| Summary: 1. Update as of September 30, 2016: In the 2014 case of “Grace Grande v. Patricio Antonio” G.R. No. 206248, the Supreme Court declared void Rule 7 (Requirements for the Child to Use the Surname of the Father) and Rule 8 (Effects of Recognition) of the Implementing Rules and Regulations of RA 9255. Thus, the Philippine Statistics Authority issued the Revised IRR, which became effective on April 9, 2016. Read below the revised guidelines on how illegitimate children can use their biological father’s surname and my critique of the guidelines. 2. Article 176 of the Family Code 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. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.”3. If the father does not recognize the child, the entry for middle name in the birth certificate must be left blank. (“Republic of the Philippines vs. Trinidad R.A. Capote”, February 2007) 4. The child is still illegitimate even if the biological father’s surname is used under RA 9255. The mother still has exclusive parental authority over the child. 5. RA 9255 uses the word “may” while its IRR uses “shall.” Because of the mandatory nature of the IRR, it has become a tool of oppression against women. If the biological father simply signs the birth certificate or issues a public or private document acknowledging the child, the child automatically will carry his surname, even without the mother’s knowledge or consent. Update as of June 10, 2014: Victory for mothers of illegitimate children The Supreme Court unanimously declared void Rule 7 and Rule 8 of the Implementing Rules and Regulations of RA 9255 (“Grace Grande v. Patricio Antonio” G.R. No. 206248, February 18, 2014). The Court said: RA 9255’s clear use of the word “may” in amending Art. 176 of the Family Code shows that illegitimate children’s use of the father’s name is discretionary. Even if the biological father acknowledges his illegitimate children, he cannot force them to use his surname. |
(Note: Click the graphic to download a free PDF newsletter on this topic. This PDF is for your personal, non-commercial use only; you must not upload it to any website, blog, file-sharing platform, or the cloud.)Article 176 of the Family Code as originally drafted and as approved by Pres. Corazon C. Aquino provided that illegitimate children had to use the maiden surname of the mother. But Republic Act 9255 amended Article 176 as follows (the boldfaced portion is the amendment):
Article 176. 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. But 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. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.The Office of the Civil Registrar General then issued in May 2004 the “Rules and Regulations Governing the Implementation of R.A. 9255” (or IRR for brevity).
Based on questions asked of me and my reading of RA 9255 and its implementing rules, there are several issues that need to be clarified and addressed:
If the father does not recognize the child, the entry for middle name must be left blank
1. In the case of In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang, the Supreme Court ruled:
Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father. The Family Code gives legitimate children the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname of their mother, unless their father recognizes their filiation, in which case they may bear the father’s surname.The Court reiterated this ruling in “Republic of the Philippines vs. Trinidad R.A. Capote,” G.R. No. 157043, February 2, 2007, 514 SCRA 76.
Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’ surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mother’s surname as his middle name and his father’s surname as his surname, reflecting his status as a legitimated child or an acknowledged child. (Emphasis by boldfacing supplied)
The child is still illegitimate even if the biological father’s surname is used
2. Contrary to what a lot of people believe, RA 9255 does not grant legitimacy to the child. Even if the biological father allows the use of his surname, the child still remains illegitimate. Parental authority still belongs to the mother, which means custody belongs to her. That is why Article 176 still distinguishes between the legitimes (share in the inheritance) of legitimate and illegitimate children.
Can RA 9255 be undone?
3. Some women informed me that they availed of RA 9255. Later on, these women had a falling out with the biological fathers and were no longer living together or communicating. The question I have been asked is, “Can RA 9255 be undone?” That is, can the child’s birth certificate be changed so that the surname will now be that of the mother?
My answer has been that the possible legal remedy is Rule 108 Cancellation or Correction of Entries in the Civil Registry (a petition under Rule 103 for change of name may also be possible). But the problem is that RA 9255 is for the benefit of children so that they will not bear the stigma of illegitimacy. The courts may therefore not be inclined to grant the correction or cancellation (although as of now, I have not have read or known of a court decision on this matter).
4. Even before RA 9255 took effect, biological fathers have signed the back of the birth certificate in order to admit their paternity. In keeping with Article 175 (in relation to Article 172), fathers, by signing the birth certificate, need no longer execute a separate document in order to acknowledge their illegitimate children. Meaning, the issue of support and inheritance was not tied to the issue of whether the child uses the father’s surname or not.
RA 9255 uses the word “may” while the IRR uses “shall”
| Update as of June 10, 2014: Victory for mothers of illegitimate children The Supreme Court unanimously declared void Rule 7 and Rule 8 of the Implementing Rules and Regulations of RA 9255 (“Grace Grande v. Patricio Antonio” G.R. No. 206248, February 18, 2014). The Court said: RA 9255’s clear use of the word “may” in amending Art. 176 of the Family Code shows that illegitimate children’s use of the father’s name is discretionary. Even if the biological father acknowledges his illegitimate children, he cannot force them to use his surname. |
Lawyers and judges always differentiate between the words “may” (which denotes direction or permission) and the word “shall” (which denotes an obligatory or mandatory nature).
