PROGENY. - From proles, it is offspring, that is, the aggregate of children, the subject of rights and duties within the family. The natural instinct, which places the relations between parents and children on a plane of mutual affection, is sublimated by the positive divine precept that enjoins: "Honor thy father and thy mother, that thou mayest be long-lived upon the earth which the Lord thy God will give thee" (Ex. 20:12; Deut. 5:16; Eph. 6:2-3). This commandment lays the foundations of the well-being of the family, which is an august institution of God.
The whole set of relations between parents and children is governed by the virtue of piety (v.). Under the entry "parents" the particular duties and rights of parents toward their children are indicated; it remains to be said here of the specific duties of children toward their parents and of the juridical condition of children.
I. DUTIES OF CHILDREN
1. Children owe their parents: a) love, both interior and exterior. They therefore sin, even gravely, if they hate their parents; if they show hatred toward their parents in private and all the more if in public; if they do not assist them in their spiritual and material needs; b) respect, which must be shown: in words, in signs and in deeds. The assessment of the gravity of the fault must be made bearing in mind not only the thing itself, but also the circumstances; c) obedience, in all things lawful and as long as they remain under their parents' authority: in practice, as long as they live in the paternal home and receive their sustenance from their parents.
Concerning the choice of a state of life: a) children are not of themselves bound to obey, except in extraordinary cases, out of piety toward their parents; b) they must ask their parents' advice if it is a question of contracting marriage with this or that person, but they are not bound to obey; c) if it is a question of choosing the religious or priestly state, it is not obligatory even to ask advice, and often it is not advisable. Concerning the choice of a profession, relatives cannot impose themselves on their children, however useful it may be for the latter to follow their advice.
Property relations. According to the law of nature, children, even if minors, are capable of possessing and acquiring goods which the father will have the right and the duty, ex pietate, to administer in the interest of the children, if these, because they are minors or otherwise incapable of acting juridically, are subject to him. Goods belonging to children can be divided into two categories: a) goods coming to them by transmission from previous holders, by means of donation, inheritance or legacy; b) goods deriving from the personal exercise of a trade, industry and in general of remunerative work. Over the goods of both categories dominion belongs to the children, and parents cannot appropriate them without violating justice. But children in turn, with regard to such goods, can have obligations toward their parents, obligations which particular law and custom determine in greater detail.
II. LEGAL CONDITION OF THE PROGENY
1. Preliminary remarks
The Catholic doctrine concerning the respective competence of the Church and the State with regard to the determination of the status of the p. can be summarized in the following points: a) that the p. born of a valid or putative marriage is legitimate is an effect inseparable from marriage, and therefore regulated by divine law and by canon law, not by civil law; the same holds for what concerns legitimation by subsequens matrimonium; b) when the p. would not be legitimate on the basis of birth in the constancy of marriage, nor would be legitimated following legitimation by subsequent marriage, both the Church and the State have the power to grant legitimation otherwise, with effects more or less full, but limited to the sphere of their respective competence, in such a way that the State can grant legitimation only for civil effects, the Church only for canonical effects (save in exceptional cases, propter bonum religionis); a fortiori, therefore, the State has the power to admit, always limited to civil effects, not true legitimation, but recognition with limited effects.
2. Canon law
According to can. 1114 CIC, a legitimate child is: a) one who is conceived (that is, by the act of the mother's husband) during a valid or putative marriage, even if born after the dissolution of the marriage or after the marriage has lost the quality of being putative (cf. for this, can. 1015 § 4); b) one who, although conceived outside of marriage (that is, by a man who was not, at the time of conception, the husband of the mother), is born when the father was united in a valid or putative marriage with the mother (or perhaps also when such a marriage, contracted after the conception, had already been dissolved and was no longer putative).
An illegitimate child is one who is neither conceived nor born of a valid or putative marriage. A child is also illegitimate if, although conceived during a valid or putative marriage, and therefore falling under case a, at the time of conception one of the two parents was bound by solemn profession or by sacred Order, and therefore the use of marriage was unlawful (even if the parents were unaware of it).
To determine whether someone was conceived during marriage or not, and whether he was conceived by the act of the mother's husband or by the act of others, given the almost absolute impossibility of direct proofs, in many cases the two presumptions established in can. 1115 come to aid, both iuris tantum, which complete each other. The first consists in this, that one who is born after 180 days from the celebration of the marriage (valid or putative) and not beyond 300 days from the cessation of conjugal life is presumed conceived by the act of the mother's husband, that is, is presumed to be his child. The presumption fails only if the contrary is established by evident proofs, that is, if the impossibility is demonstrated that the child was conceived by the act of the mother's husband (for example, if between the two spouses there was no conjugal act during the period comprised between the three hundredth and the one hundred eightieth day before the birth of the child). The second presumption is a presumption of legitimacy in favor of the child who is born after 180 days from the celebration of the marriage and not beyond 300 days from the cessation of conjugal life; in other words, this child is presumed conceived during the marriage and by the act of the mother's husband, unless the contrary is proved.
