Far-reaching implications of surrogacy ruling

28 October 2021 | Justice

Windhoek • [email protected]

Legal experts have praised a recent ruling handed down by High Court judge Thomas Masuku that has centred the rights of children over and above traditional views of family structures and conception.
“The court takes a very clear-eyed view of the best interests of the child, and emphasises that children cannot be discriminated against on the basis of the nature and circumstances of their birth, or the sexual orientation of their parents,” legal expert Dianne Hubbard of the Legal Assistance Centre said.
She said Judge Masuku’s judgment was “correctly child-focused”.
The ruling was handed down on 19 October, in the case revolving around the two-year refusal by home affairs to issue citizenship by descent documents to Namibian Phillip Lühl and his spouse’s son who was born via surrogacy in South Africa in March 2019.
Hubbard said while public attention of the case was focused on the parent’s same-sex relationship, one of the most critical aspects of the judgment was its “far-reaching consequences that citizenship by descent in terms of the Namibian constitution is not premised on a biological connection”.
The judgment helps protect the citizenship by descent rights for all adopted children, children born through artificial fertility procedures and children born via surrogacy to Namibians, she said.
Ingrid Husselmann, the children’s advocate at the Ombudsman’s office, said the court, as the upper guardian of all children, “correctly made an order to protect the rights of the child in this instance”.
She added that the judgment also highlighted problems arising from Namibia’s lack of a legal framework for surrogacy, and underlines the need for a comprehensive law to protect the rights of children born through non-traditional methods.

In an interview on Namibian Sun’s Evening review broadcast, Lühl’s spouse Guillermo Delgado, said the traditional view of family, constituting a woman, man and child, should make way for the reality of diverse family structures on the ground in Namibia.
“If one would take a snapshot of how families in Namibia actually are, you will find there are many constellations.”
He said the point of family is a “group of people that identify themselves as a unit of care, love and support, which is so needed.
“We are undergoing a crisis of gender-based violence, where you find the house is not always the safest place for some to be. Then you find other households where there is genuine care and love, and it's unfair to say that because of the composition of the family, they are not entitled to equal rights.”
Masuku’s ruling emphasised that the courts must take into consideration “unprecedented situations” that arise as societies progress and evolve.
He said courts are obliged to give an interpretation of the constitution that is “elastic, flexible and adaptive to changing norms, beliefs and practices in society”.

Masuku found that Namibia’s laws and constitution do not specify the need for a biological link between parent and child, in order to qualify for citizenship by descent. He found that the child’s legitimate birth certificate and a court order that recognised the surrogacy arrangement, was sufficient proof of Lühl’s status as a parent.
“If that were the position, children adopted by Namibian citizens outside the country may be refused citizenship by descent,” Masuku found.
He underlined that withholding certain rights and freedoms because the “law has not kept pace with the level of development” would be a travesty of justice.
The judge furthermore stated that Article 10 of the constitution, provides for equality for all persons before the law “regardless of colour, gender, sexual orientation etc.”
“The ministry’s curiosity should not be a basis for violating human rights, particularly those of a vulnerable child,” Masuku stated.

He underlined that had the child been born to a heterosexual couple, the application for citizenship papers would have been resolved “without further ado”.

The explicit inclusion of sexual orientation as a grounds for discrimination, was celebrated by equal justice advocates and hailed as significant by legal experts.
“The ministry asserted that it was not discriminating against the child and the child’s parents on the grounds of the parent’s sexual orientation. But clearly it was - and the court recognised this,” Hubbard said.
Herbert Jauch, a researcher at the economic and social justice trust said the judgement was important in terms of ensuring equality in a broader sense, including for same-sex couples.
“Judge Masuku has now reminded us all about the importance of extending the principles of non-discrimination to all.”

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