RA 9255’s IRR makes the use of the father’s surname automatic and mandatory
The IRR issued for RA 9255, however, uses the word “shall” rather than “may.” For example, Rule 7.1.1 states:
The illegitimate child shall use the surname of the father if a public document is executed by the father, either at the back of the Certificate of Live Birth or in a separate document.Under the IRR, if the father signs the birth certificate, then AUTOMATICALLY the child will carry his surname. Rule 8.2 also provides that “for births previously registered under the surname of the mother,” the following rule shall be followed:
Rule 8.2.1 If admission of paternity was made either at the back of the Certificate of Live Birth or in a separate public document or in a private handwritten document, the public document or AUSF shall be recorded in the Register of Legal Instruments. Proper annotation shall be made in the Certificate of Live Birth and the Register of Births as follows: "The surname of the child is hereby changed from (original surname) to (new surname) pursuant to RA 9255."IRR of RA 9255 as a tool of oppression against women?
The original surname of the child appearing in the Certificate of Live Birth and Register of Births shall not be changed or deleted.
| Update as of June 10, 2014: Victory for mothers of illegitimate children The Supreme Court unanimously declared void Rule 7 and Rule 8 of the Implementing Rules and Regulations of RA 9255 (“Grace Grande v. Patricio Antonio” G.R. No. 206248, February 18, 2014). The Court said: RA 9255’s clear use of the word “may” in amending Art. 176 of the Family Code shows that illegitimate children’s use of the father’s name is discretionary. Even if the biological father acknowledges his illegitimate children, he cannot force them to use his surname. |
Unknowingly or unintentionally, the people who crafted the IRR of RA 9255 made it as a tool of oppression against women. If the biological father simply signs the birth certificate or issues a public or private document acknowledging the child, the child automatically will carry his surname, even without the mother’s knowledge or consent.
For example, I know of a pregnant 18-year old girl. The girl’s family wisely refused to allow the the girl to marry the man (22 years old, jobless, and irresponsible). The family is taking care of the girl and planning to raise the baby by themselves without any help from the man. But based on the IRR of RA 9255, the man can create a lot of problems if he is able to sign the birth certificate OR if he simply issues a document acknowledging the child. Based on the mandatory nature of the IRR, the child will automatically carry his surname, despite whatever objections the girl and her family might have.
Another case: The illegitimate child was born in the 1990’s with the birth certificate carrying the mother’s maiden surname. The father signed the back of the birth certificate, but from the child’s birth, he never gave any financial support. The mother was forced to work overseas to support the child by herself.
Recently, upon coming back to the Philippines, she discovered that her child was under the custody of the biological father and was now using his surname. Why? The man and his family (who have now become interested in the child) submitted the requirements to the Local Civil Registrar. Under the mandatory nature of the IRR, the child is now using his surname, without the knowledge or permission of the mother!
Based on the letter and spirit of RA 9255, the woman should give her consent as to whether she wants or not her child to carry the man’s surname. The IRR is wrong because of its mandatory nature. Meaning, okay, let the man sign the birth certificate to acknowledge the child. That is for the benefit of the child with regards the issue of support and inheritance. But as to what surname that child will carry, the mother should be given the freedom to choose, whether to use the man’s surname or use her maiden surname.
Senators Loren Legarda and Ramon Revilla (the father, not the current senator) are some of the principal sponsors of RA 9255. The spirit and intent of RA 9255 are certainly commendable. But the IRR as it stands now makes RA 9255 a tool for oppressing women. Perhaps, our current senators should review the IRR and make the necessary and urgent clarification or revisions.
Senate Bill 718 by Sen. Ramon “Bong”Revilla: Mothers must give express consent before child’s surname can be changed to that of the father
Sen. Bong Revilla filed in 2007 Senate Bill 718 seeking to amend RA 9255. SB 718 states that mothers should give express prior consent to the use of the father’s surname. As Sen. Revilla’s press release explains,
“This bill aims to emphasize the primordial importance of the role of mothers when it comes to the surname of their illegitimate children. The proposed amendment, in recognition of the fact that mothers have the sole parental authority over their illegitimate children, mandates that mothers should give express prior consent to the use of the father’s surname, There is a danger that a father might use this right as leverage over the mother, either to avoid obligations or to impose unreasonable demands, and as a result undermine the parental authority of a mother over her illegitimate child.The problem is, SB 718 has been “sleeping” in the Senate for the last three years. Moreover, it seems to me that the use of the word “may” in RA 9255 already indicates that the use of the father’s surname is not mandatory as the IRR has made it to be. Also, SB 718 does not address the issue of whether RA 9255 can be undone for those children whose surnames have already been changed without the consent of their mothers.
