An Act of wanton cruelty

John Kane-Berman writes on how the ANC is planning to impose a state monopoly on the adoption system

One of the promises in the 2019 election manifesto of the African National Congress is that the country's social security system will be expanded in the next five years. How this will be paid for is not specified, although it implies an increase in taxation or government borrowing or both.

In the meantime, the Department of Social Development (DSD) is busy with amendments to the Children's Act of 2005 likely to jeopardise the ability of non-profit organisations to arrange for the adoption of children. Arguing that adoptions should not be "commodified", the department wants to prohibit the payment of fees to anyone involved. "Designated child protection organisations rendering adoption services" will instead have to apply for provincial government funding, which will be allocated depending on "availability".

Under present legislation, social workers, lawyers, psychologists, doctors, and other professionals are entitled to receive prescribed fees for services provided in connection with adoptions. According to the National Adoption Coalition of South Africa (Nacsa), professional assessments are essential to enable the courts to make a finding that children are "adoptable" and the prospective parents "fit and proper".

The DSD's proposed amendments will make it illegal both to charge fees and to claim reimbursement of expenses incurred. Debbie Wybrow, an attorney specialising in adoptions who also runs an adoption agency, fears that the amendments also intend to make it illegal for anyone to make donations in cash or kind towards professional services incurred in arranging adoptions. This would be a double blow: professionals may not charge fees, nor may even designated child protection organisations receive donations.

According to Ms Wybrow, the amendments effectively "spell the death knell for child protection organisations serving abandoned, vulnerable, adoptable, or unparented children". "Decades of experience" in working with children will probably be lost.

Katinka Pieterse, head of Nacsa, says that the proposed changes were hastily added to draft legislation without sufficient prior consultation of adoption agencies, leading to suspicion as to the "real agenda". Ms Wybrow believes that the real motivation is "to enable the state to assume absolute control over adoption and push its anti-adoption agenda". She says DSD officials have conceded that placing children with extended families and preserving "cultural ties" is their top priority.

The DSD says that it has trained 889 social workers to "render adoption services". Albert Fritz, Western Cape MEC for social development, points out, however, that social workers in South Africa have "exceedingly high caseloads". The result is that children who might otherwise have been adopted will be left in foster care. Ms Wybrow believes that, given the "strong anti-adoption bias" of key members of the DSD, the preferred option for state social workers will be to "leave children in long-term institutional care or to obtain administrative authorisation to place children informally or in kinship care". The DSD has indeed made clear its own preference for "alternative care options" over adoptions.

In 2017/2018, according to Ms Pieterse, there were 1 186 registered adoptions in South Africa. This is a small number, but the proposed amendments may cause this low number to dwindle.

What is at stake here is that the state is seeking monopoly powers for itself. It also appears to want to use these powers to impose an ideological agenda – hostility to adoptions – to the detriment of would-be parents who yearn to adopt children out of kindness or because they cannot have any of their own. This is an abuse of power, and a callous one at that.

It is probably also a violation of the Constitution in that it seeks to limit the availability of "parental care", even though this is among the rights accorded to children. It may also be a violation of the Constitution in another way. The Constitution stipulates that "a child's best interests are of paramount importance in every matter concerning the child". By undermining organisations arranging adoptions, the proposed amendments arguably violate the Constitution by foreclosing on adoptions even though they may be in a child's "best interests".

Worst of all, the proposals are an act of wanton cruelty towards deprived children who might otherwise have been placed in happy homes with loving parents.

* John Kane-Berman is a policy fellow at the IRR, a think-tank that promotes political and economic freedom. Readers are invited to take a stand with the IRR by clicking here or sending an SMS with your name to 32823. Each SMS costs R1. Ts and Cs apply.