The child born in the first 180 days from the celebration of the marriage is presumed neither conceived during the marriage nor conceived by the act of the mother's husband; once the conception by the act of the mother's husband is demonstrated, however (for example, if he recognizes him as his child), he is equally legitimate, falling under case b seen above. Likewise the child born beyond 300 days from the cessation of conjugal life is presumed neither conceived during the marriage nor by the act of the mother's husband; and, not having been born during the marriage, he is to be considered legitimate only if both these facts are proved. Whenever any of the facts placed at the foundation of these presumptions is doubtful (a frequent case, for example, on account of foundlings), the child cannot be considered illegitimate and must therefore be considered as legitimate, even if one or both parents are unknown.
The illegitimate child is also called a natural child. But in the strict sense this second designation is given to those illegitimate children whose parents, either at the time of conception or at the time of birth or at least at any moment whatsoever during the pregnancy, were free from any diriment impediment or other incapacity (for example, mental infirmity) to marriage. The other illegitimate children are called spurious children: and among these are distinguished those born ex damnato coitu, that is, the adulterine, the incestuous and the sacrilegious, who are the children whose parents (or one of them), for the whole time that runs from conception to birth, were impeded respectively by the impediment of a previous bond (v. LIGAMEN), or of sacred Order (v.) or religious profession (cann. 1072-73), or of consanguinity or affinity (cann. 1076-77).
In the CIC various prohibitions are established for illegitimate children: thus they are irregular ex defectu (can. 984 n. 1); they cannot be admitted to the seminary (can. 1363); they are excluded from the dignities of cardinal (can. 232 § 2, n. 1), of bishop (can. 331 § 1, n. 1), of abbot or prelate nullius (can. 320 § 2); they cannot be elected major superiors of Religious Orders or Congregations (can. 504); particular provisions exclude them also from the offices of auditor of the S. R. Rota, of consistorial advocate, etc. From all these prohibitions a dispensation is allowed. For other provisions relating to illegitimate children, cf. cann. 90 and 777 § 2. The illegitimate child can acquire a juridical status similar to that of legitimate children, by means of so-called legitimation, which in canon law occurs: a) if the parents contract between themselves a valid or putative marriage, provided it is a question of a natural child in the strict sense, not of a spurious child; to the celebration of the marriage is equated its convalidation (can. 1116); b) if a dispensation from a diriment impediment is granted to the parents, provided the child is already born or at least conceived at the moment when the dispensation is granted (can. 1051); c) if the Holy See (for the faithful of the Latin rite, normally the S. Congregation of the Sacraments) grants legitimation by way of grace.
Children legitimated by the subsequent marriage of their parents are equated, in canon law, with legitimate children; but they remain incapable of being named cardinals (can. 232 § 2, n. 1), bishops (can. 331 § 1, n. 1) and abbots or prelates nullius (can. 320 § 2). The effects of legitimation by rescript of the Holy See are regulated in the rescript itself. Legitimation by dispensation from a diriment impediment (which always concerns spurious children) perhaps removes only the irregularity ex defectu, of which at can. 984 n. 1.
Whenever the marriage of the parents is sanated in root (v. convalidazione, II), the illegitimate children come to find themselves in the same position in which they would find themselves if, at the time to which the effects of the sanatio go back (cf. can. 1038 §§ 1-2), a valid marriage had been celebrated, and, whenever the sanatio includes a dispensation from an impediment, such a dispensation had been granted then: the sanatio in root can therefore bring it about that even a spurious child is considered legitimate (not only legitimated), or that he is legitimated according to the norm of can. 1051, although in reality he was born after the granting of the dispensation.
3. Italian law
In Italian law a child is legitimate only if conceived during marriage (valid or putative), through the act of the mother's husband; a child is illegitimate if not conceived during marriage, or if not conceived through the act of the mother's husband.
