There are some countries, such as Australia and the USA, where the mother can give her baby any surname she wants without the father’s consent. However, if the father wants to change the surname of his child, he can do so on the birth certificate by petitioning the government to change it on his behalf.
According to South African law, a child born in a marriage can be given either the surname of the father or the mother or a double-barrelled surname combining both surnames. Parents can’t choose any surname they want.
When a child is born outside of marriage, the child may choose either of the parents’ surnames. Before the enactment of the amended legislation earlier this year, the child could take either the father’s or the mother’s surnames if both consented to this. Otherwise, the child would take the mother’s surname. To do so, the father did not need to consent.
It is now possible for unmarried fathers to register biological children under their surname. Having recently ruled on the constitutionality of section 10 of the Births and Deaths Registration Act 51 of 1992 (“Births Act”), unmarried fathers are likely to celebrate this victory.
The judge declared this section unconstitutional based on the fact that it constitutes unfair discrimination (right to equality) on the grounds of marital status, gender, and race. According to this section, married and unmarried fathers receive different treatment under the law, which results in discrimination based on their marital status, as discussed above.
A distinction has also been established between unmarried fathers and mothers, as mothers do not require unmarried fathers to be involved in the same manner. It was ruled by the Constitutional Court that this maintained the stereotypical belief that a child’s care is primarily the responsibility of the mother and resulted in sex and gender discrimination.
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