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Home affairs to appeal surrogacy citizenship judgement

2021-11-08  Maria Sheya

Home affairs to appeal surrogacy citizenship judgement

The home affairs ministry will appeal a recent High Court ruling which declared the son of a same-sex couple born via surrogacy a Namibian citizen by descent in the Supreme Court. 

“After studying the said reasons, we have decided to appeal the ruling of the High Court and an appeal was noted in the Supreme Court today, setting out the reasons for our belief that the High Court erred in law and fact,” executive director Etienne Maritz said in a statement on Friday. 

On 13 October, Judge Thomas Masuku declared the firstborn son of Namibian citizen Phillip Lühl and partner Guillermo Delgado, who hails from Mexico, a Namibian by descent. He ordered that the ministry issues the minor with a Namibian citizenship certificate by descent within 30 days from the ruling. 

The court dismissed the counter-application by the ministry to subject Lühl to a DNA test to prove the child’s paternity. The court further ordered that the ministry should pay Lühl’s legal costs in the matter. 

In his ruling, Masuku said there is no reference in the constitution for the requirement of genetics in matters of citizenship by descent. 

“If the respondent’s (the ministry) position is accepted, children adopted outside Namibia by Namibian citizens would not be entitled to citizenship by descent, which would be anomalous,” explained Masuku. 

He further stated that it is in the best interest of the minor child to live with his parents and take up citizenship of the parent by descent. 

“Had the child been born pursuant to a surrogacy agreement to a heterosexual couple, the respondent (the ministry) would not have required the applicant to undergo DNA tests to prove the paternity of the child,” the judge added.

The landmark ruling follows after Lühl lodged a case in which he asked the High Court to declare his son a Namibian citizen. Former minister of home affairs Frans Kapofi asked the court to order that Lühl should have a DNA test done to prove he is the biological father of his and Delgado’s son.

2021-11-08  Maria Sheya

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