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What legitimate children must know if they want to use their mother's surname

In February 2021, The Supreme Court (SC) ruled that legitimate Filipino children could legally use their mother’s surname.

While it prompted a lot of celebrations along the lines of gender equality, it also brought up questions and clarifications from beleaguered mothers and children.

The consensus is generally positive and one that Atty. Gaby Concepcion classifies as “paving the way for change,” but the reality is: The ruling is not yet “doctrinal.”

“It was decided upon by a division of the Supreme Court rather than the Supreme Court itself,” the lawyer made the distinction to GMA News Online.

In case you missed it: The SC granted the petitioner of the Alanis vs. the Court of Appeals to remove his father’s surname and use his mother’s maiden name because he has been using it since childhood.

He testified that his parents separated when he was five years old. His mother meanwhile testified single-handedly raising the petitioner and his siblings.

His petition was granted. In a 15-page decision written by Justice Marvic Leonen, the SC said that the decision is to keep with the Constitution in ensuring the fundamental equality of men and women before the law.

The SC ruled that "courts, like all other government departments and agencies must ensure the fundamental equality of women and men before the law."

It also noted "the provision states that legitimate children shall 'principally' use the surname of the father, but 'principally' does not mean 'exclusively.'"

In a virtual interview with GMA News Online, Atty. Gabby Concepcion said the Alanis case is “more of an exceptional case.”

“Maraming kailangang isipin,” she began, pointing out the fact that the ruling was made by a division of the Supreme Court rather than the Supreme Court itself.

Concepcion said the ruling is “a deviation from the standard notions and principles about the use of surnames na siguro kailangan pang mag-evolve ang jurisprudence, maybe ang batas on the matter para maging definite.”

(There are many things to think about. It's a deviation from the standard notions and principles about the use of surnames that perhaps the jurisprudence of laws have room yet to evolve so the matter becomes definite.) 

If you plan on filing a petition similar to Alanis to legally carry your mother’s surname, Concepcion said you can use the Alanis case as the basis “to challenge the existing system. ‘Pinayagan si Alanis, dapat payagan din ako.’”

But while the Alanis petition was granted, it isn’t “automatic na napalitan na ang lahat ng rules in relation to the use of surnames.”

“Everything is dependent on the circumstances,” she reminds.

According to Concepcion, avoiding confusion is a valid ground to change a name.

“In the peculiar set of circumstances in the case of Alanis, na naghiwalay ‘yung nanay at tatay niya, lahat ng school records niya ay ginagamit niya ang pangalan ng nanay niya. These are factors that are peculiar and should be considered, if somebody else intends to file a petition to use the surname of the mother.”

(In the case of Alanis, it might be easier to accept the decision if the Supreme Court said ‘we are allowing the change of name to prevent confusion,’ anyway, he's been using his mother's name in all his documents since childhood.)

Another thing to consider and one that echoes the SC’s reasons on gender equality, Concepcion said, is the “added dimension” of viewing surnames “as a form of discrimination against women.”

Insisting on the use of your father’s surname “is actually very patriarchal," Concepcion reasoned. “If you insist on the need to take the name of the father all the time, parang nawawala yung personalidad nung mother.”

“According to Justice Leonen, the Philippines is a signatory in convention on the elimination of discrimination against women,” she continued.

So “it is our state obligation to try and eliminate discrimination.”

“In order to comply with international treaty obligations, dapat payagan [gamitin ang surname ng mother],” she continued.

"'Yun ang kailangan pang mag-evolve, kailangan pa natin ng ibang mga Alanis na magtatangka at mag-i-invest to bring a case and to let the Supreme Court decide on the matter to settle the rules once and for all."

(In order to comply with international treat obligations, we should be allowed to use our mother's surname. That's what needs to evolve. We need more cases like Alanis that will challenge the Supreme Court to decide on the matter to settle the rules once and for all.)

Is single-handedly raising children without the father a strong ground for removing their surname?

