Can RA 9255 Apply Retroactively? Using the Father’s Surname for Children Born Before 2004

Introduction

In the Philippines, the issue of surnames for illegitimate children has long been a matter of legal and social significance. Prior to the enactment of Republic Act No. 9255 (RA 9255), illegitimate children were generally required to bear their mother's surname, reflecting the provisions of the Family Code of the Philippines. RA 9255, which took effect on March 19, 2004, introduced a significant amendment allowing illegitimate children to use their father's surname under specific conditions. A key question that arises is whether this law can apply retroactively to children born before its effectivity date. This article explores the full scope of this topic, including the legal framework, principles of retroactivity, relevant jurisprudence, procedural aspects, and practical implications within the Philippine legal system.

Historical Context: Surnames for Illegitimate Children Before RA 9255

Under the Family Code of the Philippines (Executive Order No. 209, as amended), which took effect on August 3, 1988, Article 176 originally provided that illegitimate children shall use the surname of their mother and be under her parental authority. This rule stemmed from the need to protect the child's identity and avoid stigma, while also ensuring clarity in civil registration. Illegitimate children—those born outside of wedlock—were entitled to support and inheritance rights but were barred from using the father's surname unless legitimated through subsequent marriage of the parents or other legal means.

This provision often led to challenges for families where the father wished to acknowledge the child publicly. Petitions for change of name through judicial processes were possible under Rule 103 of the Rules of Court, but these were cumbersome, requiring court approval and proof of substantial reasons. Administrative corrections via the Civil Registrar were limited and did not extend to surname changes based on paternal acknowledgment alone. As a result, many illegitimate children born before 2004 retained their mother's surname throughout their lives, even if the father had acknowledged paternity.

Enactment and Key Provisions of RA 9255

RA 9255, officially titled "An Act Allowing Illegitimate Children to Use the Surname of Their Father, Amending for the Purpose Article 176 of Executive Order No. 209, Otherwise Known as the Family Code of the Philippines," was approved on February 24, 2004. It amended Article 176 to read as follows:

"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."

The law's primary innovation is the optional use of the father's surname for illegitimate children, provided there is proof of paternal acknowledgment. Acceptable forms of acknowledgment include:

An entry in the child's birth certificate signed by the father.
A public document, such as a notarized affidavit of acknowledgment.
A private handwritten instrument executed by the father.

This amendment aligns with the constitutional mandate to protect children's rights (Article II, Section 12, and Article XV, Section 3 of the 1987 Constitution) and promotes equality by reducing discrimination against illegitimate children. It does not, however, alter the child's status as illegitimate; it merely addresses the surname issue without conferring additional rights like legitimation.

Principles of Retroactivity in Philippine Law

Philippine law adheres to the general principle that statutes are prospective in application unless the legislature expressly provides for retroactivity (Civil Code, Article 4). Retroactive application is permitted in exceptional cases, such as when the law is:

Procedural or remedial, curing defects without affecting substantive rights.
Curative, validating past acts.
Penal, if favorable to the accused.
Expressly declared retroactive.

RA 9255 does not explicitly state retroactive intent in its text. However, its nature as a remedial law—aimed at facilitating administrative processes for name usage—has led to interpretations allowing its application to pre-2004 births. Remedial laws can apply retroactively because they do not create new rights but provide better mechanisms for enforcing existing ones, such as the right to paternal acknowledgment under Articles 172 and 173 of the Family Code.

The absence of vested rights being impaired is crucial. Using a father's surname does not prejudice third parties or alter inheritance claims retroactively; it is primarily an identifier for civil purposes. Thus, the law's remedial character supports retroactive application without violating due process or equal protection clauses.

