The Law of the Father

If the fields of history and anthropology offered examples of strong and inde­pendent mothers, then feminists could hope that the maternal dilemma was not a permanent aspect of the female condition, but might be someday be resolved. The first step toward raising the status of mothers was to change the laws that kept them in subjection. At the turn of the twentieth century the legal status of wives and mothers was debated not only in legislatures, court­rooms, and feminist publications, but also in literary works which presented two pictures of the feminist mother-heroine, the triumphant and the tragic. In the widely read Dutch novel, Hilda van Suylenburg, published in 1898, the eponymous heroine completed her legal studies, opened a feminist law practice, married her soul mate, and happily gave birth to their daughter, Jeanne. “Oh, Maarten,” she exclaimed to her husband in the novel’s closing scene, “it is no wonder that women are crazy about these little cherubs. . . maybe the emancipation of woman means the awakening of women to real spiritual motherhood.” To which he dutifully replied, “Emancipation is a bless­ing, because it has helped to make my Hilda what she is.”1 No such happy ending was in store for Herminia Grant, the heroine of the notorious novel The Woman who Did (1895), by the British author Grant Allen. Though she wished to become a mother, Herminia refused to marry her lover, Alan. “My conscience won’t let me,” she insisted. “I know what marriage is, from what vile slavery it has sprung, on what unseen horrors for my sister women it is reared and buttressed, by what unholy sacrifices it is sustained… I can’t embrace it, I can’t be untrue to my most sacred beliefs.”2 We do not know whether Hilda’s Jeanne will become a warrior maiden; but Herminia’s daughter, appropriately named Dolores, will suffer for her mother’s principled choice. This chapter will look first at the historical context in which the debate on marriage laws took place and then at the debate’s two major themes: the status of the married and of the unmarried mother.

In their defense of women’s rights in the family, feminists used arguments based on both gender equality and gender difference. Although some histo­rians stress the discrepancy between these two approaches, in this case there was no contradiction.3 The mother’s argument for equality rested on the fact that her role was different from, and complementary to, that of the father. Nature ordained that fathers could not produce children alone; culture that mothers played the predominant role in child-rearing. But a partnership that was necessary both to nature and culture was disregarded by the law. “The law of this and most other countries,” wrote the British Elizabeth Wolstenholme Elmy, who was her nation’s foremost reformer of family law, “contravenes common sense, humanity and justice, by dealing with every child as the offspring of one parent solely.”4

When the parents were married, the one parent who was recognized by the law was the father. In 1900, legal systems in every country still con­structed the family as the private realm of the father: he alone controlled its internal affairs and acted as its public representative. Because paternity was uncertain, the law had created an artificial certainty by linking paternity to the formality of marriage. Within marriage, men were assumed to be the fathers of their wives’ children. Fathers controlled the minor child’s property, education, and employment and had the right to punish any transgression of their authority.5 Even if the mother survived him, the father controlled his children through an appointed guardian after his death. But when the par­ents were not married, the law made the mother the sole parent. Outside of marriage, paternity was denied (for paternity suits, where they were allowed, established a support obligation but no blood relationship). Unlike paternity, the law recognized maternity as a “natural” and certain fact. The “illegiti­mate” child belonged in most respects to its mother, who was alone respon­sible for its care.6 But this responsibility carried few legal rights—in fact, in most countries, unmarried women were denied rights of legal guardianship over their children.

By 1890 a new legal doctrine—the rights of the child—provided a new basis for an assault on the solid citadel of patria potestas. Governments now regarded children as a national resource, indispensable to economic growth and military strength, and for the first time actively intervened to create med­ical and social services to save infant life and to promote child development. This trend in public policy is often attributed to the panic caused by falling birthrates, which threatened military strength during a period of intense national rivalry—a concern that was very important in the rival military pow­ers, France and Germany.7 But child welfare was also an important issue in the Netherlands, which still had a high birthrate, and in countries such as the Scandinavian states and Switzerland that were on the periphery of the European great-power struggle.8

