By 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.
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.