Jurisprudence on Retroactive Application of RA 9255

Philippine courts have consistently upheld the retroactive application of RA 9255, emphasizing child welfare and family unity. Key Supreme Court decisions illustrate this:

In Re: Change of Name of Julian Lin Carulasan Wang (G.R. No. 159966, March 30, 2005): While not directly on RA 9255, this case highlighted the liberal approach to name changes for illegitimate children, setting a precedent for flexibility in surname usage.
Grande v. Antonio (G.R. No. 206248, February 18, 2014): The Court explicitly ruled that RA 9255 applies to illegitimate children born before March 19, 2004. Here, children born in 1993 and 1996 sought to use their father's surname based on his acknowledgment. The Supreme Court held that the law is remedial and can be applied retroactively, as it merely implements the child's right to use the father's surname upon acknowledgment. The decision stressed that denying retroactivity would perpetuate discrimination and contradict the law's intent to protect illegitimate children.
Alaban v. Court of Appeals (G.R. No. 156021, September 23, 2005): This case reinforced that acknowledgments made after the child's birth, even for pre-2004 births, can trigger surname usage under RA 9255, provided the acknowledgment meets the legal requirements.
Republic v. Capote (G.R. No. 157043, February 2, 2007): The Court allowed an administrative change of surname for a child born in 1986, citing RA 9255's remedial nature. It clarified that no judicial petition is necessary if the change is based on paternal acknowledgment, streamlining the process through the Local Civil Registrar.

These rulings underscore that retroactivity is not absolute but conditional on valid acknowledgment. If the father acknowledged the child before 2004 but the surname was not changed, RA 9255 provides a basis for correction. However, if no acknowledgment existed prior, a post-2004 acknowledgment can still enable the change, as the law does not limit its application to births after its effectivity.

Administrative issuances support this. The National Statistics Office (now Philippine Statistics Authority) issued Administrative Order No. 1, Series of 2004, implementing RA 9255. It allows annotation of birth certificates for children born before 2004, provided supporting documents are submitted. This includes affidavits of acknowledgment executed after the law's effectivity.

Procedure for Applying RA 9255 Retroactively

For children born before 2004 seeking to use their father's surname under RA 9255, the process is administrative and does not always require court intervention:

Secure Acknowledgment: If not already in the birth certificate, the father must execute an Affidavit of Acknowledgment/Admission of Paternity (public document) or a private handwritten instrument.
File with Local Civil Registrar (LCR): Submit the affidavit, birth certificate, and other documents (e.g., IDs) to the LCR where the birth was registered. For late registration or corrections, additional requirements apply.
Annotation of Birth Certificate: Upon approval, the LCR annotates the certificate to reflect the father's surname. This may involve changing the child's name from "mother's surname" to "father's surname."
If Contested: If there are disputes (e.g., father denies filiation), a judicial action under Rule 108 of the Rules of Court for correction of entries may be needed.
For Adults: Adult illegitimate children can initiate the process themselves, with the father's consent via affidavit.

Fees are minimal, and the process typically takes weeks to months. Once annotated, the change affects all official documents, requiring updates to passports, school records, etc.

Special cases include:

Deceased Father: If the father is deceased, acknowledgment must have been made during his lifetime; posthumous changes are not allowed under RA 9255.
Foreign Elements: For children born abroad or with foreign fathers, coordination with the Philippine Consulate and adherence to international private law may be required.
Adopted Children: RA 9255 does not apply if the child has been adopted, as adoption confers a new surname.

Implications and Considerations

Retroactive application of RA 9255 promotes family harmony and reduces social stigma, aligning with international standards like the UN Convention on the Rights of the Child. However, it raises considerations:

Psychological Impact: Changing a surname later in life can affect identity, especially for older children or adults.
Legal Ramifications: The change does not retroactively affect prior legal acts (e.g., contracts signed under the old name) but requires notification for validity.
Potential Abuses: To prevent fraud, strict documentary requirements ensure only genuine acknowledgments are honored.
Equality Issues: Critics argue it still distinguishes between legitimate and illegitimate children, but the law advances parity in name usage.

In practice, thousands of Filipinos have benefited from retroactive application, with PSA data showing increased annotations post-2004 for pre-2004 births.

Conclusion

RA 9255 unequivocally applies retroactively to illegitimate children born before 2004, allowing them to use their father's surname upon valid acknowledgment. Grounded in remedial principles and supported by jurisprudence, this application underscores the Philippine legal system's commitment to child rights and family integrity. Individuals seeking such changes should consult the PSA or legal counsel to navigate the administrative process efficiently, ensuring compliance with all requirements for a seamless transition.