Remnants of gender discrimination in naming a baby

Dear Mrs Macaulay,

I read your Jan 4, 2021 article, ‘Mom wants to change son’s surname’, and you said there is no legal prohibition to adding a mother’s surname to her child’s name. However, the article did not say if this could legally be done as a hyphenated name or as a double last name (double-barrel) even without the hyphen.

My common-law partner and I agreed that our first-born son and daughter would have both our last names. The idea for this came from the desire to honour both sides of our families. But when my first son was born, just recently, I was advised that as a common-law partner I am unable to add my child’s father if he is not present to sign; however, if I was legally married I could do so without him being present. Thereafter, I was advised that my child could not take on my last name as his surname, but as a middle name, alongside his father’s name, because once ‘dad’ is on the paper, dad’s last name is automatic, regardless of our own preferences.

I was advised that if I register him in this way, a deed poll can be used to re-arrange his name and facilitate the double-barrel last name, but why can’t this be done from birth/the initial registering of a child?

What is really preventing a woman from legally offering her child her last name alongside her partner’s/the father’s last name?

Your experience is a matter based on the Registration of Births and Deaths Act and its prescribed forms and practice, which are all based on the discriminatory and paternalistic imposition that the man, husband and/or father is the head of the family, household, and the decision maker. Remember that until recent times the nationality of a child only passed from the father of the child. For those born of a common-law union, more was required of the father of such children to be fully entered in the birth records.

Then the nationality provisions in the Constitution were amended which enabled nationality of children to also come from the mother, and from an unmarried mother. The Children (Guardianship and Custody) Act, when amended also, deprived fathers from the sole rights to custody of their children and gave to mothers equal rights to custody. These were all movements forward to ensure equality of rights to mothers and fathers.

However, I must say that this whole area of the law needs to be revised and consolidated to ensure true and complete equality between mothers and fathers and create smoother processes for all parents to understand how to achieve the lawful registration of their children’s births and obtain the certified copies of their birth certificates. The amendment of contents of such certificates should also be simplified, so that the applications to have amendments made are truly simplified and understandable processes for all members of the public.

The part about you not being able to give the dad’s name for the registration of your child’s birth, unless he is there to sign, is not true. You can give his name, and his name would appear in your child’s birth records. Then he can later do a statutory declaration which can be lodged at the Registrar General’s Department (RGD) or he can attend the RGD in person and attest to his paternity, after which all his particulars would be entered in the records and appear on the birth certificate. Or it can be entered by way of a court order made by a judge at the end of the hearing of an application for the declaration of paternity.

In situations where only the father’s name is in the birth records of his child, being so entered by the mother in his absence, the RGD, pursuant to the Act, should send notice to and inform the father that he has been so named. He has to respond within the statutory period.

So you see that there is need for clearer and more simplified language of the provisions, since the advice you were given was not the full and correct legal position.

Anyway, the fact that the father’s surname is automatically the last name is clearly a remnant of gender discrimination which survives from such postionings from the past when women were treated as chattel and had no recognition as legal individuals, and were under the control of their fathers or husbands after their marriage. So many laws and legal practices still retain some elements of gender discrimination, and need to be rectified. Consequently, I would be surprised if the RGD agreed to accept a hyphenated name for a child, which is not the father’s surname, until changes are made legally and are made enforceable.

So my dear, it is best for you to register your child now with the names that the RGD accepts, and then as you stated, you can change it to what you and his father really want, by deed poll. You can do this without any problems and have it hyphenated as well.

I take this opportunity to wish my editor, all the staff of the Observer, and all my readers, a very happy, safe, prosperous and healthy 2024.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.