SOUTH AFRICA Law and Practice Contributed by: Zenobia du Toit and Samantha Lewis, Miller du Toit Cloete Inc
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility In South Africa, the equivalent principle would be “parental responsibilities and rights”, and a person may have full or specific parental responsibilities and rights in respect of a child. The acquisition and loss of parental responsibilities and rights in respect of a child are governed by Sec - tions 18 to 49 of the Children’s Act 38 of 2005 (CA). In terms of Section 18, CA, parental responsibilities and rights include the following: • to care for the child; • to maintain contact with the child; • to act as guardian of the child; and • to contribute to the maintenance of the child. 1.2 Requirements for Birth Mothers Unless the child was born as a result of a valid surro - gacy agreement (Section 297 (a) and (c), CA), the birth mother automatically acquires full parental responsi - bility and rights in respect of their child (Section 19, CA). 1.3 Requirements for Fathers In terms of Section 20, CA, the biological father has full parental responsibilities and rights in respect of the child if: • he is married to the child’s mother; or • he was married to the child’s mother at the time: (a) of the child’s conception; (b) of the child’s birth; or (c) between the child’s conception and birth. Section 21, CA provides that an unmarried father shall acquire full parental rights and responsibilities if, at the time of the birth of the child, he was living with the mother in a permanent life partnership; or he, regard - less of whether he has lived with or is living with the mother:
• consents to being identified or successfully applies to be identified as the child’s father or pays cus - tomary law damages; • contributes or has attempted in good faith to con - tribute to the child’s upbringing for a reasonable period; and • contributes or has attempted in good faith to con - tribute to expenses/maintenance of the child for a reasonable period. 1.4 Requirements for Non-Genetic Parents In South Africa, the absence of a biological link does not preclude a person from applying for parenting responsibilities and rights in respect of a child. Adoption Section 231 (2), CA provides that a prospective adop - tive parent must be: • fit and proper to be entrusted with full parental responsibilities and rights in respect of the child; • willing and able to undertake, exercise and main - tain those responsibilities and rights; • over the age of 18 years; and • properly assessed by an adoption social worker for compliance. A prospective adoptive parent may not be disqualified from adoption by virtue of their financial status (Sec - tion 231 (4), CA). In the assessment of a prospective adoptive parent, an adoption social worker may take the cultural and community diversity of the adoptable child and prospective adoptive parent into considera - tion (Section 231 (3), CA). An application for an adoption order is made to the Children’s Court in accordance with Section 239 and Section 240, CA. Surrogacy Surrogacy agreements are regulated by Chapter 19, CA, which, inter alia, provides that: • the agreement must be in writing, signed by all par - ties and confirmed by the court (Section 292 (1)(a) and (e), CA);
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