paternity within marriage: long history of legal fiction

Law has long upheld legal fictions of paternity in the face of paternity facts.  Before the development of scientific paternity testing, facts showing that husband and wife did not have physical access to each other during a reasonable period of possible conception could factually prove non-paternity.[1]  Nonetheless, English jurist Lord Coke, known as the greatest jurist of the Elizabethan and Jacobean eras, wrote in 1628:

By the Common Law, if the husband be within the four seas, that is, within the jurisdiction of the King of England, if the wife hath issue, no proof is to be admitted to prove the child a bastard, (for in that case, filiatio non potest probari) unless the husband hath an apparent impossibility of procreation; as if the husband be but eight years old, or under the age of procreation, such issue is a bastard, albeit he be born within marriage.  But if the issue {child} be born a month or a day after marriage, between parties of full lawful age, the child is legitimate {the legal son of the husband}. [2]

That’s not a curious absurdity of English common law.  Legal preference for paternity fiction over paternity fact continues in paternity law through to the present day.

California family law illustrates the strength of the legal fiction of paternity. The California Code of Civil Procedure, as adopted in 1872, declared an indisputable presumption of legitimacy:

The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate.[3]

A California Court of Appeals decided Wareham v. Wareham (1961) under essentially that law.[4]  The Warehams separated about May 22, 1959, filed for divorce on May 27, 1959, and were granted divorce on July 2, 1959.  Ms. Wareham gave birth to a child on February 17, 1960.  She swore under oath that she had not had sex with anyone other than Mr. Wareham in the past year.  She filed to obligate Mr. Wareham to make monthly payments to her as child support.  Blood tests conclusively excluded Mr. Wareham from being the biological father of the child.  Nonetheless the Court upheld the legal attribution of paternity to Mr. Wareham on the grounds that his wife was cohabiting with him during the normal period for conception for the resulting birth.  The Court thus upheld the financial child support obligations imposed on Mr. Wareham.

Justifications for legal fictions of paternity have varied.  In 1836, a lengthy legal-historical treatise defending Lord Coke’s statement on the marital presumption of legitimacy in English common law declared:

No man with the slightest powers of reflection, can fail to perceive that the law which presumes that the husband is the father of the child born of his wife, tends to promote public morals and female chastity [5]

By the late twentieth century, the justification for the marital presumption had shifted to the stigma of illegitimacy.  In Lockwood v. Lockwood (1946), the New York Supreme Court declared a Navy sailor the father of a child born to his wife 355 days after he sailed away on a tour of duty in the Pacific.  An Army legal pamphlet in 1982 observed of that case:

The court was clearly more interested in saving the child from the stigma of illegitimacy than in ascertaining the identity of the true father. [6]

Currently the preferred legal justification for paternity fiction is the “best interests of the child.”  Under New York State law, a court can order financial child support irrespective of biological paternity “upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman.”[7]  That’s a conceptually incoherent mash of legal concepts.  That incredible law has produced even more astonishing paternity rulings.

In politics and court cases, paternity law tends to pit women against men.  Men generally tend to prefer women, and women also generally prefer women.  In addition, women tend to engage more eagerly and more successfully in social communication.  Women thus generally win contests of social favor.

In societies that truly value gender equality, gender inequality in fundamental knowledge should be a serious concern. Sexual biology and child-birthing procedures give women high-quality knowledge of who their biological children are.  Before modern paternity testing, most men could not be certain who their biological children are.  That fundamental knowledge inequality between women and men is no longer inevitable.  Routine DNA paternity tests before accepting any claim of paternity (before so-called “acknowledgement of paternity”) and before any judicial determination of legal paternity could feasibly establish biological paternity with certainty.  Societies thus now have feasible opportunities to advance gender equality in fundamental knowledge.

Cheap paternity testing technology has made legal fictions of paternity into bigger social lies.  In high-income democracies today, about 5% of children believe their biological father to be someone other than who he really is.  Societies can legally define fatherhood as they wish.  But societies widely suppress fundamental biological truths only with grave risks of social corruption.

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[1] Statistical evidence indicates that if a man did not have sex with a woman between 200 and 350 days before she gave birth to a child, the probability that he is the father of the child is less than 0.1%.  Humans have surely long understood roughly this basic biological truth of human reproduction.  Here are statistics on pregnancy duration and duration variance. Such statistics were systematically studied no later than the early nineteenth century.  See Naegele’s Rule.  In Dazey v. Dazey, 50 Cal.App.2d 15, 20 [122 P.2d 308] (1942), a California appellate court claimed that a birth 225 days after the date of marriage is not “abnormal” or “contrary to the usual operations of the law of nature.”  In 1942, the probability of a child surviving after being born 225 days after conception was probably far less than 1%.

