Illegitimate Child not required to use Father's Surname even if acknowledged

From 2004 to 2014 illegitimate children who were recognized by their fathers were made to use their father's surname. Back then, the  basis for this were the Rules and Regulations Implementing RA 9255. The implementing rules which were then in force stated:

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7.1 For Births Not Yet Registered

7.1.1 The illegitimate child shall use the surname of the father if a public document is executed by the father, either at the back of the Certificate of Live Birth or in a separate document.

7.1.2 If admission of paternity is made through a private instrument, the child shall use the surname of the father, provided the registration is supported by the following documents:

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7.2. For Births Previously Registered under the Surname of the Mother

7.2.1 If filiation has been expressly recognized by the father, the child shall use the surname of the father upon the submission of the accomplished AUSF [Affidavit of Use of the Surname of the Father].

7.2.2 If filiation has not been expressly recognized by the father, the child shall use the surname of the father upon submission of a public document or a private handwritten instrument supported by the documents listed in Rule 7.1.2.

7.3 Except in Item 7.2.1, the consent of the illegitimate child is required if he/she has reached the age of majority. The consent may be contained in a separate instrument duly notarized.

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The Supreme Court has expressly stated that this is NULL AND VOID.  You cannot compel mothers and their illegitimate children to use the surname of their father even if they are acknowledged and recognized.

RA 9255 amended Art. 176 of the New Civil Code on March 19, 2004, and the law now reads as follows:

Art. 176. – 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 their father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (Emphasis supplied.)

It was held by the Supreme Court that: 

"[t]he general rule is that an illegitimate child shall use the surname of his or her mother. The exception provided by RA 9255 is, in case his or her filiation is expressly recognized by the father through the record of birth appearing in the civil register or when an admission in a public document or private handwritten instrument is made by the father. In such a situation, the illegitimate child may use the surname of the father.

Art. 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It is not the father (herein respondent) or the mother (herein petitioner) who is granted by law the right to dictate the surname of their illegitimate children.

Nothing is more settled than that when the law is clear and free from ambiguity, it must be taken to mean what it says and it must be given its literal meaning free from any interpretation.

On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity, one must abide by its words. The use of the word "may" in the provision readily shows that an acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate father. The word "may" is permissive and operates to confer discretion upon the illegitimate children. 

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The clear, unambiguous, and unequivocal use of "may" in Art. 176 rendering the use of an illegitimate father’s surname discretionary controls, and illegitimate children are given the choice on the surnames by which they will be known."

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That was the ruling of the Supreme Court in Grace M. Grande vs. Patricio T. Antonio, G.R. No. 206248, 2/18/14 (En Banc Decision) It is therefore clear that an acknowledged illegitimate child will still use his/her mother's surname but he/she is allowed to make a choice whether or not to use his biological father's surname.