LEGITIMACY
Every child born in wedlock is presumed to have the husband of the woman as its father; but this presumption may be denied for the following reasons:
1. Absence or death of the reputed father.
2. Impotence or disease in the reputed father, preventing matrimonial intercourse.
3. In the case of a premature delivery in a newly-married woman.
4. Want of access.
5. The paternity of the child may be disputed when the woman marries immediately after the death of her husband.
In Scotland, a child is held to be legitimate if born ten lunar months after the death or absence of its alleged father; and the absence of the supposed father must continue till within six lunar months of the birth of the child, to prove its illegitimacy.
In the same country, a child born before marriage is rendered legitimate by the subsequent marriage of the parents. This is not the case in England.
A child born during wedlock is legitimate, although the date of conception may be before marriage. A child born after the death of its mother is held to be legitimate. A child may, as Taylor remarks, be conceived before marriage, and born after the death of the mother, and yet be legitimate, though neither conceived nor born in wedlock.
The Code Napoleon prohibits the contraction of a second marriage until ten months after the death of the first husband; and this is also the case in Germany. The Anglo-Saxon law prohibits remarriage for twelve months. In Britain no time is fixed by law.
Duration of Pregnancy.—The consideration of this subject is of importance in its relation to the legitimacy of a child.
The natural period of human gestation is usually stated at forty weeks, ten lunar or nine calendar months, or 280 days. In Prussia, the period is extended to 302 days, and in the Code Napoleon to 300; in Scotland, ten months is held as the limit.
The duration of human gestation is subject to considerable variation; in some females it is always protracted; in others, always premature. Several modes of calculation are adopted by women:
1. Ascertained date of impregnation from one coïtus.
2. Supposed sensations of female at time of conception.
3. Suppression of the catamenia. This is open to the objection, that causes other than that of impregnation may arrest them. The catamenia may be stopped by cold or other causes for two or three months, and then, before their return, pregnancy may occur, thus upsetting all calculations. The usual mode of calculation is from two weeks after the last menstruation, and the period so fixed is corrected by the time at which quickening occurs.
4. Period of quickening. (a) Quickening supposed when pregnancy is absent. (b) Pregnancy without quickening. (c) Variations in the time of its occurrence.
Whichever may be the mode of calculation adopted, it may be stated that, as a rule, the period of human gestation is from 275 to 280 days, and that cases of alleged pregnancy beyond 300 days must be received with considerable caution.
The pregnancy of the Countess of Gloucester was held, in the reign of Edward II., to be legitimate, although her husband had been dead one year and seven months at the date of the application.
Premature Births.—The question may be asked, At what period of gestation may a child be born viable—that is, capable of living and attaining to maturity? Seven months, or 210 days, is considered as the limit; but cases have been recorded of children born at six months being reared. The Roman law admitted the legitimacy of seven-months’ children. (For the Signs of Immaturity, see “Table of the Development of the Embryo,” pp. 35, 36.)
Superfœtation.—The term is used to imply the conception of a second embryo in a woman already pregnant, and the birth of two children at one time, differing considerably in their maturity, or of two births, a considerable period of time elapsing between each. The possibility of this occurrence has been doubted.
Churchill, in his work on Midwifery, writing on this subject says: “In conclusion, I would say—(1) That the theory of superfœtation is unnecessary to explain the birth of a mature fœtus and a blighted ovum, of a mature and immature fœtus born together or within a month of each other, or of fœtuses of different colours, as they may reasonably be supposed to be the product of one act of generation, or of two nearly contemporaneous. (2) That, in cases of double uterus, it is possible for a second conception to take place, and—judging from the subsequent birth of the second child in the only case on record—at a later period than the first. (3) That, in the remaining cases, where one mature child succeeded the birth of another after a considerable interval, we have no proof of a double uterus in any, and positive proof that in one case it was single; and that to the explanation of these cases no theory as yet advanced is adequate, that of superfœtation being opposed by physical difficulties which are unsurmountable in the present state of our knowledge.”
The late Dr. Matthews Duncan has, however, shown that the mouth of the womb is not completely closed by conception, and the communication between the vagina and ovary is not destroyed for some months after impregnation, and that there is no impediment to the ascent of the spermatozoa. Galabin[16] records an instance of extra-uterine and uterine pregnancy occurring at the same time, the extra-uterine fœtus being advanced in development as compared with that in the uterus, and regards the condition as one of superfœtation.
The late Dr. Milne, while admitting this form of pregnancy as possible, though very rare, remarks: “This variety we should not think due so much to mechanical hindrances as to the absence of proper ovules. It would imply extraordinary vigour were perfect ovulation to be achieved for any length of time after impregnation.”