Can an Illegitimate Child Use the Father’s Surname? AUSF and RA 9255 Explained

In the Philippines, family law places significant emphasis on the legal recognition of parentage, which directly impacts a child's identity, including their surname. For illegitimate children—those born outside of a valid marriage—the question of whether they can adopt their father's surname has long been a point of contention. Historically, such children were required to bear only their mother's surname, reflecting societal and legal norms that prioritized maternal lineage in the absence of formal marital ties. However, Republic Act No. 9255 (RA 9255), enacted in 2004, marked a progressive shift by allowing illegitimate children to use their father's surname under specific conditions. This law, coupled with the Affidavit to Use the Surname of the Father (AUSF), provides a structured mechanism for surname usage, balancing the child's right to identity with evidentiary requirements of paternity.

This article delves into the Philippine legal framework governing this issue, drawing from the Family Code of the Philippines (Executive Order No. 209, as amended), RA 9255, and related implementing rules. It covers definitions, historical context, procedural requirements, and practical considerations, offering a comprehensive guide for parents, legal practitioners, and affected individuals.

Understanding Illegitimate Children in Philippine Law

Under Philippine law, the status of a child as "illegitimate" is determined by the circumstances of their birth. Article 175 of the Family Code defines an illegitimate child as one conceived and born outside of a valid marriage. This includes:

Children born to unmarried parents.
Children born during a void marriage (e.g., bigamous or incestuous unions).
Children born to a married woman but fathered by a man other than her husband, unless rebutted by strong evidence.

In contrast, legitimate children are those conceived or born during a valid marriage or within 300 days following its dissolution (unless otherwise proven). The distinction is crucial because it affects inheritance rights, support obligations, and, relevant here, surname usage.

Illegitimate children enjoy equal rights to life, education, and support as legitimate ones (Article 176 of the Family Code), but their legal recognition of paternity requires affirmative action by the father, unlike automatic presumption for legitimate children.

The Traditional Rule on Surnames for Illegitimate Children

Prior to RA 9255, Article 176 of the Family Code (as originally enacted in 1987) mandated that illegitimate children "shall use the surname of their mother." This rule stemmed from the Civil Code of 1950 (Article 366), which similarly restricted illegitimate children to the maternal surname to avoid confusion in civil registry and to protect the integrity of family names in legitimate lineages.

The rationale was rooted in protecting the interests of the legitimate family and ensuring clear identification in official records. An illegitimate child could not unilaterally adopt the father's surname without a full judicial determination of filiation, which often involved lengthy paternity suits. This created practical challenges, such as identity issues for the child, especially if the father publicly acknowledged paternity informally but not legally.

RA 9255: A Game-Changer for Illegitimate Children

Enacted on February 24, 2004, RA 9255—titled "An Act Allowing Illegitimate Children to Use the Surname of the Father and Amending for This Purpose Article 176 of the Family Code of the Philippines"—amended Article 176 to introduce flexibility. The amended provision now reads:

"Illegitimate children shall use the surname of their mother: Provided, That illegitimate children may use the surname of their father if their filiation has been expressly recognized by their father through the record of birth appearing in the civil register, or when it is patently clear from legally considered public or private document."

This amendment recognizes the child's right to bear the father's surname as part of their identity, aligning with constitutional principles of equality (Article II, Section 14 of the 1987 Constitution) and the best interests of the child (Article 3 of the United Nations Convention on the Rights of the Child, which the Philippines ratified).

Key features of RA 9255:

Voluntary Nature: The use of the father's surname is not automatic; it requires express acknowledgment of paternity.
Evidentiary Threshold: Acknowledgment must be "express" and documented, preventing casual or verbal claims.
Scope: Applies to all illegitimate children, regardless of age, but procedural hurdles may differ for minors versus adults.
No Retroactive Effect on Prior Births: For children born before 2004, the law applies prospectively, but existing records can be annotated.

RA 9255 does not confer full filiation rights (e.g., inheritance) unless accompanied by a separate action for recognition, but it solely addresses surname usage.

What Constitutes Acknowledgment of Paternity?

For an illegitimate child to use the father's surname under RA 9255, the father's acknowledgment must meet specific standards. Acknowledgment establishes the biological link and legal tie for surname purposes. Forms of acknowledgment include:

Voluntary Acknowledgment:
- Public Instrument: The father executes a public document, such as a notarized affidavit or a statement in the child's birth certificate at registration. This is the most straightforward method if done at birth.
- Private Handwritten Instrument: A signed, handwritten document by the father, witnessed and acknowledged before a notary public (Article 175 in relation to Article 176).
Compulsory Acknowledgment:
- Record of Birth: If the father's name is entered in the child's birth certificate with his consent, this serves as acknowledgment.
- Judicial or Extrajudicial Admission: The father admits paternity in court proceedings, a legal document, or a public record (e.g., baptismal certificate with his signature, though not conclusive alone).
- Patently Clear Evidence: Private documents like love letters, photos, or joint affidavits that unequivocally show paternity, as determined by the civil registrar or court.

