SA tightens rules on foreign adoptions

2011-10-13 10:18

Johannesburg - In the wake of Madonna's adoptions in nearby Malawi, and a commercial surrogacy boom in India, South Africa is laying out stricter rules for foreigners looking to make families here.

Last month a court in Pretoria set out guidelines for foreigners looking to hire a surrogate mother in South Africa. In 2010, a new child welfare law made it tougher for foreigners to adopt.

The overall message is that children born in South Africa are better off in their own country, and foreigners need to show a commitment to living here if they want to use South Africans to help them make a family.

In the case last month, a Dutch and Danish couple won permission to use a surrogate. In the ruling, the court in Pretoria laid out guidelines that will now direct how future cases will be resolved.


Surrogacy has been legal in South Africa since 2006, and the Constitution guarantees equal protection for gays, which courts have routinely cited in allowing same-sex couples to adopt or use surrogates.

For foreigners, the ruling essentially means that they must intend to stay in South Africa long-term. The couple involved in the case intends to settle here permanently, the court ruling said.

"If you are a French person or a foreigner here only for six months, it is not going to work, unless you live in South Africa for an indefinite period," said Anthony William, the attorney who represented the couple.

"This judgement is important because it sets the parameters and the guidelines."

South African law specifically prohibits commercial surrogacy. The court cast a wary eye on India, where it was allowed in 2002, creating an "assisted reproductive" industry that in 2008 was valued at $450m (R3.5bn) a year.

This has attracted families from wealthier countries who hire Indian surrogates for far less than the process would cost in their home nations - something South Africa is keen to avoid.

"Most countries prohibit commercial surrogacy, with India being the prominent exception," the ruling said.

The court warned that "particularly in countries such as ours with deep socio-economic disparities and prevalence of poverty, that the possibility of abuse of underprivileged women is a real and ever-present danger".

Every surrogacy agreement in South Africa requires approval from a court that must find the arrangement was reached "for altruistic rather than commercial reasons", the court said.

Surrogate mothers can only receive money to pay for expenses related to the pregnancy, such as health insurance or maternity clothes, said Jennifer Currie, founder of the Baby-2 Mom agency, which specialises in egg donations.


The rules have also been tightened for foreigners seeking to adopt.

Since a new child welfare law was passed last year, foreigners are required to live in South Africa for five years before they can adopt - even though South Africa has 1.9 million Aids orphans.

Most of those children are absorbed into extended families or communities and are not housed in institutions. Only about 600 are considered "legally adoptable", with just 200 children legally adopted last year, according to official figures.

The new law was drafted as Madonna was adopting her second child in Malawi, stirring controversy about wealthy foreigners taking home African children.

South Africa wants children to have a relationship "with their familiar cultural, physical and extended family environs before looking to adoption within the country or outside the country," said Seamus Mac Roibin, a child protection specialist for Unicef, the UN children's agency.

  • smarterthanu - 2011-10-13 10:45

    What is best for the orphaned child? To be brought up in a state institution in SA or in a family environment elsewhere? The mind boggles!

      sniperman - 2011-10-13 10:59

      At least these children will receive a good education and grow up with a culture that believes in hard work and honesty. Not the crap we have to go through here. Typical ANC> Don't give anyone a chance.

      Brett - 2011-10-13 11:03

      I fully agree Sniperman!

      Slartibartfast - 2011-10-13 11:12

      The child is better off here? Really? What about this from another story on News24 then? ---- "Cape Town - The head of both the special investigating unit and the asset forfeiture unit said on Wednesday the country could lose as much as 20% of its total procurement budget to graft annually, in response to a question about the extent of government corruption in South Africa. "I think that may not be an unrealistic estimate," Willie Hofmeyr told Parliament's justice committee, adding that it translated to between R25bn and R30bn. The SIU was currently investigating 558 procurement contracts to the value of R1.9bn and 360 cases of conflict of interest where R3.4bn was involved. Criminals!!

      Currie_Mafia - 2011-10-13 11:36

      There are lots of paedophile syndicates emanating from Europe mostly that are preying on kids from 3rd World countries.....but yes, it would be nice for a kid to grow up in a family environment.

