The free choice of the order of the surnames: Regarding Judgment No. 641/2021, comment on this news to comment as a user

The recent pronouncement of the Constitutional Court (hereinafter, the “TC”), in the habeas corpus process signed with file No. 0297-2019-PHC/TC, has once again placed the debate at the center of juridical the possibility that the maternal last name is placed before the paternal last name.

In effect, in said process, the TC concludes that the violation of the right to identity of a person has been proven, as well as the principle – right to equality and non-discrimination based on sex in the choice of surnames, declaring that article 20 of the Civil Code - understood as a norm that establishes an order of priority in the surnames assigned to the child - is inapplicable to the case analyzed. Likewise, it provides that from the publication of the resolution issued, it must be interpreted that article 20 of the Civil Code does not establish an order of preference among the surnames that a child must bear. Finally, it urges the Congress of the Republic to modify the aforementioned article, in order to establish a solution mechanism for the disagreement of the parents to assign the order of the children's surnames.

Undoubtedly, this pronouncement is important for the fair search for equality between men and women, but at the same time it is reason enough to ask ourselves some questions: Was a pronouncement of the Constitutional Court necessary for our authorities to realize that article 20 of the Civil Code does not establish an order of priority among the surnames that correspond to the child? What is the source of law that has led the Civil Registry to record the first surname of the father in the first place in front of the first surname of the mother since 1984?

In order to answer these questions and other questions, for didactic purposes, we have developed the following questionnaire:

1. What does article 20 of the Civil Code say?

Article 20 of the Civil Code states that "the child has the first surname of the father and the first of the mother." In this way we have that the norm in question is limited to referring to which are the surnames that must compose the name, but does not indicate the order in which they must go, therefore, the pre-eminence of the paternal surname has no constitutional basis, for the On the contrary, it threatens the equality that should exist between men and women.

2. If article 20 of the Civil Code does not establish an order of preference between the surnames that corresponds to the children, then what is the source of law that has allowed registrars to record the father's surname in first order?

The custom. This is recognized by the drafters of the Civil Code when - at the time - they stated that this was due to the "roots that the father's surname is used first in our environment"[1].

3. Was a pronouncement by the TC necessary to conclude that it is possible that the mother's last name came before the father's?

Considering the two previous responses, we conclude that it was not. Indeed, on the one hand, we have that there is no norm that obliges parents to respect a certain order in the surnames and, on the other, we have a custom that has been increasingly being questioned by the doctrine, the legislative power (through bills) and in previous judicial pronouncements[2].

And, precisely, the absence of an imperative norm regarding the order of a child's surname allows the application of the constitutional rights of equality (numeral 2 of article 2 of the Political Constitution of Peru) and freedom ( literal a of numeral 24 of article 2 of the Political Constitution of Peru), which clearly must enjoy preference over a custom in a State of Law.

However, despite the fact that legally and constitutionally it is possible for the mother's surname to precede the father's surname, the Civil Registry did not accept it.

4. So, if the free choice of the order of surnames was already legally feasible when registering a child, what is the true importance of the pronouncement of the TC?

The significance of the commented sentence is found in the direct mandate for the RENIEC not to limit any person who wants to register their child, to indicate first the first surname of the mother and then the first surname of the father.

5. Before the publication of the commented sentence, was it possible to interpolate the surnames?

Yes, this under Article 29 of the Civil Code[3]. What's more, currently, any citizen, with a justified cause, could request a name change in court to ensure that their maternal surname precedes their paternal surname.

As we have stated above, both the doctrine and the legislator have accepted the possibility of modifying the name, taking into account its symbolic nature. This is because the name is the means to an end, consisting of identifying an individual, hence the name may vary as long as it does not conflict with the purpose that justifies it.

The name is part of a right whose content is broader, we are referring to the right to identity; For this reason, it can be ensured that the first finds its foundation in personal identity, consequently, the right to a name is included in a macro right that is that of identity, finding its support precisely in the right to identity, which in turn is based on the right to freedom.

