Would You Change The Birth Certificate?

Here’s a long story from the NYT that is worth reading.   I don’t think I’ll even attempt to summarize the facts so you should just go read it.  To me the key points to ponder are these:

—Nina Viola Montepagani’s birth certificate (which is from 1952) lists Guiseppe Viola as her father.  He was married to her mother when she was born and functioned as a social father from the time of her birth until his death in 1987.   Nina and Guiseppe seem to have had a warm and loving relationship. 

–Nina Montepagani believes (as far as I can tell) that she was not genetically related to Guiseppe.   She asserts she is genetically related to Sebastino Raeli.  Raeli is also dead and he left an estate valued at something like $100 million dollars.   He willed his estate to a university.   Raeli was, as the story puts it, officially childless.  Under Italian law a child of his might be able to claim 1/2 of his estate.  

—While it is possible that Raeli was genetically related to Nina Montepagani it is also possible that he is not.  She declined to participate in genetic testing he requested in 2001.   It also seems to be perfectly possible that she was genetically related to  Guiseppe Viola, the man listed as her father on her birth certificate, since it seems no genetic testing has been done to either include or exclude him.     

 –When Montepagani sued in Italy in 2001 to establish her status as Raeli’s daughter, the court dismissed her suit because of the original birth certificate listing Guiseppe Viola as her father.    This is why she wants to remove his name from the birth certificate.

I suspect other people might find different facts important, but for me, these seem to be key.   And I have to say, I am totally unsympathetic to Montepagani’s efforts to change the birth certificate. 

Of course, from my point of view, Guiseppe Viola really was (and I use those words quite consciously) her father.   The idea that now you would go back and erase his name frankly offends me, all the moreso since the effort seems driven by the quest for a share of Raeli’s estate.     

Even if you put great store in genetic relationships, on what basis would you erase Guiseppe Viola’s name here?   There is no real evidence he is not genetically related.  There is no real evidence that another man is genetically related.   I’m all for flexibility in family law (touted by an expert at the end of the article), but towards what end should flexibility be invoked?   A birth certificate with a blank is hardly more accurate than the existing one–at least, we cannot say it is more accurate.  

It seems the only reason to change the birth certificate is so that Montepagni can go to Italy and try to prove she was genetically related to Raeli so that she can claim a share of his estate.  This raises another question bothering me:   What would she have to show in order to collect 1/2 of Raeli’s estate?  Would it be enough to show genetic connection alone?   Should it be?    Frankly, it makes no sense to me that she’d be entitled to 1/2 of his estate on the basis of a genetic test.   But then you all know I’m not fan of genetics. 

I understand that some people will say she ought to be able to find out the truth of her genetic origins.  I don’t think I need to disagree with that.  Perhaps this is extremely important to her.  But she could very likely do this (or have done it in the past) without trying to change her birth certificate.  What’s required is genetic testing.   If the tests showed that Viola was not genetically related to her, we could still argue about whether or not to change the birth certificate.  If tests showed she was related to Raeli, we could argue about whether or not she should get his estate.   

For the moment I see no reason why Viola’s name should be removed from the birth certificate.


30 responses to “Would You Change The Birth Certificate?

  1. Ooh, this is a good one. I agree with you, I’d say she’s not entitled to his estate even if genetic tests prove he impregnated her mother before she left Italy to marry his mother. But then, I don’t think illegitimate children are entitled to inheritance, or support. Did Italy get rid of all their illegitimacy laws in the 70’s too? Wasn’t it the Claude Johnson case in America that established DNA as the basis of inheritance (though I think in his case it was just common knowledge that he was the father, not a DNA test).

    I do think the birth certificate should reflect her genetic progenitors, so that she and her children know their family tree. That her mother’s husband was her step father in no way diminishes his role as her father. I think if her step father had been the one with 100 million bucks, she would have inherited that, even if her birth certificate didn’t list him as the father, right? Or do people not inherit from step parents?

    • “But then, I don’t think illegitimate children are entitled to inheritance, or support.”
      Aack! John you did not just say that! I think I just a little bit threw up.

