South Africa’s top court grants unmarried fathers equal birth registration rights
A landmark ruling by South Africa’s Constitutional Court has changed how unmarried fathers register their children’s births. The decision struck down a law requiring a mother’s consent for a father to list his surname on the birth certificate. The case, brought by the Centre for Child Law, marks a major shift in parental rights and equality under the constitution.
The legal challenge began when unmarried fathers were repeatedly turned away from Department of Home Affairs (DHA) offices. Officials insisted on written consent from the mother before allowing the father’s surname to be recorded. This requirement, under section 10 of the Births and Deaths Registration Act (BDRA), led to frustration and delays for many families.
The Centre for Child Law took the matter to the High Court, arguing that the law unfairly discriminated against unmarried fathers and their children. The case eventually reached the Constitutional Court, which ruled that the provision violated section 9 of the Constitution—guaranteeing equality—and also undermined children’s rights to a name, nationality, and their best interests.
The court found that the BDRA’s requirement clashed with the Children’s Act of 2005, which already recognised unmarried fathers’ parental responsibilities. By striking down the problematic section, the judgment ensures that fathers can now register their children independently, provided they meet the conditions of the Children’s Act. The DHA must now update its procedures to reflect this change.
The ruling emphasised that parental rights should not depend on marital status. It acknowledged the growing role of fathers in modern families and the need for laws to adapt accordingly. The decision also reinforced that children born out of wedlock deserve the same protections as those born to married parents.
The Constitutional Court’s decision removes a long-standing barrier for unmarried fathers in South Africa. The DHA must now allow fathers to register their children’s surnames without the mother’s consent, as long as they comply with existing parental responsibility laws. This change brings birth registration in line with constitutional principles of equality and the best interests of the child.
