Adoption is another way of having a family, it is a lifespan choice which should be made rationally and with cautiousness. Adoption is a process where a biological parent/s of child is dead or is unable to provide for the child and in other cases if the parent is reluctant to provide for the child. It aims to make a parent-child relationship, thus the adopting parents have the obligation to provide for the adopted child support, and they are also recognised for the purposes of inheritance rights and custody.. Y dated X for a period of two weeks and they later broke. However after two months X realised she is pregnant, she eventually gave birth. During the entire gestation period Y was not aware, five months later after the birth of her child X requested Y’s permission to give away her new-born. As a result of shock Y expectedly consented, however he later rationalised things and realised he made mistake. However a couple J and H have already prepared to receive the new-born. This paper will provide legal advice to Y, it is going to make mention of the potential arguments X and J and H might put. And also it will explicitly look at the child’s best interest.
As a result of a series of situations several people have children out of wedlock, similar to Y and X situation. Since these circumstances do not involve asserts for distribution the crucial subject is mostly about maintenance, child support (father mostly), father’s right to contact with the child, often the mother limits or denies the father that right. However children are the ones who are violated in these situations. In the Children’s Act the focus on the child’s rights, the Act asserts that the best interests of the child are paramount and should therefore be taken into account in every decision concerning the care, protection and wellbeing of the child.
As it has been written above X wants to give away her child with Y for adoption. Legal adoption may take palace different forms. There are five prominent kinds of adoption, (a) related adoption, this is when child is adopted by someone they related to, (b) closed adoption, this type hides both the identities of biological and adopting parents, (c) disclosed adoption, and this kind allows contact between the two parties, (d) national adoption, this one is facilitated by an accredited adoption social worker where both parties are going to live in South Africa, and divergently there is (e) international adoption, which one is facilitated by an accredited adoption organisation where both the parents nor the child are South African citizens. This is regulated by the Hague Convention on Intercountry adoptions. However Chapter 18 of the children’s Act rights of 2005 plays the major role in the regulation of adoption.
For the sake of this paper we will focus on the national adoption because that is what X has consented to. While on the other hand taking into consideration the fact that as soon as Y had an understanding that he has a child with X he make means to provide financial assistance, the Children’s Act however does not automatically give inherent parental rights to biological fathers in the similar fashion manner it does to biological mothers. Thus Y will be granted parental rights and responsibilities provided that he at the time of the bitch of his child was in living in a life partnership with X, which is not the case because the two broke up months ago. At the same time Y can argue that if X had told him soon after she found out she was pregnant they could have moved in together or made means to work towards a life partnership.
Y again could be granted parental rights and responsibilities provided that he consents to be identified as the father of the child. Seemingly Y wants to be identified as the father hence something of such nature would not be an issue. In addition the Act requires that Y apply for an amendment to be effected on the birth certificate so he could be recognised as the father his child in reference to the Birth and Deaths Registration Act. As it has been mentioned above Y provided financial support for his child after he understood he has a child which contributes to good faith for the upbringing of his child. If necessary I would advise Y to also pay for damages in term so f customary law.
X is a university student just like Y, she with the potential adopting parents J and H might propound that X does not have the will and capacity to provide for the child. This type of argument is usually powerful for it is backed by the decisive factor in the Children’s Act about the importance of the best interest of the child. In a scenario where X does not have the means to take care of her child that could impoverish the child and compromise its needs and wants. And according to the Child care Act 74 of 1983 in adoption matters the best interests of the child play the decisive role.
If X or Y have parents then Y could raise the point that as grandparents of their child they have the legal obligation to maintain dependant grandchild if the parents of the child fail to maintain the child this obligation is embodied in the present Maintenance Act 99 of 1998.
With the knowledge that there is J and H willing to provide for the child’s needs, X, J and H might bring about the issue of vulnerability. In recognition of children’s vulnerability section 28(1) of the South African Constitution asserts a number of rights that give additional protection for children, for example parental care or appropriate alternative care when removed from the family. Section 28(1) provides additional protection by asserting that the best interests of the child are of paramount importance in everything concerning the child.
