A Namibian father, whose newborn twin girls are stuck in South Africa, has accused his government of blatantly refusing to acknowledge a legal document issued by South Africa.
Dr Phillip Lühl and his Mexican husband, Guillermo Delgado, had the joy of the birth of their twin daughters marred by what they say is the Namibian government’s refusal to issue travel permits to the newborns.
Now Lühl, who arrived in SA on March 1, and the twins, who are six weeks old, are stuck in Joburg. Delgado and their two year-old son are in Namibia.
Namibian authorities want Lühl to show genetic proof he is the father before providing them with travel documents, but he argues there is neither a basis in Namibian law nor in the constitution that parentage is defined by genetic link.
"We rejected the notion that a genetic link or DNA test will prove my parentage. We rejected that because of the fact that one of us has to have a genetic link. It doesn't mean that one of us is a parent, we are both parents legally," he said.
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.
Thandeka Chauke, who heads the Statelessness Project Refugee and Migrant Rights Programme of Lawyers for Human Rights, said the SA government has done their part by ensuring the births have been registered and the twins have been issued birth certificates.
Chauke added that while the Namibian government has sole authority over the country’s borders and ports of entry and determines who is admitted entry and how, it is violating the twins’ constitutional rights to citizenship.
She stressed that the birth certificates of the children are prima facie evidence of their parentage and the requirement for DNA tests to prove parentage or biological link to their Namibian father is therefore “arbitrary”. And that, it is also important to question whether it is ethical or in the best interest of the children to compel the revelation of their biological parentage.
“The Namibian government’s refusal to recognise the twins as Namibian citizens (and therefore issue them with passports or travel documents) is in violation of the children’s constitutional rights to citizenship, dignity and family life. It further violates the children’s rights in terms of international human rights treaties like the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.
’’The Namibian government’s refusal to confirm their Namibian citizenship places them at risk of statelessness – since citizenship is linked to a range of other fundamental entitlements e.g. school, medical care, social assistance, freedom of movement etc.
’’Statelessness can have severe consequences for an affected child. Children should be treated equally regardless of manner of birth and no child deserves to suffer the indignity of an uncertain citizenship status due to arbitrary and discriminatory rules and policies,” Chauke said.
Lühl said that while the couple - married in South Africa - never experienced any discrimination in Namibia, their predicament began after their son was born in 2019 via a surrogate in South Africa.
The twins were born on March 13 also via surrogacy in South Africa. Home Affairs issued birth certificates for the girls listing Lühl and Delgado as parents A and B. The couple launched an urgent court application earlier this week, but it was denied.
“The judge said we had a strong case and it would be in the best interest of the children for the travel permits to be granted, but it would be judicial overreach for him to force the Namibian government to issue the permits.
’’The Namibian High Commission in Pretoria did however, inform us on Wednesday that they have accepted our application, and had started the process. But, we still don’t know whether that application will be successful,” said Lühl.
To add to the couples woes, Namibia has a new minister of Home Affairs. Lühl worries that this development may prolong the families separation. When their son was born they applied for citizenship, but that process is also still pending, and it’s hoped that application will be finalised in August.
“I think we are doing OK. We are fire-fighting every day. We have an amazing support structure in South Africa and in Namibia. The goal posts keep shifting.
’’The Namibian government is selectively not recognising a legally issued South African document,” said this frustrated husband and father, whose family has literally been split in half.
Spokesperson for the Department of International Relations and Cooperation (Dirco), Clayson Monyela, said they were unaware of Lühl’s situation and had not been approached for help.
“Namibia is a sovereign state and no state takes too kindly to interference. The South African government is limited in what we can do. This is not a Dirco matter,” he said.
Lühl said Namibia's legal system also does not recognise same-sex marriages. It has laws that criminalise sexual contact between males, but they are seldom, if ever enforced.
"What is not acknowledged is that the mere existence of the laws has an impact. It gives permission to discriminate. These are fundamental human rights violations," said Lühl.
Dr Lize Mills, senior lecturer in the Department of Private Law at Stellenbosch University, said Home Affairs in SA has fulfilled its duty to the twins.
”It would appear that the two men are indicated to be the fathers of the children or their birth certificates. This would imply that the South African Department of Home Affairs registered them as such, since a valid surrogacy agreement had been concluded and confirmed by the court.”
At the time of publishing, Saturday Star had not received comment from the Namibian High Commission in Pretoria.