I have a baby with my ex-boyfriend. He recognizes the baby as his son. In fact, he executed an affidavit recognizing my baby and allowing him to use his surname. However, I want my baby to use my surname. Can I insist that our son use my surname?
Article 176 of the Family Code governs the use of surname of an illegitimate child. It states that an illegitimate child shall principally use the surname of his or her mother. However, the child may use the surname of his or her father if he expressly recognizes the child by signing the latter’s birth certificate or by admitting this fact in a public document or private handwritten instrument (As amended by R.A. No. 9255).
However, this does not mean that the child must automatically use the surname of his or her father. Please note that the law uses the term “may”. It is a settled doctrine in legal statutory construction that the word “may” denotes discretion, and cannot be construed as having mandatory effect (Bayan Muna vs. Romulo, 641 SCRA 244). This means that the use of the father’s surname by an illegitimate child is merely permissive and not mandatory.
Given that there is an option, the question now comes to who has the right to make the choice concerning the surname to be used by the child. This question was settled by the Supreme Court in the recent case of Grande vs. Antonio, where the Court categorically declared that neither the father nor the mother is granted by law with the right to dictate the surname of an illegitimate child. Rather, the right to decide belongs to an illegitimate child himself or herself. Hence, it is necessary to determine the illegitimate children’s choice of surname (G.R. No. 206248, February 18, 2014).
Nevertheless, if the child does not have the capacity to make the choice yet, as when the child is still a baby, the general rule stating that an illegitimate child shall principally use the surname of his or her mother applies. Thus, it would appear that for registration of birth, the mother can insist that her new born child uses her surname. However, this is subject to the right of the child to decide whether to adopt the surname of his or her father, or not upon reaching the appropriate age.
The same rule will apply to your case. It is not for you or the father to ultimately decide which surname your son will use. At the proper time, your son has the right to elect which surname to use. But for registration purposes, you may place your surname as the surname of your child taking into consideration the provision of law stating that an illegitimate child shall principally use the surname of the mother.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com