      Tinkie - 2011-10-13 12:42

      I have a foster child I am battling to adopt. Then we also have a situation where so many blacks (not being racist) don't believe in adopting unless the child is from their own family. As a result the orphanages are over full and there are just too many kids that need homes and not enough people to take them in. The social workers are crying out for homes for kids, even if on a temporary basis. Make adoption a lot easier. Also, make sure that people who adopt kids also get a grant like the foster care grant, especially if the child has special needs. This way a lot of foster parents will also be a lot more willing and be in a better position financially to adopt. If a foreign family can give a child a home, go for it.

      Snoopy88 - 2011-10-13 13:33

      My thoughts exactly. South Africa's special breed of xenophobia strikes again. Let's put the long-term welfare of the individual child first. This misplaced sense of 'ownership' of African children is ridiculous when we have so many uncared for orphans growing up to be criminals and unwanted newborns dumped in bins and latrines. If your background checks are done properly they don't need to live under your nose. As if having them live in SA will protect them from rape and abuse.. honestly! We should be PAYING able, loving adoptive parents to adopt! No matter where they are from.

  • Insect King - 2011-10-13 10:49

    Wow, the stupidity and arrogance of this legal ruling hurts my brain.

      whatno - 2011-10-13 12:51

      Could not agree more, growing up in some "charity home" cant be nice, why stop the chances of a poor child getting opportunities in life.These "foreigners" are respectable couples that can provide more than a normal life for these kids. SA and its stupid rules.

  • Brett - 2011-10-13 10:59

    In a country where babies are dumped in trash cans and 2 Million Aids orphans can one believe this law????? Has anyone of these politicians ever thought what it must be like to go to bed at night being 4 and nobody to take care of you? We "adopted" a boy that came over to my car at 10 at night begging for food. He has since become the top scholar in his class. How many other brilliant kids are made to suffer because of their fixation on "culture"? I say allow foreigners to adopt these kids after a screening process.

      whatno - 2011-10-13 12:52

      bless you and your spouse

      Snoopy88 - 2011-10-13 13:44

      Brett, my hat off to you.. If every able family in SA adopted one orphan I bet you we could turn the tide on this social disintegration and rampant crime. Think about it, we can't solve all the problems but if you make a difference in the life of just ONE child through fostering, adopting or even just sponsoring, if you actively support yor local children's shelter. Ask your school today what scholarship programs they have in place for gifted but disadvantaged children.

      rasklot - 2011-10-13 16:46

      Brett and family, I salute you.

  • allows - 2011-10-13 11:06

    I am more and more concerned at what the ANC thinks up. They boggle my mind daily. They would rather have homeless, uneducated, underfed, abondoned children in the country than give them the opportunity to thrive in another country? What next?

  • Jules - 2011-10-13 11:10

    I can understand the laws surrounding surrogate mothers - protect the poor vulnerable women from renting out their wombs and being exploited by opportunistic agencies. But adoption.... ?? These babies are already born into this world. They need loving families, regardless of their culture and roots..

  • The_Hamster_Wisperer - 2011-10-13 11:19

    At the risk of playing devil's advocate, I need to point out, that so far, the commentors seem to be assuming that some the babies needing adopting will snapped up by "loving families". From your lips to G_d's ears. What you don't see, is that there are syndicates who "adopt" numerous babies for the purpose of paedophilia, child prostitution, child abuse, and child labour. Poorer countries like those in Africa, Asia, and some areas in Europe, are easy pickings for these syndicates. We are so desparate to see our unwanted babies "go to good homes" that some really important stuff is overlooked. Try and see the law in the spirit it has been intended.

      Brett - 2011-10-13 11:28

      You are right Hamster Whisperer, but as I said, like with any adoption, the prospective parents should go through a screening process. Do you know that there is a back-log of 1,3 Million applications for adoptions piling up at the Welfare department, no kidding!!!!! and nothing is being done about these applications. So while the very well paid clerks are chattering away, kids are suffering by the Millions.

      The_Hamster_Wisperer - 2011-10-13 11:34

      I can't deny the truth in your statement. I loathe the idea of "lost" children, who fend for themselves or are raised in an institution with no love. I have reasonable exposure to the matter, and can assure you that the syndicates who are poaching children, are far more sophisticated that you would ever imagine. I agree that balance is needed in order to make this ruling work, however, not leaving the system open to abuse. Our children have suffered enough.