In order to favor, in case of doubt, the legitimacy of the child, the law presumes with an absolute presumption (thus not admitting contrary proof) that a child born when 180 days have elapsed from the celebration of the marriage and 300 days have not elapsed from its dissolution or annulment was conceived during the marriage (art. 232 of the Civil Code). Furthermore, it presumes that the husband is the father of a child conceived during the marriage (art. 231 of the Civil Code), unless the husband disavows it, which however can occur only in the following cases (art. 235 Civil Code): 1) if in the period elapsed from the three hundredth to the one hundred eightieth day before the birth he was in physical impossibility of cohabiting with his wife by reason of separation or another fact; 2) if during the aforesaid period he was affected by impotence, even if this was only impotence to procreate; 3) if during the same period he was living legally separated from his wife, even as a result of a temporary order of the magistrate, unless there has been a reunion between the spouses, even if only temporary; 4) if during the said period the wife committed adultery and concealed from her husband her pregnancy and the birth of the child. In the latter case the husband is admitted to prove any other fact tending to exclude paternity. Finally, it also considers legitimate a child born in the first 180 days following the celebration of the marriage, while however admitting its disavowal by the husband; disavowal cannot however take place if the husband was aware of the pregnancy before the marriage, or if it results from the birth record that the declaration of birth was made by him or by a special procurator of his (art. 233 Civil Code). The action for disavowal is in every case subject to strict time limits (generally three months from when the husband learned of the birth, or is presumed to have learned of it: arts. 244 and 247 of the Civil Code).
The status of legitimate or illegitimate child has in civil law (unlike canon law) no effect outside the family and patrimonial relationships between parents and children. Within this sphere, however, the differences in treatment between the two categories of children are notable. The fundamental rules on the matter are contained in the Constitution which, after stating in art. 29 that "the Republic recognizes the rights of the family as a natural society founded on marriage," adds: "It is the duty and right of parents to maintain, instruct and educate their children, even if born outside marriage... The law assures to children born outside marriage every juridical and social protection compatible with the rights of the members of the legitimate family. The law lays down the rules and limits for the search for paternity." (art. 30).
The Civil Code, although anterior to the Constitution, may be considered substantially in conformity with the principles enunciated in it. It substantially distinguishes four degrees of treatment, according to the different de facto and de jure condition of illegitimate children, namely: a) a child whose paternity or maternity does not result in any of the ways to be mentioned in the following paragraphs: it has neither rights nor duties toward its parents; b) a child whose paternity or maternity results indirectly from a civil or criminal judgment, or from an unequivocal written declaration of the parents, or depends on a marriage declared null: it is entitled to maintenance and to a life annuity on the parent's estate (arts. 279, 580, 594 Civil Code); c) a child recognized by the father or mother, or whose paternity or maternity has been judicially declared: it has maintenance and succession rights in a manner analogous (but to a lesser extent or degree) to that of legitimate children, and is bound to provide maintenance to the parent who recognized it or who has been judicially declared (arts. 435, 539, 541-43, 545-46, 573-79 Civil Code); moreover the parent has with respect to it the rights deriving from parental authority, except legal usufruct (art. 260 Civil Code) and must maintain, educate and instruct it (art. 261 Civil Code); the child takes the surname of the father, or, if recognized only by the mother, the surname of the latter (art. 262); d) legitimated child: it is in all respects equated to a legitimate child.
The most important rules relating to recognition, judicial declaration and legitimation are recalled here.
Recognition can be made only by the father who has reached 18 years of age, or by the mother who has reached 14, unless it occurs on the occasion of their marriage. It can be made either in the birth record, or by declaration (at least posterior to the conception of the child) made to the registrar of civil status or to the guardianship judge, or in a notarial act or in a will. Incestuous children (that is, those between whose parents there exists kinship or affinity in the direct line or kinship in the second degree of the collateral line) can be recognized only by parents who at the time of conception were unaware of the existence of the kinship or affinity. Adulterine children cannot be recognized by the parent who at the time of conception was united in marriage, unless this has been dissolved by the death of the other spouse; and, if as a consequence of that marriage there exist legitimate or legitimated children or legitimate descendants, the recognition has no effect unless it is permitted by decree of the President of the Republic, with the observance of certain safeguards established by law (arts. 250-68).
The judicial declaration of paternity or maternity can be requested by the child (or, if it has died, by its descendants) or by its legal representative. For the declaration of paternity, statutes of limitation are established, and moreover it is not admitted except in the following cases: a) if the mother and the presumed father notoriously lived together as spouses at the time to which the conception goes back; b) if the paternity results indirectly from a civil or criminal judgment or from an unequivocal written declaration of the presumed father; c) if there was abduction or carnal violence at the time corresponding to that of conception; d) if there is possession of the status of natural child. The paternity or maternity of an incestuous child cannot be judicially declared; nor that of an adulterine child, if the marriage from which the adultery derives is still in existence or if from it there exist legitimate or legitimated children or their legitimate descendants (art. 269-79; see also PATERNITY, search for).
Legitimation, which can concern only children whose recognition is not prohibited, takes place: a) automatically, through a subsequent marriage contracted by the parents with each other, provided they have recognized or do recognize the child; b) by decree of the President of the Republic, on the request of at least one of the parents who has no legitimate or legitimated children by subsequent marriage nor descendants from them, and provided there is impossibility or at least a very serious obstacle to legitimating the child through subsequent marriage (arts. 280-90).