore regulated the obligations of unwed fathers, but effectively denied them parental rights. T'hose who envisioned their parental role as encompassing mor e than paying support-aptly called Zahlvaterschaft ("payfatherhood")--were dependent on the goodwill of whoever had physical custody and control of the child, typically the mother. In the absence of such consent, the only remedy was for the father to petition the guardianship court for access to the child--a proceeding in which he had the burden of proof, and had to demonstrate that visitation would be in the best interest of the child, which could be denied with mere reference to the fact that the mother opposed any such contact (Hohloch, 1990:325). In the former German Democratic Republic the unwed father did not even have that option, and therefore could only gain access to his child with the mother's permission (Bartels, 1986:57).

Such a statutory scheme is objectionable on at least two grounds: The assumptions underlying such a policy are no longer in line with reality (if ever they were) since today many unwed fathers seek a parental role. More importantly, categorical presumptions that allow those affected by them no opportunity to show otherwise are patently unfair.

In the U.S., this is now well established. The unwed father cases decided by the U.S. Supreme Court starting with Stanley v. Illinois in 1972, and countless others in lower courts, are evidence that more and more unwed fathers seek to be recognized as parents and wish to play a parental role (cf. Erickson and Babcock, 1995). The courts' disposition of many of them demonstrates recognition of the merits of their pleas. Beyond the litigation context, there is plenty of social scientific evidence of changes in patterns of paternal behavior and commitment.

Many nonmarital fathers are present when their children are born. Even fathers in the inner cities with lacking financial resources acknowledge their fatherhood and contribute informally to their children (Aber, Brooks-Gunn, and Maynard, 1995; Marsiglio 1995; Pettys, 1993). Slowly the role of unwed fathers, and the contribution they can make to the well-being of their children, is being recognized by policymakers and researchers alike (cf. Danziger and Radin, 1990; Lerman and Ooms, 1993). Increasingly fathers--not just mothers--are raising children as single parents (Meyer and Garasky, 1993). According to a report by the U.S. Bureau of the Census, 12.56% of children living with one parent were living with their fathers in 1990. By 1998 the percentage had risen to 15.89 or 3.14 million children under 18 years.[28] In addition, many unwed fathers today live with the child and the mother in a functional family unit.

Secondly, justice by presumption (painting all members of class with the same brush without giving them a chance to make their case), is at odds with the notion that we should be judged on our merits as individuals, not on the basis of generalizations about the groups or classes to which we can be said to belong. [29]

Yet in Germany, and in Europe more generally, the law lagged behind the changing demographic reality of family life. German mothers exercised sole parental control over the child on a day to day basis while the father remained out of the picture if she did not want him to play a role. Guardianship courts and higher courts eventually recognized that a relationship with the father must be in the child's best interest as a matter of cause, since such contact promotes a normal development and sense of identity and family origin. Consequently, the mother's desire to eliminate the child's father from its life could not be a valid argument for denial, because she would be seeking to promote her own interest rather than that of the child, except in the most extreme circumstances. In a 1989 case a biological father in fact prevailed in his effort to obtain access to his child on appeal (Hohloch, 1990:326). But the scope of the redress granted by the court was ludicrous: a single hour of visitation every other month. In some instances fathers seeking an active role might thus win a pyrrhic victory in court. Given the state of the law at the time, gaining custody was altogether impossible. There simply was no legal basis for a court making an individual determination about which home and primary caregiver would be best for the child. This automatic statutory exclusion of unwed fathers from custody and denial of opportunity to show parental fitness was undoubtedly based on antiquated sex-role stereotypes. It increasingly became an object of criticism by legal scholars (Roth, 1991:139) and ultimately led Germany's judiciary to provide the needed impetus for change.

