Namibia: Surrogate Child's Citizenship Judgement On Ice

5 August 2021

The High Court yesterday postponed a ruling for a case in which Phillip Lühl, a Namibian citizen, is seeking citizenship for his son, born via surrogacy in South Africa in 2019.

Judge Thomas Masuku said due to the just-ended lockdown, which was necessitated to mitigate the spread of Covid-19, the judgement was not ready. The court indicated the judgement will be delivered on 13 October.

In this landmark ruling, Masuku is expected to make a ruling on whether the Namibian Constitution requires a biological link between a Namibian parent and a child before the child qualifies for citizenship by descent.

Furthermore, to rule if the minister of home affairs and immigration was right not to recognise a South African birth certificate, consequently refusing to issue two-year-old Yona Delgado Lühl a Namibian citizenship by descent.

In November 2019, Lühl approached the High Court, seeking an order, declaring Yona as a Namibian citizen by descent after the home affairs ministry turned down the application.

Lühl, through his lawyer Uno Katjipuka-Sibolile, said despite Lühl being in a same-sex marriage, which is recognised in South Africa, and Yona being born by way of surrogacy, he is a Namibian citizen by birth and a father to Yona, which entitles Yona to citizenship by descent. It is her argument that Yona has all the requirements needed to be issued with citizenship.

"The respondent's (home affairs) objection to recognising Yona's Namibian citizenship by descent is grounded in the respondent's assertion that there must be a biological link between Yona and the applicant, failing which the applicant cannot be regarded as Yona's father and Yona does not qualify for citizenship by descent," said Katjipuka-Sibolile in the heads of arguments.

Home affairs' position, according to Katjipuka-Sibolile, would close the door on adopted children born outside Namibia, children conceived and born outside the country to a single Namibian parent through in vitro fertilisation using a double donation, and children conceived and born outside Namibia to a heterosexual couple through in vitro fertilisation using a double donation.

Home affairs, through their lawyer Jabulani Ncube, said Lühl has not proven that he is biologically related to the minor.

Thus, they brought a counter application, seeking an order that would compel Lühl to undertake a DNA test to establish the paternity of the minor child.

"I would suffice that the applicant subjects himself to the test to avoid a situation where a non-Namibian citizen is granted citizenship, where two parties in a same-sex relationship claim to have sired the minor through a surrogate. In casu, they are both silent on such a salient issue, which is the fulcrum of the matter," said Ncube.

Subjecting Lühl to a DNA test is not discriminating, as there is uncertainty to who Yona's biological father is, and such determination would help the minor attain citizenship easily, said Ncube.

In April, the High Court refused to grant an order that would compel home affairs to grant emergency travel documents to Lühl and Guillermo Delgado's infant twins, also born via surrogate, enabling them to travel from South Africa to Namibia.

However, in May, the Namibian authorities issued emergency travel documents to the babies.

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