Doe v. DunningDoe v. Dunning
- Reporters:
- , ,
- Before:
- Brachtenbach
Lead Opinion
Plaintiff1 sеeks a certified copy of the record of birth, a conventional birth certificate, for her child who was born out of wedlock. With the concurrence of the child’s father, the child was given the mother’s surname. Named as defendants are those persons responsible for administrating the issuance of certificates of birth. In a declaratory judgment action, the trial court ordered the issuance of a conventional birth certificate to plaintiff. In so ordering, the trial court declared that the defendants are required to issue upon request conventional birth certificates to all applicants, without regard to the circumstances of their birth. We affirm.
The state registrar shall, upon request, furnish an applicant with a certified copy of the record of any birth . . . registered under the provision of law, or that portion of the record of any birth which shows the child’s full name, sex, date of birth, and date of filing of the certificate . . . Provided, That a certified copy of the record of any birth may not disclose the fact of illegitimacy of birth, nor of information from which it can be ascertained . . .
The cеrtificate of live birth, customarily, is filled out by the doctor and the hospital staff with the aid of the mother at the time of birth. This certificate is then filed with the appropriate registrar. There are two parts to this certificatе. The first portion of the certificate contains, among other information, the name of the child, date, and place of birth, the name of the father and the maiden name of the mother. It is this portion of the certificate, which contains nonconfidential information, that constitutes the conventional birth certificate referred to in
In addition to authorizing the issuance of a certified copy of the record of birth,
This case arises because of the unwritten policy of the
The registrar’s policy is premised upon the assumption that a conventional birth certificate which discloses the father’s name but which shows the child to bear the mother’s surnаme is indicative of a probability of illegitimacy. This conclusion is based upon the widespread custom of a child being given its father’s surname. The plaintiff challenges this conclusion, contending that traditional name patterns are changing as more women insist that their surnames be given equal status with men’s.
The purpose of the statutory proviso is clear—to avoid disclosure of illegitimacy or information from which it can be ascertained. The оnly question is whether the registrar’s policy carries out that purpose.
We conclude that disclosure of the fact that a child bears the mother’s surname is not necessarily a fact from which illegitimacy can be ascertained. As long as the State makes no affirmative statement about the status of the child’s legitimacy, there will be no concrete evidence on the birth certificate from which to ascertain that the child was born оut of wedlock.
While we have been furnished no statistics, it is common knowledge that in today’s society more women are interested in retaining their surnames upon marriage and that they have a legal right to do so. See Spencer, A Woman’s Right to Her Name, 21 U.C.L.A. L. Rev. 665 (1973);
Under well estаblished principles of common law, a person is free to adopt and use, absent a statute to the contrary, any name that he or she sees fit so long as it is not done for any fraudulent purposes and does not infringе upon the rights of others. 57 Am. Jur. 2d Name §§ 1, 10 (1971) ; Attorney General Opinion, Jan. 30, 1928. This common-law right applies as well to the surnames of married women. While it may be that it is considered customary for a woman to take her husband’s surname upon marriagе, it is custom only and not a legal requirement. Custer v. Bonadies, 30 Conn. Supp. 385, 318 A.2d 639 (Super. Ct. 1974); Stuart v. Board of Supervisors, 266 Md. 440, 295 A.2d 223 (1972); State ex rel. Krupa v. Green, 114 Ohio App. 497, 177 N.E.2d 616 (1961); Dunn v. Palermo, 522 S.W.2d 679 (Tenn. 1975); But cf. People ex rel. Rago v. Lipsky, 327 Ill. App. 63, 63 N.E.2d 642 (1945).
Other states have statutorily recognized the right of a married woman to retain her own surname upon marriage. Under a 1975 statute, each married party in Hawaii is allowed to deсlare which surname each will use as a married person. It may be the person’s own surname, the spouse’s surname or a hyphenated combination of the two. Hawaii Rev. Stat. § 574-1. An earlier version of that statute required the wife to take the husband’s surname. Should the necessary states ratify the federal Equal Rights Amendment, it is doubtful whether any state could compel a woman to change her legal surname upon marriage. See Brown, Emerson, Falk & Freedman, The Equal Rights Amendment: A Constitutionаl Basis for Equal Rights for Women, 80 Yale L.J. 871, 940-41 (1971).
As more women exercise their right to retain their own surname after marriage, the likelihood that children will be given a surname other than the paternal surname increases. There are generally no statutes requiring married parents
In summary, we know of no legal impediment which would prevent married parents from giving the child the mother’s surname. Howеver, under the policy in question, if the presumption upon which the policy is based is valid, a birth certificate issued to a legitimate child would in fact indicate illegitimacy simply because of the surname.
In view of at least past customs, it may be that some persons seeing such a birth certificate would suspect illegitimacy. Others might view it as an adoption of an emerging social trend. It certainly is not necessarily information from which illegitimacy can be ascertained because it does not necessarily indicate illegitimacy and that is what the statute prohibits.
On the other hand, a child who cannot produce a conventional birth certificate and has only a birth registration card is necessarily labeled as illegitimate, at least to those familiar with the policy involved.
The registrar’s policy must additionally be questioned in light of another of defendants’ procedures which allows an illegitimate child, with the parent’s consent, to obtain a conventional birth certificate at age 14. If the record of
It may be that a better method could be devised to protect the interests of the child. That is, after all, the purpose of the statute. The problem, however, is not one for the court, it is a matter for the Department оf Social and Health Services and the legislature to solve.2
Stafford, C.J., and Wright, Utter, and Horowitz, JJ., concur.
Notes
This action was filed in the mother’s name, individually and on behalf of her child whose name was stated in the pleadings. To avoid rеvealing the name of either the mother or child, a substituted case title has been adopted.
On February 21, 1976, the Governor signed into law the uniform parentage act. Laws of 1976, 1st Ex. Sess., ch. 42. By the provisions of the act, it is to apply to all actions or proceedings which shall have been commenced at the date the act becomes effective. Laws of 1976, 1st Ex. Sess., ch. 42, § 45. The act will become effective 90 days after the adjournment оf the current legislative session. Const, art. 2, § 41 (amendment 26).
Upon the effective date of the act,
The state registrar shall, upon request, furnish an applicant with a certified copy of the record of any birth . . . registered under the provision of law, or that portion of the record of any birth which shows the child’s full name, sex, date of birth, and date of filing of the certificate . . .
Laws of 1976, 1st Ex. Sess., ch. 42, § 36.
The proviso contained in the current form of
Concurrence Opinion
(concurring in the result)—Assuming that the majority opinion amounts to a holding that the administrative ruling in this case was arbitrary and capricious, and taking into account the fact that the legislature has now amended the statute to eliminate the requirement that illegitimacy be concealed, thus rendering the case of little precedential value, I concur in the result.
Hunter, J., concurs with Rosellini, J.
Concurrence Opinion
(concurring in the result)—I concur in the result of the majority opinion upon the grounds that the enactment of Laws of 1976, 1st Ex. Sess., ch. 42, § 36, modifying