Mother of an illegitimate child MUST sign the birth certificate

MANILA, Philippines – In the case of In the Matter of Petition for Cancellation of Certificates of Live Birth of Yuhares Juan Barcelote Tinitigan and Avee Kuynna Noelle Barcelote Tinitigan vs. Republic of the Philippines, Ricky Tinitigan, et al. (GR 222095, August 7, 2017)

Jonna Barcelote had two children born out of wedlock whom she named Yohan Grace Barcelote and Joshua Miguel Barcelote. She did not immediately register the births of her children to avoid humiliation, ridicule and possible criminal charges.

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The father was a married man, named Ricky Tinitigan, whom she lost contact with.

It was when her eldest child needed a birth certificate for admission to schooling when she finally decided to register the births of her children.

But this was denied because she had been informed by the National Statistics Office (NSO) – now Philippine Statistics Authority  – that there were already two birth certificates with her name as mother and the years of birth of the children.

The registered birth certificates were for Avee Kyna Noelle Barcelote Tinitigan and Yuhares Jan Barcelote Tinitigan. She learned these were registered by their father, Ricky Tinitigan.

As a result, she filed a petition with the Regional Trial Court (RTC) to cancel the birth certificates registered by the father on grounds that they had been made without her knowledge, participation and contained erroneous entries.

The RTC cancelled the birth certificates because they were registered unilaterally by Tinitigan without the knowledge and signature of Barcelote in violation of Section 5, Act No. 3753.

However, this was reversed by the Court of Appeals (CA), which ruled that the registrations of the children’s births were valid as they did not require the consent of the mother.

Further, the CA ruled that illegitimate children can legally use the surname of their father pursuant to Republic Act No. 9255 when they are expressly recognized by their father, which in this case was made through the record of birth appearing in the civil register.

The Supreme Court, however, reversed the CA and upheld the decision of the RTC and cancelled the birth certificates of the children.

It is not disputed that the children are illegitimate as they were conceived and born outside a valid marriage. (Art. 165, Family Code)

Prior to its amendment, Art. 176 of the Family Code already provided that illegitimate children shall use the surname and shall be under the parental authority of their mother.

This was amended upon the effectivity of Republic Act No. 925, which added that illegitimate children may use the surname of their father if their filiation has been expressly recognized by their father.

The Supreme Court declared that while RA 9255 allows illegitimate children to use the surname of their father if they have been expressly recognized, the birth certificates as registered by Tinitigan were not the express recognition under the law as they were not registered in accordance with the law.

As such, the surnames indicated on the birth certificates of the children, Tinitigan, were erroneous since the certificates should reflect the surname of their mother — Barcelote.

Act No. 3753, or the Civil Registry Law, provides that the declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register.

However, in the case of illegitimate children, the fourth paragraph of Section 5 of Act No. 3753 provides that the birth certificate shall be signed and sworn to jointly by the parents of the infant or only the mother if the father refuses.

The Supreme Court explained that considering the wording of the second paragraph of Section 5 of Act No. 3753, it was mandatory in all cases that the mother of an illegitimate child must sign the birth certificate, regardless of whether the father recognizes the child 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 is given by law parental authority and custody over the illegitimate child.

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

Under the IRR of Act No. 3753, the civil registrar shall see to it that the Certificate of Live Birth presented for registration is properly and completely filled up, and the entries are correct.

Accordingly, the Supreme Court granted the application of Jonna Barcelote to cancel the birth certificates registered by Ricky Tinitigan, the father of the children, in order that the birth certificates containing the correct information may be registered.

(The author, Atty. John Philip C. Siao, is a practicing lawyer and founding Partner of Tiongco Siao Bello & Associates Law Offices, an Arbitrator of the Construction Industry Arbitration Commission of the Philippines, and teaches law at the De La Salle University Tañada-Diokno School of Law. He may be contacted at [email protected]. The views expressed in this article belong to the author alone.)