Children born to parents outside the conjugal bond are irreproachable; Differential treatment towards them Unconstitutional: Constitutional Court of South Africa


The Constitutional Court of South Africa has observed that the differential treatment of children “born out of wedlock” is unconstitutional.

Condemning children for the nature of their parents’ relationships is incompatible with our constitutional values ​​and has no place in our law books., ruled the court.

The court ruled that a provision in the Birth and Death Registration Act that prohibits a single father from notifying the birth of his child under his surname, in the absence of the child’s mother or without his consent, is unconstitutional. The constitutional rights of children born to parents out of wedlock should not be subject to different treatment with regard to the registration of their birth in the name of their father, the court ruled.

The court added that the use of the expression “born out of wedlock” to describe a child undermines the dignity not only of the child but also of the single father, or even of the single mother.

Section 10 of the Birth and Death Registration Act provides for the procedure for notification of the birth of a child born out of wedlock. It provides that, it must be given (a) under the mother’s last name; or b) at the joint request of the mother and the person who, in the presence of the person to whom the notice of birth has been given, acknowledges in writing to be the father of the child and enters the prescribed particulars concerning him in the birth certificate, under the name of the person who recognized it. Essentially, the provision places a restriction on single fathers by not allowing them to register the births of their children under their own last name, if the mothers’ consent has not been obtained or if mothers are not available.

The Center for Child Law, a registered law clinic based at the University of Pretoria Law School, had asked the Constitutional Court to declare section 10 of the law unconstitutional on the grounds that it prohibits unconstitutional fathers. married to notify their birth of the child under his surname in the absence of the mother of the child.

The majority judgment (8: 1) of Judge Victor observed that this provision affects (i) the dignity of a single father; (ii) the way in which she compromises her relationship with her newborn; and (iii) the way in which it rooted sexist and gender stereotypes on the parental role of fathers vis-à-vis mothers. The court observed that the reference to so-called “born out of wedlock” children perpetuates the common law distinction between so-called “legitimate” and “illegitimate” children. The court made the following important observations in the judgment:

The use of the expression “born out of wedlock” to designate a child violates his or her dignity; stigmatizes them

69. This reference is a stark reminder that we, as a nation, are still grappling with outdated legal terminology that goes to the heart of dignity and equality, not only for the child but also for the single father. , and in fact the single mother too. The use of the expression “born out of wedlock” to describe a child undoubtedly undermines his dignity and implies that he does not deserve the same respect and concern. The persistent distinction between children born in and out of wedlock, conveyed by the contested law, stigmatizes this latter category of children. A separate process for assigning a father’s surname during the birth registration process for children born out of wedlock remains in conflict with the rights of the child as enshrined in the Declaration of rights and contradicts the principle of primacy

“Marriage” no longer retains its stereotypical meanings.

70. The differentiation and supremacy of a married couple over unmarried couples remain problematic. South African society is not homogeneous, and it must be admitted that the concept of “marriage” no longer retains its stereotypical meanings.

Children born to parents outside the marital bond are irreproachable,

71. Children born to parents outside the conjugal bond are beyond reproach, but the maintenance of article 10 of the law serves to harm children born out of wedlock. The status of born out of wedlock penalizes the child and the unmarried father, and of course the mother as well. This difference in the treatment of children born out of wedlock is odious and unconstitutional. This difference in treatment cannot be justified.

No child is responsible for his birth

72 …. While society may express its condemnation of irresponsible affairs outside of marriage, bringing this condemnation to a child, by law enforcement, is illogical and unfair. This Court warned against punishing children for the sins of their parents; on the contrary, children should be seen as independent rights holders and not as “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 legal burdens should be imposed on relationships between individuals. Clearly, no child is responsible for his birth and penalizing the child is an ineffective and unfair way of forcing parents to conform to stereotypical norms of conjugal family supremacy.

The court also noted that some foreign jurisdictions have completely abolished the legal concept of illegitimacy, while others have “allowed legitimation through subsequent marriage and legislated to mitigate adverse legal consequences by extending the same rights to illegitimate children. granted to legitimate children ”.

