What name?
TIME was when it was an honor for the child to carry the father’s surname. It provided the child with a sense of belonging, at least when it was not yet a sin to consider the father the “head of the family” — which it apparently is now, if the some of the more querulous advocates of women’s rights are to be believed. In fact,
for some time, because of the Civil (and Family) Code provisions that subjected the illegitimate child to the authority of the mother, the child carried his mother’s family name and had no middle name. Legislation was subsequently passed allowing a child born out of wedlock, at her option, to carry the surname of the father provided that the latter acknowledged paternity in the manner provided by that special law.
Interestingly, even if the Italian Civil Code, in respect to the status of children only in 2012, a “figlio coniugale” — now used in place of “legitimate child,” a change to which I fully subscribe — carries the surname of the father that Francesco Galgano, a contemporary commentator on the Italian Civil Code, recalls “according to an unwritten rule that has however been unanimously implicit in our (the Italian) system.” Significantly, however, he points out that the amendment of 2012 forbids the “figli nati del matrimonio” (children born from the marriage) from using the surname of the mother. This is 2012 legislation of a First World country we are dealing with! Galgano of course wryly comments on the inconsistency between this position and the avowed equality of men and women and wonders how much longer this prohibition will remain on the books. I hope no one blames the Holy See for it. Italy has both divorce and abortion laws — both abhorrent to the Holy See! The French Code is very interesting. It provides: Lorsque la filiation d’un enfant est établie à l’égard de ses deux parents au plus tard le jour de la déclaration de sa naissance ou par la suite mais simultanément, ces derniers choisissent le nom de famille qui lui est dévolu : soit le nom du père, soit le nom de la mère, soit leurs deux noms accolés dans l’ordre choisi par eux dans la limite d’un nom de famille pour chacun d’eux.
The child is free to choose between the surname of the father and that of the mother, or a combination of the two, provided that he gets no more than one from each parent! German law is equally interesting for the spouses must, upon entering into marriage, choose a “matrimonial name,” which may be that of the husband or of the wife. Children born within wedlock will receive the matrimonial name of the parents, and if there is no matrimonial name, may declare according to the prescriptions of law, decide which of their parents’ names will be their surname.
There is certainly a trend in civil law jurisdictions to read the equality of husband and wife in marriage to include choice in regard to the family name of children and that it no longer follows that the father’s surname is that of the children. But there was reason for the provision in Philippine law that the legitimately shall use “principally” the surname of the father. It was born out of the notion that marriage so unites two persons that their identities, in some way, coalesce in the matrimonial bond and that because two-heads was always taken to be some monstrosity, the father was, as a matter of social mores as well as of law, the head of the family. I came from and was reared by a family structured in this traditional manner. My parents were both lawyers. Both were law deans. Both were law professors. Both were law authors. And they respected each other — despite the occasional spats that seem to be the lot of married couples — but my mother had no problems at all about accepting that the father was the head of our family. What I find most unfortunate about the ethos of many women’s rights advocates is the assumption that relations between husband and wife are an unending competition and a lifelong saga of bickering over who calls the shots. Fortunately for the nation, most families I know are not of that sort, no matter how avant garde the thinking of the spouses might be.
But this is a matter of policy, and it is for the legislature to allow the discourse of the spouses in their homes, the spouses in the workplace, and the spouses in the presence of their children to permeate the halls of the legislature. Ironically, our very insistence that equality means that the family has two heads and that not one of the spouses casts the deciding vote may have the result of referring more matters to the courts that should otherwise be decided at the hearth!