Defect of birth (illegitimacy)

149. All illegitimate persons, even hidden ones, are irregular.¹

The reason for establishing this irregularity is chiefly alleged as threefold: a. reverence for the ecclesiastical order, for illegitimate persons by reason of their origin are reputed low; b. detestation of the paternal crime, as a sign of detestation of which even the sons are affected by a privative penalty; c. danger lest the sons imitate the paternal incontinence.²

From defect of birth the following are irregular:

1. Illegitimate persons. In general those are called illegitimate who have not been begotten from legitimate marriage, i.e. from one either truly or at least putatively valid.³

Those who were born from parents between whom, at the time of conception or birth, a valid marriage could have existed are called natural; but those who were born from parents between whom at that time a valid marriage could not have been had (as if they were born from adultery, sacrilege, or incest) are called spurious.

2. Those doubtfully illegitimate, whose illegitimate origin is not certain, are not irregular: for no one ought to be judged illegitimate unless this is proved certainly; moreover no one can be deprived of his right of receiving orders unless it is established that he is impeded.

a. Therefore exposed children of themselves are not irregular, and so they can be ordained without dispensation; nevertheless, as a precaution, they are usually dispensed if they cannot indicate their parents.

b. If it is uncertain whether the offspring was conceived or at least born when marriage had already been contracted, or before it, the offspring is not irregular, because he is presumed at least to have been born after the marriage.

c. He who was born in marriage, although from adultery, and this known to the husband himself, is not irregular unless he is juridically demonstrated to be spurious: for the father is he whom the nuptials show.

d. Someone is judged certainly illegitimate in a twofold case: a. if he has arisen from an unmarried mother; b. if he has arisen from a married mother, but his illegitimate origin has been juridically demonstrated.

3. Even hidden illegitimate birth induces irregularity, provided the matter is certain. Therefore if someone knew that he had arisen from unmarried parents, or from parents joined in appearance only, inasmuch as a diriment impediment had stood between them, he could not approach orders without dispensation.

¹ C. Is qui 1 De filiis presbyt. in 6°. (I. 11).

² Cf. Council of Trent, sess. 25. c. 15. De reform.

³ C. Ex tenore 14 Qui filii sint legitimi (IV. 17). Marriage which was contracted without due proclamations and without dispensation of the ordinary must be excepted: for in this case the offspring is held to be illegitimate. C. Cum inhibitio 3 De clandestina despons. (IV. 3).

150. This irregularity ceases not only by dispensation, as the others do, but also:

1. By subsequent marriage: for those born from fornication, or natural children, if afterward their parents contract a legitimate marriage, cease by the law itself to be illegitimate and therefore also irregular.¹

But the spurious, whose parents afterward contract marriage after the impediment has been removed, do not cease to be irregular or illegitimate, because the laws did not concede a privilege of this kind to the spurious.

2. By religious profession.² Solemn profession alone produces this effect, but not simple profession, unless a special privilege is present.³ Nevertheless, by the cited canon, religious profession removes irregularity only with respect to orders, but not with respect to prelacies. Hence if an illegitimate religious is to be promoted to a prelacy either outside the order or within the order, he needs dispensation.

Legitimation which civil law induces cannot remove irregularity. For since the question concerning the legitimacy of offspring is joined with the question concerning legitimate marriage, and this belongs to the Church alone, that also must be said to pertain to the Church alone.

¹ S. C. C. June 27, 1857. The case is excepted in which illegitimate persons were to be promoted to the episcopate or cardinalate.

² C. Ut filii 1 De filiis presbyterorum (I. 17).

³ S. C. Ep. et Reg. Jan. 20, 1860. Gregory XIII granted a privilege of this kind to the Society of Jesus by the constitution Ascendente Domino, in which irregularity from defect of birth ceases through simple profession.

The reason for establishing this irregularity is especially given as threefold: a. reverence of ecclesiastical order, for the illegitimate are reputed vile by reason of origin; b. detestation of the paternal crime, as a sign of which even sons suffer private punishment; c. danger lest sons imitate paternal incontinence.¹

¹ Council of Trent, sess. 25, c. 15, De reform.

481. From Defect of Birth the irregular are the illegitimate, whether the illegitimacy is public or hidden, unless they have been legitimated or have professed solemn vows.¹

a. Those who are born from parents between whom at the time of conception or birth there could exist valid marriage are called natural; those who are born from parents between whom there could not have been valid marriage, such as those born from adultery, sacrilege, or incest, are called spurious.

b. Those who are born when marriage already exists are held legitimate, even if no marriage existed at the time of birth.

1. The doubtfully illegitimate, whose illegitimate origin is not certain, are not irregular; for no one ought to be judged illegitimate unless this is certainly proved. Moreover no one can be deprived of his right of receiving orders unless it is established that he is impeded.

alpha. Therefore exposed children are not irregular per se, and therefore without dispensation they can be ordained. Yet for caution they are usually dispensed if they cannot indicate their parents.

beta. If it is uncertain whether offspring was conceived or at least born after marriage had already been contracted, or rather before, he is not irregular, because he is presumed to have been born after the marriage.

gamma. He who was born in marriage, although from adultery and this known to the husband himself, is not irregular unless he is juridically demonstrated spurious: for the father is he whom the marriage points out.

