FAMILY LAW - Topic 3
ADOPTION, ARTIFICIAL FERTILIZATION AND SURROGATE
MOTHERHOOD
ADOPTION
٭ Regulated by chapter 15 of the children’s act.
٭ A child is adopted if a child has been placed in the permanent care of the adoptive parent
in terms of a court adoption order.
٭ Purpose of adoption: refers to the needs of children, and not to the needs of childless
couples.
Therefore, in terms of the act, the purposes of adoption are:
To protect and nurture children by giving them a safe, healthy environment with
positive support.
To promote the goals of permanency, by connecting the adopted child to other safe
and nurturing family relationships which are intended to last a lifetime.
WHEN CAN A CHILD BE ADOPTED?
ᵒ Section 230(3) of the Children’s Act stipulates that a child is ‘adoptable’ if:
The child is an orphan and has no guardian or caregiver who is willing to adopt the
child.
The whereabouts of the child’s parent or guardian cannot be established.
The child has been abandoned.
The child’s parent or guardian has abused or deliberately neglected the child or has
allowed the child to be abused or deliberately neglected.
The child needs a permanent alternative placement.
ᵒ Section 230(3) now caters for families in which the spouse or domestic life-partner of a
biological parent can adopt and co-parent their spouse or. Life-partners child.
ᵒ An adoption social worker must make an assessment to determine whether a child is
adoptable in terms of section 230(30).
ᵒ Any child who is adoptable, may be adopted, if the adoption is in the best interest of the
child.
Who can adopt?
Section 231(1) provides that a child may be adopted by the following
persons:
Jointly by a husband and wife, partners in a permanent domestic life partnership or
other persons sharing a common household and forming a permanent family unit.
By a widower, widow, divorced or unmarried person.
By a married person whose spouse is the parent of the child (or life long partner).
By the biological father of a child born out of wedlock.
By the foster parent of the child.
, ᵒ The act specifically provides that the term ‘husband and wife’ must be construed to
include spouses married in terms of customary law or religious law.
ᵒ Husband and wife – includes both same sex and opposite sex couples or civil partners in
terms of the Civil Union Act.
231(2)(a) lists the criteria for a suitable adoptive parent:
Fit and proper to be trusted with full parental responsibilities and rights in respect
of the child.
Willing and able to undertake, exercise and maintain those responsibilities and
rights, over the age of 18.
Properly assessed by an adoption social order.
ᵒ The adoption social worker may consider the cultural and community diversity of the
adoptable child and prospective adoptive parent.
ᵒ If the future adoptive parent is not financially well off, he or she may not be disqualified
from adopting a child by virtue of his or her financial status. They can apply for a social
grant.
Who must consent to the adoption?
According to section 233(1), a child may only be adopted if the following
people give their consent:
Each parent of the child, regardless of their marital status, provided that, if the
parent is a child, that parent is assisted by his or her guardian.
Any other person who holds guardianship in respect of the child.
The child, if the child is 10 years of age or older, or under the age of 10, but is of
an age, maturity and stage of development to understand the implications of
consenting to his or her adoption.
ᵒ Any of these people may also withdrawal their consent within 60 days of having signed
the consent.
ᵒ Social workers will counsel both the parents and the child where needed.
Gathering information about required consent and giving notice of proposed
adoption.
ᵒ Section 237 — once a child becomes available for adoption, the clerk of the children’s
court must gather information for the proposed adoption.
ᵒ The clerk has to locate all persons whose consent is required and must establish their
names and addresses.
ᵒ The clerk of the court may call upon the assistance of the Director-General of Home
Affairs to access information contained in the registration of the child and may gather
information from the social worker involved in the adoption.
ᵒ Once all this information has been gathered, the presiding officer of the children’s court
must without delay cause the sheriff to serve notice on each person whose consent is
required.
ᵒ The notice must inform the person whose consent is sought of the proposed adoption of
the child.
ᵒ The notice must also request that person to either give their consent or expressly
withhold his or her consent.