[74] For all these reasons, in my opinion, the concept of illegitimacy and differentiated rights for children born in and out of wedlock is incompatible with the principle of primacy and the promotion of children’s rights. As Dawood recognized, the Constitution recognizes a diversity of family relationships and considers children as autonomous, albeit vulnerable, beings who carry full rights and responsibilities. Insofar as Article 10 enshrines the notion of conjugal supremacy and seeks to punish or condemn children for the nature of their parents’ relationships, this is incompatible with our constitutional values ​​and has no place in our legislative texts. .

Discrimination based on social origin

[76] In my opinion, section 10 of the Act is unfairly discriminatory on the basis of social origin. In this context, social origin refers to an amalgam of intersecting factors related to a person’s class or social position in society. Some commentators have noted the intersectional nature of social discrimination based on origin and how it often overlaps with discrimination against groups who are already vulnerable because of their race, ethnicity, nationality, etc. This observation is relevant to these facts because the petitioner has demonstrated that Article 10 has a disproportionate impact on children from households who cannot plead in the DRC in order to obtain the marriage certificate necessary to comply with the law. In addition, it is no coincidence in my opinion that on these facts, Article 10 had an impact on a child whose mother was a foreigner and who could not register his birth by herself. for this reason. Thus, the intersectional nature of social discrimination based on origin is evident in this case.

The tribunal therefore concluded as follows:

[79] In conclusion, the article is manifestly incompatible with the best interests of the child as well as his rights to dignity and equality and his right to a name and a nationality from birth. Historically, children born out of wedlock have been discriminated against under the law, including the law of wills, such as denial of an inheritance. Social attitudes have also historically led to active prejudices against children born out of wedlock. It may have been improved somewhat in modern times, but a child born out of wedlock remains outside the stereotypical nuclear family where a married couple and their dependent children are seen as a basic social unit. These social attitudes are regrettable and maintaining the separate registration category for children born out of wedlock in the statutes further reinforces these perceptions.

[80] Their vulnerability is also due to family affiliation where the child is that of a single parent as opposed to married parents. Children may consider themselves to be of lower status because they do not have a suitable family, which can cause tensions such as social isolation and social stigma.

The court ruled that the section sediments the long-standing distinction between “legitimate” and “illegitimate” children. Such a distinction, the court said, is contrary to the constitutional values ​​of human dignity and substantive equality.

Right of a single father to dignity

The court also added that retaining section 10 of the law would also undermine the single father’s right to dignity.

This would imply that he does not have the right to be treated as worthy to register the birth of his child with his surname in the absence of the mother simply because he and the mother of the child are not. not married … There is no doubt that Article 10 prejudices a single person’s dignity of the father and perpetuates the societal stigma attached to unmarried couples and their children. He considers his bond with his child less worthy, simply because of his marital status. In addition, in doing so, he demeans this particular category of individuals (single fathers and their children. [Para 64-67]

Chief Justice dissent

Chief Justice Mogoeng dissented in this case and held that the challenged provisions are based on the need to concretely express the best interests of the child and their paramount importance.

“They are also based on the experiences of South Africans of some men who are happy to claim and give their names to children without any regard for a concomitant duty of care for them. It is therefore necessary to ask the mother of a child to say: (i) whether the man who claims to be the father is indeed the father; and (ii) even if it is, if it is the type to contribute to advancing the best interests of the child and to express the preponderance of these interests or whose somewhat formalized association with the child would be prejudicial to the best interests of the child. Reading Articles 9 and 10 in a way that keeps them within constitutional limits does not expose the child to known or foreseeable risks. It protects and advances the best interests of the child and recognizes the primacy of that interest. Articles 9 and 10 should therefore remain intact.[ Para 142-143]

Addendum:

Indian scenario

In India, there are laws that use the term “illegitimate children”. For example, article 6 of the Hindu Minority and Guardianship Act provides that the natural guardians of a Hindu minor, in the case of an unmarried boy or girl, are the father, and after him, the mother. In the case of an illegitimate boy or an illegitimate unmarried girl, the mother, and after her, the father.

In a different context however, in a recent judgment of the High Court of Karnataka, it was observed thus: “No child is born into this world without a father and a mother. A child has no role to play in its birth. Therefore, the law should recognize the fact that there can be illegitimate parents, but no illegitimate children. Therefore, it is up to Parliament to achieve uniformity of law vis-à-vis the legitimacy of children. Thus, it is for Parliament to determine how the protection could be extended to children born out of a valid marriage. “

Case: Center for Child LAW v. Director General, Ministry of the Interior; Case CCT 101/20

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