      Snoopy88 - 2011-10-13 13:57

      Well the onus should be on the state to investigate properly and prevent adoptions by these crime syndicates. They operate just as successfully within South Africa. Its really backward (and lazy) to now make everyone jump through unrealistic hoops. And once again the ones to suffer the most are the kids who needed loving homes yesterday!

  • The_Hamster_Wisperer - 2011-10-13 11:21

    At the risk of playing devil's advocate, I need to point out, that so far, the commentors seem to be assuming that some the babies needing adopting will snapped up by "loving families". From your lips to G_d's ears. What you don't see, is that there are syndicates who "adopt" numerous babies for the purpose of paedophilia, child prostitution, child abuse, and child labour. Poorer countries like those in Africa, Asia, and some areas in Europe, are easy pickings for these syndicates. We are so desparate to see our unwanted babies "go to good homes" that some really important stuff is overlooked. Try and see the law in the spirit it has been intended.

  • Anton - 2011-10-13 11:24

    Totally agree with this new ruling. This culture of foreigners coming here and taking a baby home, in stead of a wooden carving, is no good.!!! We should outlaw surrogocy by foreigners. This child "trade" leads to abuse. Let's rather put in more effort to look after our orphaned kids!!!

      Brett - 2011-10-13 11:36

      Anton have you then adopted a child seeing you are all for helping our orphaned kids? If you haven't, then don't try because your application will be gathering dust under the other 1,3 Million applications. Ask me, we have been at it for 3 years now. I'll tell you why this law was is too much work and Social Welfare doesn't like working, like all the other Government departments.

      Anton - 2011-10-13 11:50

      Brett, I agree it is too difficult to "officially" addopt a child in SA, But that should be no detergent to bring up kids, not your own. I brought up two kids, me not being the biological father, nor living with their mother. There is no law preventing for doing so !!

      Totman - 2011-10-13 11:59

      @Brett. I can understand Anton's feeling for it, but he should have mentioned the fact that it can become an industry as in India and if so it makes new laws acceptable. To make a comment on your effort. As I understand, the department handling it is so understaffed and many of the few that is there are not well trained. Well that is what I understood from the news last night. Hope you come right soon. Yes, defiantly for the child's part as well.

      Mya - 2011-10-13 12:08

      what have you done for the children lately then, Anton?

      Brett - 2011-10-13 12:08

      I take my hat off to you Anton, so you obviously know what it takes to raise kids. Yes child prostitution is a huge concern, but please with the unemployment rate we have isn't it time we start training welfare officers to take care of this?

      whatno - 2011-10-13 12:55

      Abuse, please biological parents are abusing their own flesh and bloodin all forms, so dont talk about foreignersabusing kids

      Anton - 2011-10-13 13:16

      Brett, From my experiences, rather stay far away from welfare workers, most of them do more harm than good !!! Whatno, The word "abuse" , i was referring to the system and not the child. Mya, My daughter I met when she was one year old, and is now 24 Actually, this morning, we met in a coffee shop, for breakfast !!!

  • Mya - 2011-10-13 12:12

    I am a South African living abroad with my soon to be Italian husband. I have always preferred the idea of adopting rather than bringing in another child to this world. I spent many years in SA working with aids orphans etc and now how desperately they all want to have a real family. Would I be considered a foreigner with these new laws? Could I adopt and take the child back to Europe with me, bearing in mind that I am south African and would naturally return home regularly.

      Brett - 2011-10-13 13:33

      Go for it Mya! And bless you!

  • MojoBa - 2011-10-13 12:13

    Why? Is the government scared that these children will be properly educated and then come back when they are grown-up and talk some sense into the rest of the people. Or don't they want these children to have a better life than the filth they have to live in? Amazing!!!!

  • tennilleg - 2011-10-13 12:24

    Very clever, so now a couple that would have adopted one of the countless little faces in a South African orphanage will just go elsewhere. Well done Government for diverting another potentially disastrous future for the South African youth. Not only are South Africa children uneducated, unable to find employment, they will now also not be able to be adopted by foreigners.

