RA 9255 Guide: Using the Father’s Surname for an Illegitimate Child and Retroactive Application

Introduction

In the Philippines, the legal framework governing family relations, including the rights of children, is primarily outlined in the Family Code of the Philippines (Executive Order No. 209). Prior to 2004, illegitimate children—those born outside of wedlock—were mandated to use only their mother's surname, reflecting a historical emphasis on maternal lineage in such cases. This rule often led to social stigma, identity issues, and practical challenges for children seeking to establish ties with their biological fathers.

Republic Act No. 9255 (RA 9255), enacted on February 24, 2004, and effective March 19, 2004, marked a significant reform by amending Article 176 of the Family Code. Titled "An Act Allowing Illegitimate Children to Use the Surname of Their Father," the law empowers illegitimate children to bear their father's surname upon proper acknowledgment of paternity. This change promotes equality, recognizes paternal rights and responsibilities, and aligns with evolving societal norms on family structures. Importantly, RA 9255 has retroactive application, allowing individuals born before its enactment to benefit from its provisions. This article provides a comprehensive guide to RA 9255, detailing its provisions, requirements, procedures, and implications within the Philippine legal context.

Historical Background

The original Article 176 of the Family Code, effective since August 3, 1988, stipulated that "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." This provision stemmed from Spanish colonial influences and traditional civil law principles, which prioritized the mother's role in cases of non-marital births to avoid disputes over paternity and protect the child's legitimacy.

Over time, this rule faced criticism for perpetuating discrimination against illegitimate children, violating principles of equal protection under the 1987 Philippine Constitution (Article III, Section 1), and conflicting with international standards such as the United Nations Convention on the Rights of the Child (UNCRC), which the Philippines ratified in 1990. The UNCRC emphasizes the child's right to identity, including name and family relations (Article 8).

RA 9255 was introduced to address these concerns, sponsored by legislators aiming to modernize family law. It reflects a shift toward recognizing voluntary paternal acknowledgment, fostering stronger family bonds, and reducing the psychological burden on children. The law's passage was influenced by advocacy from women's and children's rights groups, highlighting the need for gender-neutral approaches to filiation.

Key Provisions of RA 9255

RA 9255 specifically amends Article 176 to read: "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 a 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 the lifetime of the child. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child."

This amendment introduces several core elements:

Optional Use of Father's Surname: The law uses "may," indicating that bearing the father's surname is permissive, not mandatory. The child (or their guardian) can choose to retain the mother's surname if preferred.
Requirement of Express Recognition: Paternity must be voluntarily acknowledged by the father. This recognition elevates the child's status for naming purposes without conferring full legitimacy (e.g., it does not affect inheritance rights beyond the specified legitime).
Modes of Recognition: The law specifies acceptable forms of acknowledgment:
- Record of Birth: The father's signature on the child's birth certificate at the time of registration or through a subsequent Affidavit of Acknowledgment/Admission of Paternity (AOP/AAP).
- Public Document: Such as a notarized affidavit or a statement in a will.
- Private Handwritten Instrument: A signed letter or note by the father admitting paternity, which must be authenticated.
Paternal Right to Contest: The father can file a court action to disprove filiation, but only during the child's lifetime, ensuring stability in the child's identity.
Support and Parental Authority: The amendment retains the mother's primary parental authority and the child's right to support from both parents, but it implicitly encourages paternal involvement.

RA 9255 does not alter the distinction between legitimate and illegitimate children for other purposes, such as succession (under Articles 887-914 of the Civil Code), where illegitimate children receive half the share of legitimate ones.

Requirements for Using the Father's Surname

To avail of RA 9255, the following conditions must be met:

Child's Status: The child must be illegitimate, meaning born to parents not married to each other at the time of conception or birth. This includes children of void or voidable marriages under certain circumstances.
Father's Acknowledgment: Express recognition is essential. Implied recognition (e.g., through support or cohabitation) is insufficient; it must be documented as per the modes above.
Child's Consent (if Applicable): For minors, the mother or legal guardian initiates the process. For adults (18 years and older), they can personally apply, provided the father's acknowledgment exists or is obtained.
No Prior Legitimation: If the parents subsequently marry, the child becomes legitimated under Article 177 of the Family Code, automatically allowing use of the father's surname without invoking RA 9255.

