The Supreme Court of Namibia has overturned a lower court’s decision to grant citizenship to the son of a gay couple who was born to a surrogate mother in neighboring South Africa. Phillip Luhl, a Namibian, and his Mexican partner, Guillermo Delgado, are listed as parents on the South African birth certificate of four-year-old Yona.
In late 2021, the Namibian High Court granted the child nationality after the Ministry of Home Affairs denied it on technical grounds. The government filed an appeal, arguing that the birth had not been registered with the Namibian authorities within a year, as required by law.
The Supreme Court upheld the government’s appeal in its ruling on Monday, saying 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,” the court said, according to AFP.
The Supreme Court further explained that the Ministry of Home Affairs was right in not granting the child citizenship by descent “because there was non-compliance with the Citizenship Act.”
The Namibian ministry had also previously demanded a DNA test to prove that one of the child’s parents was Namibian. The couple refused to undergo the test.
The latest court decision has been met with disappointment by the couple, who argued that the judiciary should prioritize the best interests of the child.
One of Yona’s parents, Luhl, told the media that the ruling by the Supreme Court was just another way of “frustrating people that don’t have full access to equality, frustrating them with bureaucratic procedural matters.”
Homosexuality is still illegal in Namibia, although the 1927 sodomy law is rarely enforced today. South Africa has been the only African country to allow same-sex marriage since 2006.