CH 3 ADOPTION, ARTIFICIAL FERTILISATION & SURROGATE MOTHERHOOD 1 ADOPTION Regulated by Ch15 of CA.

A child is adopted if the child has been placed in the permanent care of the adoptive parent ito a court order. CA has a child-centred approach to adoption. The purposes of adoption set out in the CA refer to the needs of children & not the needs of childless couples/single people who want to build a family. Ito of the CA the purposes of adoption are: (i) (ii) Protection & nurturing of children by giving them a safe, healthy environment with positive support; and Promotion of the goals of permanency by connecting the adopted child to other safe & nurturing family relationships which are intended to last a lifetime.

1.1 When Can A Child Be Adopted? Regulated by s230(3) of the CA. Child is adoptable if: (i) (ii) (iii) (iv) (v) The child is an orphan & has no guardian/caregiver who is willing to adopt the child; The whereabouts of the childs parent/guardian cannot be established; The child has been abandoned; The childs parent/guardian has abused/deliberately neglected the child, or has allowed for the child to be abused/deliberately neglected; or The child is in need of permanent alternative care.

S230(3)(e) is very widely worded. It can therefore cover a range of circumstances. Eg: young girl has a baby & is unable to take care of the baby due to her social & economic circumstances. H/e, s230(3) does not expressly cater for families where the spouse/partner of one of the biological parents wishes to adopt the child. Eg: Widows new life-partner wishes to adopt her child in order to be the childs legal parent. Constitutes a deficiency in the CA. S230(2) provides that an adoption social worker must assess whether the child is adoptable ito s230(3). Adoptable child can be adopted if: (i) (ii) The adoption is in the childs best interests. Provisions of the CA are complied with.

1.2 Who Can Adopt?

Regulated by s231(1) of the CA. Ito s231(1) the child can be adopted by the ff: (i) (ii) (iii) (iv) (v) Jointly by a husband & wife; partners in domestic life-partnership; other persons sharing a common household & forming a permanent family unit. Widower, widow, divorced or unmarried person; By a married person whose spouse is the parent of the child; or a person in a permanent domestic partnership, whose domestic partner is the parent of the child; Biological father of a child born out of wedlock; or Foster parent of the child.

Husband & wife in (i) above includes the ff: (i) (ii) (iii) (iv) Spouses married ito civil law Spouses married ito customary law Spouses married ito religious law Spouses married ito the Civil Union Act

S23(2)(a) lists the criteria prospective adoptive parents must comply with. The adoptive parent must be: (i) (ii) (iii) (iv) Fit & proper to be trusted with the full P.R.R iro the child; Willing & able to undertake, exercise & maintain those P.R.R Over the age of 18 years; and Properly assessed by an adoption social worker.

The adoption social worker may also take into account the cultural & community diversity of the adoptable child & the prospective adoptive parent. A prospective adoptive parent who is not financially well off cannot be disqualified from adopting a child by virtue of his financial status. The prospective adoptive parent may apply for a social grant. CA makes provision for the creation of a register of adoptable parents & children.

1.2 Who Must Consent To The Adoption Regulated by s233(1) of the CA. A child may only be adopted if the ff people have given consent: (i) (ii) (iii) Each parent of the child, regardless of whether they are married or not; provided that if the parent is a child, that that parent is assisted by his/her guardian; Any other person who holds guardianship iro the child; The child; if the child is 10 years old or older, or under the age of 10 years but is of an age, maturity & stage of development to u/s the implications of consenting to his adoption.

Consent may be withdrawn within 60 days of having signed the consent. CA makes provision for a social worker to counsel the parents of the child on the decision to make the child available for adoption.

The social worker must also counsel the child, where applicable. 1.3 Gathering Information About Required Consent, Giving Notice Of Proposed Adoption Regulated by s237 of the CA. Once the child becomes available for adoption, the clerk of the childrens court must gather information for the proposed adoption. Clerk has to locate all the relevant persons whose consent is required. Such persons names & addresses must be established. The sheriff will then serve notice on each person whose consent is required. The notice will request such persons to either: (i) (ii) Give consent; or Expressly withhold consent.

