Legitimate vs. Illegitimate Children(Analysis of Rights in the eyes of Philippine Law)

By Robert RamirezCEU Law

Introduction

There are no illegitimate children - only illegitimate parents Judge Lon R. Yankwich

In the history of the Family Law in our country, there is no dispute that there are differences between a legitimate child and a child born out of wedlock with respect to their rights. With our customs, traditions embodied in our laws, which are affected by four centuries in convent and five decades of Hollywood, these differences have evolved by which the rights of illegitimate children are recognized; rights which may not be at equal footing with the legitimate ones.

Although, many will argue that in todays world, these differences are not anymore that significant as our society already accepted the existence of illegitimate children, and it is now becoming common in our culture. Still, the stigma of illegitimacy is present in our laws, and even in our society, as evidenced by the label illegitimate next to children. People are aware of societys disapproval of these love children. For example, young couples often decide to get married once they knew that they will become parents because they do not want their children to be stigmatized as illegitimate. Also, courts are aware of societal biases against illegitimate children and have upheld doctrines such as the presumption of legitimacy that a child born to a married woman is her husbands child partly to protect children from the stigma of illegitimacy. On the other hand, our society and courts continue to express disapproval of non marital families, thereby reinforcing biases against illegitimate children. Apparently, societal biases against illegitimate children persist today.

This paper examines the present laws which affect the rights of illegitimate children, their legal recognition, and the differences between the legitimate and illegitimate in legal parlance. This will be followed by an analysis on how these laws develop legal and social disadvantages as a result of birth status.

The final outcome of this paper is a discussion of an argument that the law must abolish legal distinctions between legitimate and illegitimate children and a proposal of a model statute and other mechanisms lawmakers should adopt to eliminate these distinctions and remaining societal biases against illegitimate children.

Children under Family Code

There are two kinds of children as defined in the Family Code, legitimate and illegitimate. Legitimate Children include those naturally born through the marital union within a valid marriage between the parents. A child although conceived before marriage, but born already during the marriage, is likewise legitimate and also those who although born outside the marriage, was conceived during the marriage are legitimate.

Also, children who are conceived through the aid of science and technology or the so called test tube babies are considered legitimate if they comply with the requirements set forth by the law. The requisites include the authorization or ratification of the insemination process that must be recorded in a written instrument signed by the parents before the birth of the child. The artificial insemination is made on the wife, not on another woman, and done with the sperm of the husband or of a donor or both the husband and a donor.

One of the rights of legitimate children is to bear or use the surnames of the father and the mother in conformity with the provisions of the Civil Code on Surnames. They also have the right to receive support from their parents, their ascendants, and in proper cases, their brothers and sisters. They are also entitled to the legitime and other successional rights granted to them by law.

Children conceived and born outside of a valid marriage are illegitimate. They may use the surname and be under the parental authority of the mother. However, they 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. If the biological father does not acknowledge the child, the entry for middle name in the birth certificate must be left blank. They are also entitled to support in conformity with the Family Code. Their legitime shall consist of one-half of the legitime of a legitimate child.

Voluntary recognition must be express such as that in a record of birth appearing in the civil register, a final judgment, a public instrument or private handwritten instrument signed by the parent concerned. The voluntary recognition of an illegitimate child by his or her parent needs no further court action and is, therefore, not subject to the limitation that the action for recognition be brought during the lifetime of the putative parent.

Judicial or compulsory recognition, on the other hand, may be demanded by the illegitimate child of his parents and must be brought during the lifetime of the presumed parents.

Illegitimate children may establish their filiation (or relationship with their biological parent) in the same way and on the same evidence as legitimate children. The filiation of legitimate children is established by any of the following:

a. The record of birth appearing in the civil register or a final judgment; orb. An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

In the absence of the above evidence, the legitimate filiation is proved by the open and continuous possession of the status of a legitimate child.

Based on Article 175 of the Family Code, the action to claim the status of an illegitimate child must be filed:a. by the guardian of a child who is a minor, or is incapacitated or insane, during the childs lifetime; b. by the child, upon reaching the age of majority;c. by the childs heirs if the child dies during minority or insanity, within five years from the death. If the child dies after reaching the age of majority without filing the action, the heirs cannot file it.

If the ground for filing the action is open and continuous possession of the status of an illegitimate child, it must be filed during the lifetime of the alleged parent.