The law governing illegitimates was reformed as part of a more comprehensive overhaul of German family law in 1997. [30] To address the objections of Germany's Constitutional Court to the defects in the prior statutory scheme, the legislature improved the situation for unwed father and their children somewhat, but still retained a maternal preference. The new law, which entered into force July 1, 1998, makes it possible for unwed parents to exercise joint parental authority, but it requires a joint notarized declaration. This means that the law still defers to the wishes of the mother. At the same time the repeal of the system of mandatory Amtspflegschaft freed the unwed mother from the limitations previously imposed on her legal authority over the child. As long as she does not sign a joint-custody declaration together with the father, she enjoys exclusive parental authority (Alleinsonge). She may still invoke the assistance of the authorities in the form of Beistandschaft to press a child support claim aga inst the father, if she so chooses. The mother thus holds the trump card. It is up to her to decide whether the child will have a normal relationship with its father. Cases of prominent women choosing to become solo moms and deliberately excluding the father from the child's life have already appeared in the popular press. [31] A nonmarital father may acknowledge his paternity voluntarily, but the legal effect of such recognition is contingent on the mother's consent.

There was nevertheless some improvement. The unwed father's right to access and visitation (Umgangsrecht) -- along with his obligation to exercise it for the benefit of the child--was statutorily recognized for the first time (along with access rights for grandparents, siblings, and individuals with a close relationship with the child). He was also granted a say in the adoption of his child. His right to custody of the child, however, is secondary to that of the mother as long as she has not relinquished it, and is further qualified by the best-interest criterion.

Children were given a right of their own to contact with their father irrespective of whether they were born in or out of wedlock. Through separate legislation children born out of wedlock were also placed on an equal legal plane with respect to inheritance rights. [32]

Interestingly, the reform also abandoned the mandatory joinder of divorce and judicial disposition of custody, i.e. it allows parents to obtain a divorce without having the custody issue settled by judicial decree. Divorcing parents are thus free to maintain joint parental authority which they exercised during the marriage even though they no longer cohabit, so long as neither parent petitions the court for sole custody. Finally, the heart-balm tort for loss of virginity in contemplation of marriage was dispatched into the trash bin of history. This statutory cause of action arose in cases where the fiance later reneged on his promise of marriage and allowed the spurned woman to recover monetary compensation. Unsurprisingly, it had fallen into disuse.

In sum, even though the revamping of the family law in Germany was meant to bring the law into line with changed cultural values and the new realities of social and family life at the end of the millennium, it did not remove all the vestiges and genderbased presumptions of the past. It failed to deliver full equality to nonmarital children and their fathers. Nor is the situation all that different in much of the rest of Europe (Meulders-Klein, 1996).

The Trajectory of Legal Reform

What accounts for the greater success in securing the rights of nonmarital children and their fathers in the United States generally, and in Texas specifically? The evolution of the law in this area has largely been driven by judicial review, a feature of the U.S. political system whose impact on public policy is probably unmatched anywhere else. [33] Much of the gains have been achieved by determined individuals claiming their rights under the constitution, and seeking redress from the courts, starting with Peter Stanley, [34] who had his children removed from his care by the state after their unwed mother's death because of a categorical statutory presumption that unwed fathers were unfit parents. Statutes that discriminated against children on the basis of birth out of wedlock were similarly invalidated on federal equal protection grounds.

In Texas, where arguably unwed fathers enjoy the greatest scope of rights today, discriminatory treatment of unwed fathers was ended by the state supreme court in 1987, requiring the subsequent revision of the Family Code by the state's legislature. In its landmark ruling for nonmarital fathers' rights, In the Interest of McLean, [35] the Texas Supreme Court found in favor of a biological father who was barred from establishing his paternity in the absence of the mother's consent, holding that the gender-based distinction in the legitimation statute violated the Texas Equal Rights Amendment because the state's interest could be protected without discriminating solely on basis of sex. [36] The irony is that the ERA was primarily advocated as an vehicle to end discrimination against women. In this instance, however, it was unwed fathers who were discriminated against. Unwed mothers had traditionally enjoyed a legal advantage in making decisions about the future of their children born out of wedlock. The Court's ruling put the putative father in a much better legal position. This must be juxtaposed with what happened elsewhere. Courts across the U.S. had responded to the requirement, imposed by the U.S. Supreme Court, that the putative father be given an opportunity to be heard with a "search and destroy policy" (Krause, 1990:1018): Unwed fathers were hauled into court and then expeditiously stripped of their parental rights. As a legal concept the "child's best interest" is sufficiently vague to provide a convenient means for a judge to dispose of the biological father. Under McLean, however, a father in the State of Texas is no longer presumed unfit merely because he is not married to the child's mother, and no longer has to overcome this hurdle. Instead he is entitled to legal parent status as much as the unwed mother, whom the Texas Family Code automatically recognizes as a legal parent by virtue of her having given birth.

