The Rights of the Illegitimate

In recent years the courts have steadily expanded the rights of children to sue for damages resulting from prenatal injury. Now before the courts is a case that marks a milestone in this facet of the law. The plaintiff is an illegitimate child, conceived during the rape of a hospitalized mental patient. Suit has been filed in her behalf to recover damages for the mental anguish of being born a bastard.

The Stigma. The suit was filed by the father of a mental patient in Manhattan State Hospital on Welfare Island, claiming that the hospital was negligent in not preventing his daughter's rape by another inmate. That negligence, he charged, not only caused his daughter suffering, but a pregnancy that brought forth an infant deprived of "property rights ... a normal childhood and home life . . . proper parental care, support and rearing." For his daughter's suffering, he asked $50,000 in damages, for his granddaughter--now two years old--$100,000.

The State of New York did not contest the man's right to recover damages for his daughter if he could prove negligence. But it demanded dismissal of the infant's case without a trial. Never before had such a case been successfully pleaded, the state pointed out. In 1963 the Illinois Appellate Court dismissed a similar suit (Zepeda v. Zepeda) on the ground that recognition of a bastard's right to collect damages would mean creation of a new tort. If that happened, ruled the Illinois court, "one might seek damages for being born of a certain color, another because of race, one for being born with a hereditary disease, another for inheriting unfortunate family characteristics; one for being born into a large and destitute family, another because a parent has an unsavory reputation."

Cries for Justice. New York Court of Claims Judge Sidney Squire ruled that the case must go to trial nonetheless. "The novelty and lack of precedent for declaring that the baby bastard has a cause of action should not be a deterrent to such ruling," ruled Judge Squire, quoting the late jurist, Sir Percy Winfield: "If that were a valid objection, the common law would now be what it was in the Plantagenet period." The state's motion that the bastard's case, if tried and won, would leave the courts open to an endless array of claims Judge Squire dismissed just as swiftly. This approach is "unrealistic, illogical and unsupportable," said he. "Tangential reasoning should not be utilized to destroy a fundamental right which cries out for justice."

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