Abstract
Rachel G. Fuchs, Contested Paternity: Constructing Families in Modern France, Baltimore, MD, The Johns Hopkins University Press, 2008; xii +353 pp.; £36.50 hbk/ £18 pbk; ISBN 9780801888328
In this lively study of paternity suits in France between 1804 and 1993, Rachel Fuchs complicates our understanding of family and parenthood by shifting the focus away from their idealized forms. Instead, she examines tales of seduction and deception, and of honour and dishonour, along with alternative familial arrangements in which the biological father was absent, tangential, or replaced by another man who assumed the social duties of fatherhood. Of course, the normative family model – heterosexual, reproductive and middle-class – provided the backdrop against which battles over paternity were staged. Restrictions on assigning paternity and awarding damages to mothers benefited the interests of the bourgeois male who had risen to prominence with the Revolution. Laws therefore worked to protect ‘property and pedigrees’ (17), culminating in Article 340 of the 1804 Civil Code, which forbade paternity suits.
This was a dramatic change from the Old Regime, when custom and law permitted women to seek legal recourse if they were victims of ‘fraudulent seduction’. Reparations were awarded to help provide for the child, although courts did not demand that the father marry the mother or play any role in raising the child; nor did the child have any claim to the father’s inheritance. According to Fuchs, the courtroom served as a theatre in which gendered identities were deployed. A successful suit required the woman to play the honourable yet passive victim, and she was constrained by the narrative that consensual relations had only occurred after the man’s promise of marriage. In contrast, the accused insisted that he had been seduced by a calculating woman who wished to trap him into marriage. Witnesses from the community helped to piece the story together, and gossip was admissible evidence: Had the couple been seen together? Had anyone heard the man make promises to the woman? But above all else, the woman’s credibility influenced the trial’s outcome.
Nevertheless, in Old Regime society, judicial authorities were inclined to believe a woman’s word, and it was generally accepted that whoever created a child must also provide for it. The Revolutionary debate on natural rights laid the groundwork for a change in the ‘social imaginary’. While children too were said to possess rights, legislators agreed that it was more important to protect the liberty of men while safeguarding their property. The new assumption was that poor women would trick ‘legally married, propertied men with legitimate children’ (51) into fathering a child; in response, the law enshrined the conviction that men should not be forced to recognize and provide for a child, that all children were fatherless at birth, and that a child’s father was the man who married its mother.
But rights and liberties are different from duties, as Fuchs skilfully shows, and some magistrates circumvented the rigidity of the Code to compel men to provide for their children. They did so by holding that ‘paternity was divisible’ (64) or that the ‘authorship of a pregnancy’ could be separated from ‘filiation’, which entitled a child to the father’s surname and a portion of his inheritance. Beginning in the 1840s, damages were increasingly awarded to women with reference to Article 1382 of the Code, which obliged wrongdoers to make reparations by paying an indemnity. Because these damages were understood as the result of a broken contract, rather than a paternity suit, judges could impose upon men the duty of feeding their ‘illegitimate’ children without disrupting the bourgeois family. Sympathies once again lay with the ‘victimized woman’, in accordance with the changing values of mid-to-late nineteenth-century French society and its developing critique of poverty, child abandonment, the plight of single mothers, and the subordination of women in the workplace and the family. It was also in keeping with increased state interventionism and the trend towards protective legislation.
While Fuchs’s claim that jurisprudence adapted more quickly to the spirit of the times than codified law is unsurprising, it is remarkably illustrated with case studies from judicial archives. Only in 1912 was a law permitting paternity suits passed, but since it exempted married men from being tried, the sanctity of the bourgeois family remained intact. However, this book also documents changing conceptions of familial norms, and how jurisprudence either facilitated those shifts or responded in step with modifications to social mores. It is not always clear which of these factors initiated historical change. Nevertheless, Fuchs’s analysis of civil suits offers precious insight into the intimate lives of men and women, how they conceived of honour and shame, and how they used the courtroom to stake claims to their rights.
After 1945, and especially since the 1960s, the ‘social order anchored in the patriarchal family began to erode’ (241). Concubinage was more and more frequently equated with marriage, blended and monoparental families were assimilated into the norm, and the distinction between ‘legitimate’ and ‘illegitimate’ children faded. Fuchs’s masterful study ends with a discussion of contemporary issues related to paternity and the family form, such as sperm donors, the introduction of DNA evidence, and the 1999 Pacte civil de solidarité (PACS), which recognized same-sex and different-sex domestic partnerships as civil contracts. Even if conjugality remains the ‘cornerstone of the nation’, Fuchs concludes, ‘legislators … attempted to balance the protection of married men and their families with a new commitment to protecting children, even if that meant reducing paternal authority and men’s independence’ (286).