Origins of parenthood
The Parent-Child Bond
Parenthood arises by birth, by law, or by both — the Children's Act treats all children equally.
How parenthood arises
The parent-child relationship in SA law arises by birth (biological parenthood), or by operation of law — through adoption, the special rules for artificial fertilisation, or a confirmed surrogate motherhood agreement. The Children's Act 38 of 2005 recognises all three routes as equally valid.
Children's constitutional rights (s 28)
Section 28 of the Constitution gives every child specific rights: family or parental care (or appropriate alternative care if removed from the family); basic nutrition, shelter and healthcare; social services; protection from maltreatment, neglect, abuse and degradation; and not to be required to perform work harmful to their well-being. The child's best interests are of paramount importance in every matter concerning the child (s 28(2)).
The constitutional concept of family
The Constitution does not define "family," but the Constitutional Court has held that rights to dignity (s 10) and equality (s 9) protect diverse family forms. As stated in Dawood v Minister of Home Affairs: "Families come in many shapes and sizes." South African families take many forms — nuclear families, extended-family households, child-headed households, customary polygynous households, same-sex partnerships — and the law must respond accordingly. Statistically, a majority of South African children do not live with both biological parents.
Equality of children
The Children's Act 38 of 2005 swept away most distinctions between children born in and out of wedlock. All children have equal rights regardless of their parents' marital status — the old concept of illegitimacy no longer bars a child from legal parentage, parental support, or inheritance.
Key Rule
Parenthood arises by birth, adoption, AI rules, or a confirmed SMA. All children have equal rights under the Children's Act — the distinction between "legitimate" and "illegitimate" children is abolished. Every child's rights are constitutionally protected by s 28.
Common Mistake
Assuming a child born outside marriage has fewer rights than one born to married parents. The Children's Act abolished that distinction — every child has equal rights to parental responsibilities, support, and inheritance.
Adoption
The Adoption Gateway
Adoption creates a complete legal parent-child bond — the natural parents' rights extinguish entirely.
What adoption is
Adoption (Children's Act ss 229–252) is the legal process that creates a full parent-child relationship between a child and an adoptive parent. The child becomes the adoptive parent's child as if born of them; all legal ties with the natural parents are severed — their parental responsibilities and rights extinguish completely.
Who may adopt
Adoption is available to: a married couple; two persons in a permanent life partnership; a widowed, divorced, or single person; or the spouse or permanent life partner of a parent of the child. The adopter must be a fit and proper person. A child may not generally be adopted by more than two persons.
Consent
Consent is required from each parent with parental responsibilities and rights (or the child's guardian), and from the child if 10 or older (or younger but sufficiently mature). A Children's Court may dispense with parental consent where a parent is untraceable, has abandoned or abused the child, unreasonably withholds consent, or dispensation is in the child's best interests.
Court approval
The Children's Court adjudicates all adoptions and may only approve one if satisfied it is in the child's best interests. A designated child-protection organisation or the Centre for Child Law supports the process. Intercountry adoption is regulated by additional requirements and the Hague Convention.
Adoptability and screening (s 231)
Before an adoption can proceed, the child must be found adoptable — orphaned, abandoned, in need of care, or the subject of parental consent. Prospective adoptive parents are screened by an accredited adoption social worker: criminal records are checked against the National Child Protection Register, and psychological fitness and financial capacity are assessed.
The 60-day cooling-off period (s 233)
A biological parent who signs consent to adoption has a statutory cooling-off period of 60 days within which to withdraw that consent. The adoption cannot be finalised until this period expires without withdrawal. Once 60 days pass without withdrawal, the consent is irrevocable (absent a court order for relief).
Key Rule
Adoption (ss 229–252, Children's Act): natural parents' PRR extinguish; child becomes fully the adoptive parent's child. Requires parental consent (dispensable) + child's consent (if 10+) + Children's Court approval on best-interests grounds. Biological parents have a 60-day cooling-off period (s 233).
Common Mistake
Thinking adoption adds an adoptive parent alongside the natural ones. Adoption is a complete substitution — it severs all legal ties with the natural parents and creates an entirely new parent-child relationship.
Leading Cases
AD v DW2008 (3) SA 183 (CC)On intercountry adoption: subsidiarity — preferring placement in the child's country of origin — is a core factor but not the ultimate governing factor. It yields to the paramountcy of the individual child's best interests under s 28(2).
Facts. An American couple wished to adopt Baby R, an abandoned South African child they had cared for since infancy. Departmental policy at the time barred United States citizens from adopting South African children, so they were advised to approach the High Court for sole custody and sole guardianship instead — intending to complete the adoption in Virginia. The SCA refused, calling this an unsavoury way of bypassing the Children's Court adoption system and jumping the queue.
Legal question. May the High Court grant sole custody and guardianship of a child to foreign applicants as a route to intercountry adoption, and how does the subsidiarity principle relate to the paramountcy of the child's best interests?
Judgment. The Constitutional Court (per Sachs J) granted the applicants sole custody and sole guardianship. The High Court, as upper guardian, has jurisdiction to make such orders, but the Children's Court adoption machinery should ordinarily be used; on these facts the child had bonded with the applicants and further delay would have harmed her.
Significance. The leading SA authority on intercountry adoption and the subsidiarity principle. It subordinates a general policy preference for local placement to the paramountcy of the individual child's best interests, and confirms the High Court's upper-guardian jurisdiction while discouraging routine use of it to sidestep the Children's Court.
Exam tip. Cite for subsidiarity in intercountry adoption and its subordination to s 28(2) best interests. Do not cite this case for unmarried biological fathers' rights in adoption — that is Fraser v Children's Court, Pretoria North.