Special considerations apply to adopted children or those under guardianship, where court approval may be required to avoid conflicts with adoption laws (RA 8552).

Procedure for Implementation

The process to change or register the surname under RA 9255 is administrative for most cases, handled by the Local Civil Registrar (LCR) or the Philippine Statistics Authority (PSA, formerly NSO). It does not typically require court intervention unless disputes arise.

For Newborns or Unregistered Births (Post-2004):

At birth registration, the father signs the Certificate of Live Birth (COLB) with an AOP/AAP if not married to the mother.
The LCR registers the birth with the father's surname optional.

For Existing Birth Certificates (Retroactive Cases):

Secure Acknowledgment: If not already acknowledged, the father executes an AOP/AAP, notarized and submitted to the LCR where the birth was registered.
File Petition: Submit a Petition for Correction of Entry (under RA 9048, as amended by RA 10172) to change the surname entry. Required documents include:
- Original birth certificate.
- AOP/AAP.
- Affidavit of the mother consenting (if child is minor).
- Proof of publication (for clerical errors, though surname change may qualify as substantial).
LCR Processing: The LCR reviews and annotates the birth record. If approved, a new certificate is issued with the father's surname.
PSA Endorsement: The updated record is forwarded to PSA for national registration.
Fees and Timeline: Minimal fees apply (around PHP 1,000-3,000 for processing). Timeline varies from weeks to months.

If the father is deceased or unavailable, alternative evidence like DNA tests may be presented in court under Rule 130 of the Rules of Evidence, but this shifts to judicial proceedings.

For overseas Filipinos, the process involves the Philippine Consulate and eventual transmittal to PSA.

Retroactive Application

A hallmark of RA 9255 is its retroactivity, explicitly stated in Section 2: "This Act shall have retroactive effect and shall apply to all illegitimate children born before the effectivity of this Act." This means:

Scope: Applies to all living illegitimate individuals, regardless of age or birth date (e.g., even those born in the 1900s, if alive).
No Time Limit: There is no prescription period; applications can be made at any time.
Rationale: Retroactivity upholds substantive rights without violating vested interests, as affirmed in Philippine jurisprudence (e.g., similar to RA 8043 on inter-country adoption).
Challenges: Older individuals may face evidentiary hurdles, such as lost documents or deceased fathers. In such cases, courts can intervene via a Petition for Judicial Acknowledgment under Articles 172-173 of the Family Code.
Effects on Documents: Once approved, the change affects all official records, including passports, school records, and IDs, requiring updates.

Supreme Court decisions, such as in Grande v. Antonio (G.R. No. 206248, 2014), have clarified that RA 9255 does not confer legitimacy but solely addresses surname usage, reinforcing its limited yet impactful scope.

Implications and Considerations

RA 9255 has profound social implications, reducing stigma and promoting family unity. It encourages responsible fatherhood, potentially increasing child support compliance. However, it raises issues like:

Privacy and Consent: The mother's role remains central; her non-consent can complicate matters for minors.
Disputes: If paternity is contested, DNA evidence (admissible per Supreme Court rulings) may be required.
Cultural Context: In a predominantly Catholic Philippines, the law navigates moral views on non-marital births while prioritizing child welfare.
Related Laws: Interfaces with RA 10172 (clerical corrections), RA 10625 (civil registration), and the Child and Youth Welfare Code.

Potential pitfalls include fraudulent acknowledgments, which can be penalized under perjury laws (Article 183, Revised Penal Code). Legal advice from a family lawyer or the Public Attorney's Office is recommended for complex cases.

Conclusion

RA 9255 represents a progressive step in Philippine family law, granting illegitimate children the dignity of choice in their identity through their father's surname. Its retroactive nature ensures inclusivity, allowing generations to rectify historical inequities. By streamlining administrative procedures and emphasizing voluntary acknowledgment, the law balances individual rights with familial responsibilities. For those affected, understanding and utilizing RA 9255 can foster a stronger sense of belonging and legal security in an evolving society. Individuals are encouraged to consult local civil registrars or legal experts to navigate the process effectively.