Stefania Bartoloni e Daniela Lombardi
The essays analyse the issue of paternity suits in the long run. For centuries, paternity could only be supposed and regulated by the law. Since the middle of the 20th century, the rule of law has been challenged by the scientific progress of biology and Dna tests, which prove paternity for sure. The issue has been related to fathers’ and mothers’ responsibilities for the livelihood of their illegitimate children. The prohibition of paternity suits was introduced by the French Revolution and confirmed in the civil codes of the XIX century, which have entrusted to mothers full responsibility for the care of children born outside marriage. Over the years, the feminist movement fought against this legislation, but only the reforms of family legislation (in Italy in 1975) attributed equal responsibilities to both parents and eliminated legal distinctions between legitimate and illegitimate children. Today Dna tests as proof of paternity open new conflicts between two established rights: the one of the children to take cognisance of their origin and the right of privacy of the parents.
Historically, “natural” fathers and mothers have tried to circumvent or refuse the obligations towards their children imposed by the law. Fathers succeeded using legal loopholes – from absence to paternity disowning – and making the routes for recognition more difficult. The paper examines, in the long run, the instruments and the prohibitions – absolute for fathers in the Napoleonic code – laid down for the search of paternity and maternity, and the wide rights to secrecy assured to natural mothers by some contemporary European legal systems. Special attention is paid to the implications and contradictions that rise from the use of Dna test in paternity and maternity suits.
The essay argues that the social outcomes of the interaction between the rules of the Habsburg civil code (1811), which admitted judicial presumption of natural paternity, and the secrecy imposed by the government to the Milanese foundling hospital, resembled those that were introduced with the Italian civil code (1865), which forbade judicial father research. In Milan, under the Habsburg law, the difficulty and uncertainty of outcome of the proceedings encouraged natural mothers to deliver children anonymously at foundling hospital. This continued to happen after the Italian unification. However, different and spontaneous paternal initiatives, tolerated or admitted by the two codes and by the rules of the Milanese foundling hospital, were possible. Overall, the essay confirms that in the 19th century, both before and after Italy’s unification, many natural fathers – probably the majority – had the power to choose whether, how and when to be present in the lives of their children.
The 1837 Savoy Civil Code, in force until 1865, forbade the paternity suits in the Kingdom of Sardinia. Nevertheless, as elsewhere in 19th-century Europe, Turin’s ecclesiastical tribunal continued to accept the requests of single mothers and to sanction their “seducers”, mediating between the parties in view of compensation. For women, this procedure represented only an extreme remedy, in a wider panorama of actors – institutional or not (community, philanthropy, police forces, maternity hospitals) –, who considered themselves involved in the issue; each with different logics and strategies, but all united by a slow narrowing both of the notion of “honest” woman and of the implications of paternal responsibility.
Il movimento delle donne e la filiazione naturale nell’Italia liberale
The search for paternity is one of the battles of Italian feminism between the XIX and XX centuries. Some generations of women demanded the abolition of the article 189 of the Civil Code, which, betraying the founding principles of the Liberal State, mirrored a notion of the family and of society based on hierarchy and inequality. Feminists put forward actions of complaint and proposals of reform with the support of medical doctors, politicians, philanthropists and lawyers of democratic orientation. Their aim was to keep alive the attention on this dramatic and widespread issue, but their action fell short of solving the problem. Adopting a long term view, this essay aims at analyzing the initiatives of the women’s movement and its ability to interact with institutions while adapting its strategy to the resistance of mainstream lawyers and of the Parliament.
Il diritto famigliare ai tempi della Grande Guerra
The essay investigates the repercussions in the private and sentimental life of citizens in the countries involved in the First World War and reflects on the reaction of States, especially the Italian one, with respect to these changes. A total dimension of the Great War emerges: founded on the conjugal couple and legitimate offspring, the private sphere is essential for the victory itself. With this aim, interventions in family law challenge pillars such as the prohibition of paternity research and the concept of legitimate family, founded on marriage. If the value of marriage is reaffirmed, the blood bond between children and the soldier who died in war becomes pre-eminent, as shown in the legislation on orphans and on marriage by proxi.
According to Islamic law, only children born to a married couple can be legitimate, whereas children born out of wedlock are not legally recognized, as extramarital sexual relations are considered a sin and are punished according to article 490 of the Moroccan Penal Code. Despite various but minor changes in the Moroccan legislation, the implementation of the new law is not yet optimal in a society where the best interest of the child is not necessarily ensured and the concept of ḥšuma (modesty/shame/shyness) is deeply rooted. The aim of this paper is to investigate the main issues of juridical and social discrimination against unwed mothers and “illegitimate” children in Morocco. In the light of some ethnographic materials, collected during my field research in Morocco, the article describes the key role played by associations for the protection of single mothers and their children and the judicial practice regarding the search for paternity, as well as its social and legal implications.
Il potere dei simboli religiosi tra passato e presente
a cura di Monica Pacini