Dad’s struggle to have daughter’s birth registered
Lawyer Wesley Hayes has hit a brick wall trying to register his daughter’s birth after she was born through a surrogate
BECOMING a dad is one of the best things ever to have happened to him – he’d always wanted to have a family of his own and refused to believe not having a partner should kill his dream. So Wesley Hayes from Komani, formerly Queenstown, in the Eastern Cape turned to a surrogate and now has a beautiful baby girl in his life.
But nearly a year after little Justine arrived, Wesley, who’s a lawyer, is still unable to register her birth with the department of home affairs – and without registration she basically has no identity.
The Births and Deaths Registration Act (BDRA) makes no provision for an unmarried father to register the birth of his child without the child’s mother being present.
Without a registration certificate, Justine isn’t recognised under South
African law as a legal person. Until registered, she won’t be able to enrol in school and receive social assistance or medical aid cover. Now, Wesley (41) has turned to the courts to overturn the law.
“My daughter’s rights to nationality, to having a name, have been infringed and my rights as a male have been infringed,” he tells YOU.
Last month the single dad approached the court for help. Wesley wants an urgent court order directing home affairs to register Justine’s birth. And in a groundbreaking move, he’s also approaching the highest court of the land – the Constitutional Court – to challenge the BDRA and declare sections of it unconstitutional.
“The BDRA has not followed the Children’s Act, which has developed considerably in the past couple of years. It has to be amended,” Wesley says.
Under the act, a woman who conceives and delivers a baby (including via surrogacy) can register the child’s birth without a father – but single dads can’t do so.
Family law expert Professor Billy Gundelfinger says Wesley should win the case as the act is unconstitutional. “It doesn’t speak of single fathers of surrogacy and the application needs to compel the department of home affairs to register the baby.”
But until then, the little girl’s future is in limbo.
WESLEY’S quest for fatherhood took all of five years. After giving it much thought, he approached a fertility clinic in Stellenbosch six years ago to help him find a surrogate to carry his child.
He researched the Children’s Act, which allows single fathers to use a surrogate, but admits he didn’t study the BDRA – he simply never thought registering his baby would be an issue.
After going through an extensive consultation, including medical and psychological evaluations, the clinic did semen and blood analyses to match Wesley with donors. Once he’d selected a donor, the clinic artificially fertilised the donor eggs with his sperm to form embryos.
The next step was to find a surrogate to carry the embryo – which Wesley says was the toughest part of the process. “It was just disappointment after disappointment – I was at a point where I almost gave up,” he recalls.
After eight attempts, he found a surrogate through his personal assistant, who’d advertised his request on social
‘My daughter’s rights to nationality, to having a name, have been infringed and my rights as a male have been infringed’
media. When he met the surrogate, they got on like a house on fire. “She told me she had always wanted to give someone the gift of having a child,” says Wesley, who prefers to keep the surrogate’s identity private.
After the surrogate had completed her medical and psychological evaluations, she and Wesley signed a surrogacy agreement in August 2019, which was confirmed and made an Order of the High Court.
He was thrilled to hear she was pregnant soon after. “I was really lucky it took the first time,” he says.
Wesley was supportive throughout the pregnancy and kept in touch with the woman. Everything seemed to be going well, but just before the baby was born the surrogate mother started bleeding and had to be rushed to hospital.
“I was terribly worried,” says Wesley, who was with the woman when she was admitted to hospital.
His fear turned to joy when his baby was born in June 2020, weighing 2,7kg.
“I just couldn’t believe it. I was finally a dad.”
WESLEY fell in love the minute he laid eyes on his tiny daughter. He named her Justine, after his mother. “I remember I took off my shirt and sat in a chair as they put little Justine on my chest,” he says. “I sat there for what seemed like ages, just crying because of the emotional journey of it all.”
Today little Justine is a happy eightmonth-old baby who has her dad wrapped around her chubby little finger. Wesley’s parents, who live with him on his farm near Komani, are helping to raise her while he works at his private practice outside town.
“My family and friends absolutely adore her,” he says. “Justine is just the sweetest and easiest baby.”
Gazing at his little girl, he still can’t believe his luck. Wesley says he’s overwhelmed by everyone who made his dream come true – from his supportive parents and friends, to the surrogate mother and Bezile Langa, the doctor who delivered Justine.
“There are no words to fully express how grateful I am for this gift.”
Having wanted a child so badly, Wesley now wants to do everything in his power to ensure his daughter has a bright future. The first step is to ensure she’s registered by home affairs.
According to the department’s manager in the Eastern Cape, Gcinile Mabulu, home affairs is looking into the matter. Mabulu admits the department was negligent in dealing with Wesley’s application to register his child.
“The official who served the client thought it was complex and failed to escalate the request to the supervisors, and ultimately to the acting director, to adjudicate on,” Mabulu tells YOU.
“The official simply dismissed the client as something that’s not doable within our regulations.”
Wesley’s case is now being handled by the department’s legal services unit, he adds.
Still, the new dad wants the constitutional court to change the law and recognise the rights of single dads. “There’s this unwritten rule that men can’t be single parents,” he says.
“But a man’s right to be a single parent is as important as a woman’s right to be a single parent – and it shouldn’t be frowned upon.”