Du Toit v Minister of Welfare and Population Development2003 (2) SA 198 (CC)The exclusion of same-sex permanent life partners from joint adoption was unconstitutional; they have the right to adopt jointly — a principle now codified in the Children's Act.
Facts. The applicants were partners in a longstanding lesbian relationship who had jointly cared for two children and wished to adopt them jointly. The Child Care Act 74 of 1983 restricted joint adoption to married couples, excluding them.
Legal question. Does confining joint adoption to married couples, thereby excluding partners in a permanent same-sex life partnership, violate the Constitution?
Judgment. The Constitutional Court declared the prohibition unconstitutional and read in the words "or by the two members of a permanent same-sex life partnership jointly" to the Child Care Act (ss 17(a), 17(c), 20(1)) and the Guardianship Act (s 1(2)).
Significance. The foundation case for joint adoption by same-sex life partners. Its remedy went no further: every reading-in speaks only of a "permanent same-sex life partnership". Unmarried opposite-sex partners were not before the Court and got no relief here — that broader position came later, from the Children's Act 38 of 2005, which allows joint adoption by partners in a permanent domestic life partnership generally.
Exam tip. Use to show that adoption is not limited to married couples — but be precise about scope: Du Toit is same-sex specific. For unmarried opposite-sex partners, cite the Children's Act, not Du Toit.
AI & Surrogacy
New Ways to a Family
The law determines legal parenthood when technology creates a child outside the natural biological dyad.
Artificial fertilisation (s 40)
A child born through artificial fertilisation (AI) is the child of the woman who gave birth and, if she has a consenting spouse or permanent life partner, that person is the other legal parent. The gamete donor has no parental rights or duties — the donation is legally severed from parenthood. A single woman who undergoes AI is the sole parent.
Surrogate motherhood (ss 292–303)
Surrogate motherhood is permitted but strictly regulated. A surrogate motherhood agreement (SMA) must be confirmed by the High Court before fertilisation takes place. Key requirements: at least one commissioning parent must provide genetic material; the surrogate must already be a parent; the commissioning parents must be unable to carry a child; and commercial payment is prohibited (only reasonable expenses). On the child's birth, the commissioning parents are the legal parents; the surrogate has no parental rights.
The genetic link requirement (s 294)
Section 294 imposes a genetic link requirement: at least one of the commissioning parents must contribute genetic material (a gamete). A purely donor-based arrangement — using a donor egg, donor sperm and a surrogate — is not permitted. This requirement distinguishes surrogacy from adoption and prevents the commercial manufacture of children from entirely third-party material.
Partial surrogacy and the 60-day withdrawal (s 298)
In partial surrogacy the surrogate is also the genetic mother (she provides her own egg). Section 298 makes special provision: within 60 days of the child's birth, the surrogate/genetic mother may terminate the agreement and choose to keep the child. This is a significant exception — in standard (gestational) surrogacy the surrogate has no parental rights at birth, but in partial surrogacy her genetic tie gives her a 60-day window of reflection.
Constitutional development
In AB v Minister of Social Development a single woman who could produce no gametes of her own challenged the s 294 genetic link requirement, which barred her from a double-donor surrogacy arrangement. The Constitutional Court upheld s 294 by a 7:5 majority, reversing the High Court. There is no free-standing right to surrogacy: the requirement legitimately secures the child's knowledge of their genetic origin and guards against commodification. A strong minority would have struck it down as an unjustifiable limit on equality, dignity and reproductive autonomy.
Key Rule
AI (s 40): birth mother and consenting partner are legal parents; donor has no rights. Surrogacy (ss 292–303): High Court confirms SMA before fertilisation; commissioning parents are legal parents at birth; no commercial payment; s 294 genetic link required; s 298 partial surrogacy — surrogate/genetic mother has 60 days to withdraw.
Common Mistake
Thinking the surrogate mother is the legal parent. Under a confirmed SMA the commissioning parents are the legal parents from birth — the surrogate has no parental rights or duties once the child is born.
Leading Case
AB v Minister of Social Development2017 (3) SA 570 (CC)The s 294 genetic link requirement is constitutionally valid (upheld 7:5). There is no free-standing right to surrogacy; requiring the gamete of at least one commissioning parent secures the child's knowledge of their genetic origin and guards against commodification.
Facts. AB, a single woman, was unable to produce her own gametes and could not carry a pregnancy. She wished to become a commissioning parent through a surrogacy arrangement using both a donor egg and donor sperm — a double-donor conception. Section 294 of the Children's Act requires the gamete of at least one commissioning parent, which barred her arrangement. The High Court declared s 294 unconstitutional; the matter came to the Constitutional Court for confirmation.
Legal question. Is the genetic-link requirement in s 294 of the Children's Act — that at least one commissioning parent contribute a gamete — constitutionally valid?
Judgment. The Constitutional Court, by a 7:5 majority (per Nkabinde J), upheld s 294 as constitutional and reversed the High Court's declaration of invalidity. A strong minority would have struck the requirement down as an unjustifiable limitation of the rights to equality, dignity, autonomy and reproductive health care.
Significance. The leading authority on the genetic-link requirement in surrogacy. It marks the outer limit of reproductive autonomy in SA law: surrogacy is a statutory privilege on the Act's terms, not a right to be exercised on any terms the commissioning parent chooses. The narrow majority signals the question is not settled beyond argument.
Exam tip. Cite for the validity of the s 294 genetic-link requirement and the absence of a free-standing right to surrogacy. Note the 7:5 split — the minority reasoning is examinable. Do not cite this case for same-sex surrogacy: it was brought by a single woman and did not concern sexual orientation.