Namibia surrogate newborns lose court battle for travel documents

A Namibian court on Monday threw out a bid by a same-sex couple to have their twin daughters, born to a South African surrogate mother, issued documents to travel to Windhoek.

Rejecting the application, High Court Judge Thomas Masuku said it would be "judicial overreach" for the court to order the home affairs and immigration ministry to issue emergency travel certificates to one-month-old Maya and Paula.

The twins are daughters of a Namibian-Mexican gay couple, Phillip Luehl, 38, and his partner Guillermo Delgado, 36.

But the Namibian authorities have dragged their feet on issuing papers for the girls, demanding proof of a biological connection between the infants and their Namibian father Luehl.

The court's rejection quashed attempts to take the infants to Windhoek to join Delgado and their two-year-old brother Yona.

"The application to compel the minister of home affairs to grant emergency travel certificates... is hereby dismissed," ruled judge Masuku.

He wrote that giving in to Luehl's "entreaties... in the present circumstances, would amount to the court impermissibly violating the doctrine of separation of powers and thus arrogating upon itself powers" that should rest with the minister.

"Although the court appreciates its role as the upper guardian of all minors, it would be precipitous for it and would amount to judicial overreach for it to grant the order prayed for," he said.

'Major disappointment'

Luehl, who is in Johannesburg with the girls said the ruling "comes as quite a surprise", but the couple would study the ruling to decide on the next step.

It is "a major blow and a major disappointment," he said as one of the girls could be heard gurgling in the background.

"It comes as quite a shock," he added in a WhatsApp voice message.

The judgement "fits within this larger picture of very harsh resistance to make any progress in terms of equal rights for all," he said.

The Namibian government, which has rejected accusations of discrimination, did not react immediately.

The court ruling revealed that the government had demanded a DNA test to prove Luehl's paternity.

"The (Namibian home) minister contended that if the applicant subjected himself to a DNA test together with the minor children, it would remove any doubt regarding the issue of paternity," read the ruling.

But the couple refused on principle to provide proof of paternity.

"This requirement would never be asked from a heterosexual couple... (or) from a single mother who gave birth in South Africa, and comes to Namibia," Luehl told AFP last week, saying they were being targeted and "discriminated" against because they are a same-sex couple.

The twins were born in South Africa’s port city of Durban last month, with their South African birth certificates listing Luehl and Delgado as the parents.

Namibia's home affairs ministry has however refused to recognise the couple's December 2014 marriage in South Africa. 

Homosexuality is illegal in Namibia under a rarely enforced 1927 sodomy law dating back to South African rule.

But South Africa has since moved on and is now the sole African nation which allows gay marriage, since legalising it in 2006.

Elsewhere on the continent, Botswana, Lesotho, Mozambique, Angola and the Seychelles have decriminalised homosexuality.