Republic Act 9255 allowing illegitimate children to use their father’s surnames opened the door to illegitimate mothers and fathers eager to let their children bear the father’s surname just like legitimate children. While many saw this as a positive development for illegitimate children long stigmatized for bearing their mother’s surnames and not having middle names, some mothers soon realized the disadvantages of this law.
The problem started when the implementing rules of RA 9255 made it mandatory for illegitimate children to use their father’s surnames upon the execution and registration of the Affidavit Allowing Children to Use the Surname of their Fathers (AUSF) and the paternity acknowledgment appearing on the back portion of the birth certificate. Mothers and children complained that it was a simple and inexpensive procedure for the fathers, many who disappeared later in the lives of their children, to execute the paternity acknowledgment and voila! the father’s surname becomes the child’s surname. The civil registrars nationwide maintained that it was their duty to register the father’s surname upon seeing the paternity acknowledgment because RA 9255’s implementing rules used the word ‘shall’ instead of ‘may’ in giving effect to the law allowing children to use their father’s surnames.
Today, that conflict has been resolved with the high court’s pronouncement that it was voiding that particular provision in RA 9255’s implementing rules insofar as it provides for the mandatory use of the illegitimate father’s surname. The Supreme Court reiterates that the illegitimate child has the choice of surname by which they wish to be known. (Grande vs. Antonio, GR No. 206248, February 18, 2014)
Children born out of wedlock, also known as illegitimate children, may use the surname of the father under Republic Act No. 9255.
All you need is to file the necessary application with the civil registry of the place where your child was born along with the following documents:
- Certified true copy of child’s birth certificate (most require NSO certificates)
- Affidavit to Use the Surname of the Father (see attached form)
- Valid IDs of parents or the registrant if 18 years or older.
- For certificates of live birth with unknown fathers, submit additional documents such as the affidavit of acknowledgment/paternity and documents showing father’s signature like SSS, GSIS Policy Contract, ITR, PhilHealth and other proof of filiation.
- Note: In some cities/municipalities, the local civil registrar may require the personal appearance of the mother and father to confirm their identities.
Processing time can vary but will usually take a week. Estimated cost Php1,000.00.
A child born out of wedlock is, by law, an illegitimate child of both parents. If both parents marry in the future, the child may become legitimated; provided, that the parents of the child were not suffering from any legal impediment to marry each other at the time of the child’s birth. In other words, both parents should have been legally single and free to marry one another, if they wanted to, at the time their lovechild was born. The consequence of the subsequent marriage of such persons is the legitimation of their lovechild.
Legitimation is not automatic. One has to apply for the new status to be reflected in the birth certificate of the child. Legitimation changes the status of the child from illegitimate to legitimate, thereby granting to the child additional rights such as the right to use the father’s surname and to inherit as a legitimate child from both parents. Some seek legitimation for their child for purely social reasons.
An interesting case came up involving two friends who had a lovechild before getting married to one another. The father of the illegitimate child was still legally married to his spouse at the time of the child’s birth, while the child’s mother was single. The subsequent marriage, however, could not result in the legitimation of the illegitimate child because of the legal impediment that existed at the time of her birth.
But what can one do to lessen the stigma that normally attaches to children born out of wedlock,when it is through no fault of their own? Though legitimation is not possible, I advised both parents to file a petition for the child to be allowed to use the surname of the father by virtue of Republic Act No. 9255. Under this law, illegitimate children may be allowed to carry the father’s surname.
One may not be able to wipe out entirely mistakes in one’s past, but one can at least make it less visible to society for the sake of the child.