Filiation

While the New Shorter Oxford English Dictionary defines filiation as the relationship as a child or the relationship of a child to his father, legal notions are somewhat distinct. As one moves from general dictionary to law, the focus moves from talk of relationship to narrower talk of a legal bond. Filiation in the civil law is, from the child’s perspective, the legal bond connecting child and mother or child and father. In the common law, the legal bond is known as parentage. Crucially, parental status—filiation in the civil law or parentage in the common law—is a legal construct and must be established. It does not arise, unmediated, from brute facts such as siring a child or giving birth. It is to be expected, then, as in the case of other legal constructs, that there will often be a gap between a parent-like state of fact and filiation or parentage as a matter of law. Indeed, two other kinds of parental connection between an adult and child are usefully distinguished and need not overlap with the legal bond. One is genetic: a man may have fathered many children while being legally the father of none of them if he has not been designated as such by the law of filiation or parentage. The other is the social connection that arises from carrying out the caring functions associated with parenting. A person who may be marked as a social parent may not hold parental status. Conversely, a person who is established as a child’s legal parent may, depending on the circumstances, retain that status while executing few or none of his or her parental duties. Parental status in law is, further, distinct from legal notions which purport to bridge the gap between law and fact, such as the common law’s concept of in loco parentis or the possibility under some regimes of de facto adoption. Filiation was once enmeshed with marriage, such that legitimate filiation or parentage flowed from the marriage between the mother of a child and her husband. The child’s mother was, ostensibly, known by having given birth to the child. Her husband was irrebuttably presumed to be the father. The sense was that one could never with certainty know who had fathered a child, but one could know to whom the mother was married and to whom an obligation of fidelity thus bound her. Baptismal records often served as the evidence for these relationships (leaving it open that the parents named in the register could be other than the genetic parents). Today, filiation and parentage are largely unmoored from marriage. Legislatures have abrogated the distinction between legitimate and illegitimate filiation (including, in some regimes, disgraceful subcategories such as adulterine and incestuous filiation). Legislation typically declares that children are not to be prejudiced by the circumstances of their birth or by their parents’ marital status. The civil law uses the term blood and it is often assumed that parental status identifies a child’s birth mother and genetic father. Yet none of the means of establishing parental status mentioned so far requires proof of genetic connection between the parties whom law will henceforth hold together as parent and child. The presumption of paternity attracts varying interpretations. By some accounts, it reflects the probability that the mother’s husband will be the child’s genetic father. By others, it reflects, in social terms, the husband’s undertaking in respect of any child borne by his wife or a desire to promote the stability of established families. (To muddy the waters, a woman who conceives via a donated egg and gives birth will usually be …