Hasty conclusions about the effectiveness of an equal rights amendment, however, are dangerous. Many jurisdictions have some sort of constitutional guarantee or policies committing them to sex equality which do not necessarily lead to the same results, even if their courts have assumed important roles in constitutional and statutory interpretation. By no means can it be said that the McLean decision was an inevitable consequence of Texas' adoption of its own version of the ERA in 1972. While logically compelling, the decision still came as a surprise. Grounds for eschewing strict application of the ERA in this fashion could have been found easily. In fact, in an earlier case involving a similar scenario, the reviewing court upheld the discriminatory statute as justified by the state's interest in making special provisions for illegitimate children notwithstanding the ERA. Even in the precedent-setting McLean case itself, the state supreme court justices were not of one mind, as seen in the dissenting opinion . Still, Texas' experience suggests that had it not been for the ERA (which made sex a protected classification just like race), judicial review, and progressive Supreme Court justices, nonmarital children and their fathers would not enjoy a similar scope of rights to a full-fledged relationship with each other. But not all was the judges' doing. Credit for the liberal visitation provisions of the Texas Family Code--which benefit marital and nonmarital children alike-must go the Texas legislature and those who worked hard for family law reform. The same can be said of the recently-enacted joint custody presumption, which makes shared parenting the norm absent a showing that it would be contrary to the child's interest.

CONCLUSION AND POLICY IMPLICATIONS

The position of the nonmarital child in regard to support and other legal rights has improved considerably in industrial democracies, that of the nonmarital father much less so. In the United States the major impetus for policy change was provided by the courts. Many discriminatory state statutes did not withstand modem equal protection analysis and were struck down as unconstitutional.

Formal legal equality, however, is not tantamount with actual equality. A child born out of wedlock cannot enjoy the rights incident to the father-child relationship if paternity is not established. In the U.S. mandatory state-initiated paternity establishment was limited to public assistance cases and served primarily the purpose of recovering public welfare expenditures from absent parents. As part of its effort to revamp the welfare system and boost child support collections, the U.S. Congress prodded the states to adopt hospital-based paternity establishment programs and required them to set up an administrative process to facilitate paternity acknowledgement. Still, there is no universal system that assures all children without a presumed father of actual enjoyment of the legal rights they now have in theory. Some European countries, by contrast, have decades or experience with state-sponsored schemes to ascertain the paternity of children born out of wedlock, which attest to the workability and effecti veness of such an approach.

Some states have replaced the distinction between legitimate and illegitimate with one based on presumptive paternity. This compensates somewhat for the absence of automatic paternity proceedings. Many children have benefitted by acquiring a presumptive legal father based on facts and circumstances other than the mother's marriage. A major drawback of this regulatory policy choice is the error rate in identifying the biological father and the resultant risk of discontinuity in father-child ties. As long as biology is dispositive of legal family ties, presumptions of paternity may be rebutted in a judicial proceeding and existing father-child ties severed with potentially dire consequences for children. The appropriate statutory remedy would be restrictions on who may contest paternity, and statutes of limitation that protect the child from losing its legal father once a parent-child relationship has been developed and existed for a significant period of time.

