Choosing a surname for your baby

A person’s name represents their identity. The act of choosing a name for your baby is a very personal decision. Who has the right to choose the name?

The right to choose a surname for your child is a constitutionally protected right. See O’Brien v. Tilson, 523 F. Supp. 494 (E.D.N.C. 1981); Jech v. Burch, 466 F.Supp. 714 (D.Hawaii 1979). In O’Brien, the Federal Court struck down a North Carolina State law setting out naming requirements that conflicted with the desires of the parents to conform with Swedish and Spanish customs. In the O’Brien case, both parents agreed with the proposed surname of the child and were able to select the surname of their choice — even though at that time, NC required the father’s name be used.

When parents can’t agree, North Carolina statute specifies the naming requirements for a newborn. See N.C. Gen. Stat. §130A-101. It is possible that this current statute is also unconstitutional as overly restricting the parents naming choices, this has not yet been tested in the courts. The Statute provides that:

If the parents are married at the time of conception or birth, the child’s surname must be the same as the husband unless the husband, mother (and father if paternity is determined to be a man other than the husband) agree otherwise. If the parents are not married and the putative father’s name is entered on the birth certificate, the surname is determined by the parents if they can agree and if they cannot agree, the surname is that of the mother. If the parents are not married and the father’s name is not on the birth certificate, the mother chooses the surname for the child.

In summary, if the parent’s agree, they can choose any surname they want. If the parents can’t agree and they are married, the child gets dad’s surname and if unmarried, the child gets mom’s surname.