In this sense, article 29 of the Civil Code allows a natural person to change their name based on justified reasons and by judicial authorization, being the inversion of the order of the surnames an assumption of change of name, in accordance with what specified by Fernández Sessarego when mentioning that the change of name "has a comprehensive significance of any case related to the total or partial substitution of the name, its addition, partial deletion, or the correction, adaptation or amendment of the same (Draft and Preliminary Drafts of the Reform of the Civil Code, volume I, page 346)”[4]. (Highlighted ours)

Likewise, a Judge cannot refuse to interpolate the surnames of a person (and, in general, to any change of name) under the argument of affecting relations with third parties, since the modification of the name does not mean the extinction of relations previously established by the applicant, an argument not considered by the TC. The teacher José León Barandiarán clearly points out that “the name is nothing more than an attribute attached to the personality of the subject, but it is not confused with it. The subject does not change in itself or in terms of its legal relations constituted before the supervening modification. (...) if a person under the name that corresponded to him before the change contracted a legal relationship as a subject credenbi or debendi, after the change he is always subject to such a legal relationship, being able to demand or be demanded whatever the case may be, as established in this. (Elementary Course of Peruvian Civil Law, page 111)[5]”. (Highlighted ours)

The change of name or, precisely, the change in the order of the surnames, does not release the applicant from any obligation or legal relationship that he may have on the date of the change. Article 30 of the Civil Code clarifies this situation by stating that "the change or addition of the name does not alter the civil status of the person who obtains it."

6. What would happen today if the parents do not agree with the order of the surnames?

The Constitutional Court has urged the Congress of the Republic to modify article 20 of the Civil Code, establishing a solution mechanism before the discrepancy of the parents to assign the order of the children's surnames. We consider that, since there is no special regulation in this regard, legislative precision is indeed necessary, which should also exist in the case of people who want to change the order of their surnames as of this date; There is a legal solution, but we consider that there should be a mechanism that allows avoiding the course of a lawsuit for this.

Perhaps the most suitable legislative solution for those cases in which both parents do not reach an agreement regarding the order of the children's surnames is to hold a lottery before the RENIEC Registrar. Likewise, it should be established that the order of the surnames of the couple's first child must apply to their other children. However, considering that there is currently no rule of law that establishes an order in the priority of the surnames of newborns, we consider it feasible that the RENIEC can issue a directive that contains the solutions detailed in the preceding paragraph.

Conclusions

As we have stated, the possibility that the maternal surname has a preferential order around the paternal surname in the child's name has always been feasible in our legal system; however, in practice, the RENIEC, protected by an old custom, denied its materialization. With the sentence of the TC analyzed, the parents will be able to exercise their right to choose the order of their children's surnames without any objection on the part of the Civil Registry official.

Notwithstanding the foregoing, currently, our legal system allows any citizen to change their name in order to interpolate their surnames, provided that they have a legitimately protected justification.

Finally, we are of the opinion that, while the Congress of the Republic discusses the Bill amending article 20 of the Civil Code, it is feasible that the Civil Registry can issue a regulation that has the purpose of solving any possible discrepancy of the parents when choosing the order of the newborn's surnames.

[1] Official Statement of Reasons of the Civil Code of Peru, published in the Official Gazette El Peruano on November 19, 1990. Page 815.

[2] See the judicial process commented on in our article called "The Right to free choice of the order of surnames", published in Gaceta Civil y Procesal Civil No. 50, August 2017.

[3]“Article 29.- No one can change their name or add to it, except for justified reasons and by judicial authorization, duly published and registered.

The change or addition of the name reaches, if applicable, the spouse and minor children.”

[4] Official Statement of Reasons of the Civil Code of Peru, published in the Official Gazette El Peruano on November 19, 1990. Page 822.

[5] Official Statement of Motives of the Civil Code of Peru, published in the Official Gazette El Peruano on November 19, 1990. Page 822.

Angel D. Quispe Ycochea is a lawyer from the Universidad Nacional Mayor de San Marcos and graduated with a master's degree in Procedural Law from the same university. He is an associate of the Conflict Resolution Area of ​​DS Casahierro Abogados.

Marco Alfredo Monti Díaz is a lawyer from the Universidad Nacional Mayor de San Marcos and has a master's degree in Finance and Corporate Law from the ESAN University. He is an associate of the Corporate Law Area of ​​DS Casahierro Abogados.