      • Just trying to get everyone’s goat by reminding everyone of the traditional law. It’s only recently that illegitimate children could inherit anything, and when they had their unmarried sex back in the 50’s, neither of them had any reason to think that if she got pregnant, he would have any obligations to her or their children. They knew that they weren’t supposed to be having sex at all.

        Back in the days of illegitimacy, what did birth certificates say for the father?

        And for the record, I don’t think we should go back to illegitimacy, now that we have reliable paternity tests. It is better to hold fathers accountable for supporting their children and the women they had sex with, in the event they have children.

        • You’ve thoroughly calmed down over the past year. Cause your reasonable under there. Its one thing to say things should be this or that way – who could argue two deeply devoted madly in love married parents who really like kids are in the best situation to raise their own? Not me. The only reason they did not hold unmarried fathers responsible in the past was lack of proof, and honestly I think paternity fraud is a horrid crime its really low. Its unfortunate there is no constructive way to punish women that are busted for it without somehow having her punishment impact the kid. Maybe she could work it off three nights a week working in a county safe house for battered women or something, on the nights the real dad has his kid. I’m just sayin. He was pullin our leg Kisarita. He got me for a second too. Whew Now cut it out. Gave me a heart attack

        • Birth certificates were sometimes stamped “Bastard” and the father slot was left blank. (Which reminds me to recommend Bastard Out of Carolina by Dorothy Allison.)

          Many would say that one of the most significant changes is family law in the 20th century was the elimination of legal disadvantages imposed on illegitimate children. You don’t have to go back that far to find a time when, as John says, illegitimate children could not inherit on the death of their father, nor could they seek support.

          • very good book i read it (gasp almost 20 years ago?) when it came out. Yes, yes your right on all counts. (of course)

    • so much for your concern for the children John. It’s obviously not THEIR welfare that concerns you most about childbearing outside of marriage. So what is it really?

      • I’m concerned about conception rights within marriage. When did I ever claim to be concerned for children?

      • I do care about children, but my concerns are stopping genetic engineering (which Transhumanists claim would make healthier, better children), and preserving equal conception rights of all people, so that all marriages continue to be approved and allowed and have a right to use their own genes to conceive offspring. Stopping the Brave New World certainly benefits children, but only be preserving their rights and equality and their environment, not by improving their bodies or giving them enhanced technology. And I think the laws I advocate would indirectly lead to less out of wedlock childbirth and more marriage, as people are reminded of the meaning of marriage.

    • People do not automatically inherit from step-parents.

      I think the operation of law in most states in the US would recognize Viola as her father by virtue of the marital presumption. While this can be rebutted, it’s hard to imagine rebutting it after such a long time. Plus I don’t really see what she has to rebut it with–surely not mere suspicion? Since Viola would be recognized as the legal father, then she would inherit even in the absence of a will.

      I think what you are suggesting is that the birth certificate should function more like a certificate of pedigree. While this is perfectly possible, it isn’t current practice in the US. I don’t know about Italy.

  2. You don’t inherit from your step parent unless they want you to. Money stays in the family (blood or contract). If a person gave up a child for adoption and they die and have nobody else around to leave the money to – my city has a department of aging and adult services that will chase down their child and give it to them. I butt my nose into a lot of stuff, I bet your surprised. My neighbor died and I had to identify her. I use to have her over for dinner. She was really old. Everyone in her life had passed on. So I knew she was Catholic and would not have wanted to be cremated and stuff, I dealt with the city to make sure, you know that she was treated properly. They did the whole hunt for adopted children on her. She died with a whole lot of money and property its all still in limbo. Don’t get any ideas, she could never remember my name and she called my daughter little one. Not a chance in hell, I was doing it because someone had to look out for the old broad, she was cool.