While those who plan to use this ground can “base it on the case of Alanis,” Concepcion points out that the current surname system “indicates the family to which you belong.”

As such, the Supreme Court can always say that fathers not supporting their children is not a sufficient ground to allow name changes.

"I have come across cases where the Supreme Court said, ‘the reason that you don't like your father [or] your father never supported you and that your father left you...' the Supreme Court has actually had the opportunity to say 'That is not sufficient ground to change your surname to something else," Atty. Concepcion explained.

Meanwhile, wanting to change your name to your stepfather’s name could be vetoed for reasons of confusion — which if you’ll remember, is one of the factors Concepcion pointed out while discussing the Alanis case: the petitioner had been using his mother’s surname since childhood so legally changing his surname to hers would help avoid confusion.

Still Concepcion stresses that issues surrounding surnames are still evolving.

“While our system follows presidents, which means, there is stability in the decisions when cases are the same, the Supreme Court must also issue decisions that are the same," she said.

Just because there is a set of rules we need to follow now, “it doesn't mean na forever ganu'n na. Nag-e-evolve din ang mga pananaw ng tao, nag-e-evolve din ang mga desisyon ng Korte Suprema,” Concepcion said.

(just because there is a set of rules that we follow, it doesn't mean it's going to be the case forever. Because people's viewpoints evolve, the decisions of the Supreme Court also evolve.)  

"This is why we keep saying, there needs to be more similar cases to settle the issue of a legitimate child carrying their mother's surname. So while it may be a source of confusion, maybe it will all be temporary, and as soon as we reach that level of understanding and common appreciation of the use of surnames," she said.

Can the mother file a petition to change her legitimate child's name to use her surname instead of his father's?

According to Concepcion, if a mother decides to change the name of his child, she can always do as Alanis did.

For instance, 22-year-old Mary* got married at 18 years old and wants to change her legitimate son’s surname to hers after she and her husband separated this year. They aren’t yet annulled.

In an interview with GMA News Online, Mary said she is currently single-handedly raising her 3-year-old child — the main reason she wants the name change.

“Para sa ‘kin kasi, ‘yung pride ko na lang kasi ako yung bumubuhay sa kanya ngayon. Mas nakaka-proud. Mas gusto ko siya tawagin dun sa surname ng tatay ko kasi siyempre, ako yung naghihirap para sa kanya,” she said.

(For me, it's about pride. Because I'm raising my child, I would like my child to carry my name.)   

Concepcion said Mary can do as Alanis and file a petition in court but she warned it’s going to take Mary a lot of work, time and money to be able to change her son’s name legally to her surname.

Pointing to the Alanis case, Concepcion said it was in 2008 when the trial court issued decision, which means Alanis filed earlier than 2008. The Supreme Court decision was dated November 11, 2020 and was only released to the public in February 2021.

“Even if you cut it by half because you have Alanis to back you up, I think it will still take a while,” the lawyer said, adding, "a petition for change of name cannot go any faster because the law requires that it be adversarial in nature."

"You cannot just go to the judge and explain your case. The judge is required to ask the representatives of the state to speak on behalf of the state," she added.

"Kasi adversarial, before there is a resolution by the court. Of course, the fact that there is Alanis will cut that time, but again, it's a novel one," Concepcion said.

Filing a petition, Atty. Concepcion said "will go through that appellate proceeding: From the RTC, maybe to the Court of Appeals to the Supreme Court."

"And of course, everything is dependent on the docket of the court. Kung sa Manila ka or Quezon City na punung-puno ang docket ng court at old fashion si judge, baka hindi lang tatagal sa korte, baka talagang aabot ka pa ng mag-a-appeal ka pa sa Supreme Court at saka Court of Appeals," she added.

(Of course, everything is dependent on the docket of the court. If you're in Manila or Quezon City and dockets are full, and you have an old fashioned judge, it will not just take long in the court. You might even have to bring this up to the Court of Appeals, to the Supreme Court.)

