Legitimate vs.

Illegitimate Children
(Analysis of Rights in the eyes of Philippine Law)
By Robert Ramirez
CEU 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

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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; or
b. An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.

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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:
Parental Authority

Legitimate
Default parental authority over
legitimate children reside in
both parents under Article 211
of the Family Code.

Use of Surname

The
legitimate
child
is obligated to use the fathers
surname since Article 174 of
the Family Code

Source of Support

Support 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 the Family
Code.

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Illegitimate
Default parental authority over
an illegitimate child resides
only in the mother under
Article 176 of the Family
Code as amended by RA
9255 even if the child is
recognized by the father
Recognized
illegitimate
children under Article 176 of
the Family Code as amended
by RA 9255 may choose to
use or not to use their fathers
surname
Under Articles 94(9) and 122
3rd paragraph of the Family
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 filiation

Presumption of legitimacy

Illegitimacy requires either a

voluntary
recognition
or
compulsory
recognition
through a court judgment
(Article 172 of the Family
Code )
Use of Middle Name
Mothers Surname
An 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 A marriage between an There is no such prohibition
marriages
adopted child and a legitimate between a marriage between
child of the adopter is void as an adopted child and an
against public policy
illegitimate child of the
adopter
Consent of the adopters Under Section 9 of RA The consent of the adopters
children to the adoption
8552 the adopters legitimate illegitimate children of the
children ten years of age or same age is necessary only if
over must give their consent to the illegitimate children are
the adoption
living with said adopter and
the latters spouse.
Legitime and Successional The intestate share and legitime of an illegitimate child is one
Rights
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.

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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

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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
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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.

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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=7292
http://www.congress.gov.ph/press/details.php?pressid=8470
http://www.lawphil.net/judjuris/juri1987/jun1987/gr_l_66574_1987.html

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