Ito the notice given to the biological father of a child who is not married to the childs mother, the notice must expressly request him to either: (i) (ii) (iii) Give consent; Expressly withhold consent; or Apply to adopt the child himself.

If the person fails to comply with the notice w/i 30 days such person is deemed to have consented to the adoption. 1.4 When Is Consent To the Adoption Not Required? Regulated by s236 (1)(a) (f) of the CA. Consent of the parent/guardian can be dispensed with if that parent/guardian: (i) (ii) (iii) (iv) (v) (vi) Is incompetent to give consent due to mental illness; Has abandoned the child, cannot be found or if the identity of the parent/guardian is unknown; Has abused/deliberately neglected the child or allowed for the abuse & neglect to take place; Has consistently failed to fulfil his P.R.R towards the child during the last 12 months; Has received a court order that has divested him of the right to consent to the adoption of the child; or Has failed to respond to the notice of the proposed adoption within the 30 days of service of the notice.

The consent of the biological father is not required if: (i) He is not married to the childs mother, or was not married to the childs mother at the time of conception or any time thereafter & he has not acknowledged or claimed paternity; The child was conceived from an incestuous relationship between the biological father & mother; The court, ff an allegation by the mother, finds on a balance of probabilities that the child was conceived as a result of rape. The finding by the court shall not constitute a conviction for the crime of rape.

(ii) (iii)

Consent is not required if: (i) (ii) The child is an orphan & has no guardian who is able/willing to adopt the child; Childrens court may on a balance of probabilities make a finding as to the existence of a ground on which a parent is excluded from giving consent s235(5).

1.5 How One Does One Go About Giving Consent To The Adoption? Consent given in SA must be: (i) (ii) In writing; and Signed in the presence of a presiding officer of the childrens court.

Consent of the child must be signed in the presence of the presiding officer. Consent must be verified by the presiding officer. Consent must be filed by the clerk of the childrens court. Consent given outside SA must be: (i) (ii) (iii) (iv) In writing; Signed in the presence of the prescribed person; Verified by the prescribed person; and Submitted to & filed by the clerk of the childrens court.

S234(3) allows the court to condone a deficiency if good cause is shown, where the procedures outside the RSA were not followed. 1.6 Post-adpotion Agreements (P.A.A) Regulated by s234 of the CA. P.A.A may provide for: (i) Communication (incl visitation) between the child & parent/guardian or any other person. (ii) Any information, incl medical info, about the child. P.A.A. may not be entered into without the consent of the child if the child is of an age, maturity & stage of development to u/s the implications of such agreement. Parties to the P.A.A. must be assisted in preparing it by the social worker facilitating the adoption. Social worker must counsel the parties on the implications of the P.A.A. Modern trend is toward open adoption. This allows for on-going communication between the adopted child & their biological parents. When granting the adoption application, the court may confirm the P.A.A. if it is in the childs best interests. P.A.A. will only take effect if it is made an order of the court. It may be amended or terminated only by an order of the court on application by a party to the agreement or by the adopted child.

1.7 What Are Freeing Orders (F.O)? F.O divests biological parents/guardians from P.R.R which incl: (i) Responsibilities of guardianship. (ii) Duties to contribute to maintenance pending the adoption F.O must authorise a child protection organisation/person to exercise P.R.R. iro the child pending the adoption. F.O lapses if: (i) Child has not been adopted within 12 months & there is no reasonable prospect of adoption; (ii) Order is terminated by the court as it is no longer in the childs best interests; (iii) Child, parent or person who consented to the adoption withdraws consent. 1.8 Procedural Requirements When Applying For An Adoption Regulated by s239 of the CA. Requirements: (i) (ii) (iii) Application must be made to the childrens court. Application must be accompanied by an adoption social workers report. Above report must contain the ff info: (a) Whether the child is adoptable; (b) Whether the adoption is in the childs best interests; and (c) Prescribed medical info irt the child. Application must be accompanied by the social workers assessment of the prospective adoptive parents. Application must be accompanied by a letter from the provincial head of social development recommending the adoption. Clerk must submit all the necessary documents to court. Documents submitted incl: (a) Written consent of all relevant parties; (b) Written responses or failure to respond to requests made irt gathering of info; and (c) Any info which may assist the court or that is otherwise prescribed.

