Is Having the Right to Give the Father’s Name to Children Born out of Wedlock a Win for Kenyan Women?

Pregnant woman

The High Court has ruled that children born out of wedlock shall have their father’s name inserted in their birth certificate as a right. Justice Mumbi Ngugi ruled that S12 of the Registration of Births & Deaths Act  – which stated that the father’s consent is a necessity – is unconstitutional and violates Art27 of the constitution. (Read the full decision here). Essentially. a mother, married or not, can now add a father’s name to the birth certificate without his permission.

The primary reason for that ruling is simply the needs of the child. Every child, particularly in our patriarchal society, should have a right to their father’s name, whether or not the father consents. This opens the door for many children who would be discriminated against in terms of inheritance from the father, access to medical records and information and social stigma. While the ruling has been commonly seen as protection to single mothers, the LSK argued, through its lawyer Rose Mbanya, that the provision also discriminates against children of married couples where “his or her parents are unable to agree and make a joint application”.

This ruling was, no doubt, a win for women.  Maendeleo ya Wanaume, unsurprisingly, finds this appalling and onerous on men because of the risk of men being falsely named as fathers, with all the legal and social responsibilities attached. Further they believe “Kenyan men will not marry a woman who has a child that bears the name of another man”. This statement contains not only the assumption that every woman’s primary goal in life is marriage, that the welfare of their children falls second to that need but also holds a surprisingly low estimation of men, in that a man cannot love a child or a woman not owned (in name or in blood) by him. We would like to believe that people in general are far greater than that.

Yet, let us consider the question of undue burden: can women use this ruling to take advantage of unwitting men?

It is entirely possible, though we believe highly unlikely, but the law mitigates this risk. There are specific legal consequences to falsifying the father’s name. Giving of a false name for a child’s father is criminalised through Section 320 of the Penal Code as read with Section 312 of the same Act, and Section 22 of the Births and Deaths Registration Act. There is precedent for deleting a ‘father’s” name from a birth certificate through an order of the High Court if he isn’t the biological father by the mother.

Further, the benefit of the father’s name also comes with risks. For instance, for a child to leave the country, one must have approval from both parents – if you cannot agree on having the father’s name there, would you be able to agree on such a big decision? When leaving an abusive or manipulative relationship, is keeping the father’s name worth having an abusive partner retain legal rights over the child? The law as it is does not state one must write the biological father’s name: it simply allows for that decision to be made by the woman alone. When making that decision, women must weigh the risks and benefits of the father’s name.

It is telling that the top ten hits on a Google search on “single mothers in Kenya” include articles headlined  “Would you marry a single mother” notably in the Crazy World section, “This is why Men are turned off by single mothers under 30” and “Why Kenyan Men are scared of marrying single mothers”.  The content of the articles may differ but they are all are coming from the perspective that single motherhood is a thing to be feared, questioned and needs explanation.

The simple fact that it has been referred to as ‘the dead-beat dad’ case tells you that this change is less onerous on men but rather a much-needed correction of a power imbalance where women and children are often unprotected and cannot gain the benefits from men. We may question the framing of a child’s ‘wholeness’ being dependent not the names of the biological father and mother (in questions of adoption & surrogacy, this is becomes tricky and, socially, no child should be stigmatized or discriminated against in any way because they lack a male or female parent). However in this patriarchal (and misogynistic) society, any step taken to protect women and children is one we can applaud.

Anne Moraa

Anne Moraa is a writer and an editor based in Nairobi, Kenya

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