(Bloomberg Opinion) -- What's in a surname? An Italian court the other day overturned the country's longstanding presumption that a newborn takes the father's last name unless both parents choose otherwise. The new default rule is that the child will share both parents' last names, because the surname is a “fundamental element of personal identity.” True enough.
“Surname” most probably descends from the Latin “supernomen” (“additional name”), but the Oxford English Dictionary tells us that the English word was already gendered by the 16th century, leading to such mistranslations as “syr name” and “sir name.” The error should scarcely be surprising. In medieval Britain, what was known as the “byname” at times was drawn from the name of the mother. But by the 17th century, when surnames to delineate ancestry became more firmly established, they were nearly always patrilineal.
For most of U.S. history, children automatically took their father' last names, whether or not the law so required. As a formal matter, this long tradition has yielded to the fluidity of parental choice. (Italy is late to this particular party.) But what's striking is how strongly we still find ourselves in the grip of an ethic we profess to find outdated.
By the most widely cited estimate, some 95% of U.S. couples give their children the father's last name. Similar results are found in countries considered even more egalitarian. And in more egalitarian marriages too: One study found that even among U.S. women who kept their last names upon marriage, 78% chose patrilineal surnames for their children. Scholars have puzzled over this evident “cultural lag” — especially as parents have shown a recent willingness to experiment in selecting their babies' first names.
For heterosexual couples, adoption does not alter these calculations. A 2017 study found that 96% of heterosexual couples who adopted gave their children the father's surname. But among same-sex couples who adopted, a slender majority — 52% — gave their children hyphenated surnames, reflecting the last names of both parents. (Most of the rest chose one parent's surname.)
And then there's race. Nowadays we might debate how surnames should be chosen, but up through the middle of the 19th century, those enslaved in the Americas fought simply to get one. My great-great-grandfather, enslaved on three separate Virginia plantations, had no last name until around age 30, when he purchased his freedom.
Some slaves had surnames, others didn't, depending on local law and custom, and, sometimes, the master's whim. That the enslaved usually lacked surnames often combined with the assumptions of patriliearity to cause bizarre complications. The historian Gloria McCahon Whiting recounts what happened in 1701 upon the marriage of two slaves, Jane Lake and a man named Sebastian, who had no surname. That Sebastian would take his wife's surname was unthinkable; evidently, it was equally unthinkable that she would keep her own. Instead, she was awarded a corrupted form of her husband's first name, and became Jane Basteen. This common practice, Whiting tells us, erased countless surnames from the history of African America.
When formal enslavement ended, many of the newly freed adopted the surnames of their former masters. (White families tried and failed to stop the practice.) In 2015, a federal court dismissed a lawsuit by an Alabama man who argued that he suffered emotional harm because (among other causes) he bore the surname of a family that had enslaved his ancestors. Perhaps the judge was correct in concluding that sovereign immunity applied; yet one can hardly help seeing the plaintiff's point.
Even today, possessing the “wrong” surname can still lead to mistreatment. For instance, discrimination in labor markets on the basis of first names is a well-established phenomenon (albeit a complex and nuanced one). A similar phenomenon turns out to exist with respect to surnames, and has been documented in a variety of contexts. Small surprise that a 2009 paper found that Asian and African immigrants to Sweden increased earnings significantly by legally changing their surnames to sound more Swedish.
Even possession of a “neutral” surname may not provide sufficient protection. A 2016 U.S. study found that when a surname gives little information as to whether the bearer is Black or White (say, “Smith”), employers tend to disfavor applicants whose resumés in other respects indicate that they're black.
Other surname penalties exist. A 2016 study found larger market reactions to forecasts by analysts whose surnames suggested an origin in favored rather than disfavored countries. Moreover, the authors found that list of disfavored countries changed with events. After France and Germany opposed the Iraq War, for instance, the market's reaction to forecast revisions by analysts whose surnames sounded French or German “significantly decreased.”
Surnames have considerable utility. They help us figure out who's related to whom. For some, they provide family cohesion. They're vital to tracing everything from genealogies to the patterns of human migration. But they can have impacts that are far less beneficent. That Italy has abolished the patriarchal presumption in surname choice is all to the good; but it would be even better if we stopped using them to prejudge each other.
Inventing a surname out of whole cloth just creates new problems.
According to the article, the new surname must be invented; that is, an immigrant cannot take the name of an actual Swedish family.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”
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