  • dfoxcroftlouw - 2011-10-13 12:28

    We had to wait 9 years before a child was made available to us to adopt. And we then waited another 4 years for a second child but to no avail. We gave up and that was a number of years ago already. There arent any white children we are told. However I know that in a certain orphanage in Durbanville, there are children who do have family but they are up country and dont want to bother with them. These children are kept in the orphanage but not with their own families = which is wrong!!!! If they have families, they should not be in orphanages FULL STOP.. I know what a process it is to go through but its becoming more and more ridiculous by the minute. THere are many families who want to adopt a child but foreigners are given preference. And once you adopt one child your chances of getting to adopt another is nil as first time parents are given preference. This is wrong. Get a wake up world!!! Madonna, Jolie etc there is children in your own country for you to adopt. Help clean up your own countries orphans first!!!

      The_Hamster_Wisperer - 2011-10-13 12:44

      Are you aware of the ruling that if a family does not make contact with the child for two years, they are allowed to come up of adoption. And, are you aware that the families make contact (one phone call is all it takes) once every two years, thereby depriving their child of ever being adopted out? It's not alway the state at fault.

  • iLembe - 2011-10-13 12:29

    The slavery age is looong over.

  • scepticflyer1 - 2011-10-13 12:39

    Better to keep a child here, cold, hungry, and unloved, than to allow the child to live with opportunity, hope and a future - typical of the way this government thinks - about orphans and about its citizens as a whole

  • letsdance - 2011-10-13 12:39

    OMG the government is so thick...go back to herding cattle you morons...

  • Marion - 2011-10-13 12:40

    I support the government fully on making it as difficult as possible for foreigners to adopt South African children. What is preventing them from adopting in their own countries? There are millions of children worldwide who are orphans so what is one's motivation for going outside one's own country to adopt? I also fully agree that any adoption process should take time to ensure that the child is indeed with the right family. I understand Brett's frustration but as far as I can gather the child does live with him so the loving bond is still there and the length of time it takes to adopt is mostly just an irritant at this stage isn't it? A bit like a marriage certificate versus a couple living together, the piece of paper cannot change what the heart feels. We, as South Africans, need to change our mindset and be prepared to adopt or foster all these orphans. The children are the future of this country. Give them life. Give them hope. Give them a loving home. In South Africa.

  • bonny - 2011-10-13 13:10

    1.9mil Aids orphans (alone) and only 200 adaoptions last year..and the powers that be are trying to make it even harder to adopt...and some people are still arguing to abolish abortion... Yikes..wake up people!! What is going to happen to these children? They are doomed.

  • Fredster69 - 2011-10-13 13:28

    Yes, rather let the child suffer here then get a better life elsewhere. Communism at its best. Just now they will have to pay for a child

  • jen - 2011-10-13 14:45

    Again they have missed the plot. why would you deprive a child from living with loving parents? I once asked a prominent "black" socialite in Jhb who struggled to have a 2nd child why they do not adopt and she made it clear that it is not done in their culture. Does the government actually know how many AIDS and other orphans there are? How many foster parents there are struggling to cope?

  • Pickle - 2011-10-13 14:56

    "The overall message is that children born in South Africa are better off in their own country, " YEA RIGHT! -_-

  • Antwahn - 2011-10-13 16:08

    "message is that children born in South Africa are better off in their own country" Ha, that is already a very questionable point at present -but with the way SA is wrecked by the maaifoedies, SA will be one of the worst dozen countries to be. (Apologies to N-Korea and Tahiti etc.)

  • rasklot - 2011-10-13 16:40

    Ah lets see, toss a baby on the dump, down a long drop or just simply kill it is a way better idea than it going to overseas parents where it would without a doubt have a better life than SA....just makes no sense at all. But then again, not much at all makes sense to me in SA anymore.

  • yolijvv - 2011-10-13 16:50

    Really??? So what you're saying is that a child is better off in this country int the government system with poverty and no love and no attention besides what they get from charity instead of a loving family who are wealthy and want the child to give him/her a better life... Yes, i can see exactly how it will be better not to let Mr. and Mrs. Doctor from another country adopt a poor child who has nothing and leave the child in a country with nothing and let the child battle for an education and add the child to one of many people in this country who will grow up and become nothing because there isn't any funds.

  • Poppins - 2011-10-13 18:02

    Considering the state of Social Development and Child Welfare (in Cape Town at least), I am surprised that anyone ever gets as far as adoption. It took us 8 months and numerous emails/phone calls to the top before we even got an audience with a social worker. We finally got out foster care papers two weeks ago. It is shocking. There are 2 million children out there that need homes and it is practically impossible to help them.

  • Angela - 2011-10-14 11:45

  • pages:
  • 1