Boy born through surrogacy loses Namibian citezenship

The 4 year old boy, who became Namibian, following a judgment in the High Court 2 years ago, was born through surrogacy in South Africa. A five-judge bench of that Court has found that Phillip Luhl, who is the Namibian father of a child identified as YDL, should have registered his son at a Namibian diplomatic office in the country of birth for the child to claim that right.

Chief Justice Peter Shivute, Deputy Chief Justice Petrus Damaseb, Justices Sylvester Mainga, Dave Smuts and Theo Frank agree in the judgement delivered on 20 March 2023 that the child’s right to Namibian citizenship depended on his father doing that.

Evidence presented in the case shows that the boy’s parents are architects, who married each other and started living in South Africa in 2014. They then started living between Cape and Windhoek in Namibia from the following year and started the surrogacy process in 2017.

The Western Cape High Court recognised them as parents of YDL in November 2017.

The couple may have felt that their ordeal had ended after Judge Masuku granted their request and directed the Minister of Home Affairs and Immigration in Namibia to register YDL as Namibian by descent in October 2021. Judge Masuku found that the birth certificate naming Luhl, YDL’s Namibian father as his parent was sufficient to give him citizenship.

However, Chief Justice Shivute says Luhl should have registered YDL’s birth at a Namibian foreign mission in South Africa. He says the Citizenship Act of Namibia requires a parent wishing to claim the right of Namibian child by descend to register the child’s birth at the Namibian diplomatic or consular mission, the office of a trade representative or such other places prescribed by law.

The finding has put a spanner in the works for Luhl and his son, YDL. However, it opens possibilities for him to return and register the son at the Namibian foreign mission and launch a fresh application. Since Luhl and his gay partner are the registered parents of YDL, it would be difficult for them to now launch a case where they may seek citizenship through adoption.

The couple will seek the same relief for twins born to them through the same method. In preparing to get all the children Namibian citizenship by descent, they may well have to grapple with registering the births of all three children in South Africa and for Luhl to anticipate the possibility that he may have to prove genetically that he is their father.