Legitimate vs. Illegitimate

The following table summarizes the distinctions between legitimate and illegitimate children under our laws:

LegitimateIllegitimate

Parental AuthorityDefault parental authority over legitimate children reside in both parents under Article 211 of theFamily Code.Default parental authority over an illegitimate child resides only in the mother under Article 176 of theFamily Codeas amended byRA 9255even if the child is recognized by the father

Use of SurnameThe legitimate child isobligatedto use the fathers surname since Article 174 of theFamily CodeRecognized illegitimate children under Article 176 of theFamily Codeas amended byRA 9255may choose to use or not to use their fathers surname

Source of SupportSupport of legitimate children is a primary liability of the conjugal partnership of gains and absolute community of property under Articles 94(1) and Art 121(1) of theFamily Code.Under Articles 94(9) and 122 3rd paragraph of theFamily Code, conjugal partnership / absolute community property are only secondarily liable for the support of illegitimate children since primary responsibility falls on the parents exclusive property

Proof of filiationPresumption of legitimacyIllegitimacy requires either a voluntary recognition or compulsory recognition through a court judgment (Article 172 of theFamily Code)

Use of Middle NameMothers SurnameAn illegitimate child whose filiation is not recognized by the father bears only a given name and his mothers surname, and does not have a middle name.

Prohibition of certain marriagesA marriage between an adopted child and a legitimate child of the adopter is void as against public policyThere is no such prohibition between a marriage between an adopted child and an illegitimate child of the adopter

Consent of the adopters children to the adoptionUnder Section 9 ofRA 8552the adopters legitimate children ten years of age or over must give their consent to the adoptionThe consent of the adopters illegitimate children of the same age is necessary only if the illegitimate children are living with said adopter and the latters spouse.

Legitime and Successional RightsThe intestate share and legitime of an illegitimate child is one half of that of a legitimate child

Iron Curtail Rule

Article 992 of the Civil Code prohibits succession ab intestato between the illegitimate child and the legitimate children and relatives of his father or mother. This means that an illegitimate child cannot inherit by right of representation from the legitimate relatives of his illegitimate parent, and vice versa. Thus, an illegitimate child of one who is himself a legitimate child cannot represent the latter in the inheritance to his legitimate descendants or other legitimate relatives In the same manner, these legitimate relatives are prohibited from succeeding intestate the illegitimate child.

This principle of absolute separation between the legitimate family and the illegitimate family applies only ab intestato, that is, in intestate succession, where the decedent leaves no will. In such a case, the law follows the presumed will of the decedent. Since the rule is predicated on the presumed will of the decedent, it has no application on testamentary dispositions, that is, where a person leaves a will.

Ironically, the illegitimate child of an illegitimate parent is not so barred. In Diaz vs. IAC, it was clarified that the determining factor is the legitimacy or illegitimacy of the person to be represented. If the person to be represented is an illegitimate child, then his descendants, whether legitimate or illegitimate, may represent him; however, if the person to be represented is legitimate, his illegitimate descendants cannot represent him because the law provides that only his legitimate descendants may exercise the right of representation by reason of the barrier imposed in Article 992.

Also, in the same case of Diaz vs IAC, the court explained, the illegitimate child on the one hand, and the legitimate children and relatives of the father or mother of the said illegitimate child on the other) may have a natural tie of blood, but this is not recognized by law for the purpose of Article 992.Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; and the family is in turn, hated by the illegitimate child; the latter considers the privileged condition of the former, and the resources of which it is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no more than recognize this truth, by avoiding further ground of resentment

Article 992 was also not applied where the illegitimate grandchild was legally adopted by the grandparents, thus raising his status to that of a legitimate child entitled to succeed as a direct heir to the inheritance left by his grandmother/adoptive mother.

Analysis

Illegitimate children have the misfortune of being born into a relationship frowned upon in our society, a relationship that is neither moral nor legal. They are identified with the misdeed of their father and mother; it is quite unfair to tarnish children who had really no fault in their conception and birth. However, our laws principally the Civil Code and the Family Code label children conceived and born out of wedlock as illegitimate. Their innate right to be respected as human beings is prejudiced, especially so when they are subjected to name calling. They are called bastards, putok sa buho, anak sa labas. This is a disgrace which they are suffering and will continue to suffer for the rest of their lives. This is one of the societal biases that the illegitimate children conquer in their daily lives. Just the label of illegitimate is quite unfair, indeed there are no illegitimate children, only illegitimate parents.

Legal distinctions not only have significant effect on the children directly, it also harms them indirectly by facilitating societal discrimination. For example, society discriminates against individuals on the basis of socioeconomic status. As shown, legal distinctions between legitimate and illegitimate children may have long-term socioeconomic consequences. These consequences facilitate societal discrimination against illegitimate children, not because they are illegitimate per se but because they are poor or less educated. Further, by continuing to make distinctions between legitimate and illegitimate children, the law may encourage individuals to make negative assumptions about unmarried parents and their children. When law treats members of a group as second-class citizens, it invites others to discriminate against that group as well. This invitation to discriminate may be strengthened by implicit and explicit messages that non marital families are a social problem and should be discouraged.

