Adoption and Culture in South Africa: A National DSD Policy

• Adoption is a legal process whereby parental powers, rights &
responsibilities of the biological parent/s over a child are revoked or
terminated; & vested in another person/s, namely the adoptive parent/s.
• In other words, adoption means taking someone else’s child into one’s
family for the child to be legally yours forever; & to take on the full
responsibilities and rights in law of a parent.
• Main purpose of adoption: to protect & nurture children by providing a
safe, healthy environment with positive support; & to promote the goals
of permanency planning by connecting children to other safe & nurturing
family relationships intended to last a lifetime.
• Adoption is similar to a biological family in that it assures children of a
continuous relationship with their adoptive family members long after
their 18th birthday. It is, therefore, preferred over other forms of care
because of the permanency & protection it brings to the relationship
between the child & the adoptive family.
Culture is a complex concept, & no single definition of it has achieved consensus in
literature. Out of the many possible definitions examined, the following definition will
be used for the purpose of this paper:
• “Culture” refers to the language, beliefs, values, norms, customs, what they eat, how
they dress, & all the other things that people learn that make up the ‘way of life’ of any
• Culture is passed on from one generation to the next through the process of
• Culture determines the identity of a person, which is about how individuals or groups
see & define themselves, how others see & define them.
• Identity is formed through the socialization process & the influence of social
institutions such as the family, church, etc.
• Identity therefore ‘fits’ individuals into the society in which they live.
• The identity that an individual wants to assert & which they may wish others to see
them having, may not be the one that others accept or recognize.
E.g. a pensioner who sees himself as ‘young at heart’ may still be regarded as an old person
by others, or an adopted child who sees himself as part of the adoptive family, may still be
regarded as an outsider by others , especially if the child is from a different culture or race
of the adoptive parent/s.
• Social historians recognise adoption as an ancient practice that plays a
major part in the traditional law of many Eurasian societies.
• Adoption was initially designed to provide an heir.
• Adoption was regarded as a European practice and was never recognised
in the African culture.
• The caring of children in the African society was a shared responsibility of
the community, the child belongs to the community - “ngwana ke wa
• If the child’s parent/s passed on, the extended family or a community
member would volunteer to stay with the child and take care of him/her.
• These informal family arrangements still exist, especially in rural
communities where orphaned children are permanently taken care of by
relatives without following the adoption process or any other legal
• Adoption did not originally form part of South African common law.
• Its legislation in SA was introduced for the first time when the Children’s
Act 25 of 1923 came into operation on January 1st 1924.
• With the advent of the new government & the Constitution in 1994, SA
made new provisions for the adoption of children. As a result, there are a
number of national, regional & global instruments that define the current
legal & policy framework for the adoption of children in the country.
• Over the last decade, SA has made continued efforts to develop policies &
regulations that align the rights & protections afforded to its children with
internationally accepted standards.
• The Children’s Act 38 of 2005 came with new developments &
mechanisms to change adoption practice & expands the possibilities for
adoption in SA.
Best interests of the child -its a paramount factor to guide all decisions
regarding the care & adoption of any child. It outweighs any other
consideration & includes the child’s need for affection, right to security,
continuing care and long-term stability.
A child’s rights approach & the child-centred approach are central principles
which must be adopted in all matters concerning the adoption of a child. We
must at all times strive to find a family for a child and not to find a child for a
family. The need of a child to have a home must be prioritised.
Every child has the right to grow in a permanent & stable family and we must
ensure that all avenues to maintain the child within his or her family are
explored before adoption is considered.
In respecting the subsidiarity principle in light of the child’s best interests,
priority must be given to the adoption of the child by extended family
member/s. Where this is not an option, preference should be given to
adoption within the same community or at least within the child’s own
culture, before considering adoption by person/s from other cultural or race.
Intercountry adoption must be considered as the last option if there are no
pros. adopt. families available within the country who can adopt the child.
• Adoption is one of the statutory services rendered to children who are in
need of care & protection. However, due to different circumstances in
their lives, there are no prospects of reuniting them with their families of
origin, therefore placing them in permanent alternative families should be
considered the best option.
• In essence, a large & well-established body of research has shown that
families, in their many forms, are the most natural environment for the
growth, protection, support & socialisation of children.
