Below is a comprehensive discussion on using the mother’s surname for an illegitimate child in the Philippines, covering the legal foundations, procedures, and relevant precedents. This article is intended for general informational purposes and should not be treated as a substitute for personalized legal advice from a qualified attorney.

1. Legal Definitions and Governing Laws

1.1. Definition of an “Illegitimate Child”

Under Philippine law, a child is generally considered illegitimate if born outside of a valid marriage. This classification stems from the Family Code of the Philippines (Executive Order No. 209, as amended) and related statutes. Article 165 of the Family Code defines an illegitimate child as one conceived and born outside a valid marriage (i.e., either the parents are not married at the time of conception or birth, or if the marriage is void ab initio).

1.2. Governing Laws and Amendments

Key laws and rules that govern the use of surnames by an illegitimate child in the Philippines include:

Article 176 of the Family Code (as originally enacted)
Republic Act No. 9255 (approved in 2004), which amended Article 176
Supreme Court Administrative Issuances related to civil registry

Under the Family Code, illegitimate children are mandated, by default, to use the mother’s surname. However, RA 9255 allows illegitimate children to use the father’s surname if certain conditions are met (e.g., recognition by the father).

2. General Rule: Mother’s Surname for an Illegitimate Child

2.1. The Original Text of Article 176

Prior to the amendment introduced by RA 9255, Article 176 expressly provided that illegitimate children “shall use the surname and shall be under the parental authority of their mother.” This set the general rule that the mother’s surname would be used unless legitimated or acknowledged in a manner allowed by law.

2.2. Status Quo: Still the Default Surname

Even after the enactment of RA 9255, the general or default rule for illegitimate children remains that they carry the mother’s surname. RA 9255 merely introduced an option to use the father’s surname under specific circumstances. This means that absent the father’s acknowledgment or voluntary recognition, or if the father does not meet the legal requirements for acknowledgment, the child keeps the mother’s surname.

3. Exception: Using the Father’s Surname (Under RA 9255)

3.1. Brief Overview of RA 9255

Republic Act No. 9255, signed into law in 2004, amends Article 176 of the Family Code to grant an illegitimate child the right to bear the father’s surname if:

The father expressly recognizes the child,
The father’s acknowledgment is indicated in the child’s record of birth,
The father authorizes the use of his surname through the execution of a public document or a private handwritten instrument.

Should the father not recognize the child, or if no documents exist establishing the paternal relationship or consent, the mother’s surname is used.

3.2. Voluntary vs. Judicial Recognition

Voluntary Recognition: The father actively signs the birth certificate and/or executes an Affidavit of Acknowledgment or Admission of Paternity.
Judicial Recognition: If paternity is disputed, recognition may be established through a court proceeding. Absent or pending that resolution, the child uses the mother’s surname.

3.3. Recording the Father’s Surname in the Birth Certificate

When the father’s surname is used by an illegitimate child pursuant to RA 9255, the following steps generally apply:

The father must accomplish an Affidavit of Acknowledgment/Affidavit of Admission of Paternity or an Affidavit to Use the Surname of the Father (AUSF).
This affidavit is then submitted to the Local Civil Registrar, where the child’s birth was recorded.
The child’s birth certificate is annotated to reflect the use of the father’s surname, indicating the father’s recognition.

If these steps are not completed, the child carries the mother’s surname by default.

4. Key Points on Using the Mother’s Surname

4.1. No Requirement of Father’s Consent for the Mother’s Surname

In cases where the father is unknown, disclaims paternity, or does not legally recognize the child, there is no legal barrier to the child bearing the mother’s surname. It is the standard process under Philippine law for an illegitimate child to assume the surname of the mother unless and until the father validly acknowledges his paternity.

4.2. Impact on the Child’s Legitimacy Status

Using the mother’s surname does not change the illegitimate status.
Even if the father later recognizes the child, the child’s legitimacy status is not automatically altered unless there is legitimation (e.g., subsequent valid marriage of the parents under specific conditions in law).

4.3. Re-registration of Birth Certificate

If later on the father consents to recognition, the mother’s surname can be changed to the father’s surname only upon full compliance with RA 9255 requirements.

A new or annotated birth certificate is typically issued to reflect the father’s surname after the documentary requirements and local civil registrar proceedings.

5. Legal Implications of the Chosen Surname

5.1. Parental Authority

For illegitimate children, parental authority is vested in the mother. This remains true regardless of whether the child uses the mother’s or father’s surname (Article 176, Family Code). Hence, simply using the father’s surname does not grant the father primary parental authority over an illegitimate child.