The presumption of legitimacy facilitates much of this discrimination against illegitimate children by allowing legitimate children to automatically receive benefits that are not available to illegitimate children, including child support and other successional rights. These benefits are conveyed to legitimate children without proof of paternity, but illegitimate children must produce such proof. In addition, the presumption of legitimacy protects legitimate childrens interest in support from two parents. These legal distinctions deny illegitimate children those private resources that should be available to them even at the start of their lives.

Although courts have repeatedly held that illegitimate children should not be penalized for their parents behavior, the laws discriminatory treatment of illegitimate children in certain contexts may serve to reinforce any remaining social stigma of illegitimacy. In the context of support and intestate succession the laws distinction between legitimate and illegitimate children suggests that there are meaningful differences between legitimate and illegitimate children and that parents responsibilities toward their children differ based on the childs status as legitimate and illegitimate.

Apparently, the law discriminated against illegitimate children to discourage extramarital sex and non marital childbearing. Although the law cannot intentionally penalize children for the actions of their parents, the distinction between legitimate and illegitimate children are still necessary based on concerns of proving paternity, facilitating the orderly disposition of estates, and fostering stronger relationships between children and their parents. However, these concerns can be addressed without discriminating against illegitimate children. First, the concerns about establishing paternity are present regardless of whether the child is legitimate or illegitimate. Many choose not to challenge paternity even when they can rebut the presumption. In all of these cases, legitimate children reap the benefits of the presumption of legitimacy despite conclusive evidence, in some cases, that the marital father is not the biological father. Furthermore, while establishing paternity may have been impossible until recently, now it is quite simple. If lawmakers wanted to establish paternity for every child, they could require that paternity be proven (not merely presumed) in all cases for both legitimate and illegitimate children through blood test evidence. However, they do not. The presumption of legitimacy suggests that biology is not a necessary requirement for the establishment of paternity or parenthood.

However, it is not recommended to abolish the presumption of legitimacy, it would likely destabilize many marriages and parent child relationships. Also paternity testing reinforces the notion that parenthood is based on biology and that a biological connection is a prerequisite to a parent-child relationship. However, a genetic relationship is neither sufficient nor a prerequisite to parentage. When a married woman gives birth to a child, the presumption of legitimacy recognizes her husband as the childs natural father even in the absence of a genetic relationship. Thus, biology is not a prerequisite to parentage. Biology alone is not sufficient to establish parentage. Finally, achieving equality for illegitimate children should not require that the law take benefits away from legitimate children but rather that it extend those benefits to all children regardless of birth status. The law can eliminate many of the legal distinctions between legitimate and illegitimate children by extending the presumption of parentage to illegitimate children in cases where a person has held the child out as his or her own regardless of a biological link.

Conclusion

Recently, Rep. Isagani S. Amatong (3rd District, Zamboanga del Norte) filed House Bill 4789 to protect the rights and promote the welfare of children born out of wedlock while taking into consideration the vested rights of their legitimate siblings. The measure, known as "Expanded Illegitimate Children's Rights Act of 2014," shall take away the legal absurdity of requiring a mother to adopt her own child born out of wedlock to raise rights on equal footing with her other legitimate children. Under the measure, children born out of wedlock, regardless of circumstances, shall enjoy equality with respect to legitimate siblings but only to the mother's estate and in no way shall affect the child's rights with respect to his or her biological father and other relatives.

Another bill seeking to amend the Family Code by removing the distinctions on Filipino children who were labelled legitimate and illegitimate was filed. Rep. Al Francis Bichara (2nd district, Albay) said House Bill 2355 seeks to maintain and protect children as co-equal to each other without any distinction or discrimination whatsoever.

Lawmakers are not actively seeking to disadvantage illegitimate children or to encourage societal disapproval of children who have no control over the actions of their parents. It may not matter whether the laws express or tacit disapproval of non marital families is intentional or inadvertent but the tangible and intangible harms to illegitimate children are the same and should be removed.

Ultimately, there are no illegitimate children, only illegitimate parents.

References:

Illegitimate Harm: Law, Stigma, and Discrimination Against Nonmarital Children, Solangel Maldonado Florida Law Review, February 8, 2013.Paras, Edgardo L, Civil Code of the Philippines Annotated, Vol.III, 6th ed.Sta. Maria, Melencio Jr Persons and Family Relations Law 2010 ed.Family Code of the Philippines (Executive Order No. 209)http://congress.gov.ph/press/details.php?pressid=7292http://www.congress.gov.ph/press/details.php?pressid=8470http://www.lawphil.net/judjuris/juri1987/jun1987/gr_l_66574_1987.html

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