“Because there is no established doctrine as of this time, it could take a substantial amount of time, depending on the circumstance,” she continued.

She noted anew how the petitioner in the Alanis case used his mother's name in his records is one factor, "so even on the ground of confusion, puwede nang ma-grant. Wala pa 'yung consideration na it's actually eliminating a form of discrimination against women."

(On the grounds of confusion, it can be granted. We wouldn't even need to consider that it's eliminating a dorm of discrimination against women.)

But if it was simply to use the mother’s surname, “the judge will have a hard to justifying it. So it's always dependent on the circumstances of every case."

"So kung nag-file din 'yung nanay para amendahan, baka mamaya pagtanda naman pala nu'ng anak niya, sasabihin ng anak niya, 'Bakit mo naman pinakialaman? Gusto ko pa rin i-carry.' So magpapalit na naman, ganu'n na naman 'yung proseso. That's why if you ask me, because everything is dependent, unless there are really, really, really serious reasons [consider waiting it out]," Atty, Concepcion said.

(If the mother files for a name change while the child is still young, that's fine but what if the child grows up and it turns out he wants to carry his father's name? Then he'll have to go through the same process all over again. Because everything is dependent, if you ask me, consider waiting it out.)   

"It really takes a lot of time because at this point in time, it's not yet doctrinal. This is groundbreaking. Hindi pa kasi siya accepted, as the accepted norm," she added.

While Concepcion advises to let the son decide for himself, when he is of legal age, on what he wants to use as his surname, Mary said she is willing to go through the hard- long and meticulous process.

“Ang opinyon ko lang kasi rito, may mga tatay kasi na hindi sumusuporta pero sa kanila nakapangalan. Noon nagkasundo sila pero in the end, iniwan," she said.

"Kumbaga ang isip kasi ng katulad namin, kahit man lang sana roon sa apelyido madala 'yung legacy namin. 'Wag doon sa nagpabaya. So kung sakaling maging batas man 'yun, paniguradong maraming [matutuwa] doon sa batas na 'yun, maraming magpa-file lalo na ‘yung single moms," she added.

(In my opinion, surnames are a form of legacy. If fathers turn out negligent and don't support their children — maybe don't give the same legacy to them. I'm sure there are many mothers, especially single moms who will heave a sigh of relief.)  

But stripping off the father's surname does not take away his rights and obligations as a parent. Concepcion clarified that having the father's name removed from their child's name doesn't strip him off his rights and obligations as a father.

"Kasi kung sino ang tatay mo, tatay mo siya kahit na ano pa ang pangalan mo. At bilang isang tatay, 'yung rights and obligations because or paternity are set in the law," she added.

(No matter your name, your father will always be your father. And a father's obligations are set in the law.)

Concepcion said the general rule is that the rights and obligations of a father continue, no matter the surname a child uses.

"Your rights and obligations as a parent or your rights and obligation as a child in relation to a parent will not change," she said.

Pre- and post the landmark Alanis case

Prior to the Alanis cases, Concepcion said "the only reasons by which you could change your name were one, kung ito ay katawa-tawa, or kung ito ay nakahihiya.”

"For example, and this is an actual case, kung ang family name mo, Bagonggahasa. You will want to change that, especially if you're a woman because I'm sure people will always react to your name," she said.

Concepcion said "the court will probably allow it if the name is embarrassing or it causes humiliation or it's funny, it's difficult to pronounce. "

"But you have to prove that it's confusing, it's embarrassing, it's funny, difficult to pronounce, difficult to spell, etcetera, etcetera," she added. And "unless you’re able to convince the court, hindi pumapayag usually ang korte."

Post-Alanis, Concepcion said there isn’t a guarantee “that it will ensure a swift and sure decision in your favor.”

“It’s just the first case in an evolving causes,” Concepcion explained, “but maybe a third or half of the work has been done because there is the Alanis case. There is a prior decision of the Supreme Court that you can cite when you're refused."

