Johannesburg - A single father of a child born via surrogacy has launched proceedings to have legislation amended to allow him to register the birth of his daughter.
The father of “Baby J” wanted the Births and Deaths Registration Act (BDRA) declared unconstitutional “insofar as it is inconsistent with the Constitution in failing to regulate the births of children born by surrogacy to single fathers”.
He deposed a notice last week that the application will be brought in the Eastern Cape High Court in Grahamstown.
He maintained that legislation should recognise that his daughter was a child born of surrogacy, and not sexual intercourse between a heterosexual couple.
The notice cited the minister and director-general of Home Affairs as well as the manager of the department’s Queenstown branch as respondents.
Enacted into law in 1992, BDRA only concerned itself with the registration of birth of children born either inor out-of-wedlock, the father’s notice noted.
It was silent on obtaining birth certificates of children born by surrogacy, he said.
On the other hand, there was an issue in the country of fathers being unable to register childbirth without the mothers.
“It is clear, from the wording of section 10 of the BDRA, that (the act) does not empower an unmarried father to register the birth of his child in the absence of the child’s mother,” said Baby J’s father.
“This court has already established this interpretation in the Naki case.”
The Naki case referred to the matter concerning Menzile Lawrence Naki, a South African soldier who struggled to register his child’s birth under his surname.
Home Affairs first refused to register Naki’s childbirth on grounds that the mother was an undocumented Democratic Republic of Congo national. It would also not allow him to register the birth without the mother.
Ruling in the Naki case last May, the Eastern Cape High Court declared the BDRA invalid and inconsistent insofar as it did not allow unmarried fathers to register the birth of their children, in the absence of the mothers. The judgment in the Naki case was still to be confirmed by the Constitutional Court, meaning fathers were still unable to register births.
Baby J’s father appeared to fear that a gap would still exist in the BDRA if it still did not mention children born from surrogacy.
“The purpose of this application is to establish that there is a further lacuna in the BDRA in that it does not contemplate children born of surrogacy,” said his notice.
“The applicant respectfully submits that section 10 of the BDRA – in regulating the registration of children ‘born out of wedlock’ fails to capture the true nature of the surrogacy arrangement.
“In the applicant’s respectful submission, either section 10 must be amended by the legislature to include a birth by surrogacy, or that another section entirely be inserted by the legislature to cater for the registration of birth by means of surrogacy,” he added.