High Court Main Division - 2021

Before court for determination is the eligibility of a child born through surrogacy in South Africa to be accorded Namibian citizenship by descent. The applicant is a Namibian male involved in a same sex marriage solemnized in South Africa. Together with his partner, they obtained an order from the Western Cape High Court endorsing a surrogacy arrangement with a South African woman. After birth, the child was issued with a South African birth certificate, in which the applicant and his partner were endorsed as the child's parents. The applicant brought the child to Namibia, and in due course applied for Namibian citizenship by descent, but the respondent required of him to first provide proof that he indeed is the biological father of the child. This was premised on the respondents' position that a possibility exists that the gamete that fertilised the egg of the surrogate mother, may be that of the applicant's spouse, who is not a Namibian citizen. This position is informed by the fact that the applicant is in a same sex marriage. Dissatisfied by this position, the applicant approached this court for relief. He is of the view that the position taken by the Minister is discriminatory and is not in the best interests of the child. The Minister took it further by lodging a counter-application, seeking an order compelling the applicant and his child to undergo a DNA test to determine the paternity of the minor child. The court found as follows: