Namibian court rules against gay couple in fight to take newborn daughters home

Namibia’s high court on Monday ruled against a gay couple battling to obtain travel documents for their twin daughters, born to a surrogate in SA, after authorities refused to do so on the basis the infants were not citizens.

Namibian Phillip Lühl and his Mexican husband Guillermo Delgado had already been fighting for citizenship for their two-year-old son when the twins, born in March, were refused the documents required to enter Namibia.

Namibian authorities said Lühl must prove a genetic link to the children.

In an urgent application to the court, the fathers asked the judge to compel the home affairs ministry to issue the documents to bring their new daughters home.

Judge Thomas Masuku refused, however, saying such an order would be “judicial overreach”.

Namibia’s legal system does not recognise same-sex marriages and criminalises sexual contact between men, though the law is seldom enforced.

The ministry of home affairs said no one was immediately available to comment on the ruling on Monday.

Lühl told Reuters the couple would have to study the ruling before deciding on the next steps.

“It’s an unexpected judgment and, on a personal level, quite a big blow to us,” he said, adding it was evidence of resistance at all levels in Namibia on progress towards equal rights.

While the South African surrogacy process requires a genetic link, the couple argued that requiring evidence of a genetic link to obtain citizenship has no basis in law and was discriminatory because both fathers are legal parents.

Monday’s ruling means the family will remain separated, with Lühl in SA with the twins and Delgado in Namibia with the couple’s son, while a judgment in their larger citizenship case is pending.

Human rights lawyer Norman Tjombe, who was not involved in the case, said the judgment was a blatant violation of the rights of the children and reflected the government's stance on same-sex marriage.

“Had the children been born from a heterosexual marriage, no questions would have been asked about the paternity,” he said, adding the children were entitled to citizenship by descent like any other child born outside the country to a Namibian parent.