• Although not all families take good care of their children, no other social
group or institution can replace functional families in promoting children’s
well-being & providing security & a sense of identity for children.
• Children with inadequate, or no, parental or family care are, therefore, at
risk of being denied such a nurturing environment.
• According to the UN Convention on the Rights of the Child
(CRC) & the Children’s Act, it is imperative that where a child’s
own family is unable, even with appropriate support, to
provide adequate care for the child, or abandons or
relinquishes the child, the State should ensure appropriate
alternative care, which includes adoption.
• Culture & cultural identity is highly valued in the majority of
the people, more especially in African societies, including SA.
• Therefore, it is important to protect & respect the identity
rights & culture of children. However, it should be noted that
culture cannot & should not, be used to deny children their
right to grow up in a family environment, when that family
can only be found from pros. adopt parent/s of a different
The Children’s Act recognises the role of culture in adoption in terms of the
following provisions of the Act:
• According to the National Norms & Standards, adoption services must
take account of & address the changing social, physical, cognitive &
cultural needs of the child & his or her family throughout the intervention
process before & after adoption.
• Sect. 7(1)(f) & (h) stipulates that whenever a provision of this Act requires
the best interests of the child’s standard to be applied, as it is applicable
in adoption; factors such as the child’s cultural development, including the
child’s need to maintain a connection with his/ her culture & tradition
must be taken into consideration.
• Sect. 230(1)(a) provides that when assessing the pros. Adopt. parent/s, an
adoption social worker may take the cultural & community diversity of the
adoptable child & pros. adopt. parent/s into consideration.
• Sect. 240(1)(a) also provides that the court must take into account the
religious & cultural background of the adoptable child, the biological
parent/s & pros. adopt. parent/s when considering an application for the
adoption of a child.
• Culture also plays an important role in the matching of adoptable children
and prospective adoptive parents registered on RACAP.
• In terms of the RACAP Implementation Guidelines, when an adoptable
child is placed on RACAP, the adoption social worker must use the register
to search for pros. adopt. parent/s sharing the same culture with the child.
• If such parent/s cannot be found within a period of 30 days after
registering the child on RACAP, the pros. adopt. parent/s of different
culture from the child may be considered.
• The same principle applies to inter-racial adoptions when person/s from a
different race want to adopt children of another race.
• However, it is fair to note that cultural considerations may not
be applicable in all situations, like in cases of abandoned
babies where the child’s cultural background is unknown &
the child is still a baby & has not yet introduced & socialised in
any culture, the race of the child should then be given
• In case a cross-cultural adoption is considered, it is important
that the adoption social worker keeps records of the efforts
made to find the pros. adopt parent/s of the same culture or
race as that of the child. This information is required when
submitting the adoption applications to the provincial head of
social development/ delegated officials for a letter of
• Culture becomes a reality when adopting a child from a different culture
or race. Adoption social workers must therefore not discriminate against
any person/s from a different culture/race who wishes to adopt a child
from another culture or race.
• Applicant/s should be given the opportunity to adopt any child once it is
established that there are no parents available & willing to adopt the child
from the same culture or race as that of the child.
• Cross cultural adoption should therefore be considered as a second
option, priority must be given to same culture adoption as it resembles a
natural family that adoption is intended to create for the child.
• It is important that the adoption social worker provides thorough
counselling & preparation to the child, where applicable; & to the pros.
adopt. parent/s when considering a cross cultural adoption.
• This is to ensure that the particular needs of the child concerned are
matched with the special strengths of the pros. adopt. parent/s.
Adoption is being viewed as a western concept that does not easily fit with
the traditions & culture of most Black South Africans. There is a tendency of
living & caring for children in an informal manner & without legalising the
arrangement. This is basically rooted in the African culture & the notion of
Ubuntu, where no child could be left without a family. This practice results in
people not seeing the benefit of formalising the placement of the children
they are caring for.
Cultural beliefs & practices are also some of the blockages that make people
not to come forward to adopt children. It is therefore our responsibility as
adoption service providers to unblock the cultural obstacles that impact
negatively to the adoption of children by raising awareness and popularising
adoption services through dialogues with our communities, faith-based
organisations; traditional healers and leaders as custodians of culture.

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