FALA6211 – LECTURE SUMMARIES

LEARNING UNIT 3

The purpose of adoption in the Act is:

1. To protect and nurture the child, provide a safe and healthy environment with
positive support.
2. To promote goals of permanency so that the child can be adopted into a
nurturing family intended to last a lifetime.

Who is an adoptable child?

• Section 230 (3)
o Orphaned and no guardian willing to adopt
o Parents/guardians cannot be found
o Abandoned
o Abused or deliberately neglected
o Needs permanent alternate home
o Stepchild of the person intending to adopt
o The child’s parents/guardians consented to the adoption unless
consent isn’t required

Who is an adoptable child?

• Section 230 (3)
o Step-parent and co-parent adoptions are allowed
o Why?
§ Stepchild can be regarded as being abandoned and adaptable
o Non-custodian parent has consented
o The child had no contact with parent/guardian/caregiver for >3 months

Who may adopt?

• Two partners forming a family
• Widower, widow, divorced or unmarried persons
• Married spouse whose partner is the biological parent of the child or people in
permanent life partnership and partner is the parent of the child
• The biological father of a child born out of wedlock
• Foster parents

Criteria for Adoptive Parents

• Section 231(2)(a)
• Fit and proper to be trusted with PRR
• Willing and able to undertake, exercise and maintain those responsibilities and
rights
• >18 years and
• Properly assessed by the adoption social worker
Criteria for Adoptive Parents
• What if adoptive parents are not financially well-oX?
Criteria for Adoptive Parents
• Social workers may take into account the cultural and community diversity of
adoptable children and prospective parents
• If prospective adoptable parents are not financially well-oN they may not be
disqualified
o They may apply for social grant

Who consents?
• Biological parents married or unmarried
o Exception: minor – the guardian of the minor will consent
• Person with guardianship
• Child
o if 10 years and older (cognitive and conative understanding)
§ Counselling by a social worker must take place
§ Can withdraw consent within 60 days

Gathering consents?
• Section 237
• Clerk of the children’s court to gather all the information:
o the clerk must locate all persons whom consent is required from
(guardians etc)
o If the person fails to respond to the notice within 30 days then consent is
deemed to have been given
• The presiding oXicer must cause the SheriX of the court to serve them notice
to advise them that their consent is required
o they will then give their consent or not - the child may then consent

Gathering consents?
• The notice must state whose consent is required
• It must also state that the person should give express consent or withhold
consent
• If the biological father is not married to the mother, the same applies, or the
father must adopt the child themselves
o Failure to give consent in 30 days, that person will be regarded to have
consented

When consent is not required

• Section 236
o The parent is mentally ill
o The parent has abandoned the child, or it is impossible to find the
parent/s
 o Parent deliberately neglected or abused the child or allowed the abuse
to happen
o The parent has failed to exercise any parental duties for one year
o The parent has received a court order that they may not consent
o The parent has not responded to a notice of the proposed adoption
within 30 days

Exception to consents?
• Section 236
• Consent of biological father not necessary if:
o He is or was not married to the mother and he has not claimed
paternity of the child.
o The child was born because of an incestuous relationship, or
o The court believes that the child was conceived as a result of rape.

Exception to consents?
• Section 236
o If a child is an orphan, the court will need proof that the child has no
parents and their death certificates must be shown

Post-adoption agreements
• Section 234
o An agreement that a parent or guardian may enter into with the
prospective adoptive parents before the adoption
o May provide for visitation/communication with the child
o Medical information about the child

Post-adoption agreements
• Section 234
o The agreement cannot be entered into without the consent of the child
if the child is of an age, maturity and stage of development to understand
the implications of the agreement
o The social worker must assist the parties in entering into this agreement
o The social worker must also counsel them and explain the implications
of entering into such an agreement

Cancellation of adoption order

• Section 243
• An adoption order can only be cancelled if:
o It will be in the child’s best interests,
o The applicant is a parent whose consent was required but not
obtained, or
 o At the time of the adoption order, the adoptive parent did not qualify to
be an adoptive parent

Cancellation of adoption order

• Section 243
• High Court/Children’s Court may rescind an adoption order if the application is
brought before the court by:
o The adopted child, a biological parent or guardian before the adoption,
or adoptive parents
o Application must be lodged within a reasonable time not exceeding
two years from the date of adoption

Payments for adoption

• Section 249(1)
• No person may give/receive/agree to give/receive any consideration in cash or
kind for the adoption of a child or induce to give up a child for adoption
• Why?
o Prevent human traNicking

Payments for adoption

• Section 249(1)
o Reasonable compensation for medical expenses incurred in
connection with pregnancy/birth of child/treatments/counselling

Can adopted child find biological parents

• Open adoptions
o Post-adoption agreements allow for constant communication
o Parents or children can find each other through the adoption register
o S 248 adopted children can access information on the adoption register
when they reach 18
o A biological parent can gain access once the child turns 18 if the
adopted child/ adoptive parent gives consent in writing

