Unmarried fathers will now be able to register their children under their surname, in the absence of, or without, the mother’s consent. On the 22nd September 2020, the Constitutional Court heard arguments from the Centre for Child Law asking the Court to confirm a finding of the Makhanda High Court, that section 10 of the Births and Deaths Registration Act is unconstitutional because it creates insurmountable barriers to the birth registration of children of unmarried fathers. The judgment stems from the home affairs department’s refusal to register a child born to a South African father and a Democratic Republic of the Congo (DRC) mother.

Section 10 of the Births and Deaths Registration Act regulates the provision of a surname to a child born to unmarried parents. Section 10 provides for the child receiving:

  • the mother’s surname;
  • the father’s surname at the joint request of the father and mother; and
  • the mother’s surname, with the father’s details inserted onto the birth certificate, and with the consent of the mother.

Section 10 is linked to regulation 12, which states that an application for the registration of the birth of a child may only be submitted by the mother of the child.

The judgment read: “There are instances where a mother may be available but, for whatever reason, consent may not have been obtained. There are also instances where the mother may have disappeared and left the child with the father, and thus not be available to give consent. Second, there is the problem of undocumented mothers, who live and give birth to children in South Africa and are unable to register the births of these children. Third, another difficulty arises as a result of the requirement that parents, who are non-South African citizens, must produce a certified copy of a valid passport or visa.”

The section did not make provision for a child to receive their father’s surname or details of their father on their birth certificate without the mother’s involvement. The Constitutional Court found that section 10 discriminates against both children and their unmarried fathers and infringes on their dignity. It held that it is not justifiable to distinguish between children born to married parents and children born to unmarried parents for the purpose of regulating what surname may be given to a child. This means unmarried fathers can now register their children, without the mothers, at the Department of Home Affairs.

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Author – Kate Bailey – Hill

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