Surnames are part and parcel of our identity. They make connections and help us feel we belong somewhere and to a group of people we call our family. Surnames denote our origins. Everybody has a surname and everyone is entitled to know his origins, so what happens when someone gets the wrong surname, whether by mistake or on purpose? Are there any remedies available or must one lump the mistake for the rest of one’s life? And does it really matter, at the end of the day, whether I am a Borg or a Vella?

Surnames are usually not a cause of distress because they are very straightforward. The wife has a choice as to whether she keeps her maiden surname or adopts her husband’s or even joining her maiden surname with her husband’s, thus having a double-barrelled surname. So far so good, nothing seems to be out of the ordinary.

However, since surnames denote our family, the wrong surname will be the cause of many sorrows and distress to the mother and to the child too. This is usually so when a child is born and is “given” the surname of the husband without the husband actually being the biological father. This might be done to hide a sexual encounter the wife might have had behind her husband’s back. Is that right for the child’s identity? The child will grow up thinking his mother’s husband is the biological father without actually knowing his true biological father. One might argue: But is it not for the better if a “white lie” is said than to uncover the whole truth and a barrage of conflict and tears will ensue?

Obviously, everyone would want to do away with the negative consequences of one’s actions but, on the other hand, the child will not know the origins and identity of his/her father’s side and would it be right for the husband to keep on believing the child is biologically his?

What about the biological father? He might have wanted to participate in his child’s life. In these situations the best interests of the child are always paramount. One needs to ask: Is it in the best interests of the child to know his origins? Articles 7 and 8 of the United Nations Convention on the Rights of the Child cover this situation. Article 7(1) states that “the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents”.

Therefore, the child needs to have a name and a surname and to be cared for by his or her parents.

But who is a parent? Is it the person who drops by only on special occasions or is it the person who participates in the upbringing of a child even though the child might not be biologically his? Article 8(1) goes on to state that “states parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference”.

The right to preserve one’s identity includes biological identity, so it seems to denote that the child needs to know his/her biological origins even though the biological parent might not be part of the child’s life. Having the knowledge of one’s origins will give peace of mind to whoever is yearning for it and, at this stage, one has to distinguish between a biological parent and a social parent. A social parent is not necessarily blood-related to the child but is the one who helps the child in growing up.

However, one might ask what is the relationship between surnames and knowing who your father is? There are situations where the child has the surname of the mother and knows exactly who the father is.

Does it make that much of a difference whether the child has the surname of the mother or the father? The reality surrounding the surname of the child born out of wedlock is carved with historical innuendos.

In the past, the surname of the child used to denote whether the child was born in or out of wedlock and would only obtain the father’s surname if the child born out of wedlock were acknowledged by the father.

A child’s surname, according to Jane Fortin, is of fundamental importance “because it may break the child’s link with his or her non-resident father” while others may view the fact that the child has a different surname than the mother’s as a trivial thing based not on the actual distance or closeness of the biological father to the child (Children’s Rights And The Developing Law, Cambridge, 2005, pp 400-401).

annmarie.mangion@gmail.com

Dr Mangion is a lawyer and a published author with a special interest in family and child law.