Yet couples’ status as legally married and their children’s resulting legitimacy are still held up as an ideal for baby-making. Last week, a new White House proposal suggested limiting family tax credits to children of married couples. The old term “illegitimate” is nowhere to be found in today’s conversations, of course, but it might as well be, and it might help to separate the true pronatalists from the more “conditional” ones.

The strange new times appear to be bringing out strange old bugaboos. Boomers — who lived through the overpopulation and teen-pregnancy panics of the 1960s, ’70s and ’80s — may remember a time when the term “legitimacy” was still in currency and something to worry about. The last news-cycle on legitimacy that I recall was in the 1990s, when the state of California declared a spike in “illegitimacy” rates — before discovering that it was merely miscategorizing the marital status of parents with different last names. My daughter, born in Los Angeles in 1992, was originally categorized as “illegitimate,” and while this was in error, it didn’t matter to me and it doesn’t matter to most people. 

Yet illegitimacy still casts a shadow over public policy, even as the culture has moved on and even as the US Supreme Court put an end to legal discrimination against the children of unwed parents with a 1968 ruling. To wit, even as legitimacy is no longer functioning as a legal or cultural totem, it still operates silently as a barrier to greater fertility. The silence that accompanied the concept’s demise has kept it alive — or undead.

The truly pronatalist position is to want the babies who are actually being born: in the United States, in 2022, 40% of births were to unmarried mothers, totaling more than 1.4 million babies. In England and Wales, such births are already the majority. 

A national push to have more babies may well result in more babies out of wedlock. It may also involve embracing advances in reproductive technology. A Chinese billionaire has reportedly fathered 100 children via surrogacy. New reproductive technologies may mean three-parent embryos (a mother, a father, and someone else’s mitochondrial DNA). No child has a say in what coupling or tripling sparked his life. 

Yet legitimacy prejudice persists. Even as huge shares of American children are born outside of marriage, we still use the term “intact families.” And conservative organizations like the American Enterprise Institute still promote programs to gather data on family structure to improve education outcomes. 

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At one point, the prejudice was both more overt and, given its racial dimension, especially pernicious. Since Reconstruction, the stigma of illegitimacy was wielded against black communities, whose family structures had been devastated under slavery, when rape, forced marriage, forced separation of families, lynchings, and other cruelties ravaged all aspects of family life. While black families were attempting to rebuild, race segregationists refused them marriage licenses, and then pointed to their illegitimate offspring as a moral failing.

After Brown v. Board of Education (1954), many Southern municipalities and school districts responded by requiring proof of legitimacy to enroll in public schools, knowing that a sizable share of black children couldn’t provide evidence of their parents’ marriage. Local school boards also used illegitimacy to limit the hiring of black teachers and aides. Federal courts struck down these policies. Yet in 1965, the infamous Moynihan Report (The Negro Family: The Case for National Action) focused once again on “illegitimacy rates,” arguing that family breakdown was a major obstacle to racial progress.

Then the legal prejudice crumbled. Unlike race or gender discrimination, the end of most explicit legal discrimination based on birth status happened without fanfare, protest, or national debate. In Levy v. Louisiana (1968), a wrongful death case, Supreme Court Justice William O. Douglas wrote, “We start from the premise that illegitimate children are not ‘nonpersons.’ They are humans, live, and have their being. They are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.” Five years later, the Uniform Parentage Act of 1973 replaced legitimacy with the parent-child relationship as the organizing category of state family law. And in 2017, a revision of that act extended parentage rules without regard to marital status.

Yet many — especially conditional natalists — can’t escape legitimacy’s grip. Several states still require paternity tests if the father of a child isn’t married to the mother. And to be sure, there is substantial state interest in ensuring that the costs of a child’s upbringing are borne by family. Questions of paternity are also significant in terms of inheritance. When fortunes are at stake, and multiple “nuclear families” emerge from successive marriages, courts have needed to sort through competing claims. Extended copyright inheritance (lifetime, plus 70 years) has resulted in high-profile cases of children conceived outside of marriage suing decades later for a portion of intellectual-property assets. 

Advanced technology has also raised new issues. In 1963, a New York trial court ruled that a child conceived through heterologous artificial insemination (using donor sperm) was illegitimate, despite the husband’s written consent to the procedure, because the child wasn’t the “legitimate issue” of the husband. A decade later, courts agreed that a child born of consensual artificial insemination during a valid marriage is legitimate. In 1989, the US Supreme Court upheld California’s conclusive presumption that a married woman’s child is her husband’s, against a biological father who had lived intermittently with the child and established paternity by blood test to a 98% probability. 

Still, it is likely the terms “legitimacy” and “illegitimacy” would have completely faded from public view but for Justice Anthony Kennedy’s explicit re-stigmatizing of nonmarital offspring 11 years ago in Obergefell v. Hodges. Kennedy wrote: “Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples.” 

Kennedy’s “illegitimacy-as-injury” argument went largely unnoticed amid celebration of marriage equality. But it is clear that illegitimacy has been re-weaponized. The White House proposal to limit tax credits to married parents and a recent IFS proposal to offer larger incentive funds to married couples than to single mothers are examples.

There’s also a citizenship issue, which can be seen in how children born abroad “out of wedlock” are treated. A child born abroad to a married US couple is presumed to be a citizen. A child born to an unmarried mother may be. A child born to an unmarried father must earn citizenship retroactively. The current US Citizenship and Immigration Services manual, updated in July 2024, devotes many pages to distinguishing in-wedlock from out-of-wedlock births and to the father’s written promise of support. A new bill may block citizenship via surrogacy. 

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This raises many questions. Why does being born out of wedlock matter for the “rights” of inheritance? Why should any children have a “right” to inherit what they did not produce? Why, in this era of scientific advances in DNA, does biological connection alone not confer recognition, if not legal responsibility? 

The American family is understood to begin with marriage to the person of one’s own choosing. Older concepts, such as intergenerational or extended family responsibility, are now attenuated. Americans generally embrace the idea that the family one is born into has little or nothing to do with one’s value or potential. The new American republic deliberately excluded hereditary honors and titles as a barrier against a government founded on birth rather than merit. The nation rejected multiple wives and primogeniture and embraced equality in inheritance rights, as Tocqueville praised. 

The state has an interest in stable families. But the law is clear that children can’t be punished for their parents’ choices. This is logical in 21st-century America, a world of families with two fathers, two mothers, single mothers by choice, blended households of adoptive and biological and surrogate parents, and the world’s first trillionaire with 14 children in four different households. 

The history of the world is the history of babies born out of wedlock, by the parents’ choice or not. Just read the Bible or Shakespeare. Yet only a few historical figures have leaned into illegitimacy, like Frederick Douglass, who made not knowing his father a central aspect of his public identity. “Bastardy” may have been a plotline in last decade’s Game of Thrones, but the recent hypersexualized Wuthering Heights film completely ignores the subject, despite that the original scandal of Emily Brontë’s 1847 novel was that an illegitimate scoundrel inherited not one, but two British estates.  

The Great Wealth Transfer is here, some $84 trillion will soon pass from older boomers to heirs. Obergefell has given the White House the moral high ground to re-stigmatize out-of-wedlock births and continue to limit citizenship to children born of US fathers. Conditional pronatalists know perfectly well that marriage has never been either the engine of or the limiting factor for reproduction. On the contrary, anyone who wants more babies should want all babies, period.