When Is Ignorance of Consanguinity Bliss?

For the past two days, the most-read article on Slate has been this “Dear Prudie” column about a man whose unacknowledged son is unwittingly marrying his cousin. The dispute presented to Emily Yoffe (Prudie) is whether to alert the couple that they are cousins. Yoffe’s response is a strong recommendation to keep quiet:

As it stands only three people know you’re the biological father of the boy, and while it may take all your will power, I think it should remain that way. Cousin marriage is common in much of the world and I think the remaining laws against it in this country should be repealed. Yes, there is an elevated risk of passing on genetic disorders, but it absolute terms it is very small. Two young people are in love and planning to make a life together. I think you should let that be.

Maybe that’s the right thing to do, I don’t know. But what I do know is that there are some legal complications here, and the right answer may well turn on what state all of this is taking place in — which Yoffe does not tell us, if she knows.

1: The marriage might be void. Yoffe briefly adverts to “the remaining laws against” marrying one’s cousin, but doesn’t really seem to comprehend their relevance. In most states that have laws against cousin marriages, that means that the marriage is simply void.

And while I haven’t found a ton of cases about this, it doesn’t appear to matter that the couple didn’t know they were cousins when they got married. Nothing in the consanguinity statutes turns on knowledge, and the few cases that deal with this confirm that ignorance of consanguinity doesn’t make a marriage valid. (The Nevada law discussed in this California case is an example.)

Now, you might think that even if the marriage is void it doesn’t matter, so long as nobody ever finds out. If the couple doesn’t know the marriage is void, maybe the law will never know, so their marital rights will be enforced just as if they were married. That might be so. On the other hand, sometimes people end up getting tests done that might reveal the consanguinity.

And more importantly, the letter-writer says that three of the four parents know, and it’s easy to imagine situations in the future where one of them might have the incentive to reveal it. Suppose, for example, that one member of the couple ends up in some kind of coma and their partner needs to decide whether to end life support. If the parents of the incapacitated partner disagree, (remember Terry Schiavo?) they might want to suddenly reveal that the marriage is invalid, depriving the partner of decisionmaking power. Or it might be a much baser dispute, like one about money (remember last month’s ERISA case?).

Moreover, this might be a curable problem. Some of the states in which cousin marriage is forbidden will still recognize cousin marriages performed elsewhere. So if the couple is in a no-cousin-marriage state, telling them might enable them to take precautions to ensure their marriage is valid (if they still want to get married after being informed). And even if not, they could take measures like wills, powers-of-attorney, etc. to avoid unwanted legal surprises.

2: That said, ignorance might be bliss. Some states recognize some form of the “putative marriage doctrine,” which basically says that if both (or sometimes one) of the parties believes in good faith that they had a lawful marriage, they will receive some of the protections of marriage. But there are more complications. The doctrine doesn’t necessarily apply to all aspects of a marriage (a lot of the old cases are about accrued community property and spousal support, but other rights are not always protected), and it doesn’t necessarily last once the parties have discovered that the marriage is invalid — so the couple might still be vulnerable in some of the scenarios listed above.

None of this is to say that these legal issues obviously control the ethical question of the right thing to do in this scenario. And of course it’s possible that the couple lives and is getting married in a jurisdiction where none of these things are at issue. But it’s a shame that Yoffe didn’t think it was at least worth flagging these issues. The ethical question of what to do seems to depend at least in part on what kinds of legal risks one would be exposing one’s family to.

UPDATE: Several commenters raise the question of whether the (presumed) fact that the son’s birth certificate likely lists his mother’s husband, rather than his biological father, means that the couple are not “legally” cousins, and hence not subject to the consanguinity laws. This might also vary from jurisdiction to jurisdiction, but in many places consanguinity laws apply to blood relations, and are separate from the legal rules about legitimacy. That’s why they call it consanguinity, and it’s also reflected in some state statutes– e.g. Arkansas (“This section shall extend to illegitimate children and relations.”); South Dakota (“whether the relationship is legitimate or illegitimate”); Wyoming (“whether either party is illegitimate”). Some states also apply their incest laws to those who are related legally but not by blood (affinity, rather than consanguinity), but the legal fictions of legitimacy aren’t a categorical exemption from consanguinity laws.