FOR almost three years, Namibian citizen Phillip Lühl and his Mexican husband, Guillermo Delgado, have been fighting to secure the Namibian citizenship of their son, who was born through surrogacy.
On Monday, their case will be heard in the Supreme Court, as the couple continues to seek citizenship for their son, and in principle also for their twin daughters, who were born through surrogacy as well.
In 2021, a ruling in the High Court declared that the couple's first-born child should be granted citizenship by descent.
The ruling also dismissed an application by the Ministry of Home Affairs, Immigration, Safety and Security to subject Lühl and the couple's son to a DNA test to prove Lühl is the boy's father.
It is against this judgement that the ministry has filed an appeal in the Supreme Court.
In the High Court's decision, judge Thomas Masuku held that "had the child been born pursuant to a surrogacy agreement to a heterosexual couple, the [ministry] would not have required [Lühl] to undergo DNA tests to prove the paternity of the child".
It is on these grounds that he said the ministry's actions were discriminatory.
"My parentage is being disputed by home affairs, because we didn't provide them with DNA proof that I'm the biological father," Lühl says.
As a non-Namibian, Delgado has also been in a tug of war with the Namibian government to stay in the country - a right he would be afforded as a spouse to a Namibian citizen if his marriage to Lühl was recognised by the government.
Lühl and Delgado's case becomes only more complicated as Delgado's immigration status and the children's Mexican citizenship entwine with the pending battle for their Namibian citizenship.
"We travelled in December to Mexico to finally meet the family, and we needed travel documents. For us to be able to get out of Namibia and come back in with the kids we had to apply for temporary residence permits for the children," Lühl says.
While the children are no longer stateless, having received citizenship by descent in Mexico, Lühl says the principle remains to establish Namibian citizenship by descent as well.
"It is really a principle issue we are trying to test here, which is whether parental rights for same-sex couples are guaranteed," he says.
WORK PERMIT ISSUE
As the family continues to fight for their children's Namibian citizenship by descent, they are now plagued by an additional layer of uncertainty, with Delgado's ability to stay in the country remaining unclear.
His current work permit expires in April.
His fight with the government for spousal immigration rights has been ongoing, and culminated in a Supreme Court judgement last year, in which the court ruled that the home affairs and immigration ministry must reconsider his application for residence rights in Namibia.
Delgado says that, aside from the acknowledgement that he was treated unfairly and that the ministry acted unprocedurally and unlawfully, nothing has come of the matter since the Supreme Court's judgement.
"We remain in doubt," he says.
"It's not about just remaining [in the country], but being able to work, being able to go out and come back again and to just have an ordinary life," he says.
Delgado has applied for permanent residency on three separate occasions.
The first two applications were refused, and the third is currently pending.
With the children's citizenship tethered to Delgado's immigration status, he is nervous about the outcome of the Supreme Court hearing and how that would affect the family's ability to stay together.
An unfavourable outcome in the case would mean that Delgado and the children would not be able to stay in Namibia.
"The kids and I would have to leave the country, because our permit has expired, and Phillip, who is a citizen, can stay in the country.
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"It boils down to not being recognised as a family, and this would boil down to the separation of a family," Delgado says.
VIOLATION OF RIGHTS
Speaking to The Namibian on the matter, Legal Assistance Centre lawyer Dianne Hubbard says the couple's case demonstrates an infringement of the constitutional promise to protect the family.
"Their rights to privacy, liberty and dignity are compromised by this situation," she says.
Equal Namibia co-founder Omar van Reenen says this case and another LGBTQI+ case to be heard in the Supreme Court will serve as a litmus test for how true the promise of equality and freedom is in Namibia.
"Through state-sanctioned homophobia, certain government officials have promoted the stigmatisation of our community, while also fanning the flames of hate, violence and discrimination experienced by LGBTQI+ persons," he states.
The home affairs ministry declined to comment on the matter as it is sub judice.
