Pretoria - The South African Human Rights Commission is challenging sections of the Birth and Death Registrations Act which allows the fathers of children born out of wedlock to decide whether they can be registered as the father and if the child can carry their surname.
The commission is taking on the plight of a 15-year-old girl, born out of wedlock, and assisted by her mother in the application.
Her father at first denied paternity and as the law now stands, only the mother’s name can be recorded on her birth certificate. DNA tests were later done and it was established that the man was indeed her biological father.
He paid maintenance for his daughter, but did not want anything to do with her and the girl was raised by her mother.
The mother said it was not that she wanted to register the man as the father or have her daughter carry his surname, but she would have liked the choice.
Chairman of the commission, Lawrence Mushwana, said in an affidavit filed at the Western Cape High Court, that the way in which these provisions dealt with the registration of children born out of wedlock, was unconstitutional. It requires the father’s consent and presence to be registered as a father – even if a paternity test confirms this. Nor can a child be registered with a surname other than the mother’s, unless the father consents.
Mushwana said not only did these provisions violate the children’s rights, it also discriminated unfairly on the grounds of gender, birth and marital status.
The commission wrote to Home Affairs about the situation, outlining that this teenager was born out of wedlock and that her father was recorded on her birth certificate as “unknown”. Mushwana pointed out that there were many other children in a similar position.
The department responded that if children were born out of wedlock, fathers had to acknowledge paternity in writing and in the presence of a Home Affairs official.
The father also had to submit an affidavit, stating his relationship with the mother and make it clear he was the father. This position remained, even if paternity was proved by the mother.
Mushwana said the provisions allowed a person who believed he is the father of the child, with the consent of the mother, to be recorded as the father, without a paternity test. The man claiming to be the father could turn to the court for permission to be recorded as the father, if the mother refused consent.
The mother, however, had no rights in this regard as she could not have the man registered as the father, even if paternity had been established.
In the case of children born in wedlock, both parents are recorded as parents. Mushwana said the mere fact that the parents were married was no proof that the husband was the father.
As the law now stands, the mother has no choice whether she wants to acknowledge and publicly record that she is the mother or not. Fathers, on the other hand, have a choice.
The unmarried mother is also forced to give her surname to the child, but the father can choose.
Mushwana said a name was important because it was a symbol of not only the child’s identity, but also for the responsibilities of the parents for the child’s existence and maintenance.”
The constitutional challenge will be heard by the Western Cape High Court on April 14 and 15.
Pretoria News