There are stereotypes in the Births and Deaths Registration Act that discriminate against unmarried women who bear children
A 14-year-old girl’s quest to have her father’s name appear on her birth certificate has resulted in a court challenge that could affect the lives of many mothers and children.
In terms of the Births and Deaths Registration Act of 1992, a man has the right to decide whether he wishes to be registered as the father of his children and whether they are enti- tled to assume his surname. A mother may not register the father’s name without his permission.
In the case before the court, the teenager, identified as “ZKA”, revealed in her affidavit the shame she felt at having her father listed as “unknown” on her birth certificate and on her school application.
The teenager underwent a paternity test to confirm the identity of her father, but it was not enough to convince the department of home affairs that his name should be recorded on her birth certificate.
She, her mother and the South African Human Rights Commission have now launched an application to challenge the constitutionality of sections 10 and 11 of the Act in the Cape Town high court.
The girl said in her affidavit that, even though her father does not play a role in her life, he must be recorded on her birth certificate “regardless of what he feels about it”.
“As a child, I want to be able to say that he is my father, even when he does not have to be part of my life, or even support me. I have a relationship with my half-sister. I would feel less shameful when I interact with her if it was acknowledged on my birth certificate that her father is also my father, and that we are indeed half-sisters.
“I live with shame because I feel like an unwanted, fatherless child because of my parent’s marital status now and at the time of [my] birth.”
Her mother believes she and her daughter are being discriminated against. She had been in a romantic relationship with the girl’s father, identified as “Wilkinson”, for eight years when she became pregnant. They never married and there was little contact between them, she said in her affidavit.
The Act relied on outdated and unconstitutional stereotypes of unmarried mothers, the mother said, and, as a consequence, impaired her dignity and undermined her sense of self-worth.
“These stereotypes are all negative and seek to pass moral judgment on women who bear children out of wedlock. I, along with other women, are perceived as being ‘loose’, ‘sluts’ and other derogatory terms.”
The minister of home affairs, Malusi Gigaba, the director general of home affairs, Mkuseli Apleni, and the teenager’s father have been listed as respondents.
The acting regional director of the Cape Town office of the Legal Resources Centre (LRC), Charlene May, who is working on the case with attorney Mandivavarira Mudarikwa, said the papers had been served on Gigaba and the father of the child, although they still had to say whether they would oppose the case.
For the LRC, the case is critical to ensure gender equality. “We need to be mindful of what can often be construed as ‘insignificant’ infringements of the right to equality,” May said. “The Act clearly seeks to differentiate between women and children in respect of how they have conceived children and how they were born. “There appears to be no justification for the differentiation, which impacts so negatively on women and children every day of their lives.
“Instead, the differentiation continues to feed negative stereotypes of women who conceive and give birth to children outside of marriage. As a result, negative stereotypes are transferred to their children. There can be no justification for this discriminatory differentiation and we have a unique opportunity to address it.”
The chairperson of the Human Rights Commission, Mabedle Mushwana, said in his court papers that the commission had tried for years to involve the department of home affairs in discussions about the way the Act deals with the registration of children born to unmarried parents, as it believes it is unconstitutional.
“It puts all the power in the hands of the father to decide whether he will be registered as the father of the child, and whether the child will be able to assume his surname,” Mushwana said. “As a result, it discriminates against women, against unmarried mothers and against the children of unmarried parents. It violates the right to dignity of both children and mothers. And it unjustifiably infringes the child’s right to a name and to an identity.”
ZKA’s mother said her child had undergone a medical procedure when she was seven months old to establish her paternity. The DNA test had been used to force Wilkinson to pay maintenance.
“She should have the right, like other children born in wedlock, to have her father displayed on her birth certificate,” her mother said.
“I accept that Wilkinson does not want to have care and contact with our daughter.
“As painful as this rejection is, and has been for my daughter and me, it is something that we will both have to continue to learn to accept and to live with.”
The mother said she wished to have Wilkinson’s details recorded on the birth register so that her daughter could be assured that her father could be officially identified and recognised.
“Even if he does not wish to have any contact with her, recording him as her father in the register will secure her rights as his daughter,” her mother said in her affidavit.