[2] Lord Coke’s First Institute, 244a. quoted in Nicholas (1836) p. 77.  Id. controverted convincingly contemporary discounting of Lord Coke’s statement. 7 A.L.R. 329 (American Law Reports)  (1920) reports:

it was solemnly decided by a court of the highest jurisdiction that a child born in England was legitimate, although it appeared on the fullest evidence that the husband resided in Ireland during the whole time of the wife’s pregnancy, and for a long while previously, because Ireland was within the King’s dominion.  In another instance, where the husband resided in Cadiz, the child was held to be a bastard; not because Cadiz was at a greater distance, but because it was beyond the four seas

The Four Seas Rule (extra quatuor maria) was reportedly extended to a Seven Seas Rule when the British Empire spanned the globe.  Rudavsky (1999) p. 127.  Under common law, neither husband nor wife could testify to access or non-access to each other.  Michael H. v. Gerald D., 491 US 110 – Supreme Court 1989, at 125 outlines the common law.

Unlike today’s laws imposing forced financial fatherhood on men, the four-seas legal doctrine received popular criticism in seventeenth-century England. For example, Francis Osborne wrote in 1656 a public letter, Advice to a Son. That letter declared:

The English laws are composed so far in favor of wives as if our ancestors had sent women to their Parliaments whilst their heads were a woolgathering at home … Nor is noncohabitation a sufficient discharge from his {the husband’s} keeping all such children as her {his wife’s} lust shall produce during his abode between the four English seas; so as if his wife be a strumpet he must banish himself or deal his bread and clothes to the spurious issue of a stranger, a thralldom no wise man would sell himself to for the fairest inheritance, much less for trouble, vexation, and want during life.

Wright (1962) p. 65. Id. p. xxiii notes that Osborne’s letter attracted considerable public attention.

[3] California Code of Civ. Proc. § 1962(5).  In 1955, the California legislature added an emphatic prefatory clause “Notwithstanding any other provision of law, … .”  In 1965, the word “indisputably” was replaced with the word “conclusively.”  In 1975,  the California legislature replaced the word “legitimate” with the phrase “a child of the marriage” and added nonsterility as a condition for the marital presumption.  Only in 1980, more than a half-century after blood tests were widely regarded scientifically as establishing facts about paternity, did the California legislature add a two-year period after birth during which a husband could contest his paternity of a child of the marriage.  Michael H. v. Gerald D., 491 US 110 (1989) at 117 documents the statutory history.  Bois (1962) reviewed California paternity law, found it an outrage to truth and justice, and declared:

Of all the possibilities, it is believed that the one most promising is the constitutional attack, relying on the United States Supreme Court to extricate our Supreme Court from the proverbial hole it has dug for itself in this area of law.

Id. p. 474.  While Bois’s evaluation of problems with California paternity law is compelling, his evaluation of possibilities for reform was evidently faulty.

[4] Wareham v. Wareham, 195 Cal. App. 2d 64 – Cal: Court of Appeal 1961.  The facts stated above are from the judicial opinions in the case.

[5] Nicolas (1836) p. 2.

[6] Brown and Loomis (1982) p. 8. The case ended with Lockwood v. Lockwood, 62 N.Y.S2d 910 (Sup. Ct. Spec. Term Queens County 1946).  The Windsor Daily Star (Ontario, Canada), May 13, 1946, p. 13, “N.Y. Ruling is Appealed” is a newspaper account of Lockwood’s legal situation.

[7] N.Y. Family Court Act § 532 (a).


Bois, John J. O.  1962.  “California’s Conclusive Presumption of Legitmacy — Its Legal Effect and Its Questionable Constitutionality.” Southern California Law Review, v. 35, pp. 437-474.

Brown, George R. and Mark M. Loomis. 1982. “Counseling the Putative Father: A Legal Assistance Overview to Disputed Paternity.” The Army Lawyer.  Department of the Army Pamphlet 27-50-118 (Oct. 1982) pp. 1-19.

Nicolas, Harris. 1836.  A treatise on the law of adulterine bastardy, with a report of the Banbury case, and of all other cases bearing upon the subject. London: W. Pickering.

Rudavsky, Shari. 1999. “Separating Spheres: Legal Ideology v Paternity Testing in Divorce Cases.” Science in Context. 12 (1): 123.

Wright, Louis B., ed. 1962. Advice to a son: precepts of Lord Burghley, Sir Walter Raleigh, and Francis Osborne. Ithaca, N.Y.: Published for the Folger Shakespeare Library by Cornell University Press.

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