Furthermore, the amendment seeks to negate the presumption that every mother is willing to assent to the use of the father’s surname and that such use is always for the best interest of the child. Bearing in mind the welfare of the illegitimate child, there may be instances where the mother strongly believes that her son or daughter’s well-being would be better protected if the surname of the father will not be used.”
Without waiting for Sen. Legarda’s clarification, for Sen. Bong Revilla’s bill to become law, or for the NSO to act on this matter, women affected by this situation should go to court to seek relief. One option is to file a petition for declaratory relief under Rule 63 of the Rules of Court (please surf to the Chan Robles website for the Rules of Court). In layman’s terms, a petition for declaratory relief is asking the court to issue its legal opinion on whether the IRR exceeded the letter and intent of RA 9255. This petition can only be filed by a party who has not yet been adversely affected by the IRR.
In the case of mothers or children who have already been adversely affected by the IRR (that is, the child now carries the surname of the biological father despite the lack of knowledge or consent of the mother), a petition for declaratory relief is not the proper remedy. A petition for certiorari under Rule 65 of the Rules of Court may be the more appropriate remedy.
A more direct way of assailing the IRR of RA 9255 is by filing an “ordinary action for its nullification.” The Supreme Court in the 2006 case of Holy Spirit Homeowners Association vs. Defensor said:
“Where the principal relief sought is to invalidate an IRR, petitioners’ remedy is an ordinary action for its nullification, an action which properly falls under the jurisdiction of the Regional Trial Court. In any case, petitioners’ allegation that “respondents are performing or threatening to perform functions without or in excess of their jurisdiction” may appropriately be enjoined by the trial court through a writ of injunction or a temporary restraining order.”
Revised IRR of RA 9255 (effective as of April 9, 2016); my critique of the guidelines
1. Some essential provisions:
Rule 3. What to File
The following documents shall be filed at the LCRO or PFSP for registration:
3.1 Affidavit of Admission of Paternity
3.2 Private Handwritten Instrument
3.3 Affidavit to Use the Surname of the Father
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.
8.3 An illegitimate child aged 0-6 years old acknowledged by the father shall use the surname of the father, if the mother or the guardian, in the absence of the mother, executes the AUSF.
8.4 An illegitimate child aged 7 to 17 years old acknowledged by the father shall use the surname of the father if the child executes an AUSF fully aware of its consequence as attested by the mother or guardian.
8.5 Upon reaching the age of majority, an illegitimate child acknowledged by the father shall use the surname of his father provided that he executes an AUSF without need of any attestation.
2. My critique of the Revised IRR:
As you can see above, Rule 1 of the Revised IRR states that it applies to all illegitimate children born during the effectivity of R.A. No. 9255.
Issue: RA 9255 became effective on March 8, 2004. What about those illegitimate children who were born before this date? Why are they excluded from the right that’s provided by RA 9255?
The article “New rules give illegitimate child right to choose surname” (September 01, 2016) from NSO Aklan provides an explanation:
Likewise, [Engr. Antonet B. Catubuan, Chief Statistical Specialist] clarified that the revised IRR is only apply [sic] to all illegitimate children born on or after March 19, 2004, the effectivity of RA 9255, whether registered or not under the surname of the mother.
Catubuan added that illegitimate children born on August 3, 1988 to March 18, 2004 cannot use the surname of the father under RA 9255 but may still be acknowledged by the father through an Affidavit of Admission of Paternity (AAP) or Private Handwritten Instrument (PHI).
“A petition in court may be filed in order that the child can use the surname of the father if the child’s birth falls on the said dates,” Catubuan explained.
If the PSA Aklan official was quoted correctly, then I contend that the Revised IRR is legally flawed and may, like the old IRR, be challenged in court.
As you can see from the screenshot below, there’s nothing in RA 9255 that says that it’s only applicable to illegitimate children who were born between August 3, 1988 (date of effectivity of the Family Code of the Philippines) and the date the law becomes effective. The Revised IRR thus goes beyond the law that it’s supposed to implement and discriminates against illegitimate children who were born between August 3, 1988 and March 8, 2004.
It seems that the PSA has gone from one extreme to another. Under the old IRR (see Rule 8.2.1 as cited above), the PSA made the use of the father’s surname mandatory for all illegitimate children, even for those who were born before RA 9255 became effective. Now, with the Revised IRR, the PSA has excluded from the law’s coverage those illegitimate children who were born between August 3, 1988 and March 8, 2004.
If you are an illegitimate child who was born between August 3, 1988 and March 8, 2004, and you want to use your biological father’s surname under RA 9255, I suggest that you file a petition for declaratory relief with the Regional Trial Court in your city against the PSA and its Revised IRR.
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