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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
26 May 2005
CHILDREN’S BILL: DELIBERATIONS
Documents handed out
Chapter 15: Adoptions
Amended Bill: May 2005
Children's Bill [(B70-2003) Reintroduced]
The Committee revisited some matters outstanding from the previous day. The provision relating to consideration in respect of adoptions was addressed. One of the Members felt that the provision for payment of maternity benefits and UIF compensation was unnecessary, as these were excluded by the Clause heading. It was further suggested that fees of professional persons involved in adoptions should not be prescribed. Their services were not compulsory, and people who chose to use them, should do so at their own risk and at their own cost. The definition of "adoption services" was queried as being vague. The drafting team would revisit the wording of the relevant Clauses.
Ms R van Zyl of the SA Law Reform Commission (SALRC) raised matters outstanding from the previous day.
Clause 249: No consideration in respect of adoptions
The Committee had felt this provision was too vague and full of loopholes. It had been amended to state that subclause (1) would not apply to compensation in terms of the Act; payment to the biological mother of the child during maternity leave according to her terms of employment, and the difference between compensation in terms of subclause (1) and her normal substantiated earnings.
"substantiated expenses" had been substituted in respect of medical expenses and counselling in subclause (2)(a).
Ms S Rajbally (MF) noted that, while she realised that working mothers were entitled to maternity leave as compensation, she was concerned that the transaction between the biological mother and the adoptive parent might happen "under the table". This would be very tempting to a young girl.
Mr M Masutha (ANC) requested clarity on the amendment.
Ms van Zyl explained that she was requesting input as a result of the previous day’s discussion. One option was to be very prescriptive, and state what the mother could receive.
Mr M Waters (DA) concurred, suggesting that it limited the possibility of abuse.
Mr Masutha expressed concern as the prohibition appeared very specific in Clause 249(1). It seemed to refer to receiving compensation in respect of an adoption, not a pregnancy. The compensation would thus have to be directly related to the adoption. Subclause (2) contained exemptions to (1), and again in regard to adoption. Any benefits from the Unemployment Insurance Fund (UIF) would be for loss of earnings during pregnancy, not compensation for giving up a child. The only person who would want to pay compensation for the adoption itself would be the adoptive parent or the institution facilitating the adoption process. This would clearly exclude the UIF, as it had no interest in the adoption process. Why should the biological mother be compensated for loss of earnings in the course of the pregnancy by a prospective adoptive parent or the adoption agency? The provision should be deleted.
Ms van Zyl suggested that the original drafters might have been trying to protect the biological mother from being disadvantaged because she was pregnant. There would not be a problem in removing the provision. The biological mother should not be in a worse position if she had to take maternity leave and give up her baby than anyone else would be.
Mr Masutha suggested that a mother would not fall pregnant with the intention of giving up her child for adoption. If she did so, she would already be in breach of the law.
Ms Rajbally emphasised that it was not possible to do away with compensation from the Department of Labour, because while the mother was working, she would be contributing to the UIF, and that would cover maternity compensation, and so on. That mother could not be prevented from receiving compensation when she went on maternity leave.
Ms I Mars (IFP) suggested that there was no need to specify these benefits.
Mr Masutha agreed that the biological mother would be entitled to all social security benefits, regardless of her adoption decision. The issue arose because subclause (2) started with the words "Subsection (1) does not apply to ….". There was no way in which the UIF would pay maternity leave purely because the mother was giving up the baby for adoption. If adoption were not at issue per se, then the compensation would have nothing to do with (1). You would thus never lose those benefits as a result of giving up your child for adoption.
Ms van Zyl asked whether the Committee wished to completely delete subclause (2)(a)(i) and this was confirmed.
The other issue raised had been that of medical expenses. The drafters had replaced "reasonable" with "substantiated", so that the mother would have to provide proof. "Substantiated fees" had also been inserted in subclause (3).
Mr Masutha noted that subparagraphs (i) and (ii) fell within the same category. The biological mother who was not earning would not have money and would say that a prospective adoptive parent who wanted the child would have to pay for the time she was unemployed. That would amount to an indirect way of paying for the child. In subparagraph (ii), the mother was not receiving compensation for loss of income, but for medical expenses incurred. On a point of policy, did the Committee really want to say it would be a bad thing for the adoptive parents to pay these expenses, because it should have been paid by the biological mother? Subparagraph (ii) addressed reimbursement for actual expenses incurred, so "reasonable" should not pose a problem.
Ms C Dudley (ACDP) emphasised the undesirability of the unintended consequence of pregnancy being encouraged for adoption. It was, however, essential that people be given absolutely honest choices. A girl faced with abortion should be given the full service. If she were going to be faced with a loss of earnings, she would opt for an abortion. It was very important that this legislation not block people from having the option when they were pregnant, and felt unable to afford it.
Mr Masutha expressed the need for a cut-off point. A girl could hold authorities to ransom and threaten to abort the child unless she was paid. Nobody was saying that everything possible should be done to encourage young girls to abort, but at some point it had to be said that the very mistake of pregnancy was an unfortunate situation. The circumstances flowing out of the pregnancy were also unfortunate. This Bill could not solve all social problems.