2. Even hidden illegitimate birth induces irregularity, provided the matter is certain.

¹ Cn. 984, 1.

482. This Irregularity Ceases not only through dispensation as others do, but also through legitimation and through solemn profession.

1. Through legitimation, which is especially done through subsequent marriage. For natural children, if afterward their parents contract legitimate marriage, cease by the law itself to be illegitimate and therefore also irregular. Legitimation is sometimes also done by dispensation from a diriment impediment which stood in the way of marriage, as is said in the treatise on matrimony.

But the spurious, whose parents afterward contract marriage after the impediment has been removed, do not cease to be irregular or illegitimate, because the law does not concede to the spurious a privilege of this kind.

2. Through solemn profession, but not also as regards simple profession unless there is a special privilege such as was granted to the Society of Jesus.

3. Legitimation and solemn profession remove irregularity only as regards orders, but not as regards prelacies, which they cannot obtain unless born from a legitimate marriage. Namely, they cannot obtain the prelacies of the cardinalate, episcopate, abbey or prelacy nullius, and major superior in exempt religion.

alpha. Hence if an illegitimate religious were to be promoted to a prelacy, whether inside or outside the order, he would need dispensation.

beta. Legitimation which civil law introduces cannot remove irregularity; for just as the question of legitimate marriage, so also the question of the legitimacy of offspring belongs to the Church.

THE illegitimate are irregular from defect of birth (Can. 984).

Defect of birth arises from illegitimacy, when the parents are either not married at all, or their marriage in the eyes of the Church is null and void on account of some diriment impediment known to both parties. If the impediment was unknown to at least one of the parents, the marriage is called putative, and the offspring is legitimate. When there is a doubt concerning legitimacy, as in the case of foundlings, legitimacy may be presumed until the contrary is proved.

This irregularity ceases by legitimation, dispensation, and solemn religious profession. If the parents at the time of conception or birth of the child could have been married, the child is by ecclesiastical law legitimized by subsequent marriage (Can. 1116); otherwise it can only be legitimized by the rescript of the Pope. A dispensation from this irregularity may be granted by the Pope, and by delegated authority by bishops, regular prelates, and others. Solemn religious profession takes away the irregularity as far as it is a bar to the reception of Orders, but not so as to enable the party to accept prelacies in the Order without dispensation.

614. 1. Defect of birth has constituted an irregularity for centuries, because a) illegitimate children bearing the reproach of their parents are not sufficiently worthy for the excellence of the clerical state; b) they not rarely imitate the incontinence of their parents.¹²² According to the discipline in force, those who were born outside a true or at least putative marriage are irregular from defect of birth.¹²³

The following are not illegitimate and consequently not irregular:

a) foundlings; nevertheless, as a precaution, a dispensation is customarily given if their parents are entirely unknown;

b) children doubtfully illegitimate;

c) children born from adultery during a legitimate marriage, provided, however, that this adultery and the illegitimate origin of the child have not been juridically proved. For the adage holds: The father is he whom the marriage indicates, unless the contrary is proved by evident arguments.¹²⁴

The cessation of this irregularity is obtained:

a) through a legitimate (ecclesiastical) dispensation. Who can dispense from this irregularity has already been stated above.

b) through legitimation by means of a subsequent marriage. In this manner irregularity is not removed for spurious children, but only for natural children (that is, of parents who were capable of contracting marriage at the time either of conception, pregnancy, or birth).¹²⁵

c) through solemn religious profession.¹²⁶ But not through simple profession, nor through reception of the religious habit, unless a special privilege is present.¹²⁷

¹²² Cf. Council of Trent, sess. 25, c. 15, De reform.

¹²³ On the contrary, "children conceived or born of a valid or putative marriage are legitimate, unless at the time of conception the use of the previously contracted marriage was forbidden to the parents because of solemn religious profession or the reception of sacred order" (Code of Canon Law, c. 1114). What a putative marriage is will be stated below, n. 640.

¹²⁴ Code of Canon Law, c. 1115, § 1.

¹²⁵ Ibid., c. 1116.

¹²⁶ Ibid.; cf. below in the treatise on marriage, n. 893.

¹²⁷ Cf. Gasparri, De ordinatione I, 247.

1°. Legitimate children are children conceived or born from a valid or putative marriage, unless to the parents, on account of solemn profession or a sacred order received, the use of a marriage previously contracted was prohibited at the time of conception. Illegitimate children are children conceived and born from fornication, adultery, incest, or sacrilegious intercourse between parents to whom at the time of conception the use of marriage was prohibited on account of solemn religious profession or sacred order.

They are legitimated: 1°. by subsequent marriage, provided the parents were able to enter marriage between themselves at the time of conception or pregnancy or birth; 2°. by decree of the prince. - Cf. Can. 1116.