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 them

69. 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 birth

72....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 legal burdens should be imposed on relationships between individuals. Obviously, no child is responsible for her birth and penalising the child is an ineffectual, as well as an unjust way of forcing parents to comply with stereotypical norms of the supremacy of the marital family.

The court also noted that some foreign jurisdictions have abolished the legal concept of illegitimacy entirely, while others have "permitted legitimation by subsequent marriage and have legislated to mitigate the adverse legal consequences by extending to illegitimate children the same rights accorded to legitimate children". 

[74] For all these reasons, in my view, the concept of illegitimacy and differential rights for children born in and out of wedlock is inconsistent with the paramountcy principle and advancing the rights of children. As recognised in Dawood, the Constitution recognises a diversity of family relationships and regards children as autonomous, albeit vulnerable, beings who are bearers of rights and responsibilities in their own right. To the extent that section 10 entrenches the notion of marital supremacy and seeks to punish or condemn children for the nature of their parents' relationships, this in inconsistent with our constitutional values and has no place on our statute books.

Discriminates on the ground of social origin

[76] In my view, section 10 of the Act unfairly discriminates on the ground 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 origin-based discrimination and how it often overlaps with discrimination against groups who are already vulnerable due to their race, ethnicity, nationality, and so on. This observation is pertinent on these facts as the applicant has demonstrated that section 10 has a disproportionate impact on children from homes who cannot litigate in the DRC in order to obtain the necessary marriage certificate in order to comply with the Act. In addition, it is no coincidence in my view, that on these facts, section 10 had an impact on a child whose mother was a foreign national and who was unable to register their birth on her own for this reason. Thus, the intersectional nature of social origin-based discrimination is evident in this matter

The court therefore concluded thus:

[79] In conclusion, the section is manifestly inconsistent with the best interests of the child as well as her rights to dignity and equality and her right to a name and nationality from birth. Historically, children born out of wedlock have been discriminated against under the law including in the law of testation such as the denial of an inheritance. Social attitudes have also historically led to active prejudice towards children born out of wedlock. This may have been ameliorated somewhat in modern times but still a child born out of wedlock remains outside of the stereotypical nuclear family where a married couple and their dependent children are regarded as a basic social unit. These social attitudes are unfortunate and keeping the category of separate registration for children born out of wedlock on the statute book further reinforces these perceptions.

[80] Their vulnerability also goes to the family affiliation where the child is that of one parent as opposed to married parents. Children may see themselves as being of inferior status as they do not have a proper family, and this can cause stresses such as social isolation and social stigma.

The court held that the section sediments the long-held distinction between "legitimate" and "illegitimate" children. Such a distinction, the court said,  is abhorrent to constitutional values of human dignity and substantive equality.

Unmarried father's right to dignity

The court also added that the retention of section 10 of the Act would also undermine the unmarried father's right to dignity.

It would imply that he is not entitled to be treated as worthy of registering the birth of his child with his surname in the mother's absence merely because he and the child's mother are not married...Undoubtedly, section 10 is an injury to an unmarried father's dignity, and perpetuates the societal stigma attached to unmarried couples and their children. It deems his bond with his child as less worthy, merely on account of his marital status. Furthermore, in doing so, it demeans this particular class of individuals (unmarried fathers and their children. [Para 64-67]

Chief Justice Dissents 

The Chief Justice Mogoeng expressed his dissent in this case and opined that the impugned provisions are predicated on the need to give practical expression to the best interests of a child and their paramount importance.

"They are also grounded in the lived experiences of South Africans relating to some men who are happy to claim and give their surnames to children without any regard for a concomitant duty of care for them. A child's mother must therefore necessarily be asked to say: (i) whether the man claiming to be the father is indeed the father; and (ii) even if he is, whether he is the kind that would help advance the best interests of the child and give expression to the paramountcy of those interests or one whose somewhat formalised association with the child would be prejudicial to the child's best interests. A reading of sections 9 and 10 in a way that keeps them within constitutional bounds, does not expose a child to known or foreseeable risks. It protects and advances the best interests of a child and recognises the paramountcy of those interests. Sections 9 and 10 should thus be left intact.[ Para 142-143]

Addendum:

Indian Scenario

In India, there are laws which uses the term 'illegitimate children'. For instance, Section 6 of the Hindu Minority and Guardianship Act, provides that the natural guardians of a Hindu minor, in the case of a boy or an unmarried girl—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 though, in a recent judgment  of Karnataka High Court, it was observed thus: "No child is born in this world without a father and a mother. A child has no role to play in his/her birth. Hence, law should recognise the fact that there may be illegitimate parents, but no illegitimate children. Therefore, it is for the Parliament to bring about uniformity in law vis-à-vis legitimacy of children. Thus, it is for the Parliament to determine in what way protection could be extended to children born outside a valid marriage."

Case: Centre for Child LAW vs. Director General, Department Of Home Affairs ; Case CCT 101/20

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