Report No. 62
2.4. Improvements in definition of 'dependant'-Legitimacy.-
So much as regards the complexity of the definition of "dependant". As regards the substance of the definition, there are a few improvements worth considering. The distinction between legitimate and illegitimate children1 is wrong on principle, and out of tune with modern thinking. We think that it should be removed. In other words, a "minor illegitimate son" and an "unmarried illegitimate daughter" should be transferred from category (iii) to category (i) of section 2(1)(d), which contains the definition.
1. Para. 2.3, supra.
2.5. Illegitimate children are not "non-persons". They are humans, live and have their being.1 In the U.S.A. it has been held that they are clearly "persons" within the meaning of the Equal Protection Clause2 of the Fourteenth Amendment of the U.S.A. Constitution.3
1. See note The Rights of Illegitimates under Federal Statutes, (1962), 76 Harvard Law Review 337.
2. No State shall deny to any person within its jurisdiction the equal protection of the laws.
3. Levy v. Loinsiann, 20 L Ed 2d 436 (439), (Doughlas J.).
2.6. Regarding illegitimate children, it may be noted that Courts in U.S.A. have gone the furthest. In an American case,1 the petitioner, an unwed mother, filed an action against one Perez, the putative father of her minor child in the State of Texas. During the proceedings, it was established that Perez was the "biological father" of the petitioner's child needing support. It was held, however, by the trial court that there was no legal obligation to support an illegitimate child. This view was confirmed on appeal.
The Supreme Court of the U.S.A. reversed the decision, and stated that "once a State posits a judicially enforceable right on behalf of children to needed support from their natural father, there is no constitutionally sufficient justification for denying such an essential right to a child, simply because her natural father has not married her mother."
The Court relied on its earlier ruling, holding that illegitimate children are entitled to wrongful death benefits,2 and also to a similar decision3 applying the benefits by way of workmen's compensation to illegitimate children.
1. Gatnez v. Perez, (1973) 408 US 535: 35 L Ed 56: 41 USLW 417.
2. Levy v. Louisiana, (1968) 391 US 68.
3. Weber v. Aetne Casualty and Surety Company, (1972) 406 US 164.
2.7. In many cases, Congress has made a provision for recovery by illegitimates, but with certain safeguards designed to require proof1 of paternity.
1. Note "Rights of illegitimates under Federal Statutes" (1962), 76 Harvard Law Review 337, 339, 344 and footnote 27.