According to www.worldadoptionday.org, the purpose of World Adoption Day, which is observed annually on 9 November, is to “lift up all voices in the adoption community, to share your story, to reflect on your adoption journey and to connect with those touched by adoption”.

Recently, there has been a worldwide decline in adoption rates – South Africa has also experienced the decline. This is an opportune time to reflect on how adoption is regulated in South Africa and whether it is still considered a viable option for children who would otherwise grow up in child and youth care centres (formerly known as children’s homes) or foster care, thus institutionalised instead of being in a family setting.

The South African Constitution states that every child has the right to family care or parental care, or to appropriate alternative care when removed from the family environment. The provision is written in a logical manner that makes it clear that the preferred care for a child is by parents or family members. However, it also recognises that family or parental care includes care by an adoptive parent.  

The Children’s Act provides for process and procedures for both domestic and international/inter-country adoption. The provisions of the law make it very clear that adoption should be child-centered. This means that adoption is about providing a family and home for a child who has been deprived of it and thus has become in need of care and protection.

The Children’s Act stipulates when a child would be adoptable; this is a very important aspect, as it indicates that there should be a process to determine if a child could be placed in the care of relatives or extended family prior to being considered adoptable. Furthermore, the Children’s Act requires that both parents of the child consent to the adoption, regardless of their marital status. Importantly, the law also sets out criteria for adoptive parents and all the requirements that must be complied with in order to ensure that the child to be adopted would be placed in a family that would best fulfil his or her needs. 

Prior to the enactment of the Children’s Act, the law had shortcomings in so far as regulating both domestic and inter-country adoption. The courts had to step in to ensure that adoptions took place in a manner that protected the rights of the child. In the famous case of AD and Another v DW and Others, the Constitutional Court confirmed that the process of adoption must be through the Children’s Court, even in the case of inter-country adoption. This was after the applicants had approached the High Courts to obtain guardianship orders to be able to take the child they wanted to adopt to the USA. The Constitutional Court said that:

  “The starting point and overall guiding principle must always be that there are powerful considerations favouring adopted children growing up in their country and community of their birth. At the same time, the subsidiarity principle itself must be seen as subsidiary to the paramountcy principle.”

Although the case was decided in 2007, the aforementioned quote is still relevant at a time when the decline in adoption rates is sometimes due to reasons that tend to put subsidiarity before the best interests of the child. The subsidiarity principle requires that children preferably be raised by their biological families, and where adoption is the next best option, we must look at domestic adoption first before a child can be made available for inter-country adoption. In the past few years, we have had to intervene in matters where adoptions were either delayed or refused by the courts or government in a manner that put the child’s best interests as subsidiary to the subsidiarity principle.

As we commemorate World Adoption Day, I would urge us to reflect on the purpose of adoption, whether the manner in which we are regulating it is enabling or creating barriers for children, how we engage with children who have been adopted and their families, and most importantly, to guard against stigmatising adoption.

We have seen recent reports of the high rates of child abandonment, and it would be a tragedy if we were moving to a situation where these children grew up in institutions instead of being adopted by families where such adoptions would be in their best interests.

Advocate Karabo Ozah is Director of the Centre for Child Law at the University of Pretoria.