HISTORIC VICTORY FOR SAME-SEX COUPLES
IN WHAT has been hailed as a victory for same-sex partnerships, a Namibian court has ruled in favour of a married couple, declaring that Dr Phillip Lühl and his Mexican husband, Guillermo Delgado's first-born child was a Namibian citizen by descent.
The couple's son was born through a surrogate pregnancy in South Africa in March 2019.
Although Lühl, born in Namibia, was reflected on the boy's birth certificate as one of his parents, the Namibian Home Affairs ministry had refused to acknowledge that his son was a citizen by descent.
Aggrieved by this the couple, whose newborn twin girls were stuck in South Africa, turned to court to challenge the government's decision.
They slammed the Namibian government for refusing to acknowledge a legal document issued by South Africa.
Lühl, who had arrived in SA on March 1, and the twins, were stuck in Joburg, according to a report in the Saturday Star earlier this year.
Authorities in Namibia wanted Lühl to show genetic proof he was the boy's father before providing them with travel documents.
He had argued there was neither a basis in Namibian law nor in the constitution that parentage was defined by genetic link.
They were vindicated yesterday when Windhoek High Court Judge Thomas Masuku declared the couple's son to be a Namibian citizen by descent, ordering the Minister of Home Affairs and Immigration to issue the child with a certificate of Namibian citizenship within 30 days.
“The courter-application launched by the Minister of Home Affairs and Immigration to compel the Applicant to submit to a DNA test, to prove the paternity of the minor child, is hereby dismissed. The respondent (government) is ordered to pay the costs of the application. The matter is removed from the roll and is regarded as finalised,” said Judge Masuku.
Speaking to the Cape Times, Lühl said the ruling finally confirmed what the Western Cape High Court had ordered; that from the day of birth, they were the parents of the children “for all intents and purposes”.
“It is a happy and emotional moment for us to have our son, and by implication his twin sisters recognised as our children, and them to receive Namibian citizenship by descent, regardless of their biological link to one of us. This sends a strong signal that the diversity of families is recognised and protected under our constitution, and as such becomes a stepping stone towards full LGBTQIA+ equality.
“The fact is that family is not a heteronormative construct, but the setting in which children can receive the love, care and protection they need to develop. This is what the constitution aims to support and protect. Coming out of apartheid and colonialism, both Namibia and South Africa have adopted strong constitutions that are based on the fundamental basis of human dignity and equality. We have the certainty of this bedrock, and while it is stressful to go through legal challenges I am ultimately convinced about our success in the long term. We could simply not accept the notion that only one of us with the biological link is the parent,” he said.
“It has made us question if Namibia is a conducive place to raise a queer family. This case, and the subsequent case of the Namibian Ministry of Home Affairs not allowing our new-born twins entry into the county in March/April this year, has disrupted our lives emotionally, has had immense financial implications and certainly keeps having repercussions for us on all levels, personally and professionally,” said Lühl.
The couple's lawyer, Uno Katjipuka-Sibolile said victory was not only for same-sex couples but for children born outside of Namibia to Namibian citizens by way of surrogacy.
“The son was born by way of surrogacy in South Africa. The South African authorities issued a birth certificate reflecting both as parents but the (Namibia) Home Affairs Ministry was resisting to issue citizenship by descent on the basis they are both males.”
Katjipuka-Sibolile explained that the judgment will also apply to the couple's twin babies who were also born by way of surrogacy in South Africa and struggled to have citizenship by descent certificates.
Namibia's Home affairs executive director Etienne Maritz said: “The Judge indicated that the reasons for the order
shall be delivered on October 19, 2021 and the same will be uploaded one-Justice.
“The Ministry is not in a position to comment on the order or make a pronouncement on the next course of action.
“Our next course of action will be informed by a careful study and appreciation of the reasons for the order and such a course of action will be taken within the parameters permitted by law. Cognisant that the matter has generated a lot of public interest, the next course of action will be made public. Up until then, we call for patience.”
Omar van Reenen, a co-founder of the Namibia Equal Rights Movement and a civil rights activist who has been supporting the family, said democracy and equality had prevailed.
“This is what the liberators fought for, a country and Republic that no longer holds people chained to the shackles of discrimination, state sanction and homophobia. Most importantly our democracy rang its bells in favour of equality. LGBTQ+ civil rights are the civil rights issue of our generation,” said Van Reenen.
The South Africa Home Affairs Ministry did not respond to questions by deadline.