Adoption creates a permanent legal relationship between a child and a new family. Once an adoption order is granted, the adoptive parents become the child’s parents in law, in exactly the same way as birth parents. Because the consequences are so significant, South African law sets out a careful process with checks at each stage.
Adoption is also changing. In October 2025 the Constitutional Court declared parts of the parental leave provisions in the Basic Conditions of Employment Act 75 of 1997 and the related unemployment insurance legislation unconstitutional because they discriminated against fathers, adoptive parents and commissioning parents in surrogacy. The judgment struck down the shorter leave period and age limit that applied to adoptive parents, and gave Parliament three years to amend the law. For prospective adoptive parents, this is a welcome recognition that adoption is parenthood on equal terms.
This article explains who can adopt, which children can be adopted and how the process works.
The legal framework
Adoption is governed by chapters 15 and 16 of the Children’s Act 38 of 2005 and its regulations. The guiding principle throughout is the best interests of the child. Only a children’s court can grant an adoption order, and only after considering a report from an adoption social worker.
Inter-country adoptions, where a child moves between South Africa and another country, are subject to additional rules, including the Hague Convention on Intercountry Adoption, and must be processed through the central authority in the Department of Social Development.
Which children can be adopted
Section 230 of the Children’s Act sets out when a child is “adoptable”. This includes, among others, a child who:
- is an orphan with no guardian or caregiver willing to adopt them;
- has a parent or guardian whose whereabouts cannot be established;
- has been abused or deliberately neglected, or is in a situation that may cause harm;
- has been placed in temporary safe care or foster care and needs a permanent placement; or
- has a parent or guardian who consents to the adoption.
An adoption social worker assesses whether the child is adoptable and whether adoption is in the child’s best interests.
Who can adopt
Under section 231, a child may be adopted jointly by spouses or by permanent life partners, by other persons sharing a common household and forming a permanent family unit, by a widow, widower, divorced or unmarried person, by a married person whose spouse is the child’s parent (a step-parent adoption), by the biological father of a child born outside marriage, or by the child’s foster parent.
Each prospective adoptive parent must be fit and proper to be entrusted with full parental responsibilities and rights, willing and able to undertake them, over 18 years old and properly assessed. A person’s financial status may not, on its own, disqualify them.
Consent
Consent is one of the most important parts of the process. Section 233 generally requires consent from each parent and any guardian of the child, and from the child if they are 10 years or older, or younger but of sufficient maturity to understand the decision. Consent is signed before a children’s court and the parent must first receive counselling.
A parent who consents may withdraw that consent within 60 days after signing. Adoptive families should be aware of this window, which is one reason placement decisions are handled carefully during the early stage.
In some circumstances, consent is not required, for example where a parent has abandoned the child, cannot be found, has repeatedly failed to fulfil parental responsibilities or is incompetent to consent. The court must be satisfied on the facts before dispensing with consent.
The adoption process, step by step
- Approach an accredited adoption agency or a designated social worker. Adoption services may only be provided by accredited child protection organisations, Department of Social Development social workers and accredited social workers in private practice.
- Screening and assessment. Prospective parents undergo interviews, home visits, medical reports, police clearance and checks against the National Child Protection Register.
- Registration on RACAP. Approved prospective parents and adoptable children are recorded on the Register on Adoptable Children and Adoptive Parents, which helps match children with families.
- Matching and placement. The social worker matches the child with suitable parents, taking into account the child’s needs and, where possible, cultural and religious background.
- Consent and court application. Consents are obtained and the application is lodged at the children’s court with the social worker’s report.
- Adoption order. If satisfied that adoption is in the child’s best interests, the court grants the order.
- Registration. The adoption is recorded with the Department of Home Affairs and the child’s birth registration is updated.
The effect of an adoption order
Under section 242, an adoption order terminates all parental responsibilities and rights of the previous parents and confers full parental responsibilities and rights on the adoptive parents. The child takes the adoptive parents’ surname unless the court orders otherwise and becomes their child for all purposes, including inheritance.
The Act allows for post-adoption agreements, under which birth parents may have some contact with or information about the child after the adoption, if the court finds it to be in the child’s best interests. An adoption order may also be rescinded in limited circumstances, subject to strict time limits.
Costs and payments
Adoption social workers and agencies may charge only the fees permitted by the regulations, and Department of Social Development social workers provide adoption services without charge. It is an offence to give or receive payment or any other reward in exchange for a child, or to advertise a child for adoption outside the permitted channels. Prospective parents should be cautious of anyone offering to “arrange” an adoption privately.
Practical tips for prospective adoptive parents
- Use only accredited agencies and social workers, and ask to see their accreditation.
- Expect the screening process to take time, and prepare your documents early.
- For a step-parent adoption, discuss the position of the other birth parent at the outset, as their consent or the grounds for dispensing with it will be central.
- Update your will after the adoption order, and appoint a guardian for your child.
- Check your employer’s leave policy and your rights following the Constitutional Court’s parental leave judgment.
How O’Reilly Law can help
We advise prospective adoptive parents, step-parents and birth parents on their rights and the adoption process, assist with consent and post-adoption agreements, and represent clients in the children’s court. We also help families update their wills and guardianship arrangements once an adoption is finalised.
Contact us to discuss adoption or a step-parent adoption.
Related reading: Surrogacy agreements in South Africa · Grandparents’ and step-parents’ rights
This article is general information and not legal advice. Correct as at November 2026.