Family’s future in court’s hands

JANA-MARI SMITH

WINDHOEK

High Court Judge Thomas Masuku will today deliver judgment in a landmark ruling on whether Namibia’s home affairs ministry must grant Namibian citizenship to a two-year old child born via surrogacy to a Namibian citizen.

Yona Delgado Lühl, born in March 2021 via surrogacy to Namibian citizen Phillip Lühl and husband Guillermo Delgado, has been denied citizenship by Namibia’s authorities since his birth more than two years ago.

His twin sisters, Maya and Paula, also remain stateless since their birth in March this year. Today’s court ruling will determine their chances of being granted citizenship.

The infants were banned from entering Namibia for more than two months by Namibia’s home affairs ministry, which eventually relented in May, issuing one-off entry visas allowing them to travel home.

Namibian authorities have refused to grant the three children citizenship by descent, despite authentic South African birth certificates and South African high court orders identifying the Delgado-Lühls as their legitimate parents.

Unomwinjo Katjipuka-Sibolile yesterday said in essence the case deals with children born to Namibian parents abroad, and raises three important questions for the court to answer.

“Whether the constitution is to be interpreted narrowly, allowing only for ‘traditional families’ with a biological link to the Namibian parent, thus denying adopted children and children born via surrogacy or in-vitro (with both sperm and egg donated), even if born to heterosexual couples, the constitutional right to citizenship.”

Deny a child a parent

Also, whether Namibia’s immigration authorities can dismiss valid South African birth documents, and whether the home affairs ministry can legally dispute parentage despite legal documents attesting otherwise.

In an affidavit submitted to court by then home affairs minister Frans Kapofi, dated February 2020, after Lühl brought a case to compel the ministry to accept his son’s citizenship by descent, the minster dismissed the South African birth certificate as proof of the boy’s legal parentage.

“I deny that the applicant (Lühl) is the father of the child in question as I still require conclusive proof of this allegation.”

He also denied that Lühl was Yona’s parent.

Kapofi argued that in Namibia, children would only be granted citizenship by descent “if he is a child of a Namibian citizen at the time of birth.”

State homophobia

This argument has been disputed by legal experts in Namibia.

In April, the Legal Assistance Centre (LAC) explained “since Namibia lacks a legal framework for surrogacy, heterosexual couples resident in Namibia have similarly gone to South Africa to make surrogacy arrangements – without any difficulties in bringing their children home to Namibia.”

The LAC noted that Namibia has also granted citizenship to children who were born via artificial insemination, even if both the egg and sperm were donated.

The LAC further pointed out that in cases of adoption, locally or in foreign countries, Namibian citizens have not had to provide proof of a genetic link to be granted citizenship for their children.

Many have pointed out that home affairs’ attitude towards the Delgado-Lühl family is homophobic.

“If Phillip and Guillermo had been partners of opposite sexes instead of partners of the same sex, no one would ever have questioned the twins’ birth certificate or asked for a DNA test,” the LAC noted.

Exile

Today’s ruling could determine the family’s future, with Lühl earlier this year noting that their worst fear is having to self-exile due to the government’s refusal to acknowledge them as a legitimate family unit.

Katjipuka-Sibolile, in arguments submitted to court, said that at the core of the case is the “notion of the inherent dignity and the equal and inalienable rights of all members of the human family.”

She urged Judge Thomas Masuku to consider the constitutional and human rights of the children.