Adoption – not as simple as placing a child in parent’s arms

November is World Adoption Month. Picture: Henk Kruger/Independent Newspapers

November is World Adoption Month. Picture: Henk Kruger/Independent Newspapers

Published Nov 12, 2023


More than 15 000 adoptions have taken place in South Africa in the past decade.

November is World Adoption month. The National Adoption Coalition of SA said that according to the UN, an estimated 260 000 adoptions take place worldwide each year.

The coalition said that based on statistics from the Department of Social Development, 15 068 adoptions were registered in South Africa from April 2010 to March 2020.

Many South African children grow up in families that face poverty, exposure to domestic violence, neglect, abuse, exploitation, lack of parental care, abandonment, unplanned crisis pregnancies, substance abuse and mental health issues.

Katinka Pieterse, chairperson of the coalition and CEO of Abba Specialist Adoptions and Social Services, said these children “should be entitled to responsive services to protect them and to return them or place them in a nurturing family environment”.

In July, the team shared how a baby found abandoned on Christmas Day, 2022, was adopted.

Explaining the adoption process, Pieterse said she wanted those interested in adoption to know there were many factors to consider before making a decision.

“The application and assessment process of the prospective adoptive applicant can take up to six months,” she said. “This includes the legally required assessment of their psychosocial functioning and intrapersonal functioning, environment, parenting capacity, preparation, vetting process and home study.”

Depending on the legal complexities of the case, it can take another year to finalise the adoption. She said it was not as simple as handing an infant or toddler to a parent.

“Once the adoptive parent’s assessment and preparation has been finalised they become eligible to be matched with a legally adoptable child. When the child is matched and legally placed in the care of the adoptive parent, it can take another few months to have the adoption legally finalised and then the Department of Home Affairs process starts, of which the time frame is difficult to predict.

“It’s a long and onerous process because it’s a legally prescribed process and has permanent legal consequences for all the parties,” she said.

“It is also often characterised by administrative delays due to the various checkpoints in the process.”

She said contracts were important.

An adopted candidate who cannot be identified said they had learnt to appreciate being given a second chance at love and to have a family: “The question asked, how does it feel not knowing who your parents were? It is for me the same as asking ‘How does it feel to never have visited the moon?

“The lack of facts is a fact. Insecure and unknown is a constant part of my identity.

“I strongly feel that I had two births: the second being adopted, as a continuation of the first, but the first as a prerequisite for the second.

“I got a second chance at life, thanks to unknown people’s willingness, dedication, stubbornness and co-operation.”

signed between


RACHEL Ward Da Costa, 31, is a mother of one and she and her partner are expecting their second child. Both are excited about the recent court judgment giving equal parental rights to working parents.

Last month, the Gauteng High Court, Johannesburg, handed down a judgment after a couple challenged the Basic Conditions of Employment Act (BCEA) relating to maternity, parental, adoption and commissioning of parental leave.

Gauteng Deputy Judge President Roland Sutherland declared that certain provisions of the BCEA, and the corresponding provisions of the Unemployment Insurance Fund Act (UIF Act), were invalid as they were inconsistent with the Constitution.

He said the provisions unfairly discriminated between mothers and fathers.

Werner and Ika van Wyk, who were represented in the matter by advocate Nasreen Rajab-Budlender SC, launched a civil court action in November last year against the Employment and Labour Department, challenging sections of its BCEA related to its ‘unconstitutional’ parental leave provisions. They challenged the constitutionality of the act as it was out of kilter with how they wanted to run their family.

Ward Da Costa, 31, who works for an NPO in the city, felt the Van Wyks were correct in pursuing their case.

“I hate using the primary parent and secondary parent term, but that’s what it comes down to because I think the person giving birth automatically becomes the primary parent. You get three to six months of maternity leave depending where you work, which in most cases it’ll be the mother and you become the primary parent automatically, she says.

“You’re spending all this time with this child, which is fantastic because you’re recovering mentally and physically, but at the moment the fathers or the other spouse get 10 days’ paternity leave, and by law that doesn’t have to be paid.

“But when that person goes back to work, you’re at home the whole day with this child, but then the other partner comes back home and they feel like spare parts – like they’re on the sideline,” Ward Da Costa said.

The nuances of the case were explained by Rajab-Budlender in a recent webinar of law firm Cliffe Dekker Hofmeyr.

“Mrs Van Wyk ran two businesses and Mr Van Wyk was employed. They were in the position that if Mrs Van Wyk took maternity leave, there was no one to run her businesses.

“Mrs Van Wyk could not take maternity leave effectively or could not take more maternity leave than the minimum number of weeks. Otherwise, her businesses would have suffered.

“Mr Van Wyk decided that he would stay home and be the primary caregiver. So he went to his employer and indicated he wanted to take four months of parental leave. The employer naturally said, our policies don’t provide for that, and our policies were largely in line with the BCEA, and so you can have 10 days. But obviously that would not have worked for them,” Rajab-Budlender explained.

“What happened for Mr Van Wyk is that he effectively had to take unpaid leave, most of it unpaid, to stay home with his child.”

The Commission for Gender Equality joined as an applicant. Sonke Gender Justice was the third applicant, and then various joined.

While the judgment was in favour of the Van Wyks, Rajab-Budlender explained that not much changes, as the matter will have to be reheard in the Constitutional Court.

“The High Court has now declared the statute unconstitutional and has suggested an interim reading before the statute is amended. Still, our law requires that where you find a statute unconstitutional, it must be referred to the Constitutional Court for confirmation of that order of invalidity.

“The important takeaway from this is that the High Court judgment doesn’t change anything right now.”

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