SECTION 14 OF the Declaration and State Policies of the Constitution provides that “the State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.” This constitutional provision requires “the State to actively pursue affirmative means and ways to battle the patriarchy – that complex of political, cultural, and economic factors that ensure women’s disempowerment.”
A fundamental matter which must be presently addressed concerns the surname of legitimate children. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law. The norm in the Philippines is for the legitimate child to use the surname of the father. The wordings of Article 174 (1) of the Family Code and Article 364 of the Civil Code seem to have ambiguity as to whether or not a legitimate child, at the outset, can already use the surname of the mother upon agreement of the parents or must still require a court order.
SENATE’S AMENDMENT
Senate Bill No. 2261, otherwise known as “Maternal Surname for Legitimate Children and for other purposes”, amends Article 174 (1) of the Family Code and Article 364 of the Civil Code. This proposed bill authored by Senate President Vicente “Tito” Sotto III seeks to clarify the extent of the legal right of the legitimate child to use the mother’s surname. It allows the father and the mother to agree on which surname the child will use and appear in the live birth certificate. Furthermore, it grants a legitimate child to change his surname within ten (10) years upon reaching the age of majority by mere application to the proper local civil registrar. No court approval will be necessary, and such application for change of surname shall be allowed only once. The mother is the initial life-bearer of a child. The legitimate child’s developing physical and biological link was with the mother, as physiologically evidenced by the umbilical cord. Not only that, the nurturing and child-rearing starts with the mother. Accordingly, if most of the biological, physiological, nurturing, and emotional content of the creation of the child is with the mother, in case of conflict between the latter and the father, the mother’s decision should have influence and weight.
Article 174 (1) of the Family Code shall be amended to read as follows: “Article 174. Legitimate Children shall have the right: (1) To bear the surname of THE MOTHER OR THE FATHER. THE PARENTS SHALL AGREE AS TO THE SURNAME OF LEGITIMATE CHILDREN. IN CASE OF DISAGREEMENT, THE SURNAME OF THE MOTHER SHALL BE USED BY THE LEGITIMATE CHILDREN. THE SURNAME OF THE FIRST CHILD SHALL ALSO BE USED AS THE SURNAME OF SUBSEQUENT CHILDREN OF THE SAME PARENTS. ONLY THE LEGITIMATE CHILDREN SHALL HAVE THE RIGHT TO CHANGE THEIR SURNAME TO THE SURNAME OF EITHER THE FATHER OR THE MOTHER WITHIN TEN (10) YEARS FROM REACHING THE AGE OF MAJORITY BY MERE APPLICATION WITH THE OFFICE OF THE LOCAL CIVIL REGISTRAR (OLCR) WHERE THE ORIGINAL CERTIFICATE OF BIRTH HAS BEEN ISSUED. THE DUTY OF THE OLCR SHALL BE MINISTERIAL REQUIRING THE RELEASE OF THE NEW CERTIFICATE OF BIRTH REFLECTING THE CHANGE WITHIN 15 DAYS FROM THE FILING OF THE APPLICATION. APPLICATION FOR CHANGE OF SURNAME SHALL BE ALLOWED ONLY ONCE. AFTER THE LAPSE OF THE TEN-YEAR PERIOD, THE LEGITIMATE CHILDREN SHALL HAVE RECOURSE TO THE PROPER COURT WITHIN SUCH PERIOD AND UNDER SUCH OTHER CAUSES AS MAY BE ALLOWED BY OTHER PERTINENT LAWS.”
Article 364 of the Civil Code of the Philippines shall also be amended as follows: “Article 364. Legitimate and legitimated children MAY principally use the SURNAME OF THE MOTHER IN ACCORDANCE WITH THE PROVISIONS OF THE FAMILY CODE OF THE PHILIPPINES.”
SUPREME COURT RULING
Legitimate children have the right to adopt their mother’s surname, the Supreme Court ruled last February, as it cited the State’s commitment to ensure gender equality.
Associate Justice Marvic Leonen shed light in a 15-page decision he penned which reversed rulings of the Court of Appeals (CA) and the Regional Trial Court (RTC) of Zamboanga City, which both denied a request for a change of surname. The petitioner, Anacleto B. Alanis III, appealed to be allowed to legally use his mother’s maiden name “Ballaho,” saying it was what he has been using since childhood. The mother also single-handedly raised him and his siblings, the petitioner said. However, according to the RTC, permitting him to drop his last name would be in violation of the Family Code and Civil Code, which provide that legitimate children shall principally use their fathers’ surnames. But in its pronouncement, the SC emphasized that the fundamental equality of women and men is guaranteed by no less than the Constitution. It pointed to Article 2 Section 14, which it said “implies the State’s positive duty to actively dismantle the existing patriarchy by addressing the culture that supports it.”
The Philippines is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women, the SC noted. “Non-discrimination against women is also an emerging customary norm,” it said. “Thus, the State has the duty to actively modify what is in its power to modify, to ensure that women are not discriminated.” Justice Leonen also called the RTC’s application of the Article 364 of the Civil Code as incorrect, saying that while the provision states that legitimate children shall principally use the surname of the father, “principally” does not mean “exclusively.” “Accordingly, where the text of a law allows for an interpretation that treats women and men more equally, that is the correct interpretation,” he pointed out.