5.2. Child Support

Using the mother’s surname or the father’s surname does not extinguish the father’s legal obligation to support his illegitimate child. Support obligations arise upon proof or recognition of paternity. Conversely, if the child is proven to be the father’s child through DNA testing or a judicial proceeding, the father’s support obligation also attaches—even if the child has continued to use the mother’s surname.

5.3. Succession

An illegitimate child retains the right to inherit from his or her biological father—up to the share provided by law for illegitimate children—once paternity is acknowledged or established (Articles 887, 988, and 176 of the Family Code). The child’s surname itself is not the determinative factor in inheritance; rather, it is paternity that matters. However, the father’s express or judicial acknowledgment of paternity often helps establish inheritance claims.

6. Procedural Considerations for Birth Registration

6.1. Registration at the Local Civil Registry

Immediately after birth, it is customary to register the child’s information with the local civil registrar (usually within 30 days from the date of birth). If the child’s parents are not married, the birth record will automatically reflect the child’s status as illegitimate, bearing the mother’s surname unless:

A recognized paternal affiliation has been established during registration (through the father’s signing of the birth certificate and required affidavits).

6.2. Late Registration or Correction

If for any reason the registration is delayed, or an error is discovered in the birth certificate, the mother (or guardian) may initiate a late registration or petition for correction under Republic Act No. 9048 (Administrative Correction of Civil Status Entries). However, changes involving paternity or affiliation may require a court order unless the requirements for administrative correction under RA 9255 and related administrative issuances are strictly satisfied.

7. Illustrative Jurisprudence

Several Supreme Court decisions tackle issues of paternity, acknowledgment, and the surnames of illegitimate children. While the key principle remains that an illegitimate child “shall use the mother’s surname,” the Court has emphasized that an illegitimate child may bear the father’s surname if properly recognized (see Briones vs. People and similar cases interpreting RA 9255). These cases consistently affirm:

The mother’s surname is the default surname for an illegitimate child.
The father’s surname can only be used if the requirements of the law are fulfilled.
The change of surname does not alter the child’s legal status (illegitimate vs. legitimate).

8. Practical Tips and FAQs

If the father disappears and does not sign any acknowledgment, can the child still use the father’s surname?
- No. Without the father’s acknowledgment (through affidavit or judicial means), the child must use the mother’s surname.
What if the father initially recognized the child but later denies paternity?
- If the father has already executed an affidavit or signed the birth certificate acknowledging paternity, he cannot simply “withdraw” it. If a dispute arises, it becomes a legal matter to be resolved in court.
Can the child later switch from the mother’s surname to the father’s surname upon recognition, and vice versa?
- Yes. If the father provides the necessary documentation after the initial registration, an annotation can be made on the birth certificate, allowing the child to start using the father’s surname. However, once the child has validly used the father’s surname pursuant to RA 9255, reverting back may be more complicated and could involve court petitions—unless the initial recognition is invalidated.
Does using the father’s surname entitle the illegitimate child to better inheritance rights?
- No. Inheritance rights for illegitimate children are defined by law based on biological or legally recognized paternity, not on the surname the child carries.
What if the mother wants the child to keep her surname, but the father insists on the child using his surname?
- The mother cannot be compelled to process the change if the father does not follow the legal requirements (executing affidavits, etc.). However, if the father complies with RA 9255, the local civil registrar can annotate the birth certificate upon proper submission, and the child will legally be able to use the father’s surname. In practice, disputes of this nature can escalate to legal proceedings if the parents disagree.

9. Conclusion

In the Philippines, the foundational rule is that an illegitimate child bears the mother’s surname. This default remains firmly in place unless the father takes the necessary legal steps to acknowledge and authorize the use of his surname, in line with Republic Act No. 9255. Even then, using the father’s surname does not affect issues of parental authority (which remains with the mother for illegitimate children) or legitimacy status.

Key Takeaways

Default Surname: Mother’s surname.
Optional Use of Father’s Surname: Only if the father fulfills the legal requirements (acknowledgment or court recognition).
No Change to Legitimacy: Carrying either surname does not alter the illegitimate status.
Legal Rights: Paternity acknowledgment is crucial for support, inheritance, and other rights—surname usage alone does not finalize legal rights.

Given the complexities that can arise—especially in contested paternity cases—individuals should consult with a qualified attorney or approach the local civil registrar for guidance specific to their circumstances.