Contested Paternity: Constructing Families in Modern France (review)

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 book answers could hardly be 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 solidarité] 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 born 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 paternité 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...