ADOPTION, ARTIFICIAL FERTILIZATION AND SURROGATE
MOTHERHOOD
ADOPTION
٭ Regulated by chapter 15 of the children’s act.
٭ A child is adopted if a child has been placed in the permanent care of the adoptive parent
in terms of a court adoption order.
٭ Purpose of adoption: refers to the needs of children, and not to the needs of childless
couples.
Therefore, in terms of the act, the purposes of adoption are:
To protect and nurture children by giving them a safe, healthy environment with
positive support.
To promote the goals of permanency, by connecting the adopted child to other safe
and nurturing family relationships which are intended to last a lifetime.
WHEN CAN A CHILD BE ADOPTED?
ᵒ Section 230(3) of the Children’s Act stipulates that a child is ‘adoptable’ if:
The child is an orphan and has no guardian or caregiver who is willing to adopt the
child.
The whereabouts of the child’s parent or guardian cannot be established.
The child has been abandoned.
The child’s parent or guardian has abused or deliberately neglected the child or has
allowed the child to be abused or deliberately neglected.
The child needs a permanent alternative placement.
ᵒ Section 230(3) now caters for families in which the spouse or domestic life-partner of a
biological parent can adopt and co-parent their spouse or. Life-partners child.
ᵒ An adoption social worker must make an assessment to determine whether a child is
adoptable in terms of section 230(30).
ᵒ Any child who is adoptable, may be adopted, if the adoption is in the best interest of the
child.
Who can adopt?
Section 231(1) provides that a child may be adopted by the following
persons:
Jointly by a husband and wife, partners in a permanent domestic life partnership or
other persons sharing a common household and forming a permanent family unit.
By a widower, widow, divorced or unmarried person.
By a married person whose spouse is the parent of the child (or life long partner).
By the biological father of a child born out of wedlock.
By the foster parent of the child.
, ᵒ The act specifically provides that the term ‘husband and wife’ must be construed to
include spouses married in terms of customary law or religious law.
ᵒ Husband and wife – includes both same sex and opposite sex couples or civil partners in
terms of the Civil Union Act.
231(2)(a) lists the criteria for a suitable adoptive parent:
Fit and proper to be trusted with full parental responsibilities and rights in respect
of the child.
Willing and able to undertake, exercise and maintain those responsibilities and
rights, over the age of 18.
Properly assessed by an adoption social order.
ᵒ The adoption social worker may consider the cultural and community diversity of the
adoptable child and prospective adoptive parent.
ᵒ If the future adoptive parent is not financially well off, he or she may not be disqualified
from adopting a child by virtue of his or her financial status. They can apply for a social
grant.
Who must consent to the adoption?
According to section 233(1), a child may only be adopted if the following
people give their consent:
Each parent of the child, regardless of their marital status, provided that, if the
parent is a child, that parent is assisted by his or her guardian.
Any other person who holds guardianship in respect of the child.
The child, if the child is 10 years of age or older, or under the age of 10, but is of
an age, maturity and stage of development to understand the implications of
consenting to his or her adoption.
ᵒ Any of these people may also withdrawal their consent within 60 days of having signed
the consent.
ᵒ Social workers will counsel both the parents and the child where needed.
Gathering information about required consent and giving notice of proposed
adoption.
ᵒ Section 237 — once a child becomes available for adoption, the clerk of the children’s
court must gather information for the proposed adoption.
ᵒ The clerk has to locate all persons whose consent is required and must establish their
names and addresses.
ᵒ The clerk of the court may call upon the assistance of the Director-General of Home
Affairs to access information contained in the registration of the child and may gather
information from the social worker involved in the adoption.
ᵒ Once all this information has been gathered, the presiding officer of the children’s court
must without delay cause the sheriff to serve notice on each person whose consent is
required.
ᵒ The notice must inform the person whose consent is sought of the proposed adoption of
the child.
ᵒ The notice must also request that person to either give their consent or expressly
withhold his or her consent.