  3. This woman turns my stomach. Of course if she can prove that the man who raised her was not her father with a DNA test, I think the State (anywhere on earth) should be obligated to maintain accurate historical records. Knowing that birth records are used to calculate statistical data thats used for research and all, we know that the State assumes those names to be biologically accurate and therefore the person the certificate is issued for should assume it to be true and accurate for medical purposes and the people named as parents should expect it to be true and accurate for medical purposes. A man should have the right to assume that when his name appears on the birth certificate of a child it is his medical record as well indicating that he is not sterile say for instance. If he has been misled by his wife I’d say she’s tampering with his medical history as well as the child’s. So I believe, if the State is shown DNA excluding the person named as father, that they owe it to the public to correct the document for historical purposes with an indication that it was ammended and a statement as to why so that family members in the future will not be misled about their origins either.

    I think the State needs to stay out of people’s private business about whether the truth embarasses them or not. If they are embarassed or ashamed of the fact that they are or are not related to a particular child, that should be for them to worry about, not the State. The State should concern itself with due dillegence to secure accurate info from people when a child is born. Mistakes happen, if they are informed of one I think its wrong to let the record stay wrong for the child’s benefit. Its one thing for a judge to let the custody arrangement stand because its best for the child but to leave the wrong name on the record is misleading.

    I might be on her side if she had a ton of love letters between that man and her mother and she was trying to get his body exhumed to do a DNA test, and she was armed with a DNA test showing that the man named on her certificate was not related to her paternally. Actually I’d be on her side in principal for the record keeping part of it but I’d still think she was a money hungry brat. Records need to be correct even when there is nothing in it for you. The truth ought to be its own reward. I could offer up a laundry list of people who would rather have the name of their father than a million dollars any day. Her behavior (if in fact she is not related to this man) is kind of an insult to them actually.

  4. Previously I have stated that a father should not be held liable for back child support during the time he was unaware of his child’s existence.
    I classify the man’s estate as back child support, since Nina herself refused DNA testing during the man’s lifetime, he could not be certain of his relationship to her, and therefore he/his estate owes her nothing for all that time period.

    Whoever’s name is on the birth certificate should have no bearing on the matter. The standards of evidence in a monetary dispute are higher than for personal status issues.

    • Hey Kisarita
      I also felt like its unfair to make the father pay back child support for when he did not know about the kid, but, consider this for a moment, if the mother was collecting Welfare for the child, that’s kind of like an emergency fund all tax payers even ones that don’t work, pay into. Its a kitty that is there for us when we need it. So his child needed to be cared for in this emergency where through no fault of his own, like say many of my friends fathers went off to vietnam not knowing they had gotten their neighbor pregnant before they left. Well that is his obligation the state did him a favor by covering it for him, should he pay it back or should it be like if you have a fire at your house they come put it out and you don’t have to pay it back because you paid into that insurance fund should you have a fire? Welfare is paid into even by people who don’t work through sales tax, we are all paying for road work all paying for schools, those who have more pay more, property, wages, etc. Those who have more certainly may use less of those services, but in the event you want to drive across that bridge, its maintained safely. So who should foot the bill during the time he’s unaware?

    • also in Italy, is an adopted child entitled to a share of the biological parent’s estate? why wouldn’t nina be classified as an adopted child?

      • I don’t know about the inheritance rights of adopted children in Italy, but I’d assume that the rights are the same as those of other legal children. But Nina probably wouldn’t count as adopted because there were no formal adoption proceedings. That’s just a guess, but I feel fairly confident about it.

  5. Many Americans probably don’t realize that many European nations set aside a portion of parents estates for their children, spouse, etc.

    Also, most of the other developed countries have laws that ignore “legitimacy” now. The US is the odd man out on that.

    This can be shown by the fact that the US signed the ICCPR in the 90s but inserted a statement saying that they still reserved the right to discriminate against children based on their parents’ perceived deeds or misdeeds. No other countries did that, just U.S.

    Look 20 years into the future.. at least 3/4 of the jobs currently held by low skilled workers will be automated. So education will be far more important than it is today. The less access to education people have, the smaller the chance they will ever be able to afford to marry or have legitimate children.

    How will children pay for an education without an inheritance?

    To exclude most children from inheriting because their parents weren’t married will be particularly harsh when the job as we knew it isn’t anymore …

    Thats inevitable. In fact, it’s already a reality.