The nonmarital child's right to his father's company--in addition to his money --is only slowly being recognized, and has only been given legal effect in a few jurisdictions. While unwed parents living together can obtain joint custody in some countries, nonmarital fathers in general still face de jure discrimination and are often obstructed, if not altogether thwarted, in their quest to visit with and take care of their children. This is lamentable. Unlike payment of child support, a father's contribution as a parent is not constrained by adverse labor market conditions. Even an unemployed father can support his child as a hands-on parent. The failure of society and public policy to facilitate this involvement amounts to a waste of human resources and social capital to the detriment of children. Worse still are rules that positively preclude fathers from becoming involved parents even when they are eager to embrace their parental responsibilities. Luckily, the deleterious effects of father absence, and the factors responsible for it, are now being seriously analyzed and initiatives have been launched to identify ways of addressing the problem.

Like nonmarital children, unwed fathers too have benefitted from court rulings in the U.S. and elsewhere, but most are still subject to legal constraints not imposed on unwed mothers. Even though some fathers have recently prevailed in high-profile adoption disputes, their rights are generally not co-extensive with those of the mothers. Moreover, in the absence of automatic paternity proceedings, willing fathers may not be able to avail themselves of their expanded rights. A man who is denied knowledge that he has become a father has no chance to assume parental responsibility and bond with his child. If he learns of his paternity later, his desire to establish a relationship may conflict with the best interest of the child who may already be in the cafe of a prospective adoptive family, even if he is a perfectly competent parent. Other fathers and children may never know each other, much less have an opportunity to form close and enduring family ties.

A mandatory and universal system for ascertaining paternity at birth would greatly reduce this problem. Universal paternity testing could greatly reduce the error rate, which is inherent in a system merely relying on acknowledgement. Such a system would make a legal regime guaranteeing equality meaningful for virtually all unwed fathers and their children, while also allowing for the resolution of disputed paternity cases early on. Universal paternity establishment would have the salutary effect of promoting sexual responsibility by making the legal and factual consequences of nonmarital sex resulting in child birth similar to those of procreation in marriage. Finally, such a system would make paternity establishment non-negotiable and non-discretionary, and hence a predictable consequence of the birth of each baby. Combined with a guarantee of legal equality, it would reinforce societal recognition of the father's role in human reproduction and childrearing and help strengthen fatherhood in a time when the traditional nuclear family is undergoing profound change. Perhaps most importantly, such an approach would bring us closer to a solution of the problem of paternal deprivation and its adverse consequences for society at large as much as for the lives and futures of ever-increasing numbers of children.

(*.) Department of Political Science, University of Houston, Houston, Texas 77204, USA E-mail: wolfh@bayou.uh.edu, wolfh@netcom.com

(1.) Among black Americans, nonmarital birth had become the statistical norm with nearly 70% of all births.

(2.) According to the U.S. government's definition of poverty and its own survey data the poverty rate of children was 18.9% in 1998. The proportion of the population living below the poverty level was 12.7%. U.S. Department of Commerce News. September 30,1999, www.census.gov/Press-Release/www]l999/cb99188.88.htnil.

(3.) For an excellent comparative look of family policies see The Economist's cover story on the disappearing family published September 9, 1995:1,19,25-29.

(4.) "Studie: Comeback der Familie." Focus Ma-aazine March 16, 1998.

(5.) "The legal status of illegitimacy is, like race or national origin, a characteristic beyond an individual's control and it bears no relation to the individual's ability to participate in and contribute to society." Mathews v. Lucas, 427 U.S. 495, 505 (1976). Also see Levy v. Louisiana, 391 U.S. 68 (1968), Weber v. Aetna Casualty and Surety Co., 406 U.S. 164 (1972), Gomez v. Perez, 409 U.S. 535 (1973).

(6.) New reproductive technologies, however, raise novel legal problems for mothers too. In cases of surrogacy the genetic mother and the birth mother are no longer identical. Policymakers and courts therefore face the task of deciding which criterion--providing the ovum with the genetic material or giving birth--shall be determinative of legal parent status (ed. Hill, 1991).

