15 November 2021
“I’m the father of a newborn daughter. The mother, to whom I’m not married, disappeared immediately after birth leaving me as sole parent of my daughter. Because I don’t know where the mother is I cannot get the mother’s consent. Without this consent Home Affairs does not want to register my daughter under my surname. I have no idea what to do now. Can you help?”
The good news is you can now register your daughter under your surname!
Our Constitutional Court in a very recent judgment found that the relevant provisions of the Births and Deaths Registration Act (“the Act”) that did not make provision for a child to receive the surname of their unmarried father without the mother’s involvement, was unconstitutional.
The Constitutional Court held that the sections of the Act discriminated against both children and their unmarried fathers and that it was not justifiable to distinguish between children born to married parents and children born to unmarried parents in respect of regulating what surname could be given to a child. The court also saw the fact that an unmarried father cannot register the birth of their child with their surname without the mother’s consent or presence as discrimination as compared to the rights that married fathers have to register their children and in turn perpetuated stereotypical gender roles that assumes that the child’s care is inherently the mother’s duty.
This judgment confirms that you as an unmarried father can register your daughter in your name. If Home Affairs continues to refuse to accept such registration it may be prudent to obtain the assistance of an attorney or family law specialist to help you engage with the Department of Home Affairs and enforce your rights as declared by the Constitutional Court.