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Surrogate parents win landmark citizenship case

2021-10-14  Roland Routh

Surrogate parents win landmark citizenship case
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Roland Routh

The Windhoek High Court yesterday gave hope to the Namibian LGBTQ+ community when it ruled in favour of a same-sex couple in an application for citizenship for their surrogate son born in South Africa.

Scenes of jubilation erupted and hugs were shared all around when Windhoek High Court Judge Thomas Masuku announced his ruling. He, however, said that the reasons for his decision would only be available on 19 October.

After the ministry of home affairs refused to grant Yona, the firstborn son of Phillip Lühl and Guillermo Delgado – who are in a same-sex marriage – citizenship by descent as Lühl is a Namibian by birth, he took the ministry to court. The ministry countered, arguing that Lühl and the boy must be subjected to a paternity test. Judge Masuku rejected the ministry’s counter-claim, and ordered them to issue Yona with a certificate of Namibian citizenship by descent within 30 days.

The judge also ordered the ministry to pay the legal costs of the application. This now opens the way for the couple’s twins, also born through a surrogate in South Africa this year, to be issued with citizenship documents as well. An elated Lühl and Delgado said after the ruling that it is a victory for all right-thinking Namibians.

“This is definitely a step in the right direction”, Lühl beamed. Delgado added that it will make them feel more at home in Namibia. Adding their voice to the issue was the Namibia Equal Rights Movement, who issued a press statement shortly after the ruling that “it is a historic moment for the LGBTQ+ community”.

“It is disheartening that public policy, in the form of State-sanctioned homophobia, has been abused by the ministry to infringe on the fundamental rights and liberties of ‘queer Namibians’, enshrined in our Constitution. Namibians are not immune to the horrors of discrimination. Our past has been defined by a time when the State policed free love, solely on the basis of one’s sexuality. But today, equality under the law prevailed. This is a significant day for our democracy. To be born free is to be emancipated from the shackles of discrimination and oppression. There is no freedom in an independent Namibia if there is no equality, and the liberties fought for during the struggle extend to all Namibians – not only heterosexual persons”, they stressed.

They went on to say that LGBTQ+ civil rights is the civil rights issue of this generation, and a human rights issue which disproportionately affects the youth of Namibia,  and children should never become collateral for any government’s “State-sanctioned homophobic” policies.

The movement is also proud of Namibia’s courts for upholding equality and the right of children not to be discriminated against on the basis of their parents’ social status, and trust the ministry will do the right thing and not abuse taxpayers’ funds to appeal the ruling.

The ministry of home affairs late yesterday issued a statement, saying the order was not accompanied by reasons. “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 course of action will be taken within the parameters permitted by law,” read the statement from the ministry’s executive director Etienne Maritz, who called for patience.

Uno-Katjipuka-Sibolile, who represented Lühl, also rejoiced in the outcome of the case, calling it a victory for democracy.

“Democracy prevailed today,” she said shortly after the verdict. She added that she was confident that the court would rule in their favour as the Constitution demands equality for all. In her arguments before court, she said the notion of inherent dignity and the equal and inalienable rights of all members of the human family lie at the very core of this case, and yesterday said the ruling is a clear indication that the court believes this.

The ministry was represented by government attorney Janseline Gawises.

2021-10-14  Roland Routh

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