The Supreme Court has clarified in cases like Bernaldez v. People (G.R. No. 216922, 2016) that acknowledgment for surname purposes under RA 9255 is distinct from full legitimation or heirship, requiring only "express recognition" rather than proof of blood relation via DNA (though DNA can support it).

If no acknowledgment exists, the child remains bound by the mother's surname. Paternity can be contested or established later through a judicial action under Article 172 of the Family Code, which may then trigger surname change eligibility.

The Role of the AUSF

The Affidavit to Use the Surname of the Father (AUSF) is a critical implementing tool under RA 9255, issued by the Philippine Statistics Authority (PSA, formerly NSO). It is not a standalone law but a procedural form that facilitates the annotation of the father's surname in the child's civil registry documents.

Purpose: The AUSF allows the child (or their representative) to formally request the use of the father's surname upon proof of acknowledgment. It bridges the gap between legal recognition and administrative update.
Who Can File:
- The illegitimate child if of legal age (18 years or older).
- The mother or legal guardian for minors.
- The father, with consent from the mother or child if applicable.
Contents: The AUSF typically includes the child's details, father's information, proof of acknowledgment, and a sworn statement affirming the request.
Legal Basis: Governed by PSA Administrative Order No. 03, Series of 1993 (as amended), and National Statistics Office Memorandum Circular No. 2006-1, which operationalize RA 9255.

Without the AUSF, even acknowledged paternity does not automatically update the surname in official records; it must be filed to effect the change.

Step-by-Step Procedure to Use the Father's Surname

Implementing RA 9255 and the AUSF involves administrative steps through the Local Civil Registry (LCR) and PSA. The process is relatively straightforward but requires supporting documents:

Gather Evidence of Acknowledgment:
- Birth certificate of the child.
- Father's birth certificate or valid ID.
- Public or private instrument of acknowledgment.
- If compulsory, court orders or admissions.
Execute the AUSF:
- Obtain the AUSF form from the LCR or PSA website.
- Have it notarized by a notary public.
- For minors, secure parental consent (mother's if sole guardian).
File at the Local Civil Registry:
- Submit the AUSF, evidence, and fees (around PHP 50–500, depending on location) to the LCR where the birth was registered.
- The LCR annotates the marginal note on the birth certificate: "Child uses surname of father per RA 9255."
PSA Annotation:
- Request a copy of the annotated birth certificate from the PSA (online or in-person).
- PSA issues a new certificate reflecting the surname change, valid for passports, school records, etc.
Update Other Documents:
- Notify schools, SSS, PhilHealth, and banks for record alignment.
- For adults, no Republic Act No. 9048 petition (clerical correction) is needed if following RA 9255; it's administrative.

The entire process typically takes 1–3 months. Delays may occur if documents are incomplete or if acknowledgment is disputed.

Important Considerations and Limitations

Best Interests of the Child: Courts prioritize the child's welfare (Republic Act No. 7610). Surname change should not cause confusion, stigma, or harm.
Consent Requirements: For minors, both parents' consent is ideal, but the mother's approval suffices if she has custody. The child over 7 years may need to consent (Civil Code, Article 234).
No Automatic Inheritance: Using the father's surname does not confer heirship; a separate action for recognition as an illegitimate heir is required (Article 175).
Dual Surnames: The law allows hyphenated or combined surnames (e.g., Mother's-Father's), but practice favors full adoption of the father's.
Foreign Elements: If the father is non-Filipino, Hague Convention rules or consular processes may apply, but RA 9255 governs Philippine registry.
Time Limits: No strict deadline, but earlier action simplifies identity issues. For posthumous acknowledgment, the father's will or estate proceedings can suffice.
Common Pitfalls: Verbal acknowledgments are invalid; ambiguous documents (e.g., unsigned letters) are rejected. Fraudulent claims can lead to perjury charges.

Judicial Remedies if Administrative Process Fails

If the LCR denies the AUSF (e.g., due to weak evidence), options include:

Administrative Appeal: To the PSA or Office of the Civil Registrar General.
Petition for Correction: Under RA 9048 for clerical errors, or RA 10172 for substantial but non-controversial changes.
Judicial Action: File a petition for change of name (Rule 103, Rules of Court) or recognition of paternity (Article 172, Family Code). Supreme Court cases like Silverio v. Republic (G.R. No. 174689, 2007) emphasize that surname changes must not be whimsical but grounded in law.
DNA Testing: Increasingly used in court to prove paternity, admissible under Rule 128, Section 44 of the Rules of Court.

Conclusion

RA 9255, supported by the AUSF, empowers illegitimate children in the Philippines to embrace their father's surname, fostering a more inclusive sense of identity and family ties. While the traditional maternal surname rule persists as the default, the law's provisions ensure that acknowledgment opens the door to this right without undermining evidentiary standards. Parents and children navigating this process should consult legal experts or the LCR for personalized guidance, as individual circumstances vary. Ultimately, this framework reflects the evolving Philippine jurisprudence toward child-centered family law, promoting equality and recognition beyond marital status. For the latest forms or fees, refer to official PSA resources.