Children Born To Parents Outside Marital Bond Are Blameless; Differential Treatment Towards Them Unconstitutional: South Africa Constitutional Court

The Constitutional Court of South Africa observed that differential treatment of children "born out of wedlock" is unconstitutional.To condemn children for the nature of their parents' relationships, is in inconsistent with our constitutional values and has no place on our statute books, the court held.The court held that a provision in the Births and Deaths Registration Act which prohibits an unmarried father from giving notice of the birth of his child under his surname, in the absence of the child's mother or without her consent, is unconstitutional.The constitutional rights of the child born to parents out of wedlock should not be subjected to differential treatment when it comes to the registration of their birth in their father's surname, the court held.The court added that the use of the expression "born out of wedlock" to describe a child, injures the dignity not only for the child but also the unmarried father, and indeed the unmarried mother as well.Section 10 of the Births and Deaths Registration Act provides for the procedure to give notice of birth of child born out of wedlock. It provides that, it shall be given (a) under the surname of the mother; or (b) at the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child and enters the prescribed particulars regarding himself upon the notice of birth, under the surname of the person who has so acknowledged. Essentially, the provision puts a restriction on unmarried fathers by not permitting them to register the births of their children in their own surnames, if the consent of the mothers has not been obtained or if the mothers are unavailable.The Centre for Child Law, a registered law clinic based in the Law Faculty at the University of Pretoria, had approached the Constitutional Court seeking a declaration that section 10 of the Act is unconstitutional on the basis that it prohibits unmarried fathers from giving notice of their child's birth under their surname in the absence of the child's mother.The majority judgment (8:1) by Justice Victor observed that this provision affects (i) an unmarried father's dignity; (ii) the manner in which it compromises his relationship with his newly born child; and (iii) the way it entrenches sexist and gendered stereotypes about the parental role of fathers vis à vis mothers. The court observed that the reference to so-called children "born out of wedlock" perpetuates the common law distinction between so-called "legitimate" and "illegitimate" children. The court made the following significant observations in the judgment:The use of the expression "born out of wedlock" to describe a child injures their dignity ; Stigmatizes them69. This reference is a stark reminder that we, as a nation, are still grappling with outmoded legal terminology which goes to the core of dignity and equality, not only for the child but also the unmarried father, and indeed the unmarried mother as well. The use of the expression "born out of wedlock" to describe a child undoubtedly injures their dignity and implies that they are not worthy of equal respect and concern. The continued distinction between children born within or out of wedlock, which the impugned law conveys, stigmatises the latter category of children. A separate process for the conferral of a father's surname during the birth registration process for children born out of wedlock remains contradictory to the rights of the child as embedded in the Bill of Rights and contradicts the paramountcy principle"Marriage" no longer retains its stereotypical meanings. 70. The differentiation and supremacy of a married couple in comparison to unmarried couples continues to be problematic. South African society is not homogeneous, and it must be accepted that the concept of "marriage" no longer retains its stereotypical meanings. Children born to parents outside the marital bond are blameless,71. Children born to parents outside the marital bond are blameless, yet the retention of section 10 of the Act serves to harm children born outside of wedlock. The status of being born out of wedlock, in effect, penalises the child and the unmarried father, and of course the mother too. This differential treatment of children born out of wedlock is invidious and unconstitutional. This differential treatment cannot be justified.No child is responsible for her birth72....Whilst society may express its condemnation of irresponsible liaisons outside the bonds of marriage, visiting this condemnation on an infant, through the application of the law, is illogical and unjust. This Court has warned against punishing children for the sins of their parents; rather, children must be regarded as autonomous right-bearers and not "mere extensions" of their parents. Moreover, imposing undue burdens on the "child born out of wedlock" is contrary to the basic concept of our system that...

Children Born To Parents Outside Marital Bond Are Blameless; Differential Treatment Towards Them Unconstitutional: South Africa Constitutional Court

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