In the Philippine legal system, the naming of a child is not merely a matter of parental preference; it is strictly governed by the Family Code of the Philippines and Republic Act No. 9255. For children born out of wedlock (illegitimate children), the rules regarding whether they should carry the mother’s or the father’s surname are specific and depend largely on the father's acknowledgment of paternity.
The Default Rule: Use of the Mother’s Surname
Under Article 176 of the Family Code, the foundational rule is that illegitimate children shall use the surname of their mother.
Even if the father is known, present, and willing to support the child, the law initially mandates the use of the mother’s surname to reflect the child's legal status as illegitimate. This serves to establish a clear legal link between the child and the mother, who inherently possesses parental authority over the child.
The Exception: Republic Act No. 9255
The law was amended by Republic Act No. 9255 (RA 9255), which allows illegitimate children to use the surname of their father if certain conditions are met. This can happen if:
- Acknowledgment in the Record of Birth: The father signs the birth certificate at the time of the child's birth.
- Admission of Paternity: The father executes a Public Document (such as an Affidavit of Admission of Paternity) or a Private Handwritten Instrument expressly recognizing the child as his own.
If the Father Agrees, Must the Child Use His Surname?
The phrasing of RA 9255 states that illegitimate children "may" use the surname of their father if he recognizes them. In legal hermeneutics, "may" is usually directory and permissive, not mandatory.
However, the Revised Implementing Rules and Regulations (IRR) of RA 9255 have clarified the procedure. If the father acknowledges the child, the child can use the father’s surname, but the right to choose which surname to use (mother’s or father’s) effectively rests with the mother (if the child is a minor) or the child themselves (upon reaching the age of majority).
Can the Child Still Use the Mother’s Surname Even if the Father Agrees?
Yes. Even if the father acknowledges the child and is perfectly willing to let the child use his surname, the child is not legally forced to do so.
- The Mother's Choice: Since an illegitimate child is under the sole parental authority of the mother (Article 176, Family Code), the mother generally has the right to decide whether to register the child under her surname or the father’s, provided the father has acknowledged the child.
- Registration Discretion: If the father signs the Affidavit of Admission of Paternity, it grants the option to use his surname. If the mother chooses not to file the Affidavit to Use the Surname of the Father (AUSF), the child will continue to use the mother’s surname.
Key Legal Documents Involved
To navigate these rules, the following documents are typically processed through the Local Civil Registrar (LCR):
| Document | Purpose |
|---|---|
| Affidavit of Admission of Paternity (AAP) | A legal statement by the father acknowledging that he is the biological father of the child. |
| Affidavit to Use the Surname of the Father (AUSF) | A document executed by the mother (if the child is 0–6 years old) or the child (if 7–17 with mother's attestation) expressing the desire to use the father's name. |
| Certificate of Live Birth (COLB) | The primary record where the surname is officially recorded. |
Summary of Scenarios
- Father does NOT acknowledge the child: The child must use the mother’s surname. No exceptions.
- Father acknowledges, but mother/child wants the mother's surname: The child may continue to use the mother's surname. The father's acknowledgment does not automatically change the child's surname on the birth certificate without the filing of an AUSF.
- Father acknowledges and all parties want the father's surname: The child may use the father's surname by filing the AAP and the AUSF with the Local Civil Registrar.
Conclusion
In the Philippines, the law prioritizes the mother’s surname for illegitimate children as a default. While RA 9255 opened the door for children to carry their father’s name upon acknowledgment, it remains a right and an option, not an absolute requirement. Even with a father's consent and formal recognition, the mother maintains the legal prerogative to keep the child under her surname.
Would you like me to draft a sample Affidavit to Use the Surname of the Father (AUSF) based on the latest Philippine administrative guidelines?