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Surrogacy, Adoption and Divorce

The implementation of the Children’s Act 38 of 2005 changed the terminology and the approach used in respect of children. It defined the parental rights and responsibilities that parents and other parties with guardianship rights may have, and confers equal and joint guardianship status on parents of children born from marriage. 

The child’s best interest is a constitutional right of every child. In all matters concerning a child, the best interests of the child is paramount. 

The “best interests of the child" principle

The Act provides a list of factors that have to be considered when determining a child’s best interests. In this list the likely effect on the child of any change in his/her circumstances, including any separation from both or either of the parents; or any sibling or other child, caregiver or relevant person, with whom the child resides, has been stated as important. 

As well as the practical difficulties and expense of the child having contact with either or both parents, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with either or both parents on a regular basis;

The Children’s Act also expressly includes the right of a child to participate in any decisions pertaining to him/her.

Parental rights and responsibilities 

A holder of full parental rights and responsibilities has the right and responsibility to:

  • Care for the child;
  • Maintain contact with the child;
  • Act as the guardian of the child; and
  • Contribute to the maintenance of the child.

More than one person may have parental rights and responsibilities; they are referred to as co-holders. The Act allows courts to grant any person parental rights and responsibilities, even in the absence of a biological or legal relationship between the adult and child.

The holder or co-holder of parental rights and responsibilities must always act in the best interests of the child, while also taking into account the child’s wishes.

Child Contact - Child Access

With the implementation of the Children’s Act, the term ‘access’ has been replaced with the term ‘contact’, which is defined as:

  • Maintaining a personal relationship with the child; and
  • If the child lives with someone else:
  • Communicating on a regular basis with the child in person, including
    • Visiting the child; or
    • Being visited by the child; or
  • Communicating on a regular basis with the child in any other manner, including:
    • By post;
    • By telephone; or
    • By any other means of electronic communication, such as Skype, email and Facebook.

It is a child’s right to have contact with both his/her parents if they so wish, especially after divorce or separation.

In considering the amount and form of contact a parent should have with the child, the factors contained in the Children’s Act are taken into consideration. Each situation is unique and the outcome will depend on the facts presented: the child’s development; parent’s relationship with the child and the child’s wishes, when applicable.

The following are common forms of contact:

Reasonable contact

This is not unlimited contact, but rather what is reasonable for the child’s age, wishes and circumstances. 

Defined contact

Specific directions as to when, where and how a parent may have contact with the child. 

Supervised contact

Contact with the child may only be had in the presence of a trusted third party or other parent. 

Indirect contact

This type of contact can be performed through telephone, e-mail, letters, etc. this form of contact is usually combined with other forms of contact and is especially important when a parent lives far away, as frequent direct, or defined contact is much more difficult.

Phased-in contact 

As children get older, their needs change and often their contact with a parent can be extended. 

Shared Contact / parenting - Child Custody

Shared contact or shared parenting is a collaborative arrangement in which both parents have the right and the responsibility to be actively involved in raising their children after divorce or separation. 

A regime of shared parenting is based on the idea that parental responsibilities should be genuinely shared by both parents, and it is a method of parenting that allows both parents the chance to actively parent their child. More and more parents are moving away from the traditional care agreement of primary residences and alternate residences.


A child may have more than one guardian. Guardians do not necessarily have either care of or contact with the children. Guardianship is simply the right and responsibility to:

  • Administer and safeguard the child’s property or property interests;
  • Assist or represent the child in administrative, contractual and other legal matters;
  • Give or refuse any consent required by law in respect of the child, including:
    • Consent to the child’s marriage;
    • Consent to the child’s adoption
    • Consent to the child’s departure or removal from the Republic of South Africa;
  • Consent to the child’s application for a passport; and
  • Consent to the alienation or encumbrance of any of the child’s immovable property.

As the upper guardian of all children, the High Court has a wide discretion in exercising its powers, and in interfering with the rights and responsibilities of a guardian, should it be in the child’s best interests.

In any dispute relating to guardianship, the High Court will consider all the relevant facts and request the input of the Office of the Family Advocate or any other expert who may be of assistance in determining the child’s best interests. It is also possible for the court to appoint a legal representative for the child.

Surrogacy and Divorce

Surrogacy is a very rewarding experience, but it can also accelerate stress on an already troubled relationship. At times, surrogates may experience a separation or divorce during their surrogacy experience.

This is not a favourable situation but it does occur. The dissolution of a marriage can impact a surrogacy differently depending on the person, with no two cases being the same. 

Surrogacy and Divorce and South African Law

There are many variables which play a part in what is decided. If the surrogate mother is already pregnant, things will continue to progress as usual. 

If a surrogate has been matched but is not yet pregnant, all parties have the option to consider if they are still comfortable moving forward at that time. 

The surrogate couple needs to consider if the split is amicable or tumultuous, as the upcoming months of surrogacy require much attention and are filled with emotion. Therefore, if the split is tumultuous, it may be wise to hold-off on the surrogacy while finding balance in one’s personal life.  

Most surrogacy contracts identify the spouse of a surrogate as instrumental to her process. These documents cannot be amended to remove that person while you remain legally married, even if legally separated. Additionally, if the spouse’s insurance policy is being used, a separation or divorce could impact how one would proceed financially.

Ultimately, each case is considered and weighed in its context. While some situations may allow for the surrogacy program to continue, others may present unique circumstances which would present too many problems in the surrogacy experience. 

Adoption and Divorce

The decision to adopt a child is the decision to love and care for a child, abiding by all the rules and regulations of the Children’s act which are stipulated above, as well as those points which are not mentioned. Couples rarely adopt children with plans to divorce, but one cannot plan for all of life’s changes, and so this does occur. 

Adoption and Divorce and South African Law

After an adoption has been finalized, a divorce will not affect the legal parental rights of the adoptive parents. The legal rights of the birth parents have been terminated and they no longer have the right to make decisions concerning the child. 

The biological parents of an adopted child whose adopted parents are going through a divorce do not have standing to contest the divorce, the new custody arrangement, or to get the child back. 

In a case of divorce and adoption, the child would experience either single care (custody) or shared care (custody). 

Be wary of the idea that the biological parents are completely cut-off after the adoption. If the biological parents give consent to the child being adopted into a two-parent home, but the adoptive parents plan to divorce during the adoption process and do not disclose this information to the biological parents, then the biological parents have a right to argue that their consent to the adoption was not informed. 

The biological parents may argue that the adoptive parents have been fraudulent in their application process and giving of information to both the biological parents and the court.  Therefore, the court may decide to deem the consent of the biological parents voidable or revoked, and if it is in the best interests of the child, then the child may be returned to the biological parents. 

Adopted children in a divorce will be treated in the same manner as biological children. The courts will decide issues of custody, support and parental care in accordance with what they believe is in the best interests of the child. 

If an adopted child receives a governmental adoption subsidy (funds to aid the child and their new family), this would not affect the adoptive parents’ obligation to pay child support. 

Special care should be taken with adopted children during the divorce process. Adopted children have, by definition, suffered a previous loss. Special attention should be paid to their emotional needs during the divorce process. Family or individual counselling may be necessary to ensure that the child is not negatively affected throughout the process.

Van Deventer & Van Deventer incorporated - Divorce Lawyers Johannesburg

For expert legal advice, contact Van Deventer & Van Deventer incorporated today. 


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