A recent ruling by the Constitutional Court.

Unmarried fathers have been granted the right to register their biological children under their surname. This is a significant victory for unmarried fathers and follows a recent ruling by the Constitutional Court which looked at the constitutionality of the provisions of section 10 of the Births and Deaths Registration Act 51 of 1992 (“Births Act”).

The Constitutional Court, in the case of Centre for Child Law v Director General: Department of Home Affairs and Others (2021) ZACC 31, specifically referred to how section 10 of the Births Act impacts unmarried fathers' human rights as protected in the Constitution. The Constitutional Court had to decide on the validity of section 10 of the Births Act and whether this section amounts to unfair discrimination, impairing the dignity of both unmarried fathers and children born out of wedlock.

Position prior the Constitutional Court's ruling

Prior to the ruling made by the Constitutional Court, unmarried fathers could not register their children under their surnames without the consent of the mother. The reason for this was due to the legislative restriction imposed by section 10 of the Births Act.

Section 10 of the Births Act specifically deals with the registration of children born out of wedlock. This section expressly provides that, as a general rule, a child born out of wedlock must be registered under the surname of the mother and may only be registered under the father's name at the joint request of the mother alongside the father.

Simply put, this means that an unmarried father would need the consent of the mother to register the child under his surname. This means that where a mother refused (even unreasonably) or was unavailable to give consent, a child born out of wedlock could not be registered under the father's name.

It became clear that married fathers and unmarried fathers are treated differently in these situations and do not get the same protection or benefit under the law. Referring to the category of unmarried fathers, Acting Justice Victor stated the following in the Constitutional Court's ruling:

They are stripped of the rights that married fathers have to register children in their own name as these rights are made conditional and dependent on their relationship with the mother.

The Constitutional Court's ruling

In this case before the Constitutional Court, the Department of Home Affairs refused to register the child under the surname of the unmarried father, as they believed that the registration would not comply with the provisions of the Births Act. 

It was argued before the Constitutional Court that section 10 of the Births Act is unconstitutional as it stops unmarried fathers from registering their children's birth under their surname in the absence of the mother or without her consent. Further, the distinction between children born in or out of wedlock is illogical, and unlawfully discriminates against both unmarried fathers and children born out of wedlock.

In its judgment, the Constitutional Court confirmed that section 10 of the Births Act does limit the ability of unmarried fathers to register children under their surname and that there is no justification for the different provisions to be applied to unmarried fathers. The Constitutional Court subsequently declared section 10 of the Births Act unconstitutional.

One of the reasons for declaring this section unconstitutional was due to the fact that it amounts to unfair discrimination (right to equality) on the basis of marital status, sex and gender. As mentioned above, this section highlighted a difference in how the law applied to married and unmarried fathers, which leads to discrimination on marital status. Further, the section also established a difference between mothers and unmarried fathers as mothers do not need to involve the unmarried fathers in the same way. The Constitutional Court stated that this preserves the stereotypical assumption that a child's care remains predominantly with the mother and leads to discrimination based on sex and gender.

In addition to this, it also impairs the dignity of unmarried fathers and the children of unmarried parents as the consequence of section 10 of the Births Act impairs the connection between the unmarried father and the child and is not in the best interests of the child. The Constitutional Court further held that this section impacted the unmarried father's dignity by assuming that the unmarried father is not worthy to register the child under his surname purely due to not being married to the mother.

Concerns of possible human trafficking

It was argued that this change might lead to instances of human trafficking or instances where the child is registered under the surname of someone who is not his/her biological father. The Constitutional Court addressed these concerns and highlighted that the Births Act and its Regulations do have enough safeguards against these concerns. For example, there are requirements that parents must provide identity documents, fingerprints and so on as part of the registration process.

Conclusion

In light of the above, unmarried fathers can now register their children under their surnames. This Constitutional Court case is a clear win for the development and promotion of human rights in South Africa. It is important that our courts continue to identify and route out any signs of unfair discrimination in our legislation. Unfair discrimination not only impairs the dignity of people, but also nullifies and delays the efforts already made towards building a country based on constitutional values. Not only does section 10 of the Births Act clearly delay the development and promotion of constitutional values which seek to promote equality and dignity, but it worryingly fails to protect the best interests of the child by discriminating against children on the grounds of social origin or birth.

Did you know… In 2020, more than 60 percent of births were registered without the details of the fathers – Stats SA