Wesley Hayes has launched a two-part application in the Eastern Cape High Court for an urgent order that the department register his daughter’s birth and issue her birth certificate.
Last June, Eastern Cape attorney Wesley Hayes’ lifelong dream of becoming a father was finally realised when his baby daughter, Justine, was born via surrogacy.
But they were both left in legal limbo after officials at the department of home affairs refused to let him register her birth as a single father. So now Hayes is turning to the courts.
Not only does he want a judge to force the department’s hand in his own case, he also wants to change the country’s birth registration laws to cater specifically for children born of surrogacy.
Hayes – who gave consent for both himself and his daughter to be identified – has launched a two-part application in the Eastern Cape High Court in Makhanda for, in the first instance, an urgent order that the department register his daughter’s birth and issue her birth certificate, listing him as her father, and inserting the words “not applicable” where her mother or the second parent’s name would ordinarily appear.
“Every day my child’s birth remains unregistered, her constitutional rights to dignity, equality, citizenship and a name and nationality from birth are being violated,” Hayes said in the papers.
He detailed the challenges the situation presented in terms of adding his daughter as a beneficiary on his life insurance policies and medical aid, as well as the potential future implications.
Were she ever to require emergency medical treatment, for example, he was worried he would not be able to give consent because he could not prove he was her father.
And he was deeply concerned that, should he die unexpectedly, his daughter might become a ward of the state.
The second part of his application is a constitutional challenge to the Births and Deaths Registration Act (BDRA), which Hayes wants declared unconstitutional and invalid for failing to regulate the registration of children born of surrogacy to single fathers.
In this way, he said, it discriminated against children by virtue of their birth, as well as against fathers by virtue of their gender and marital status.
The court last year declared the BDRA unconstitutional in that it didn’t provide for unwed fathers to register their children’s births without the mother’s involvement.
That ruling is yet to be confirmed by the Constitutional Court and doesn’t fully solve the problem, he says.
The relevant section refers to children born “out of wedlock” but he says a man’s marital status shouldn’t come into play when his child was born of surrogacy.
“… I submit that the concept of ‘out of wedlock’ in no way relates to the conception and birth of my child, as she was a child born of surrogacy and not sexual intercourse between an unmarried heterosexual couple,” he said.
“Although at first glance this distinction may seem narrow and perhaps not necessary, I submit that it is an important distinction to make as it speaks to my child’s identity – and accordingly affects the dignity of my child.
“To have a birth certificate that inaccurately reflects how she came into this world would be a legal fiction and therefore an infringement of her constitutional right to human dignity.”
He wants the relevant section amended or a new section dealing with children born of surrogacy, to be added in.
Under the Children’s Act, which regulates surrogacy, the effect of a valid surrogacy agreement is that “any child born of a surrogate mother in accordance with the agreement is for all purposes the child of the commissioning parent from the moment of the birth”.
But the BDRA does not make specific provisions for this.
And while family lawyer Beverley Clark described SA’s surrogacy laws as “some of the most advanced in the world”, she agreed the BDRA needed to be updated.
“The BDRA is in many respects way out of kilter with our law and should have been rewritten at the same time as the Children’s Act.”
Chair of fathers rights’ lobby group Fathers 4 Justice Gary da Silva also supported Hayes’ application.
“This is yet another example of inherent gender bias against fathers,” he said. “A woman can … register her child without having to list a father, so why shouldn’t a man be able to do the same? There’s blatant gender bias here.”
Saturday Citizen sent the department of home affairs a request for comment on Thursday but had not at the time of publishing received a response.
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