SAHRC fights for rights of single moms and their kids

2015-04-14 17:27
The Western Cape High Court in Cape Town. (Paul Herman, News24)

The Western Cape High Court in Cape Town. (Paul Herman, News24)

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Cape Town - The SA Human Rights Commission (SAHRC) filed an application in the Western Cape High Court on Tuesday to challenge the current legal practice around the use of surnames for children born to unmarried parents.

As it stands, the Birth and Death Registrations Act 51 of 1992 (BDRA) stipulates that children born to single mothers have to take their mother’s surname, while the father’s surname or a double-barrelled surname, can only be given with the father’s consent, or if legal proof of paternity is given.

If a paternity test proves that a man is the father of a given child, the man’s consent is still required in order to be registered as the father, and can only be overridden through a court order.

The SAHRC argued on Tuesday that the current practice, emphasised in the BDRA, is unconstitutional and discriminatory, both towards children of single mothers, and the rights of unmarried woman who have children.

Gender, marital status, birth

Advocate Michael Bishop, for the SAHRC, argued that the current legislation discriminates on three counts, the first being gender.

Unmarried women who have children, he said, are forced to give their surname to the child, while fathers in these instances were allowed to choose.

“Fathers [of children born out of wedlock] are thus allowed to implicitly disown their children by refusing to allow their name, whereas the mother has no choice,” Bishop stated.

Bishop also argued that the law was discriminatory on the basis of marital status and birth.

“Married fathers don’t have to provide proof that the child is theirs.” Unmarried fathers, he continued, would not only have to undergo paternity tests, but have to give consent even if it's proven that the child is theirs.

“A child born out of wedlock, too, cannot be registered under his or her father’s surname without the father’s consent,” Bishop said.

A child born to married parents, conversely, isn’t discriminated against in this way, he said.

Bishop stressed though that the SAHRC wasn’t arguing that the father’s surname had to be used in all cases, just that there shouldn’t be an absolute prohibition of his name being used when consent is not given.

‘Child’s best interests’

The Department of Home Affairs, represented by William Mokhari, replied by saying that in this case, the best interests of the child was of paramount importance, as emphasised by Section 28 of the Constitution.

In order for the matter to proceed, he argued, the court should interpret if the Birth and Death Registrations Act (BDRA) contradicted section 28.

“Section 10 of the BDRA distinguishes between married and unmarried persons, but that doesn’t mean it is discriminatory. It is a fact that there are different circumstances there,” he said.

It’s only discrimination, he continued, if it separates people for a reason that is not rational, like skin colour.

 “As a department, we believe that Section 10 [of the BDRA] can be constitutionally compliant because there is a rational basis to distinguish between children born in and out of wedlock, and between married and unmarried parents.”

“In order for the judge to strike this application down, the court needs to determine if these two distinctions have no rational basis, or if it conflicts with the rights of the child, which we’ve established is paramount.”

Room for improvement

Mokhari did concede that there were areas in the BDRA that required addressing, and said the Department of Home Affairs was working towards amending the legislation.

“There is room for improvement in cases where there are disagreements between unmarried parents, where the father disagrees with the mother.”

“We have put legislation forward to amend this area and must be signed by parliament in the interim.”

This process could take two years, the court heard.

Judge Kate Savage, who is overseeing the case in Cape Town, reserved judgment on Tuesday until an unspecified date.

Read more on:    sahrc  |  cape town  |  human rights

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