Since we have been discussing unmarried motherhood, we may
appropriately begin our consideration of these disabilities by
examining the status of motherhood in marriage. The married mother,
particularly in modern times, is the object of a sickly pawing and
adulation and enjoys a certain formal respect--not, however, as a
mother, but as a mother of legitimate children. While she continues
to live with her husband, she may exercise considerable supervision
over the rearing of her offspring; indeed in some communities she
is, by force of custom, supreme in this province. But in case of
separation or the death of her husband, she may find herself without
any legal claim to their guardianship or custody, for until recently
children born in wedlock have been generally held to belong exclusively
to the father. The principle of joint guardianship is coming to be
recognized in modern jurisprudence, but there are communities where
the old laws still hold. In Virginia, for example, the father’s claim
is always preferred to that of the mother. In Maryland and Delaware
it is preferred to such an extent that he may even, by his will,
deprive her of the guardianship and custody of her children after
his death. This provision is a survival from English common law, and
is a logical correlative of woman’s status under that law, which was
that of a minor. Her position with regard to her children was one
of responsibilities with no compensating rights; and although the
discriminations against her have been modified here and there, this
is still pretty generally her position. In this respect the unmarried
mother is better off than the mother of legitimate children, for in
most countries, as the only legal parent of her child, she exercises
the right of guardianship and control and possesses full claim to
their services and earnings. The unmarried mother, in a word, bears her
own children; the married mother bears the children of her husband.
Usage, as every one knows, is far ahead of the laws governing the
rights of the married mother. In France, where her legal position is
notoriously bad, her relation to her family is nevertheless one of
influence and authority. In this country also her actual position is
generally far better than that allowed her by the law. But this is
merely to say that most husbands are more humane than the law; and the
fact may not be ignored that so long as legal discriminations bar her
from an equal share with her husband in the control and guardianship of
her children, she exercises parental rights only on sufferance. It is
the law which finally fixes her status in this as in other matters; and
as long as she may legally be made to suffer injustice on account of
her sex, she can hardly be called her husband’s equal, no matter what
privileges she may enjoy by virtue of his indulgence.
Public-domain text, read in full here on John Shaqi.
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