Ms Dudley asked whether that would stop a person from receiving money to survive while pregnant. There had to be some way for a person in that position to continue without earnings in order to carry the child to full term.
Mr Masutha suggested that subparagraph (i) was still unnecessary, because the reason for providing financial assistance could not possibly be linked to its being in exchange for her giving her baby up for adoption. It could only be for her to cope with the financial deprivation with which she was faced. Subparagraph (i) should perhaps find a way of highlighting "for the adoption of a child".
The Committee agreed to retain "reasonable medical expenses", and "reasonable" in relation to expenses for counselling.
Ms van Zyl referred to subparagraph (b) and asked why professional persons were named. She needed clarity on the Committee’s instructions.
Ms W Direko (ANC) suggested that it would not be sensible to stipulate fees, as the Bill would remain on the statute books for years, and the provision could be crippling.
Ms Dudley suggested that it was an important clause, since it dealt with professional services.
Mr Masutha agreed that "reasonable" was not necessary in this instance. Subparagraph (a) tried to prevent a situation where the mother of a child tried to profit out of giving up the child. In subparagraph (b), the prospective parent would be paying the fees. If they chose to pay a lot of money to lawyers to facilitate the adoption process, that was their choice. This Clause tried not to preclude the possibility of such people accessing professional services.
Ms van Zyl asked whether this meant that "reasonable" would be deleted in subclause (2)(b), and that the fees would not be prescribed.
Mr Masutha stressed that the only fees that would be prescribed would be fees in respect of services required as a precondition for an adoption in terms of this Bill. Adoption agencies could not exploit people.
Ms Rajbally asked whether, now that "reasonable" was being removed from subparagraph (b), it would also be removed from subparagraph (ii).
Dr Mabetoa emphasised that the Regulations and guidelines would have to determine the fees to be charged by lawyers and social workers from time to time, or they would be open to abuse.
Mr Masutha stated that their services were not required by law. Fees would be regulated where certain provisions had to be complied with for an adoption to be processed, over and above a social worker’s report, for example. They would then have to be specified, in terms of the particular Clause of the Bill requiring the use of the services. It was possible that the court might not be satisfied and need a report in addition to the social worker’s report, or require the social worker’s report to incorporate a medical report. Once that became a precondition, the issue of Regulation would arise. Legal fees were prescribed by law, and there was a mechanism in law to tax those fees.
Dr Mabetoa remarked that this had been debated the previous day. There had been a general feeling that the fees would be prescribed by professional boards. It was a reality that private practitioners were involved in adoptions.
Mr Masutha noted that the question was which private practitioners were involved. If social workers were authorised under this law to recommend adoptions, then prescription would arise directly under this Clause. It was too open to talk about a range of professionals, as it could be a priest who had to bless the adoption. There could eventually be thousands of professionals involved here. If the Bill prescribed fees for a lawyer’s appearance before a children’s court, there could be an endless range of services that were actually not required. It would be better to defer to the fact that all lawyers were subject to certain professional ethics and codes which ensured that fees were prescribed and regulated by institutional mechanisms. The Committee concurred.
Ms van Zyl explained that the row of asterisks between (c) and (e) meant that subparagraph (d) was not in the Section 75 Bill. It had been decided to separate the two types of organisations, as not all child protection organisations necessarily dealt with adoptions. The State Law Advisor had suggested referring to designated child protection services for delivery in the provinces, or having a separate term referring to a firm providing adoption services. It was thus necessary to bring subparagraph (d) back into the Section 75 Bill, to provide that child protection organisations would be entitled to prescribe fees. This was agreed.
Mr Masutha asked what the definition of a child adoption agency would state.
Ms van Zyl replied that the Department would have to guide the drafters on this. The current proposal was that a child protection organisation designated by the provinces had to be accredited as well to do inter-country adoptions. Was the Department envisaging the same situation for national adoptions, or would the child protection agencies be doing national adoptions?
Ms A Muller (Department of Social Development) replied that, in practice, organisations did not only do adoption work. The organisations had accredited social workers who did adoption work, and the accredited organisations did the whole spectrum of social services.
Mr Masutha recommended reverting to "accredited organisation". That organisation must have obtained a certificate to do adoption work.
Dr Mabetoa noted that the organisations accredited to do national adoptions could be the same but that not all were accredited for inter-country adoptions, so a distinction should be made.
Ms van Zyl said that the drafters would ensure that the wording on accreditation was correct.
Clause 250: Only certain persons allowed to provide adoption services
The only amendment to Clause 250 was the term "designated child protection organisation", and the wording would be corrected. Subclause (2) was an addition similar to the previous one, providing for fees.
Mr Masutha expressed doubt about the appropriateness of Clauses 250 and 251. A possible solution might be to state that no children’s court could grant an adoption without a report as prescribed having been forwarded to the court. This was specific about the kind of adoption services that were being limited to accredited organisations or individuals. It was always dangerous to say that no person might do "xyz", because you then had to clarify what "xyz" was.
Ms van Zyl explained that the definition of adoption services had been included at the beginning of the document.
Mr Masutha replied that the definition was very vague.
Clause 253: Regulations
"for purposes of this chapter" was inserted in subclause (a), as the determination of a child abandoned for the purposes of adoption might be different for that of a child in need of care and protection.
The meeting was adjourned.