(iv) (v) (vi) (vii)

An applicant has no access to any of the documents lodged with the court, except with the permission of the court. 1.9 Factors The Court Considers In An Adoption Application Regulated by s240 of the CA. Factors incl: (i) (ii) (iii) Religious/cultural background of the child, the childs parents & prospective adoptive parents; All reasonable preferences expressed by a parent & stated in the consent; and Social workers report.

Above factors provide the legal basis for matching the child to the prospective adoptive parents.

The court can grant the adoption despite the parent withholding consent, provided such refusal is unreasonable & the adoption is in the childs best interests. To determine whether consent is unreasonably withheld the court takes all the relevant factors into account which incl: (i) (ii) (iii) The nature of the relationship between the child & the person withholding consent; Any findings by a court in this respect; and The prospects of a sound relationship developing between the child & the person withholding consent in the immediate future. Effects Of An Adoption Order

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Child is regarded as the child of the adoptive parents for all purposes & vice versa. Adoptive parents acquire full P.R.R. Legal ties between the adopted child & the biological parents are cut. Biological parents no longer have P.R.R. H/e P.A.A can give the biological parents the right to communicate with each other. 1.11 Cancellation Of Adoption Order

HC or childrens court may rescind an adoption order if the application is brought by the: (i) (ii) (iii) Adopted child; Biological parent/guardian before the adoption; or Adoptive parent

Application must be lodged within reasonable time but not exceeding 2 years from the date of adoption. Adoption order may be rescinded if: (i) (ii) (iii) Its in the childs best interests; and Applicant is a parent of the child whose consent was not obtained; or At the time of the adoption order, the adoptive parent did not qualify to be an adoptive parent ito s231 of the CA.

Notice of the rescission of an adoption order must be given to: (i) (ii) (iii) (iv) 1.12 The adoptive parent All persons who have consented to the adoption or withheld consent Central authority in the case of an inter-country adoption Any other person the court finds has sufficient interests in the matter. Effects Of Cancelling An Adoption Order

Legal consequences of the adoption order no longer apply. All P.R.R. acquired by the adoptive parents are terminated. The P.R.R. of the biological parents/guardian are restored.

Court may make an appropriate placement order or an order that the child be kept in temporary safe care until an appropriate placement can be made. 1.13 Are Payments Allowed For An Adoption?

Regulated by s249(1) of the CA. No person can give/receive; agree to give/receive any consideration, in cash or kind, for the adoption of a child or to induce a person to give up a child for adoption. Objectives of s249(1): (i) (ii) Prevent abuse of the adoption process; and Prevent child trafficking.

H/e the biological mother can receive compensation for reasonable medical expenses incurred during the pregnancy, birth of the child &follow-up treatment, counselling or any other prescribed expenses. 1.14 P.A.A Adopted children or biological parents can find each other through the adoption register. S248 of the CA: An adopted child can access info contained in the adoption register once he reaches the age of 18 years. The adoption register contains the personal details of the adopted child, their biological parents & adoptive parents. Can An Adopted Child Find His Biological Parents?

The biological parents may also have access to the adoption register once the adopted child reaches the age of 18 years but only if the written consent of the ff persons is obtained: (i) (ii) The adoptive parent and The adopted child

S248(3) of the CA: Adopted child & adoptive parents are entitled to any medical info in the adoption register concerning the adopted child or the biological parents of the adopted child, if such info relates to the health of the child. 1.15 Inter-country Adoptions

Applies to those adoptions where the adoptive parents live in a different country from the adopted child. Regulated by Ch16 of the CA & it gives effect to the Hague Convention on Inter-Country Adoption. Ch 16 provides for: (i) (ii) (iii) Recognition of foreign adoptions Facilitates finding fit & proper adoptive parents Regulation of aspects of inter-country adoptions.

