Change of name and/or surname due to abandonment in El Salvador

On February 18, 2022, the Constitutional Chamber of the Supreme Court of Justice of El Salvador – hereinafter referred to as “SCN” – issued the judgment of the unconstitutionality process with reference 33-2016/195-2016, which brought to light two current debates in Family Law in general. These debates concern the possibility for an individual to change their names and/or surnames due to either gender identity incompatibility or paternal and/or maternal abandonment.

In this article, I will delve into the mentioned debate, which presents a high degree of complexity and controversy, as it questions one of the cornerstones of our Family Code, namely, the devout respect and unalterability of parenthood or maternity based on biological factors and its relationship with legal institutions such as the name and surname of everyone. This principle has been entrenched by various elements present in Salvadoran society – such as morality, religion, customs, etc. – and has been perpetuated through different generations. From another perspective, there is the right to freedom of each person, with a deep look into the need for family legislation to respond to the reality and requirements for the optimal development of their lives, a dichotomy that must always be present when legislating and adjudicating in Family Law.

As a first step, we must understand the context of this important advancement in Family Law in El Salvador. For this, we must observe the regulations that govern the name of the natural person in our country, regarding its formation, acquisition, elements, changes, use, and protection. This is outlined in the Law of the Name of the Natural Person (LNPN), which was approved and entered into force in August 1990 in response to the limited and ambiguous regulation established by the Civil Code on the subject, and the identity problems it caused.

The LNPN, in its articles 3, 7, 13, 14, and 15, establishes the rules that every name must comply with. Each person must have a proper name consisting of a maximum of two words, and two surnames, which, as a general rule, should include the first surname of the father followed by the first surname of the mother. As an exception, in cases where paternity is not established, both surnames will be those of the mother, or if only one is available, a second common-use surname will be assigned.

Adhering to the dichotomy rule, considering the reality, the general rule could be considered as the exception, taking into account the existence of a large number of cases of individuals whose father did not acknowledge them, or where State intervention was necessary to achieve such acknowledgment or establishment of paternity.

This leads us to a set of questions such as:

    • Does a shared surname or name with my father or mother suffice to generate a bond with them?
    • What creates a bond between a father and/or mother with their child?
    • Is being a father or mother solely about procreation?

These questions compel us to deconstruct and rethink what it truly means to be a “father” or “mother”, especially in a country where the absence or abandonment of one or both parents is a stark reality of our society, as indicated by the preliminary report of the Multiple Purpose Household Survey (EHPM) of 2022, issued by the National Statistics and Census Office (ONEC) of the Central Reserve Bank of El Salvador, which details that 37% of children and adolescents between the ages of 0 to 17 live in situations of abandonment.

In the face of this reality, the law must act. It is for this reason that the SCN established, as a basis for changing the name and/or surname, the harm caused by being in a situation of abandonment by a father or a mother, understanding abandonment in accordance with art. 23 of the Special Adoption Law, which establishes that “Abandonment of a child or adolescent shall be understood as the lack of physical and emotional protection that affects their integral development, by action or omission on the part of their parents and other relatives (…)”, and in turn making a normative integration with art. 64: Law Grow Together for the Integral Protection of Early Childhood, Children, and Adolescents, which establishes abandonment as mistreatment, defining it as “any action or omission that causes or may cause pain, suffering, or harm to the physical, psychological, moral, or sexual integrity or health of a child or adolescent, by any person, including their mothers, fathers or other relatives, educators, and caregivers, regardless of the means.”

It is worth mentioning that both articles are also applicable in adult situations, solely to have a concept of abandonment.

The main reason for invoking, within the procedure to achieve the change of name and/or surname, is the Right to Dignity that the applicant has, and the three facets it entails, namely:

    • As autonomy or the possibility of designing a life plan and determining oneself according to one’s characteristics (living as one wishes).
    • Certain concrete conditions of existence (living well).
    • Intangibility of non-property assets, physical integrity, and moral integrity (living without humiliations).

In other words, for the request to be successful, the abandonment must have caused such damage that sharing a name and/or surname that links the individual to the father or mother makes it impossible for them to live according to the three aforementioned facets, a situation that must be proven before the competent court handling the proceedings.

Lastly, it is necessary to clarify that, concerning the change of surname, this does not result in a displacement or challenge of paternity and/or maternity, as our Family Code strongly adheres to “the biological”, but it does lead to a channeling towards an identity that allows the individual to live as they wish, live well, and live without humiliations, and to opt for a birth certificate and identification documents that provide certainty of said identity.