Should you want to file a petition, Concepcion says you can always cite the Alanis case. “Pwede mong sabihin, ‘pinayagan yung Alanis’,” she advised.

And while the court can always reason that things are dependent on the circumstances of every case, Concepcion says “kailangan mayroon pang ibang mga kaso na umabot sa Korte Suprema para masabi natin na talagang yun na ang rule at talagang tatanggapin ng kahit na sinong judge pag nag-file ng petition for change of name to the use of the surname of the mother in case of a legitimate child.”

(You can always reference the Alanis case but there needs to be more similar cases reaching the Supreme Court before we are able to say that is the rule and any judge will accept a petition for a change of name to the mother's surname in case of a legitimate child.)

For the ruling to be become doctrinal, there needs to be “a few more decisions of the Supreme Court.”

"This decision of the Supreme Court was not even an en banc resolution. It was only by a division of the Supreme Court. Usually, for it to be doctrinal, it needs at least the whole Supreme Court making the decision," she added.

But more than the stability of names, it might be time to consider that requiring the use of the father’s surname may indeed be “a form of discrimination against women.”

Concepcion pointed to other countries that allow citizens to use their mother’s surname.

"Others will say, 'Well, dapat nga ang surname ng nanay ang gamitin. Kasi mas sigurado ka, 'di ba? They do say maternity is a fact, paternity is a matter of faith," Concepcion argued.

"Mas sigurado ka na anak ka ng nanay mo kaysa anak ka ng tatay mo, 'di ba? And again, baka nga it's a form of discrimination against women because why should it be the name of the father when the mother has an equal stake in giving birth to a child?" She added.

(That you are your mother's child is a surer fact that you are your father's. Maternity is a fact, paternity is a matter of faith. So maybe it is a form of discrimination against women ,because why should it be the name of the father when the mother has an equal stake in giving birth to a child?)

Concepcion thinks we have to further wait on the next chapters on this matter. "in terms of evolution of principles, evolution of concepts. Slavery was accepted before right? It took them such a long time to evolve and see na there is equality among them. Maybe it's something like that."

In the Alanis case, the SC ruled "the RTC treated the names of the petitioner's parents unequally, which is "contrary to the state policy."

“Courts, like all other government departments and agencies must ensure the fundamental equality of women and men before the law,” the SC said in its decision, adding that "the provision states that legitimate children shall 'principally' use the surname of the father, but 'principally' does not mean 'exclusively.'"

The decision noted that "this gives ample room to incorporate into Article 364 the State policy of ensuring the fundamental equality of women and men before the law, and no discernible reason to ignore it."

"Patriarchy becomes encoded in our culture when it is normalized. The more it pervades our culture, the more its chances to infect this and future generations," the SC said.

Atty. Concepcion thinks this is a huge step, especially in ensuring the fundamental equality among women and men, but she also noted that it is not the final one.

"I think it's a huge step, and it probably took a lot of convincing on the part of Justice Leonen to be able to get his co-member in the division to accept that kind of a ruling because it opens the door to so many changes, to so many needed amendments," she said.

"But it's not the final step,” Concepcion said. “It will need a few more affirmations from others, from subsequent decisions of the Supreme Court."

It will also "probably need the agreement of many other lawyers, of other judges and of the community as a whole, right?"

"Kasi 'yung mga concept na ganito, hindi mo naman kasi puwedeng i-impose what took decades for people to form as a concept. Hindi puwedeng isang araw, papalitan mo all these long-held notions."

"Siguro kailangan unti-unti hanggang magkaroon ng...Until there is some kind of acceptance from the society as a whole," she added.

(Concepts like this, you can't just impose what took decades for people to form as a concept. You can't just change these long-held notions in a day.)

Atty. Concecpion said this cannot be imposed on other people right away, "because understanding takes time. Long held. Understanding the change in long held notions and principles takes a while." — LA, GMA News