• Use of father’s surname does not grant legitimacy to child

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    dearpao

    Persida Acosta

    Dear PAO,

    I am a single mother and I’d like to ask about the surname of my newborn son. Can my son use the surname of his biological father even if we are not married? I was informed that my son can use his father’s surname even if there is no marriage between the parents. I hope your office can advise me on this matter.

    Mara

    Dear Mara,

    To answer your query, we must first clarify the status of your son. Since you are not married to your son’s father, it is safe to assume that your son is an illegitimate child. Therefore, the applicable provision of the law is Article 176 of the Family Code of the Philippines which provides for the use of surname for illegitimate children. According to this provision:

    “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” (As amended by Republic Act No. 9255).

    It is important to note that based on this cited provision, the general rule is that the mother’s surname shall be used by an illegitimate child. However, Republic Act No. 9255 amended this law to include a provision which now allows an illegitimate child to use his father’s surname if the father expressly recognizes the child as his own in a written document. Thus, your son may use his father’s surname if the father signed the birth certificate of your son, or if he acknowledged it in a public document or a private handwritten document.

    If, on the other hand, the father does not recognize your son, then the general rule shall prevail wherein your surname shall be used by your son. Furthermore, jurisprudence provides that the entry for the middle name of an illegitimate child’s birth certificate must be left blank if the father does not recognize the child. (Republic of the Philippines vs. Trinidad R.A. Capote February 2007).

    Also note that the cited provision does not grant legitimacy to a child. Thus, even if an illegitimate child may use the surname of his father, the child’s status as an illegitimate will not change. Applying this to your situation, should your son be able to use his father’s surname, this alone will not change the status of your son since he shall remain an illegitimate child.

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.

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