Surrogacy in Namibia: legal silence, citizenship denied and the rights of LGBTQI+ families

Carli Schickerling^[1]
Schickerling Attorneys, Windhoek
carli@schickerlinglaw.com

Namibia currently stands at a critical legal crossroads in its treatment of non-traditional families – particularly those formed through surrogacy by LGBTQI+ citizens. The absence of legislation regulating surrogacy has created a troubling legal void. Nowhere has this void been more visibly tested than in the case of Phillip Lühl and Guillermo Delgado.^[2]

Surrogacy, while medically and ethically complex, is not inherently controversial from a legal standpoint – provided a country has enacted statutes that define and guide its practice. South Africa, for instance, regulates surrogacy under Chapter 19 of the Children’s Act 38 of 2005, which requires pre-approval of surrogacy agreements by a court and ensures that the intended parents are recognised as legal parents from birth. Namibia, by contrast, has no such legislation. The result is that families formed through surrogacy, even when legally recognised in other jurisdictions, exist in a state of limbo when they return home.

The Lühl-Delgado case involved a Namibian citizen, Phillip Lühl, and his spouse, Guillermo Delgado, who arranged a legal surrogacy in South Africa. The children were born with a valid South African surrogacy order recognising the couple as legal parents. Upon attempting to register one of the children (YDL) as a Namibian citizen by descent, the Ministry of Home Affairs refused, demanding DNA proof of paternity from Lühl. This requirement had no statutory basis and, on the record before court, was argued to be discriminatory when contrasted with the Ministry’s approach to heterosexual couples.

Lühl successfully challenged the decision in the High Court, but the Ministry appealed. The Supreme Court overturned the lower court’s ruling – not on the basis of parental legitimacy, but on procedural grounds. Specifically, the Court found that the parents had not complied with the registration requirements of section 2(2) of the Citizenship Act 14 of 1990, which requires birth registration either at a Namibian diplomatic mission abroad, or within one year of the child’s entry into Namibia. The Court allowed the appeal solely on these procedural grounds, leaving broader questions of equality and discrimination unresolved.

The judgment avoided addressing the constitutionality of the Ministry’s DNA requirement, leaving open profound questions about discrimination, equality and the rights of LGBTQI+ families. The legal consequence was clear: the child was not recognised as a Namibian citizen, despite having a Namibian parent and a valid foreign birth certificate.

The UN Committee on the Rights of the Child, in its Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Namibia,^[3] specifically highlighted the absence of a comprehensive framework ensuring the right to nationality, identity and legal parentage for children born through assisted reproduction and surrogacy. The Committee noted the risk of de facto statelessness where such children are denied civil registration or recognition of their parents. It recommended that Namibia ‘adopt legislative and administrative measures to ensure that all children, irrespective of the circumstances of their birth or the sexual orientation of their parents, are promptly registered and enjoy the right to a name, nationality and identity’, consistent with Articles 7, 8 and 9 of the Convention on the Rights of the Child.

This international observation underscores the urgency of domestic reform: without a statutory surrogacy and parentage framework, Namibia remains out of step with its obligations under both the Convention on the Rights of the Child and Article 144 of the Namibian Constitution, which gives such international treaties direct effect in national law.

This case exposes several structural legal failures. First, Namibia’s citizenship framework, though facially neutral, is often applied in ways that disadvantage non-traditional families. Second, the Civil Registration and Identification Act 13 of 2024^[4] introduces a new definition of ‘parent’ that expressly excludes both gamete donors and same-sex couples claiming joint parentage. This wording stands in stark tension with Articles 8 and 10 of the Namibian Constitution, which enshrine human dignity and equality before the law.

Third, while the Children’s Status Act 6 of 2006 and the Child Care and Protection Act 3 of 2015 address parentage and adoption, they remain silent on surrogacy, offering no mechanism for pre- or post-birth parentage orders. As a result, under current law, the surrogate mother – regardless of intent, agreement or biological link – remains the legal mother unless an adoption or parentage order is later obtained.

Without statutory clarity, decisions in these cases are left to the discretion of officials and the courts, producing inconsistency, delay and injustice. The resulting legal vacuum particularly affects LGBTQI+ Namibians, whose children risk statelessness, while their family relationships remain unrecognised and vulnerable to bureaucratic discretion.

Surrogacy is not merely a private reproductive choice – it has become a legal and human rights reality that demands statutory intervention. Namibia must adopt surrogacy-specific legislation recognising intent-based parenthood and ensuring equal access for all families. Such legislation should incorporate ethical safeguards, define legal parentage and guarantee that children born through surrogacy can acquire citizenship without discrimination. Furthermore, Namibia should provide for the recognition of foreign surrogacy orders and parentage judgments to ensure compliance with constitutional protections.

The Lühl-Delgado case should serve as a catalyst for reform – not only in surrogacy and citizenship law but in all frameworks that continue to marginalise families that do not conform to traditional norms. Until such reform occurs, legal parenthood in Namibia will remain uncertain, conditional and unequal.

An additional and often overlooked consequence of this legislative silence is Namibia’s growing potential appeal as a destination for regional or international intended parents. In the absence of clear regulation, Namibia could become a jurisdiction for foreign nationals seeking surrogacy arrangements that may be more tightly controlled or prohibited in their home countries. This unregulated appeal risks turning Namibia into a hub for so-called ‘reproductive tourism’, raising questions of exploitation, jurisdiction and enforceability – particularly where Namibian surrogate mothers carry children for foreign intended parents.

If left unregulated, Namibia may face future litigation, diplomatic disputes and potential harm to both surrogate mothers and children. It will also strain the Namibian legal system, which could increasingly be asked to resolve cross-border reproductive disputes without statutory guidance.

This underscores the urgent need for Namibia to enact comprehensive, rights-based legislation that protects all participants in surrogacy arrangements – ensuring ethical medical practice, contractual fairness, and, most importantly, the best interests of the child.