Namibian judge delivers landmark ruling on gay rights and the rights of a child born of gay parents

22 October 2021 · Carmel Rickard

The case involves a same-sex couple where only one of the couple is a Namibian. They have had a child by surrogacy, and now applied for the child to be granted Namibian citizenship by descent. The minister of home affairs and immigration objected, saying there should first be a paternity test to establish whether the biological father was in fact the Namibian man rather than his partner. Now the court has found against the minister, saying there is no requirement in law for a ‘biological link’ between child and parent. The judge also used the opportunity to speak strongly against official discrimination saying it was unconstitutional and should not be allowed to flourish.

Read the judgment

The judge who decided this case, Thomas Masuku, was clear about the significance of the matter. In the first paragraph he wrote that sometimes society throws up a cluster of unprecedented situations that challenge the court to ‘extend the reaches of the law’. This sometimes happened with ‘ground-breaking decisions’ that required charting a new legal course. ‘This case is no different,’ he said.

It concerns a child born in South Africa through a surrogacy agreement, whose parents now want to ensure his Namibian citizenship on the basis of descent.

Namibia’s minister of home affairs and immigration had other ideas, however, and asked that the application be rejected.

Eligible

Instead, the minister applied for the court to order that the parent who had brought the initial case, be tested, with the child, to be sure who really was the father. That is because the father is in a gay relationship, and is in fact married in terms of SA laws, to his same-sex partner who is not a Namibian.

According to the minister’s reasoning, if it turned out that the non-Namibian parent was the biological father, then the child would not be eligible for citizenship by descent.

The child was born to the surrogate mother in a hospital in SA where he was issued with a birth certificate by the SA authorities in terms of which the Namibian man is recorded as being the ‘parent’.

Surrogacy

Once back home, the Namibian parent applied for the child to be granted citizenship based on the fact that he is a Namibian, but the minister did not agree, saying there first had to be a paternity test, something that the father refused.

According to the father, there was no dispute about the child’s birth certificate or about the father's own standing as a citizen. He also produced an order of the SA high court confirming the surrogacy arrangements and declaring that the children born of the arrangement would be children of the couple.

The Namibian man argued that the minister’s attitude violated the child’s right to equality, the right not to be discriminated against and the right to dignity.

Uncertainty

The minister said it was in the interests of the child to have the paternity test and that the court ought to remove any uncertainty about the question by ordering the test.

Judge Masuku found that the child met the requirements of the constitution to be granted citizenship. The constitution itself had no reference to biology or genetics and if the minister’s position were to prevail it could have dire, unintended consequences for many Namibian parents applying for a child’s citizenship by descent.

The minister’s approach would mean that children adopted outside Namibia by Namibian citizens ‘would not be entitled to citizenship by descent’. Similarly, children conceived and born outside Namibia to a single Namibian parent via in vitro fertilisation, with double donation, would also be excluded.

Endorsement

‘I am of the considered opinion that the constitution requires the father or mother to be a Namibian citizen.’ It would also be contrary to the principle of comity of states if the court were to ‘indulge’ the minister and agree to a challenge against the child’s birth certificate ‘which obtained judicial endorsement’.

‘Namibian courts do recognise judgments and orders issued by foreign courts and SA is one of those states.’

He added that the law had to keep up with the advancement of medicine and technology.

Conception

As to the minister’s counter-application, there was no dispute between the couple about who was the biological father that ‘caused the conception’ and it was not clear why it should be regarded as in the ‘best interests’ of the child for the minister to take the position he has.

In fact, said the judge, ‘it is in the child’s best interests to live with his parents and … take up citizenship … by descent.’

It was ‘improper’ for the minister to create a dispute and friction within the child’s family where these problems did not exist. While it might be a matter of interest for the minister to know who fathered the child, but that did not mean that it was in the child’s best interests. The judge also pointed out that the law did not require a ‘biological link’ between the parent and the child.

Compelling

No compelling case had been made out by the minister to justify interfering with the rights of the partners and the child by insisting on a paternity test.

The circumstances of the child’s birth had caused the minister’s attitude; had he been born, even in a surrogacy arrangement, to a heterosexual couple, said the judge, the issues raised by the minister would not have arisen.

Judge Masuku then moved to a broader question: discrimination.

Discrimination

While this case is about whether a child, born after a surrogacy arrangement, should be granted Namibian citizenship by descent, it is actually about much more than this single issue and what should happen to the child. It was also about discrimination and equality, against the background that Namibia’s constitution provides for the right not to be discriminated against.

As Judge Masuku saw the matter, what really lies behind the government’s response in the case was discrimination.

Secular state

‘I cannot help but note that the insidious attitude of discrimination appears to rear its ugly head …. It must be chopped off, even ruthlessly, because it does not resonate with the vision of the Founding Mothers and Fathers of this Nation, who conceived Namibia as among others, to be a secular state, founded on the rule of law and justice for all.

‘I may add,’ notes the judge, ‘that the “for all” applies to all people in Namibia, regardless of colour, gender, sexual orientation etc’.

In conclusion, the judge declared the child a citizen by descent and gave the minister 30 days to issue the child with a certificate of citizenship. He dismissed the minister’s counter-application and ordered the minister to pay the legal costs.

Collide

It’s a highly significant judgment, already hailed as likely to be persuasive in matters involving equality rights.

And it is written in the style and with the strong imagery that is typical of Judge Masuku. For example, in the second paragraph of his decision he writes that, in his experience, law and justice do not always ‘collide’.

‘They may live in the same yard, but certainly in different houses. The main quest for the court must be to bring both the law and justice to live together under one roof, if not in the same room.

Convivial

‘It is in that convivial atmosphere that the full and effectual enjoyment of the rights and freedoms according to citizens and other people by the supreme law of the land thrives.’

This may not be the end of the road for the dispute as it is expected that the minister will appeal to the supreme court.

Carmel Rickard

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