My child was born outside marriage under the old Civil Code rules — does Article 368's requirement that he carry his mother's surname still control today, or has the law moved on?

What Article 368 said

As enacted, Article 368 addressed one narrow category of children born outside marriage — those referred to in the surrounding provisions dealing with illegitimate children who were not the product of a natural child by legal fiction. For that class, the rule was simple: the child took the surname of the mother, full stop. There was no mechanism in this article itself for the child to instead carry the father's surname, no matter what the father's own wishes were. The article supplied only the surname consequence; the definition of which children actually fell into that class was borrowed from elsewhere in the Code, a structural feature that became a liability once the classification it depended on was swept away.

Why the rule no longer controls

The Civil Code's fine-grained categories of illegitimate children — natural children by legal fiction, spurious children, and this residual class — did not survive the Family Code, which replaced them with a single, simpler status: legitimate or illegitimate, nothing more. Because Article 368 only ever applied to one of those now-abolished sub-categories, the provision effectively lost its subject matter. The Family Code took over the question of an illegitimate child's surname directly, and Republic Act No. 9255 amended that regime further, so a rule written to answer a classification question that no longer exists cannot be relied on as the controlling law for a child born today, or for reinterpreting a birth record from decades ago.

What actually governs today

Under the current regime, an illegitimate child still carries the mother's surname as the default position — that much of the old policy survived. What changed is the exception: Republic Act No. 9255 lets the child use the father's surname instead, but only where the father has expressly recognized the child, typically through an acknowledgment on the birth certificate or a separate public document, and the mother consents to the change where required. Nothing in Article 368's original text made room for that option; it assumed the mother's surname was simply the end of the inquiry. A parent trying to work out which surname actually applies today needs to look at the current Family Code framework and RA 9255, not at this article.

If an old record used Article 368's rule

A birth certificate registered decades ago under the old rule is not automatically wrong — it reflected the law in force at the time. The question that actually matters going forward is whether the father has since acknowledged the child in a way that satisfies Republic Act No. 9255's requirements, because that is what opens the door to a surname change now, not any defect in how the original entry was made. Changing a civil registry entry to add the father's surname generally has to go through the proper administrative or judicial correction process, not a private request to use one surname over another.

Cases citing this provision

These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.

• Emelita Basilio Gan vs. Republic of the Philippines, G.R. No. 207147, September 14, 2016 — read the decision on LawPhil →
• Glenn M. Miller, substituted by his surviving legal heirs, namely: Evelyn L. Miller, et, G.R. No. 200344, August 28, 2019 — read the decision on LawPhil →
• Milagros M. Barco, et al. vs. Court of Appeals, et al, G.R. No. 120587, January 20, 2004 — read the decision on LawPhil →

Related provisions

• Civil Code, Article 368 — Surname of Other Illegitimate Children
• Civil Code, Article 367 — Surname of a Natural Child by Legal Fiction
• Civil Code, Article 887 — Who the Compulsory Heirs Are