Regarding Amy Wax’s discussion of abortion and child support: As long as the law guarantees to a woman the absolute, unqualified and unconditional right, regardless of age or status, to give birth anonymously (as some 400 French women do every year, down from 4,000 in 1947), thereby disclaiming all responsibility for her child, it is difficult to justify imposing responsibility on biological fathers.
Defenders of traditional marriage, in particular, should see the connection between the two fundamental principles of filiation, “the child conceived or born in marriage has the husband for father” and its counterpart, “the investigation of paternity is forbidden.”
Parental acknowledgement, of course, has always been an option. I do not know the figures for the United States, but in France, according to the INED, births outside marriage represented 44 percent of all births, more than half (56 percent) of the births of first children, a third of the births of second children, and almost a quarter of the births of third children.
However, 85 percent of children under fifteen lived with both their parents. Some 82 percent of children born outside marriage were recognized by their father within one month (compared with only a third of children born outside marriage in 1965 and 1970), and 92 percent were ultimately recognized. Some 94 percent of babies recognized by their father within a month were living at that time with both their parents, whereas the proportion was only about 80 percent in the late 1960s and early 1970s. Lastly, only 15,000 children a year are expected to remain without paternal recognition, about as many as in the 1960s, when fewer than 6 percent of births took place outside marriage.
While the presumption of paternity constitutes the essence of marriage, children born out of wedlock are nevertheless very widely and promptly acknowledged by their parents.
The family is increasingly centred on the child. In the face of changes in family life and conjugal relations in particular, the child appears to be the only enduring reality. Whereas in the past, marriage was the prerequisite for the formation of a family, today the prerequisite is essentially the presence of children. As Martine Segalen told the Pécresse Commission (2006), “Studies show that when a member of a family lives with a partner outside marriage, that person is considered to belong to the family only from the birth of a child on.”
In the increasingly frequent absence of marriage, therefore, it is indeed the child that makes the family. In fact, by making the relationship between his parents irreversible, the child brings each of them into the other’s family, something a childless common-law relationship does not.