On Monday, Namibia’s Supreme Court overruled a lower court decision to grant citizenship to the son of Namibian gay born through surrogacy in neighbouring South Africa.
The youngster was awarded citizenship by the High Court in 2021 after the interior ministry denied it on technical grounds.
The government subsequently filed an appeal, claiming that the couple had failed to comply with the law by failing to register the birth with Namibian authorities within one year, as required by law.
The ultimate court concurred, ruling on Monday that the High Court had “misdirected itself”.
“Since the birth… was not registered in terms of… the Citizenship Act, it was not competent for the High court to grant the relief it did to the respondent,” it said.
“Because there was non-compliance with… the Citizenship Act, the minister was correct in not granting the minor child citizenship by descent,” the court issued.
Yona, now four years old, has a South African birth certificate identifying his parents as Namibian Phillip Luehl and Mexican Guillermo Delgado.
The interior ministry had requested a DNA test to show that one of the boy’s parents was Namibian in its initial complaint.
But, the couple refused to take the test, and the High Court accepted a South African birth certificate. The couple expressed disappointment with the current verdict but vowed to keep fighting for their son’s right to citizenship.
Luehl told reporters that the ruling was just another way of “frustrating people that don’t have full access to equality, frustrating them with bureaucratic procedural matters. It’s very unfortunate.”
In an earlier statement, the couple said, “This court is supposed to be the upper guardian of children, supposed to decide in the best interest of children, and here they are giving us the runaround.”
South Africa, with its liberal post-apartheid constitution, is the only African country that allows gay marriage, which was legalised in 2006.
In Namibia, homosexuality is illegal under a 1927 sodomy law dating back to when the country was under South African rule. The law is rarely enforced.