Is my Child's Entitled to their Father's Name on the Birth Certificate if we are Unmarried?
Source: PinterestWhy was Section 12 of the Births and Deaths Registration Act was considered unconstitutional?
Because it was not aligned to the
Constitution of Kenya 2010 Section 53, and the Children Act 2001 (currently
2022) which upholds equal parental responsibilities toward a child whether
parents are married or not. Part III, Section 32 (1) of Children Act 2022,
states that: “the parents of a child
shall have parental responsibility over the child on an equal basis, and
neither the father nor the mother of the child shall have a superior right or
claim against the other in exercise of such parental responsibility whether or
not the child is born within or outside wedlock”.
Therefore, Section 12 of the Births and Deaths Registration Act was deemed unconstitutional because this provision stipulates that a person cannot be entered in the register of births as the father of a child unless the father and mother jointly request for it or if they provide evidence that they were legally married at the time of the child's birth.
The law assumed that every child had both parents available to make a
joint application, which created problems for single mothers who had no
financial support from the fathers of their children.
In the past, unmarried women's claims about the fathers of their children were often disregarded because there was no conclusive way of verifying their claims.
Even in situations where a
father prohibited the mother from including his name on the birth certificate,
the law supported him, which left many single mothers with the responsibility
of raising their children alone.
Violation of Child’s right to identity and genealogy, and discriminatory
To make matters worse, when no
father was acknowledged, birth certificates of children born outside marriage
were marked with "XXXX," which obliterated important information
about the child's background and history. This practice goes against
constitutional provisions on the right to information and health and denies
children their right to access their history and background information.
Additionally, Section 12 creates an arbitrary and unfair distinction between children born within and outside marriage and between married and unmarried women, which reinforces discrimination in an already patriarchal system. The Constitution promises equality and non-discrimination to all children, including those born outside marriage, and it is essential to uphold these promises.
What was the spirit behind this ruling?
The essence of the ruling is to
transform society, recognize the inherent dignity and worth of all individuals,
and protect those who have been marginalized to ensure that they enjoy the same
human rights as everyone else. The primary consideration in all matters
concerning the child, regardless of their birth status, should be their best interests.
The Constitution and the Law of
Succession Act already provide equal treatment to all children, whether born
within or outside marriage. The ruling merely upholds the existing laws on
equality and brings the law in conformity with the Constitution.
In cases where the father of a
child born outside marriage refuses to contribute to their upbringing, the
mother is often forced to seek a maintenance order through the courts, which
can involve establishing paternity through a DNA test, as per the ruling
delivered.
However, by including the
particulars of fathers in the birth certificates of all children, regardless of
their birth status, legislation can reduce the burden on women and make it
possible for men to take up their responsibilities towards children sired
outside marriage.
What if the child is born out of rape or
defilement, should the rapist/defilers name be included?
In certain cases, children are conceived as a result of sexual violence, and in such situations, women may not want to include the names of the fathers of their children on the birth certificates. However, the ruling does not explicitly address how to handle sensitive situations like rape, or if the father cannot be identified.
The
implication is that if the father's identity is known through DNA testing, he
should provide for the child and appear on the birth certificate. The court may
resort to means such as attaching the property of the accused if they are
destitute.
The judgement has the potential to
take away women's choice to exclude the names of men they have had children
with, which raises difficult questions. It is an oversight by the learned judge
if the ruling implies that the placement of fathers' names on birth
certificates is mandatory, especially considering the circumstances of rape
victims who may not want the names of their attackers on their children's birth
certificates.
Can this ruling be used to exploit men or promote fraudulent acts by women?
The Attorney General argued that
the reason for Section 12 of the Birth and Registration Act was to protect men
from false accusations of fatherhood, which was a patriarchal and unfair
mindset that prioritized men's interests over those of children.
However, the court disagreed and
found that the alleged protection of men from unscrupulous women was based on
negative stereotypes of women and discriminatory. The court also pointed out
that the law provides penalties for anyone who gives false information during birth
registration.
If a mother falsely names someone as the father of her child born out of wedlock, she can be charged with an offense. DNA testing can be used to confirm paternity, and the court has provided guidance on who should bear the cost of such testing.
The court has
also emphasized the need for clear rules and procedures for inserting the name
of the putative father in the birth register and certificate, giving notice to
the person concerned, and conducting DNA testing if there is an objection.
There were concerns that allowing
names to be inserted in the register at any time could lead to confusion and
endless litigation. The court suggested that clear rules and procedures could
address this concern.
In conclusion, in Kenya, children are entitled to their father's name and support regardless of whether the parents were married or not, or whether the child was conceived through rape or defilement.
This was confirmed in a above court ruling that declared that children born out of wedlock are entitled to inherit from their fathers and have their names included on the birth certificates. The ruling also stated that the best interests of the child should be the primary consideration in all matters concerning the child, and that clear rules should be put in place to establish paternity, including DNA testing where necessary.
However, in sensitive situations such as rape, the court ruling did not explicitly state what should happen to women who do not wish to include the names of the fathers on their children's birth certificates.
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