(7.) The Uniform Parentage Act (UPA), 9B U.S.A. 295, promulgated by the National Conference of Commissioners on Uniform State Laws in 1973 and approved by the American Bar Association in 1974 provides for situations such as attempted marriage, the case where the man and the child's mother marry or attempt to marry after the child's birth and the father recognizes the child as his, the case where the man receives the child into his home and holds it out as his own, and the case where the man acknowledges his patermity of the child in a formal writing without objection by the mother. In addition, formal action can be brought to ascertain or disaffirm paternity or to confirm one of the formal presumptions (see Krause et al., 1998, 2891).

(8.) Some also accord the putative biological father a right to sue for paternity even if the child has a presumed father by virtue of the mother's marriage to another man.

(9.) See, for example, W.K. v. M.H.K. 719 S.W.2d 232 (Tex. App.-Houston[4th Dist.] 1986), upholding father's right to deny his paternity under Texas statute which makes biological fatherhood determinative. The rationale of the legislation was that forcing parental liability on a non-biological father is a harsher result than depriving child of presumptive father, since child's remedy is adoption by mother's husband or suit against the biological father. The court also ruled that the husband was not barred from exercising his statutory right to deny paternity under the theory of estoppel, which can be invoked under certain circumstances to prevent someone from exercising a right they would otherwise have.

(10.) See, for example, Davis v. Houston, 734 S.W. 2d 211 (Tex.App.-Dallas 1987), in which the reviewing court upheld the wife's statutory right to deny her husband's paternity of a child of the marriage, thereby allowing her to abrogate the husband's parental rights and gain exclusive custody of the child; and TED. v. Emerson, 746 S.W.2d 312 (Tex. App--Amarillo 1988), a factually similar case. For law review commentary on this problem see Runner (1989-90) and Visconti (1988).

(11.) The term unehelich is also the one used in the constitutional provision protecting nonmarital children: "Den unehelichen Kindern sind durch die Gesetzgebung die gleichen Bedingungen f[ddot{u}]r ihre leibliche und seelische Entwicklung und ihre Stellung in der Gesellsehaft zu schaffen wie den ehelichen Kindern." Grundgesetz f[ddot{u}]r die Bundesrepublik Deutschland. Artikel 6(5).

(12.) "Das Stigma 'nichtehelich' wird beseitigt. 'Frankfurter Allgemeine Zeitung June 28. 1997, p.4.

(13.) In general, Swedish family policy provides for society at large to contribute toward the cost of child rearing through a variety of social measures. On the other hand, it is a cardinal principle of the Swedish policy that the labor market provide full employment for those able to work. Single parents are expected to work, too. Social benefits, including advanced maintenance payments are only supplementary (Kindlund 1988, 81). Not surprisingly, single parents do in fact have high labor force participation rates.

(14.) "1996 mehr Vaterschaftsfeststellungen als 1995." Statistisches Bundesamt, Mitteilungen f[ddot{u}]r die Presse [press release] March 10, 1998. http://l94.95.ll9.6/presse/deutseh/pmIpm/8tt79082.htm

(15.) "Immer mehr aussereheliche Kinder geboren." AP WorldStream-German. Associated Press March 10, 1998.

(16.) Until the 1996 welfare overhaul AFDC (Aid to Families with Dependent )Children) was the major state federal welfare program assisting mostly single mother households. For an extensive treatment of federal child welfare and support collection policy see Harry D. Krause (1981). For more recent critical commentary on the excessive emphasis on forcing poor unwed fathers to pay, see Krause (1990-91).

(17.) See Doe v. Norton 365 F.Supp. 65(1973) (Requirement that AFDC mother disclose name of child's father held constitutional).

(18.) For information on the federal Fatherhood Initiative sponsored by the U.S. Department or Health and Human Services, see http://aspe.hhs.gov/fathers/fi-home.htm. Similar efforts were launched at the state level. For critical commentary, see Dafoe, Popenoe, and Chavez (1999).

