Contested Paternity: Constructing Families in Modern France.
Who would have thought before this remarkable study that the history of paternity suits and laws governing illegitimate and adopted children over the last two centuries could reveal so much about the process that moved the French from a social order organized around the patriarchal family to one based on the ungendered individual protected in French law today. The questions this important hook answers could hardly he more timely. Suzanne Desan's recent work on the Revolution's radical family laws and resulting court disputes traces the conservative reaction that culminated in Napoleon's patriarchal civil code of 1804. (1) Any number of scholarly works in gender and women's history track the exceptional resilience of French patriarchal culture into the late twentieth century. Now historians are grappling with the massive cultural shift behind the law of 1999 that permits civil unions [pacte civil de solidarite] for homosexual and heterosexual couples with the same rights as married couples except for inheritance and adoption. What possible trajectory in the history of family life and law might tie these developments together? Rachel Fuchs discovers in the laws and practices regarding children horn out of wedlock continuities that give this history its coherence.
Her account begins, however, with a story of rupture. Unwed mothers under the Old Regime had the right, indeed the obligation by an edict of 1556, to name the father of an illegitimate offspring so as to remove the financial burden of its care from the coffers of the state, the local seigneur, or the community. It was also assumed that a woman giving birth would not dare to lie about the father. Nonetheless, paternity suits decreased in the last decades of the 18th century when public opinion turned against seduced and abandoned women for moral turpitude. The National Convention would disallow recherche de paternite altogether. Only men who chose to recognize a "natural" child incurred obligations to it.
That restriction under the law of 12 Brumaire year II (2 November 1793), introduced a contradiction in the new republican version of the family and nation. On the one hand, its framers declared that all children were born equal so that a natural child recognized by the father had the same rights on his inheritance as his legitimate offspring. Even recognized children born of adultery could claim up to a third of what their legitimate half siblings received. On the other hand, the rights of a natural child could not impinge on those of a father who refused his recognition. The sexual liberty of men was to be protected at the expense of unrecognized offspring. Still, republican revolutionaries took the metaphor of the nation as a family seriously. Abandoned or orphaned children would, in theory, be raised by the Republic, and fictive families could be created through adoption.
By turn-of-century humanitarian views towards orphans and natural children had given way to the overarching goal of protecting a man's property and bloodline from interlopers and guaranteeing a stable social order through the nation's patriarchal families. The civil code of 1804 prohibited child adoption, and article 340 forbid paternity searches, except when a young woman's abduction against the wishes of her father coincided with the date of a conception. Otherwise, marriage alone determined the paternity of a child. Births outside of wedlock were blamed on the mother's moral failing.
In three richly documented chapters, Fuchs traces the evolution of opinion on the bench and in the legislature that led to a law permitting paternity suits in 1912. Throughout the 19th century, unwed mothers and their lawyers brought suits against the father of a woman's natural child by applying tort law to seduction and claiming damages as a result of broken promises. After 1850, magistrates increasingly decided cases in the women's favor as they came to understand that concubinage was a socially accepted status for an unwed mother among the working poor. A deserted mother's sexual fidelity made it possible to claim deception. To make even married men responsible for child support for natural children, some judges developed a legal theory that divided paternity into biological fatherhood and filiation. Only the former placed obligations on the father since imposing filiation, which inserted a natural child into the father's lineage, was illegal. In all of these decisions, Fuchs argues, magistrates responded to cultural and social developments ahead of changes in the law because unwed mothers dared to take their injury to court. The originality of this fine book lies above all in this discovery, which returns to poor, socially marginized women an agency they sought and history has heretofore denied them.
Progress shifted to the legislature in the mid 1890s, when slow population growth made the protection of children a pressing national concern. Several laws expanded the rights of recognized natural children, before lawmakers finally broke the state's patriarchal pact with fathers by declaring paternity suits to claim a father's name and share in his inheritance to be a child's natural right, though only if the father was not married. A married man's inheritance and lineage remained inviolate.
Depopulationist worries intensified after World War I and ratcheted up again after 1938 when family allowances were introduced. A law passed in 1923 even permitted child adoption, though under conditions that made only relatives likely to adopt. Overall, Fuchs finds little evidence that either birthrates or adoptions rose much before the 1960s, which makes the transformation of French practice and laws since then all the more dumbfounding.
Once feminist demands stripped gender inequalities out of the civil code in the 1970s, and laws permitting contraception and abortion gave women control over their maternity, divorces and concubinage soared. By the 1990s, DNA tests had largely replaced court investigations of a mother's sex life in paternity suits. Judges based decisions regarding parental, obligations or their rights over a natural child on the likely benefits to the child. By 2005, all children could claim a father's name and family property, whatever their parents' relationship. Today, more often than not the parents of newborn, babies are not married.
Fuchs attributes this individualistic outlook and the proliferation of cohabitation to the declining importance in an urban and service economy of transmitting land and movable property through family alliances. She does not explore how the civil code's inheritance laws might actually discourage marriage in the absence of other pressures. Still, her careful exposition of three centuries of legal and jurisprudential history fascinates because she retains throughout a social historian's focus on ordinary people's choices and maneuverings.
(1.) Suzanne Desan, The Family on Trial in Revolutionary France (Berkeley, 2004).
Jo Burr Margadant, professor emerita
Santa Clara University
|Printer friendly Cite/link Email Feedback|
|Author:||Margadant, Jo Burr|
|Publication:||Journal of Social History|
|Article Type:||Book review|
|Date:||Jun 22, 2010|
|Previous Article:||Women, Work, and Family in the Antebellum Mountain South.|
|Next Article:||The Wealth of Wives: Women, Law, and Economy in Late Medieval London.|