If children belonged to the state as well as to the family, then parental care became a public duty rather than a private right. “The child did not ask to be born,” wrote the French child-rearing experts Odette Laguerre and Ida See, echoing the views of countless contemporaries. “The simple fact of having brought the child into the world does not give the parents any rights over him. It creates only obligations. . . . Giving life is nothing. We have to work to make that life a benefit. . . This is why the essential duty of the parents is to assure that children have health and education, the conditions under which they can fully develop.”9 Starting in the mid-nineteenth century, laws that regulated child labor and required public schooling imposed the first legal limits on paternal authority. By the beginning of the twentieth century, the realm of the father was increasingly open to public scrutiny. Dominant conceptions of the parent-child relationship shifted to emphasize the rights of the child and the duties of the parents, both mother and father.10

New legislation in many European countries made child abuse or neglect a crime that could be punished by the removal of parental rights. In France and Britain, laws that enabled the state to remove a child from an abusive home were passed in 1889, in Germany with the adoption of the Civil Law Code in 1900; in the Netherlands as part of a series of measures known as the “Children’s Laws” (Kinderwetten) in 1901.11 Child-welfare activists such as Laguerre and See rejoiced that “the so-called rights of fathers, which so long were held to be untouchable and sacred” were limited by the law.12

In fact, these laws applied to both parents, and because they were designed chiefly to control poor families, many of which were mother-headed, were frequently enforced against mothers. Though they sometimes criticized the biased application of the laws, feminist social reformers nonetheless played a conspicuous role in advocating and enforcing them. For example, Frieda Duensing, a lawyer who was active in feminist organizations, headed the “Center for Youth Welfare” in Berlin and campaigned for a broader defini­tion of, and stiffer penalties for, child abuse.13 In the Netherlands, the Dutch affiliate of the National Council of Women held a conference in 1904 to advocate the strengthening of the laws that protected children.14 The tendency of child-welfare advocates, many of whom also supported temperance move­ments, to identify alcoholism as the most important cause of child abuse showed class bias, for this was a vice that was associated with working-class men. Nonetheless, public support for laws against child abuse was not con­fined to liberal feminists or to the middle class—on the contrary, it was very strong among socialist women. One of the most prominent of these, the German Lily Braun, attributed the fact that “the percentage of proletarian children who die in the first year of their lives is incomparably higher than that of the children of the affluent” to paternal vices as well as to poverty. “The children suffer silently, and yet the cry for help of hundreds of thousands of unhappy children reaches the ear of those who bore them,” she exhorted women of all classes. “Oh, do not refuse to hear them.”15

While the new doctrines of children’s rights undermined paternal authority, they enhanced the public image of the mother. After all, the mother’s role had always involved obligations rather than rights, and the culture of the time portrayed her as the custodian of the child’s best interests. Nation-states of the era now gave mothers and children a new priority. For the first time, mothers became major recipients of public services, including maternity insurance, prenatal care, and child health services. Social reformers who worked to moralize working-class behavior regarded the mother—described by the Belgian lawyer Louis Frank as “sober, economic, orderly, and ceaselessly at work”—as their natural ally.16 In Spain, where there was as yet no broad support for women’s political rights, political and cultural leaders nonetheless stressed the importance of educated, patriotic mothers to the welfare of the state.17 In Norway, the movement that won independence from Sweden in 1905 portrayed the new nation as a home headed by “strong fathers and helpful mothers.”18

The feminists’ campaign to improve the status of mothers in and outside marriage had substantial support among social reformers, male and female, across the political spectrum. And the image of motherhood that these feminists constructed often fit the preoccupations of these reformers: patriotism, family stability, the strong and provident state. At the same time, some of their more utopian aspirations—which involved the restructuring of the family—clashed with this sober agenda. As we saw in chapter 1, feminists developed two major ideas of the post-patriarchal family. The first envisaged an egalitarian male-female couple; the second a matriarchal family unit consisting of a mother and her dependent children, in which the father played a peripheral role and financial support came from the state. In discussions of family law, these two views overlapped and intersected.