87 Wn.2d 50
(1976)
549 P.2d 1
JANE DOE, Respondent, v. HARRY
DUNNING, ET AL, Appellants.
No. 43907.
The Supreme Court of
Washington, En Banc.
April 22, 1976.
Slade Gorton,
Attorney General, and James A. Humphrey, for appellants.
Barbara A. Isenhour of Legal Services Center (Seattle), for
respondent.
BRACHTENBACH, J.
Plaintiff[1] seeks 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.
*51 The
issuance of birth records in general is governed by RCW 43.20.090, the
pertinent portion of which reads:
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 certificate 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 certificate. 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 RCW 43.20.090. The second portion of the certificate
is labeled "Confidential Information for Medical and Health Use
Only." Included in this portion of the certificate is a designation of
whether the child is legitimate. The information included in this confidential
section of the birth certificate is not subject to the view of the public or
for certification purposes except upon court order. RCW
70.58.200.
In addition to authorizing the
issuance of a certified copy of the record of birth, RCW 43.20.090 also
authorizes the issuance of a birth record certification card (commonly referred
to as a birth registration card). This is a card the size of an ordinary credit
card which evidences the name of the child, the date of birth, the child's
gender, and place of birth. The principal difference between the information
contained on this card and that contained on the conventional birth certificate
is that no reference is made to the names of the father and mother.
This case arises because of the
unwritten policy of the *52 registrar to not issue a conventional birth
certificate for an illegitimate child who bears the mother's surname. In such
situations, the registrar issues a birth registration card. If the child bears
the surname of the father, however, a conventional birth certificate is issued
regardless of whether the person is legitimate. A person of legitimate birth
may obtain, upon request, either a conventional birth certificate, or a birth
registration card, or both. The above policy concerning the issuance of
conventional birth certificates and birth registration cards is an attempt by
the registrar to comply with the above quoted proviso of RCW 43.20.090, i.e.,
not to disclose the fact of illegitimacy nor information from which it can be
ascertained.
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 surname 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.
[1] The purpose of the statutory
proviso is clear to avoid disclosure of illegitimacy or information from which
it can be ascertained. The only 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 out 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); *53 Spitzer, Wives, Babies, Names and the Common Law, 27 Wash. St.
Bar News 10, at 4 (Dec. 1973); Lamber, A Married
Woman's Surname: Is Custom Law?, 1973 Wash. U.L.Q. 779.
Under well established 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 infringe 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
marriage, 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
declare 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 Constitutional 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 *54 to give their child the father's
surname; although customarily parents do, they have a choice and can freely
exercise it. Lamber, A Married Woman's Surname: Is
Custom Law?, supra at 804-05. One function of the
"family" name is to identify those persons who live in an economic
and social unit. This purpose is not served if the father's surname is given to
a child who does not live with him. See Krause, Illegitimacy: Law and Social
Policy 98 (1971). Property and inheritance are also factors which may lead to
the use of the mother's surname. Historically, it was not uncommon for children
to take the mother's surname where she owned the most property or had the
largest estate. Reany, Origins of English Surnames 84, 85 (1967). Cultural
heritage may also be a relevant consideration, for example, persons of Spanish
ancestry often use both parents' surnames as the surname of the child. E.
Smith, The Story of Our Names 134 (1970).
In summary, we know of no legal
impediment which would prevent married parents from giving the child the
mother's surname. However, 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 *55 birth of a child bearing the
mother's surname does reveal information from which illegitimacy can be
ascertained, upon what basis can the defendants justify furnishing a
conventional birth certificate to a 14-year-old child and not to the plaintiff?
No such exception appears in the statute. See RCW 43.20.090.
RCW 43.20.090 does not say that
certified copies of the official record of birth may be denied to children born
out of wedlock. On the contrary, the statute requires the defendants to furnish
conventional birth certificates at the request of any applicant. The statute
only provides that no such copy may disclose the fact that the child is
illegitimate or discloses information from which that fact may be ascertained.
The certified record of birth does neither.
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 of Social and Health Services
and the legislature to solve.[2]
*56 The judgment of the trial court is
affirmed.
STAFFORD, C.J., and WRIGHT, UTTER, and HOROWITZ, JJ., concur. ROSELLINI, J. (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.
HAMILTON, J. (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 RCW 43.20.090, virtually renders
the issue in this case moot.
NOTES
[1] 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 revealing the name of either the mother or child, a
substituted case title has been adopted.
[2] 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 of the current legislative
session. Const. art. 2, § 41
(amendment 26).
Upon the effective date of the act,
RCW 43.20.090, in pertinent portion, will be amended to read as follows:
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 RCW 43.20.090 stating 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" is stricken by the amending act. As it
is this proviso which created the present case in controversy, its repeal will
make the issue moot. Under the amended version of RCW 43.20.090 there can be no
statutory basis whatsoever for refusing to issue a birth certificate for a
child bearing the mother's surname.