Dear PAO,

The father of my children executed an affidavit acknowledging his paternity and registered their births without my knowledge and consent. As a result, the birth certificates of my children do not contain my signature. Since we are not married, can I have those birth certificates canceled?

Rita

Dear Rita,

Article 176 of the Family Code of the Philippines, as amended by Republic Act (RA) 9255, in part, provides 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. However, 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 the father makes an admission in a public document or private handwritten instrument.” (Emphasis ours)

Clearly, parental authority over a non-marital (illegitimate) child shall be exclusively exercised by the mother. In relation to the registration of the non-marital child’s birth, the signature of the mother is a mandatory requirement. Paragraph 4, Section 5 of Act 3753, otherwise known as the Civil Registry Law, provides that:

“In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified.” (Emphasis ours)

As could be observed above, the law uses the word “shall” to describe its mandatory nature. Thus, whether or not the father acknowledges paternity over his non-marital child, it is mandatory for the mother to sign the child’s birth certificate. Otherwise, said birth certificate is void for being executed against the provision of Act 3753. This opinion finds support from the decision of the Supreme Court in the case of Barcelote v. Republic, GR 222095, Aug. 7, 2017, as per Senior Associate Justice Antonio Carpio, which held:

“On the other hand, the fourth paragraph of Section 5 specifically applies to an illegitimate child and likewise underscores its mandatory character with the use of the word ‘shall’. xxx

“Thus, it is MANDATORY that the mother of an illegitimate child signs the birth certificate of her child in all cases irrespective of whether the father recognizes the child as his or not. The only legally known parent of an illegitimate child, by the fact of illegitimacy, is the mother of the child who conclusively carries the blood of the mother. Thus, this provision ensures that individuals are not falsely named as parents.

“The mother must sign and agree to the information entered in the birth certificate because she has the parental authority and custody of the illegitimate child. xxx

“Since it appears on the face of the subject birth certificates that the mother did not sign the documents, the local civil registrar had no authority to register the subject birth certificates. xxx

“Clearly the subject birth certificates were not executed consistent with the provisions of the law respecting the registration of birth of illegitimate child. Aside from the fact that the entry in the subject birth certificates as to the surname of the children is incorrect since it should have been that of the mother, the subject birth certificates are also incomplete as they lacked the signature of the mother.

“Accordingly, we declare the subject birth certificates void and order their cancellation for being registered against the mandatory provisions of the Family Code requiring the use of the mother’s surname for her illegitimate children and Act No. 3753 requiring the signature of the mother in her children’s birth certificates.”

Applying the aforesaid decision to your case, it is clear that you may file an appropriate petition for the cancellation of the birth certificates of your non-marital children since these were registered without your signature, contrary to the provisions of the Civil Registry Law.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]