AD v DW (Centre for Child Law as Amicus Curiae, Department for Social Development as Intervening Party) 2008 (3) SA 183 (CC) 2 ARTIFICIAL INSEMINATION

2.1 Definition of Artificial Insemination A.I. is defined as the introduction, by means other than natural means, of a female gamete into the internal reproductive organs of a female person for the purpose of human reproduction. This incl: (i) (ii) Bringing together of male & female gamete outside the human body with a view to placing the product of a union of such gametes in the womb of a female person The placing of the product of a union of male & female gametes which have been brought together outside the human body, in the womb of a female person.

Gametes: Sperm in the case of males & ova (eggs) in the case of females.

2.2 Status of a Child Conceived By A.I. Child born as a result of the A.I. of a woman with the semen of her H is a child born of married parents, that is, their biological child. This is the position regardless of whether or not the H consented to his semen being used. S40 (1) of the CA: If the child was conceived using the gamete(s) of another person (donor), the child will still be regarded as a child born of married parents, provided both spouses/civil union partners consented to the A.I. S40 (1)(b) of the CA: As consent is presumed to have been given, anyone who alleges that it was absent bears the onus of proof. S40 (2) of the CA: Whenever a woman is A.I. any child born of that woman, must for all purposes be regarded as the child of that woman, except if the woman acts as a S.M. No right, responsibility, duty or obligation arises between the child born as a result of A.I. & the person who donated their gametes unless: (i) (ii) The person is the birth-mother of the child or The person was the H of the birth- mother at the time of such A.I.

S40 does not apply in cases of S.M. 2.3 Access to Biological & Medical Info Concerning the Genetic Parents Child or the guardian is entitled to access any medical info concerning the childs genetic parents. Also entitled to other info concerning the childs genetic parents once the child turns 18. H/e info disclosed may not reveal the identity of the gamete donor or the surrogate mother. CA makes provision for the child/guardian to receive counselling before receiving medical or other info.

SURROGATE MOTHERHOOD (S.M)

Dealt with in Ch 19 of the CA. S.M. regulated by law to prevent abuse of the surrogate mother or the commissioning parents.

3.1 Definition of Surrogate Mother Woman who undertakes to be A.I. in order to bear a child for another set of parents, called the commissioning parents (C.P). 3.2 Definition of a Surrogate Motherhood Agreement (S.M.A). S.M.A = Contract between a S.M. & the C.P. in terms of which it is agreed that the S.M. will be A.I. for the purpose of bearing a child for the C.P. & in which the S.M. agrees to hand over the child to the C.P. once the baby is born, with the intention that the child becomes the child of the C.P. S.M.A. must be: (i) In writing (ii) Confirmed by HC within whose area of jurisdiction the C.P. are domiciled or habitually resident. 3.2 Do you have to enter into an Agreement with the S.M.? Yes as if there is no S.M.A. the S.M. will be the legal mother of the child. 3.3 Consent Required If the C.P. is married or in a permanent relationship, the written consent of H, W, spouse, or lifepartner of the C.P. must be given. This person must also become a party to the S.M.A. The same applies to the S.M. Where the H or partner of the S.M. who is not the genetic parent of the child unreasonably withholds consent, the court may confirm the S.M.A.

3.4 Genetic Origin of the Child S.M.A will only be valid if the: (i) Gametes of the C.P. are used for conceiving the child; or (ii) If this is not possible due to biological, medical or other valid reasons, the gamete of at least one of the C.P. must be used. The baby must therefore be the genetic child of at least one of the C.P. Where the C.P. is single, the gamete of that person must be used. 3.5 Confirmation by the Court Regulated by s295 of the CA.