(19.) Whether a child has a right to know its true biological father is another intriguing question. Not only is it relevant to state regulation of medically assisted reproduction and adoption, but also to the rules governing the rebuttal of presumptions of paternity. Germany's Federal Constitutional Court in fact recognized such a "right to know one's parentage" as protected by the country's Basic Law in a 1989 decision (Frank 1990-91:375).

(20.) 491 U.S. 110 (1989).

(21.) 36 Tex.Sup.Ct.J. 1126, 1 131(1993), withdrawn and superseded, 872 S.W.2d 189 (Tex. 1994).

(22.) For rules governing standing to challenge the presumption in European countries, see Meulders Klein (1996).

(23.) 601 S.W.2d 475 (Tex.Civ.App.--Houston. 1980). The arguments were previously put forth and scrutinized by Levy and Duncan (1976).

(24.) New York Times June 4, 1992, June 5, 1992. "The Fate of the Frozen Embryos." [Editorial]. New York Times June 6, 1992; Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).

(25.) Cf Pamela P. v. Frank S. 59 N.Y.2d 1,462 N.Y.S.2d 819, 449 N.E.2d 713 (1983); Linda D. v. Fritz C. 38 Wash.App. 288, 687 P.2d 223 (1984). This problem could be partially addressed by authorizing the duped father to bring a reimbursement claim for fraud or misrepresentation against the mother.

(26.) [ddot{O}]sterreichisches Standesamt 1990(9):62, 1990(7/8):52; Bemat, 1990-91.

(27.) Stanley v. Illinois, 405 U.S. 645,92 S.Ct. 1208,31 L.Ed.2d 551 (1972).

(28.) U.S. Bureau of the Census. Internet release, January 7, 1999.

(29.) Cf. Stanley v. Illinois, 405 U.S. 645 (1972).

(30.) Gesetz zur Reform des Kindschaftsrechts [Parentage Reform Act] (BGBI. 1997 Teil IS. 2942) and Beistandsschaftsgesetz (Assistive Guardianship Act] (BGBI. 1997 Teil IS. 2846); "Kindschaftsrecht mit breiter Mehrheit vom Bundestag beschlossen." CDU Deutschlands, www.edu.de/bpt archive97/; "Es gibt keine nichtehelichen Kinder mehr. Wichtige Gesetzesanderungen zum 1. Juli." Suddeutsche Zeitung July 1, 1998; "Die Familie wird neu erfunden" AP Worldstrearn-German,. Associated Press. June 28, 1998; "Das gefallene Madchen hat ausgedient." AP Worldstrearn-German. Associated Press. September 25, 1997.

(31.) Daniela Debus. "Die Venusfalle ist schwanger. Aber von wem?" Bunte August 6, 1998; Michael Kneissler. "Braucht dieses Baby einen Vater?" Bunte August 27, 1998.

(32.) Erbrechtsgleichstellungsgesetz [Act to Assure Legal Equality in Inheritance Law], BGBI. IS. 2968.

(33.) This is not to say that the influence of judicial review on substantive family law has been limited to the U.S. As noted, some of the statutory changes in Germany are also attributable to decisions by the country's Constitutional Court. In addition to parents' right to joint custody of their children. this includes the recognition of the child's right to knowledge of its origin and the unwed father's rights in the adoption context. The respective legislative reforms thus merely codified the changes required by court rulings. In addition, the European Court of Human Rights has assumed an increasingly important role in shaping family law, including the rights of fathers, in European countries (Johnson, 1995).

(34.) Stanley v. Illinois, 405 U.S. 645 (1972).

(35.) 725 S.W.2d 696 (1987).

(36.) While the push for an Equal Rights Amendment (ERA) to the U.S. Constitution failed, Texas ratified such an amendment with overwhehning majority in 1972. Article I, section 3a of the Texas Constitution provides that "equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin." For a comprehensive assessment of its effects see Hirczy de Mi[tilde{n}]o (1997).

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