    • What you describe is common in the US, too. A portion of the estate is set aside for a spouse and also for children. Illegitimate children are (at least to a degree) recognized as children. It is sometimes harder to establish that the children are properly considered those of a particular man absent marriage, but there are a wide range of ways for reaching that conclusion. Thus, I’m not sure that the US is so far out of step.

      Still, court’s are not commonly recognizing multiple fathers in situations like this. Thus, if the husband of the woman who gives birth is a legal father (and he is) then the man who is genetically related to the child cannot also be a legal father.

  6. Nina was not adopted. As I understand it, the man in Italy is her biological father. The fact that her mother married the older American man was probably because Italy had been recently defeated in WWII by the Allies, and there were NO jobs.

    Ever see the original of “The Bicycle Thief”?

    That movie captures the atmosphere pretty well. Italy had a glorious past but the 1950s were economically a period of extreme hardship there.

    By the mid 60s things were much much better.

    Now in many ways, Italy, as well as many other EU nations, has caught up with or even passed the US. On healthcare the gap is huge, and the impact of it on our lives is really obvious.

    the average European or Canadian will have a quarter to a half a million dollar advantage on us by the time we die, even with the taxes they pay.

    We spend that money on wars and tax cuts for the rich, they spend it on their education and healthcare.

    • Certainly her assertion is that the man in Italy is genetically related to her. I have no idea if this is true and there doesn’t seem to be DNA evidence, which ordinarily one would expect these days.

      The recognition of the mother’s husband as a legal father is actually a way of protecting a child in a case like this (assuming of course that the mother’s husband was not genetically related to the child.) It ensures that she is recgonized as legitimate and has a legal father. But the price of that is that it cuts off the claim another man might raise and this can lead to complications. Under the particular circumstances here–and I’m thinking of the extended period of time that elapsed–it seems rather late in the game to challenge paternity.

      • I would suggest that the law should classify Nina as an adopted child even though no formal adoption took place.
        Adoption is the creation by law of a parent child relationship, in absence of a biological parent child relationship.
        An unrebutted presumption of paternity, when all parties had the opportunity to rebut but did not, should qualify as a subset of adoption. It also serves to create a LAWFUL parent child relationship in absence of the biological parent child relationship, since no one broke the law.
        I’d call it a “de facto adoption”.
        The absence of a formal adoption shouldn’t change that because all parties proceeded lawfully.

        • That would be one way to approach it that would reach the same result as the marital preference. It does have some advantages, too. You might want to reach the same result even if there wasn’t a marriage, for example. After all, the man in the US functioned as her father for decades. Surely at some point his relationship with her should be legally secure. Shouldn’t she be eligible to recieve a share of his estate or pension or whatever?

          This does not mean that at some point in her life she couldn’t decide to figure out who she was genetically related to. It’s just that at some point the legal relationships of the parties should (in my view) become fixed and I’d say this situation persisted long enough. I cannot help but wonder whether the issue here was mostly about who had money.

          By the way, does anyone know what happened in the case?

          • I have a preference for easily defined legal categories, not murky “well he acted like her father so it must have been…. ” This is especially so after the man’s death; he can not testify as to his intent.

            • When legal avenues exist, people who do not pursue those avenues should not be entitled to that status. That undermines the legal avenues.

              • Excellent point. But again, what happens when people do not use legal avenues and just go on with their lives? Think of this case, for example, with no marriage and no adoption. There were legal avenues, but they weren’t taken. It’s problems like this that inspire people to invent doctrines like equitable adoption (which is in fact a real doctrine.)

            • There are many good reasons to prefer easily defined categories. The problem is that people do not always live their lives in accordance with those categories. So in this case–suppose the man who raised her hadn’t been married to her mother. After living their whole lives as father/daughter I’d say the law should conform to the reality. I think your equitable adoption theory gets you there. But it isn’t a tidy category.

  7. The passage of time is also significant. There’s got to be a point of no return, where we say, what’s done is done and no going back.

  8. There’s also the issue of forcing a dead man to submit to DNA testing. Something about that rubs me the wrong way.

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