S.M.A. must be confirmed by the HC in order to be valid. See pg 219 of the prescribed textbook for the conditions that must be satisfied ito s295 of the CA before the HC can confirm the S.M.A. 3.6 Status of a Child Born of a S.M.A. Ito a valid S.M.A the child is deemed to be the child of the C.P. from the moment of birth. The S.M. must hand over the child to the C.P. as soon as is reasonably possible after the birth. S.M. & her H, partner or relatives have P.R.R iro the child. No right of contact between the child & the S.M., her H or her relatives unless provided for ito the S.M.A. Child has no claim for maintenance or succession against the S.M., her H or any of her relatives. If the S.M.A. does not comply with the provisions of the CA the agreement will be invalid. I.O.W. the child will be deemed to be the child of the S.M. 3.8 Termination of a S.M.A. Regulated by s298 of the CA. S.M. who is the genetic parent of the child may terminate the S.M.A. at any time before the child is 60 days old. I.O.W. this means that the S.M. has the right to keep the child if she is one of the genetic parents of the child. Written notice must be filed with the HC. Prior notice must be given to all parties to the agreement. The court must terminate the S.M.A. if the court concludes that: (i) (ii) The S.M. has voluntarily terminated the agreement; and U/s the effects of the termination of the S.M.A.

The court may issue any other appropriate order if it is in the childs best interests. The S.M. incurs no liability to the C.P. for terminating the S.M.A., except for payments they made ito s301 of the CA. The S.M. may not terminate the S.M.A. if she is not genetically related to the child. I.O.W. the S.M. has no choice but to hand the child over to the C.P regardless of whether she wants to keep the child or not. CA is silent on whether the C.P. can terminate the S.M.A. 3.9 Effect of Termination of a S.M.A. Regulated by s 299 of the CA. If termination of the S.M.A. is done during the pregnancy, then the unborn child is deemed to be that of the S.M.

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S.M. has no obligation to hand the child over to anyone else. If the S.M. is single, the child is deemed to be the child of the commissioning father. If the S.M.A. is terminated after the birth of the child, the S.M.A. obtains full P.R.R. iro the child. If the S.M. is married or has a partner, her H or partner acquires full P.R.R. iro the child. If the S.M. is single, the commissioning father acquires full P.R.R. A single S.M. who terminates the S.M.A. may claim maintenance from the commissioning father as the commissioner father will be regarded as the father of the child & will acquire P.R.R. S.M. & her H or partner or if she is single, the commissioning father, are obliged to accept the obligation of parenthood. Once the S.M.A. is terminated, the C.P. have no rights of parenthood. The child also has no rights to maintenance & succession against the C.P. 3.10 Can a S.M. Terminate Her Pregnancy? S.M.A is terminated when the S.M. terminates her pregnancy ito the Choice of Termination of Pregnancy Act. H/e the S.M. must: (i) Inform the C.P. of her decision to terminate the pregnancy (ii) Consult with the C.P. before the termination is carried out. S.M. incurs no liability to the C.P. if the pregnancy is terminated for medical reasons. The S.M. is liable to the C.P. for payments which the C.P. made to her ito s 301 if the pregnancy is terminated for reasons other than medical grounds. The S.M. can terminate the pregnancy whether the child is genetically related to her or not. 3.11 Can a S.M. Receive Payment? Regulated by s 301(1) of the CA. General principle: No person may iro a S.M.A. give or promise to give any person, or receive from any person, a reward or compensation in cash or kind. Exceptions to the general principle: (i) (ii) (iii) (iv) Compensation for expenses that relate directly to the A.I. & pregnancy of the S.M., the birth of the child & the confirmation of the S.M.A.; Loss of earnings suffered by the S.M. as a result of the S.M.A.; Insurance to cover the S.M. for anything that may lead to the death or disability brought about by the pregnancy; Any person who renders a bona fide legal or medical service with the view to the confirmation or execution of the S.M.A. is entitled to reasonable compensation.

3.12 Access to Biological & Medical Info Concerning Genetic Parents What applies to A.I. applies to S.M.

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