Can adopted child find biological parents

• Open adoptions
o Medical records are treated diNerently
o The adopted child and adoptive parent are entitled to any medical
information in the adoption register concerning the child/biological
parents
§ If such information relates to the health of the child
THEME 2: ARTIFICIAL FERTILISATION

Definition
• The introduction, by other than natural means of a male gamete into the
internal reproductive organs of a female for purposes of reproduction
including the gamete being fertilised outside the human body, or placing the
gamete into a surrogate

Status of child conceived artificially

• According to s 40(2) of the CA, any child born to a woman through AF is regarded
as her natural child and she acquires responsibilities to that child as she
would a natural child.
o The exception to this is of course surrogacy

Access to biographical and medical information concerning genetic parent

• A child born through artificial fertilisation/guardian is entitled to medical
records concerning genetic parents
• Entitled to this information even after 18
• Information may not disclose the identity of the gamete donor/identity of the
surrogate mother
• Director-general of health/any other person specified may require a person to
receive counselling before they receive medical information
THEME 3: SURROGACY

Chapter 19 of the Children’s Act

• A surrogate mother is a woman who undertakes to be artificially inseminated
to bear a child of another set of parents who are called the commissioning
parents

Surrogate motherhood agreement

• A surrogate agreement is
o It is done via a contract between the mother and the commissioning
parent
o It is all artificial to bear a child
o The surrogate mother must agree to hand over the child to the
commissioning parents once born
o The intention is for the child to be the child of the commissioning parents
o Must be in writing and confirmed by application to the High Court

Chapter 19 of the Children’s Act

• Requirements
o It is done via a contract
o It is all artificial
o Done by application to the High Court

Chapter 19 of the Children’s Act

• If there is no surrogate agreement then the child will be the birth mother’s
child as we know that a child born from artificial means is no diNerent to a
natural child.
• Consent from the commissioning parents is required as well as consent from
the surrogate
• The genetics of the child belong to the commissioning parents

Requirements for a valid surrogacy agreement

1. Writing.
2. Confirmed by the High Court within whose area the jurisdiction of the
commission parents, are domiciled or habitually resident.
3. A surrogate motherhood agreement will only be valid if the gametes of the
commissioning parents were used for conceiving the baby.

Genetic origin of the child

• Section 294 CA
• The agreement will only be valid if commissioning parents are used for
conceiving the baby
 o The child must be the genetic child of the commissioning parents even
though the surrogate mother
o If it is not possible to use the gametes of both parents, the gametes of
at least one of the commissioning parents must be used
o Where the commissioning parent is single then the gametes of the
parent must be used

Termination
• A surrogate may terminate her pregnancy in terms of the Choice of
Termination of Pregnancy Act regardless of whether or not the foetus is
genetically related to her.

Requirements and consequences of entering into a surrogacy agreement

• Section 295
• The surrogate mother:
o Must be competent to enter into the agreement
o Must in all respects be a suitable person to act as a surrogate mother

Requirements and consequences of entering into a surrogacy agreement

• Section 295
• The surrogate mother:
o Must understand and accept the legal consequences of the agreement
and her rights and obligations in terms of the Act
o Is not using surrogacy as a source of income.

Requirements and consequences of entering into a surrogacy agreement

• Section 295
• The surrogate mother:
o Has agreed for altruistic reasons and not for commercial purposes
o Has a documented history of at least one pregnancy and one viable
delivery
o Has a living child of her own

Termination
• surrogate mother can terminate the pregnancy in terms of Choice of Termination
of Pregnancy Act
o The decision to terminate rest with the surrogate mother
o The surrogate mother must inform commissioning parents before
termination
o She incurs no liability if done for medical reasons
Termination
• If termination is for other reasons than medical reasons
o The surrogate mother will be liable for payments which commissioning
parents made ito of Section 301
§ This applies where the surrogate mother is genetically related to
the child
§ Or where both commissioning parents’ gametes are used and not
genetically related to the child

Expenses that can be claimed in connection with surrogate pregnancy

• Compensation for expenses that relate directly to artificial fertilisation and
pregnancy
• or the surrogate mother
• the birth of the child
• and the confirmation of the surrogate motherhood agreement.

Expenses that can be claimed in connection with surrogate pregnancy

• Loss of earnings of the surrogate mother as a result of the surrogate
motherhood agreement.

Expenses that can be claimed in connection with surrogate pregnancy

• Insurance to cover the surrogate mother for anything that may lead to
o death,
o or disability brought about by the pregnancy.

Expenses that can be claimed in connection with surrogate pregnancy

• Any person who renders a bona fide legal or medical service with the view to
the confirmation or execution of the surrogate motherhood agreement is entitled
to a reasonable compensation

Prescribed cases:

Ex parte: M S and Others (48856/2010) [2014] ZAGPPHC 457 (2 December 2013)

AB and Another v Minister of Social Development 2017 (3) SA 570 (CC)