Which surname shall a non-marital child use?

By Atty. Eduardo T. Reyes III

In most cases, a minor cannot decide for himself/ herself but must look to his/ her parents to make the decision. This is because under the law, a minor lacks the capacity to act which means “the power to do acts with legal effect” (Article 37, Civil Code). So, minors cannot usually enter into contracts or execute affidavits except through their parents or legal guardians.

While for non-marital (formerly illegitimate) children, since their legal guardian is their biological mother, then their legal acts are performed by the mother. This includes the duty to accomplish the entries in the child’s certificate of live birth. So, while the biological father may or may not participate in the preparation of the child’s birth certificate, the biological mother is required by law to sign the certificate of birth of the child in all cases pursuant to the ruling in Barcelote v. Republic (815 Phil. 664, 2017). 

Yet jurisprudence is rife with controversy on which surname will the child use: the mother’s or the father’s, especially when the child is non-marital, but the father vigorously pursues the acknowledgment of the child and insists on the use by the child of the father’s surname.

Article 176 of the Family Code as amended by Republic Act No. 9255 (or An Act Allowing Illegitimate Children to Use the Surname of their Father, etc.), states:

“Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document  or private handwritten instrument is made by the father x x x.”

In Grande v. Antonio (727 Phil 448, 2014) it was concluded that the non-marital child’s use of the father’s surname is discretionary in the same way that the use of the mother’s surname is also optional. This is because in Grande the Supreme Court held that a non-marital child must be given the choice on what surname to use. This was reiterated in Torrefranca v. The City Civil Registry of Tagum City (G.R. No. 252540, 25 January 2021), which is a Resolution handed down by the Supreme Court.

To implement RA 9255, Administrative Order No. 1, Series of 2016 of the Office of the Civil Registrar General was formulated. It states:

“Rule 8. Effects of Recognition –

8.1. As a rule, an illegitimate child not acknowledged by the father shall use the surname of the mother 

8.2. Illegitimate child acknowledged by the father shall use the surname of the mother if no AUSF is executed.”       

AUSF is an acronym which stands for Affidavit to Use the Surname of the Father.

As summarized in Grande, the rules are as follows:

1. Upon the birth of the child, the biological mother’s surname will be used as the child’s surname;
2. 1 will not apply if the child is acknowledged by the biological father in the certificate of birth or a separate document prior to initial registration of the child’s birth in the Civil Registry
3. If the acknowledgment by the biological father comes after the issuance of the certificate of birth where the surname indicated therein is that of the mother’s, the child is given the option to adopt the surname of his/ her father by executing an AUSF through the mother or legal guardian, or the child himself/ herself.

Pursuant to Rule 8 of the Revised Implementing Rules and Regulations of RA 9255, Series of 2016 of the Philippine Statistics Authority, which came on the heels of the ruling in Grande, the AUSF will be executed by the mother if the non-marital child is 0-6 years old. But if the child is 7-17 years old, the child himself/ herself may sign the AUSF to be attested by the mother by stating that the child is “fully aware of its consequence”.

This discussion underlines the importance of one’s surname that even a minor who is usually not allowed to perform acts with legal effect, is granted this power to decide for himself/ herself on which surname to carry.

Should it be the father’s or mother’s surname that the child will use?

Let the child decide.

(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).