Unmarried father may register child under his surname without mother’s consent
20 October 2021 – City Press
Home Affairs says that both parents must do the notification of birth.
Retiring Chief Justice Mogoeng Mogoeng has warned that even rapists who are “curious” about the babies who are born as a result of their act of violence will be able to go to the department of home affairs and register the child under their surname.
The Constitutional Court declared section 10 of the Births and Deaths Registration Act unconstitutional last week, but in a minority ruling Mogoeng differed from eight other judges.
The Centre for Child Law argued that it was unconstitutional to prohibit an unmarried father from registering his child’s birth under his surname at home affairs if the child’s mother is not present.
This is unfair discrimination against the child, the centre said.
In its ruling, the Constitutional Court upheld an earlier ruling of the Makhanda High Court in favour of a South African father who could not register his daughter, who was born in Makhanda in 2016, with home affairs because the South African visa of the mother, a citizen of the Democratic Republic of Congo (DRC), had expired shortly before birth.
They were previously married in the DRC in accordance with customary law, but such marriages are not registered in the DRC. Home affairs considered the couple unmarried.
Acting Judge Margaret Victor said in the majority ruling that there were cases where consent, for whatever reason, could not be obtained from the mother.
There are cases where the mother disappears and the child is left with the father.
The law also does not provide for cases where one parent is a South African and the other a foreigner without a valid passport or visa.
Victor said the security measures in the law were adequate. Regulations in the law require, among other things, an identity document, fingerprints and the child’s biometric information.
An argument was presented before the court that a married father can be trusted without further ado, but an unmarried one automatically arouses suspicion.
Victor said a married father could just as easily forge a marriage certificate and commit human trafficking.
Section 10 unfairly discriminates against children born out of wedlock because it limits the father’s rights to register the child under his surname.
However, with the consent of acting judge Rammaka Mathopo, Mogoeng said one of the inherent dangers of such a relaxation of law was human trafficking.
A father who conceives a child after having sex with the mother only once or a few times in an informal relationship, or a rapist who has developed a “curious interest” in the child he has conceived, falls into the category of unmarried fathers.
Mogoeng said:
These factors are strong warning signs against the proposed action to relax the critical safety measures in the legislation.
One of the inherent dangers “of giving any man carte blanche” of registering a birth without the mother – to whom he is not married – confirming paternity is human trafficking. It is not enough for the man simply to say he is the father without first hearing from the mother.
Mogoeng said that if a couple chooses to have children outside marriage, the existence and characteristics of such a relationship are more difficult to prove than in a marriage.
Marriage is a centuries-old institution from which binding legal, moral and societal duties arise. Marriage and family are vital institutions that have a profoundly beneficial role in the education of a child.
“It is an oversimplification to treat marriage simply as a piece of paper,” he said, because marriage is the foundation for establishing a stable and functional family unit.
Mogoeng said the distinction for unmarried fathers has an important and dignified societal purpose. This is to entrust the welfare and protection of a child to the mother and not to an unmarried father whose status – as a father – and commitment to the child’s wellbeing are not recorded and can therefore not be assumed.
The fact that the law does not allow unmarried fathers to register their children’s births unconditionally is due to their choice to remain unmarried.
The law does not prevent anyone from getting married and getting legal rights and privileges from a marriage, Mogoeng said.
Marriage is not for an “elite club” and it is not an economic issue:
It’s a matter of choice. In this case, marriage is not an instrument of discrimination.
It is in the child’s best interest to be practically and more meaningfully connected to a loving and responsible father, “not just any man who has begotten him or her”.
The mother is the most suitable person to say whether the unmarried man who claims to be the father is indeed the father and a responsible father. That is why her consent is needed, Mogoeng said.