Judges have the reputation of being anti-men and pro-women, in the report For the Sake of the Children the Canadian Special Joint Committee Custody and Access suggested that when judges decide they should no preference in favour of either parent merely on the basis of the parent’s gender. There are of course many advantages of adoption for the child, for example they are likely to be exposed to greater opportunities, they grow up in a stable family and have a more one on one attention from parents. However there are also disadvantages, sooner or later the adopted child might blame their adoptive parents for the losing their biological parents. And once the adoption is through the child will never be able to claim any rights to maintenance or inheritance from Y, which is not only unhealthy for Y but for the child too, eventually.
In conclusion, this paper has given Y what kind arguments he could bring in court, it suggested that he can take X to court and request for paternal parental rights and obligations of the children’s Act under chapter 38 of 2005. After finding out that he is a father he immediately provided funds to help support his child, he thus in my viewpoint qualifies to rebel the decision he took three weeks ago and paternal claim rights and responsibilities. However just like is was mentioned above it is possible that X could say that as a student she does not have the power and will to take care of her child especially because when the child was born she and Y were not living in a life partnership agreement which is one of the requirements for the acquisition of parental rights and responsibilities for a unmarried fathers. This paper has also advised Y to include grandparents, under the Maintenance Act the grandparents of the child are obliged to provide support for the child in the case that the mother or father is unfit to do so. While X, J and H might state in the best interests of the child adoption will provide the best opportunities for the child, however Y like mentioned before can argue that as much as adoption has numerous advantages it can have many disadvantages especially once the child is grown. In numerous cases when adopted children reach their teen years they turn to question their identity and seek to find their biological parents.

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[ 1 ]. S 18(4) (d) of the Child Care Act.
[ 2 ]. Boberg’s Law of Persons and the Family (2nd edition) 503, with reference to Parker op cite (1994) 8 International J of Law and the Family 26.
[ 3 ]. Boberg’s Law of Persons and the Family (2nd edition) 503, with reference to Parker op cite (1994) 8 International J of Law and the Family 26.
[ 4 ]. As is provided for in section 28(2) of the Constitution, 1996.
[ 5 ]. As is provided for in section 28(2) of the Constitution, 1996.
[ 6 ]. See, for example, McCall v McCall 1994 (3) SA 201 (C).
[ 7 ]. As is provided for in section 28(2) of the Constitution, 1996.
[ 8 ]. As is provided for in section 28(2) of the Constitution, 1996.
[ 9 ]. As is provided for in section 28(2) of the Constitution, 1996.
[ 10 ]. Ibid.
[ 11 ]. Births and Deaths Registration Amendment Act 40 of 1996 – Gazette No.17412, dated 5 September 1996. Commencement date: 5 September 1996.
[ 12 ]. Boberg’s Law of Persons and the Family (2nd edition) 503, with reference to Parker op cite (1994) 8 International J of Law and the Family 26.
[ 13 ]. S 18(4) (d) of the Child Care Act.
[ 14 ]. As is provided for Maintenance Act 99 of 1998.
[ 15 ]. As is provided for Maintenance Act 99 of 1998.
[ 16 ]. B Mabandla ‘Survey of child protection legislation in South Africa’ in International Conference on the Rights of the Child (1992), Centre for Development Studies, 127. See, for example, section 33(3) of Act 25 of 1913, which required white children to be kept separately from coloured children in government industrial schools.
[ 17 ]. K&A Adoption report (22).
[ 18 ]. Boberg’s Law of Persons and the Family (2nd edition) 503, with reference to Parker op cite (1994) 8 International J of Law and the Family 26.
[ 19 ]. Boberg’s Law of Persons and the Family (2nd edition) 503, with reference to Parker op cite (1994) 8 International J of Law and the Family 26.
[ 20 ]. Ibid.