Adoption

Source: Cape Gateway

Adoption is a legal way for an adult single person or couple to become the legal parents of a child. When you adopt a child, the child becomes yours as though born of you.

Legal adoptions
Who can adopt a child
When is adoption not necessary
Are inter-country adoptions possible
HIV/AIDS and adoption
Where to go to start adoption proceedings
The adoption process
Helpful hints
Cancelling an adoption

LEGAL ADOPTION

Illegal adoption, which is paying for a child, is a crime.

Only children available for adoption may be adopted. For example, a child whose parents are both dead is available for adoption. Where the parents are alive, they must both consent to the adoption. Any child under 18 years can be adopted.

Open adoptions are adoptions where the identities of the various parties are not kept secret. For example, where other family members of a child adopt the child.

With closed adoptions, identities of the parties are kept secret. Closed adoptions are usually done through accredited welfare agencies or private practices.

WHO CAN ADOPT A CHILD?

A married couple can jointly adopt a child.

Partners in a life-partnership (including same-sex partners) can jointly adopt a child.

A person who has married the natural parent of a child can adopt the child (adoption of a step-child).

A single person (a widow or widower or an unmarried or divorced person) can adopt a child as a single person if they get the consent of the Minister.

WHEN IS ADOPTION NOT NECESSARY?

A biological father of a child born to an unmarried woman may apply to adopt a child. However, it is not necessary for the father to adopt the child if he marries the mother of the child, as the marriage will confer on him the rights and obligations normally associated with the children of a marriage.

A child born as the result of artificial insemination of a married woman is automatically the child of that woman and her husband. The husband does not need to adopt the child.

Currently, a child born from a surrogate-mother arrangement is the birth mother’s child, and must be adopted by the commissioning parents. However, in terms of the Children’s Bill, likely to become law in 2004, a child born from a court-confirmed surrogate-motherhood agreement will automatically be the child of the commissioning parents.

ARE INTER-COUNTRY ADOPTIONS POSSIBLE?

In the past, adoption by a non-citizen of a child born of a South African citizen inSouth Africa was possible only if the non-citizen qualified for naturalisation as a South African citizen. South African courts also had no power for adoptions of non-South African children by South Africans.

However, South Africa has now signed an international convention on inter-country adoptions. The Children’s Rights Bill, likely to be passed in 2004, sets out the procedure for inter-country adoptions.

To legalise any inter-country adoptions it is important to liaise directly with the Registrar of Adoptions in Pretoria, as well as International Social Services (ISS) inSouth Africa.

HIV/AIDS AND ADOPTION OR FOSTERING

The status of the child

Prospective parents often want to know whether the child they are going to adopt is HIV positive. The law does not require the adoption agency to tell the parents this, but some adoption agencies will disclose this.

The status of the adoptive parents

There is no legal requirement for prospective parents to be tested for HIV. However some adoption agencies will not allow a person who has HIV to adopt a child. HIV testing is not something that the law demands and it can be considered an invasion of a person’s privacy.

WHERE TO GO TO START ADOPTION PROCEEDINGS

Adoption proceedings are usually handled by social workers at accredited welfare adoption agencies.

You can also contact your local district office of the Department of Social Development for welfare agencies in your area.

Some welfare agencies involved in fostering placements may also, usually in the case of open adoptions, assist with arranging an adoption. (Closed adoption – where the identity of the parties remains secret – is usually done through the major welfare agencies.)

Registered social workers in private practice may also provide an adoption service, but you will need to pay a fee. Your local doctor or health care worker may also be able to assist you with contact numbers.

THE ADOPTION PROCESS

The adoption process is a long and complex process.

First you apply to an adoption agency or social worker.

A social worker from the agency will check that you are suitable.

If you have made contact with a mother who wishes to give up her child for adoption, without going through an agency, you should contact a social worker to help you to ensure that the adoption is legal.

When the agency finds a child for you to adopt, you should apply to the Children’s Court in the district in which the child lives.

The Children’s Court will hold a formal court hearing that is closed to the public. The Commissioner of Child Welfare will attend. You must satisfy the Commissioner that you:

• Have a good reputation
• Are fit to have custody of the child
• Can support the child
• Can educate the child.

The social worker will report to the Commissioner, confirming that they think you are suitable.

The Commissioner will look at the religion, culture and race of the child’s natural parents and its adoptive parents. The Commissioner does not have to match these things. The best interests of the child are most important.

The natural parents must sign a consent form.

Usually your names as the adoptive parents are filled in on the consent form but you can have a secret adoption. This means the adoptive parents and the natural parents agree that the natural parents will not know the names of the adoptive parents.

If the Commissioner is satisfied, they will issue an adoption order. The adoption order might only be issued months after you first apply, so be prepared for a time consuming process.

HELPFUL HINTS

Make sure that the adoption agency you choose has post-adoption support facilities if you are adopting a special needs child (e.g. a disabled child or a child who has been sexually abused).

Check the credentials and qualifications of the social worker.

Ask what fees you will be required to pay. You may be asked to pay the hospital fees of the mother and child.

Never pay birth parents directly. This is illegal.

CANCELLING AN ADOPTION

The natural parents, adoptive parents or the Minister of Social Development can apply to the Children’s Court to cancel an adoption within two years of the date of the adoption.

A cancellation can only be applied for if:

• The adoption is not in the interests of the child.
  • The child was mentally ill at the time of the adoption and the adoptive parents did not know this.
  • There was some fraud or mistake that persuaded the adoptive parents to adopt the child.
• The natural parents did not give proper consent.

Some adoption agencies have a child-oriented approach to adoptions, which means they focus on the needs of children rather than on the needs of childless couples.

Prospective adoptive parents are carefully screened and receive intensive training to help them with child care and child management skills and to meet the challenges of adoption. Community volunteers may be actively involved in providing both training and additional support.

Some adoption agencies say that the following people must have an HIV test before adoption proceedings can take place:

• The parents who want to adopt
• The child
• The natural parents, if it is possible to find them

For more information contact the Department of Social Services.