The San Juan Daily Star
Supreme Court says father’s surname should come before mother’s surname in birth certificates
By The Star Staff
The Puerto Rico Supreme Court has declined to review a mother’s request seeking to reverse a Court of Appeals ruling that ordered the Demographic Registry to amend her son’s birth certificate so that the father’s surname would come before the mother’s last name.
Justices supporting the decision said Puerto Rico follows the Spanish practice of using both parents’ last names. A child born has a name followed by the first surname of the father and then the mother’s first last name. Dissenting justices said it was time to end the chauvinistic and patriarchal practice.
The case is Cintrón Román v. Jiménez Echevarría, decided on May 2.
The dispute originated when the boy’s father filed a lawsuit in the Court of First Instance against the mother and her wife. The minor was registered by marriage with the mother’s first and her wife’s last name, second. The father challenged the maternity of the wife of the child and claimed his affiliation with the boy.
The Court of First Instance recognized the father’s parentage, but maintained the order of the minor’s surnames, as he was registered. However, the Court of Appeals reversed the decision and ordered that the order of the minor’s surnames be changed so that the father’s surname was first and the mother’s surname was second, based on custom as a source of law.
The boy’s mother then asked the Supreme Court to review the case through a writ of certiorari. However, the Supreme Court declined the petition and upheld the Appeals Court ruling.
The justices wrote divided opinions.
Associate Judge Rafael Martínez Torres said that the order of the surnames is a matter of custom and not of law and that the custom in Puerto Rico is that the paternal surname is placed first. While Martínez Torres said the law does not prohibit changing the order of surnames, it does not expressly authorize it. He said changes must be made to the law that would regulate this matter.
The associate judge also affirmed that giving precedence to the paternal surname is centuries old in Puerto Rico, has rarely been questioned, and cannot be considered contrary to moral or public order.
Associate Judge Mildred Pabón Charneco said the order of the surnames is a matter that has important implications for minors, who are the ones who will be identified and individualized by name. She advocated for a responsible resolution, which recognizes a new legal reality that rules out historical inequalities but always focuses on the minor’s optimal interest and its full development.
Pabón Charneco mentioned some countries that have abolished the patriarchal tradition of a domain of the paternal surname have recognized the ability of families to choose the order of surnames, offering citizens clear and objective rules.
In the event of a conflict between two parents with equal rights and in which the Legislative Assembly provides other guides, it is up to the courts to determine the order of the surnames, taking into account the optimal interest of the minor. Therefore, the judge considered using alphabetical order as an appropriate objective mechanism to address disputes, especially since the Senate of Puerto Rico approved such an option and the House of Representatives is now examining it.
Associate Judge Erick Kolthoff Caraballo voted to maintain the custom of putting the father’s last name first in cases where families disagree about the order of their son or daughter’s last names.
Supreme Court Chief Justice Maite Oronoz Rodríguez argued in her dissenting opinion that privilegeing the paternal surname over the maternal one seeks to maintain discriminatory notions and practices against women, which violates the principle of equality and non-discrimination enshrined in the Constitution.
“For this reason, I disagree with the course taken in this case, although I still harbor the hope that the procedure of the Court of Appeals will be ruled out in the future for not being a precedent for similar cases,” Oronoz Rodríguez said.
She said there are other non-discriminatory options like a random lottery, a state official making decisions based on the child’s best interest, and alphabetical order.
Associate Judge Luis Estrella Martínez vehemently criticized the Supreme Court for not reviewing the Appeals Court ruling.
“The conservative majority bloc of the Supreme Court of Puerto Rico, with the balance of its positions, has perpetuated a “machista” custom that is unequivocally unconstitutional,” he stressed.
He said the majority refuses to accept sources of law that invalidate the application of this patriarchal custom and intends to delegate to the Legislature the responsibility of declaring that this custom is contrary to higher-ranking sources of law.
Estrella Martínez pointed out that when the Legislature approved the 2020 Civil Code, it explicitly rejected the Spanish custom of putting paternal surnames first because it was discriminatory and contrary to gender equality that should govern this dispute.
He argued that the subordination of the maternal surname transgresses public order and promotes patriarchal values that should not guide Puerto Rican society.
Associate Judge Ángel Colón Pérez also disagreed with the Supreme Court’s decision to validate the patriarchal custom of registering the paternal last name first and then the maternal surname on birth certificates. Instead, he said the minor’s best interests should prevail in such decisions.