Same-sex couple fight for children born via SA surrogacy to be granted citizenship in Namibia

The predicament faced by the same-sex couple began after their son was born in 2019 via a surrogate in SA. Stock image.
The predicament faced by the same-sex couple began after their son was born in 2019 via a surrogate in SA. Stock image.
Image: 123RF / Prometeus

When Namibian Phillip Lühl and his Mexican husband Guillermo Delgado decided to start a family, they did not realise how difficult it would be.

The same-sex couple are battling to obtain Namibian citizenship for their two-year-old son while their one-month-old twin daughters are stuck in SA because Namibian authorities want Lühl to show genetic proof he is the father before providing them with travel documents.

Lühl said that while the couple, who were married in SA, never experienced discrimination in Namibia, their predicament began after their son was born in 2019 via a surrogate in SA.

“That was the moment when things started to get complicated,” Lühl told Reuters.

We applied for citizenship but were told he can only get citizenship if we can prove a genetic link to myself as a Namibian father.
Phillip Lühl

“We applied for citizenship but were told he can only get citizenship if we can prove a genetic link to myself as a Namibian father.

“We rejected the notion that a genetic link or DNA test will prove my parentage,” he said, adding there was no basis in Namibian law nor in the constitution that parentage is defined by a genetic link.

“We rejected that because of the fact that one of us has to have a genetic link. It doesn’t mean one of us is a parent. We are both parents legally.”

While the South African surrogacy process requires a genetic link, Lühl argues that demanding such proof discriminates against the couple because they are both parents.

The matter was challenged in a Namibian court in November 2019 and is still pending.

Forward to the birth of the twins in March, again to a surrogate in SA, Lühl said he asked Namibian authorities for travel documents for the children to travel with him to Namibia,  where the family would await the outcome of the citizenship case that would also affect the twins’ status.

“To our surprise, that was rejected because they said these are not Namibian citizens,” said Lühl.

They again asked the court in Namibia to review the decision. The ruling is due on April 19.

Namibian home affairs minister Frans Kapofi could not immediately be reached for comment. He, however, was quoted in The Namibian newspaper last month as saying authorities needed proof the children “have Namibian blood in them”.

The family is separated, with Lühl and the twins in SA and Delgado in Namibia with their son.

The mere existence of the laws ... gives permission to discriminate. These are fundamental human rights violations.
Phillip Lühl

Namibia’s legal system does not recognise same-sex marriages. It has laws that criminalise sexual contact between males, but they are seldom enforced.

“What is not acknowledged is that the mere existence of the laws has impact. It gives permission to discriminate,” said Lühl. “These are fundamental human rights violations.”

He said the wait was frustrating. “Initially I was quite optimistic, but the longer this goes on, I am having doubts. The doubts are not so much that I think we don’t have a strong legal case and we don’t have a strong constitution that should protect our rights, but it has not been tested.”

The children also have a right to Mexican citizenship but the embassy responsible is in Pretoria and the son cannot travel from Namibia because he has no documents.

Reuters


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