Big win for parents of surrogate children
14 October 2021 | Justice
A two-year-old boy born via surrogacy to a Namibian citizen and his Mexican born husband has been declared a Namibian citizen by descent in a landmark judgment handed down on Wednesday.
The ruling by High Court judge Thomas Masuku also paves the way for citizenship to be granted to the boy’s infant twin sisters born earlier this year to Namibian Phillip Lühl and husband Guillermo Delgado.
Masuku said on Wednesday that Yona Delgado Lühl is “hereby declared to be a Namibian citizen by descent”, and ordered the home affairs ministry to issue his citizenship papers within 30 days. The judge also ordered the ministry to pay the costs of the legal proceedings.
Masuku will hand down the full reasons for his decision next week.
“This is a big win for same sex couples and especially a big win for children born outside Namibia to Namibian citizens by way of surrogacy,” the Delgado Lühl’s lawyer Uno katjipuka-Sibolile said yesterday. “The twins are in the same situation, so this judgment would apply to them, and the ministry would have to issue citizenship by descent certificates to them as well.”
Lühl said the judgment was a great relief, but not the end of their battle to be allowed to live in Namibia as a family.
On Monday the couple attended a Supreme Court appeal hearing, in which Delgado’s domicile status is being fought for.
Nevertheless, the judgment was a welcome moment in the family’s more than two year long struggle to obtain legal citizenship status for their three children.
“This is really something that we needed to continue believing in the law and our constitution in this country that actually provides for equality and non-discrimination. I think this was really a step in this direction,” he said.
Delgado said the judgment is a step towards making the family “feel more at home”.
Yona Delgado Lühl was born via surrogacy in March 2019 in South Africa, and his sisters Paula and Maya in March this year.
All three have been stateless since their birth, due to the home affairs ministry’s stance that the children, despite legitimate birth documents, are not entitled to Namibian citizenship without Lühl proving his paternity via DNA tests.
All three were issued authentic South African birth certificates, and court orders, identifying Lühl and Delgado as their legitimate parents, upon their birth.
The home affairs ministry’s two-month refusal to allow the twins to return home drew widespread national and international attention.
In April, an urgent application brought by the family to compel the ministry to allow the twins to return home, failed. At the time, Masuku, who presided over the case, said it would be “judicial overreach” to intervene with the home affairs ministry’s decision.
In late May, the ministry relented and issued once-off travel papers that allowed the family to bring the twins back to Namibia.
The judgment delivered yesterday stems back to a High Court application lodged by the family in 2019, after the ministry refused to grant Yona citizenship.
During arguments, the state alleged that the insistence that Lühl undergo a DNA test to prove paternity, despite legitimate birth certificates, was not discriminatory as alleged by the applicants.
However, the Delgado Lühl’s argued that the ministry would not require a paternity test if the child had been born to heterosexual parents who had been issued legitimate birth certificates in South Africa.
“Today is a good day to be Namibian, a good day to be a young queer Namibian and a good day to be a born-free Namibian,” Omar van Reenen of the Namibia Equal Rights Movement said after the judgment. “This is what being born-free looks like, and this is what the liberators fought for, for a country that no longer holds people chained to the shackles of discrimination,” he said.
Ndiilokelwa Nthengwe, an intersectional gender justice advocate from Positive Vibes Trust, said the judgment was precedent setting. “This is a precedent for the future of Namibia, for the future family of Namibia, for future same-sex couples of Namibia, and people of diversity for Namibia.”
She said the judgment “upholds the dignity of individuals from different gender groups, from different relationship groups”.
She said the fight is not over though, and Namibians will continue to protest against discrimination and inequality, and put pressure on stakeholders to uphold the constitutional rights of all.