INTERCOUNTRY ADOPTION


SOUTH AFRICA


July 2008


DISCLAIMER: The following is intended as a general guide to assist U.S. citizens who plan to adopt a child from a foreign country.  Three sets of laws are particularly relevant: 1) the laws of the child’s country of birth govern all activity in that country including the eligibility of individual children for adoption, as well as the adoption of children in that country in general; 2) the laws of the adoptive parents’ state of residence establish qualifications they must meet in order to adopt; and 3) U.S. immigration law governs the immigration of the child to the United States.  In addition, the Hague Convention on Intercountry Adoption, to which the United States became a party on April 1, 2008, establishes legal and regulatory requirements for intercountry adoption. 

The adoption of children from countries that are party to the Hague Convention must follow the procedures outlined by the Convention, and its U.S. implementing legislation, the Intercountry Adoption Act of 2000 (IAA).  More information on the IAA and the Convention can be found on our website under Hague Adoption Convention. 

 The information in this flyer relating to the legal requirements of specific foreign countries is based on public sources and our current understanding.  It does not necessarily reflect the actual state of the laws of a child’s country of birth and is provided for general information only.  Moreover, U.S. immigration law, including regulations and interpretation, changes from time to time.  This flyer reflects our current understanding of the law as of this date and is not legally authoritative.  Questions involving foreign and U.S. immigration laws and legal interpretation should be addressed respectively to qualified foreign or U.S. legal counsel.


THE HAGUE CONVENTION ON INTERCOUNTRY ADOPTION:

South Africa is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Convention) and with which the Convention is in force for the United States .  


TRANSITION CASES: Under U.S. law, an adoption case involving a Convention country already in process on April 1, 2008 when the Convention entered into force with respect to the U.S. did not/not change into a Hague case on that date. These transition cases will continue to be processed in accordance with the immigration regulations for orphan adoptions which were in effect at the time the case was filed, explained in the State Department Flyer How Can Adopted Children Come to the United States.

If the Application for Advance Processing of an Orphan Petition (I-600A) or Petition to Classify an Orphan as an Immediate Relative (I-600) was filed before April 1, 2008, then the Convention and the IAA will not apply to that case.  The Department of Homeland Security’s U.S. Citizenship and Immigration Service (USCIS) considers a case properly filed when USCIS receives an application or petition along with any required filing fee.  The filing date is stamped on the application or petition to show the time and date of actual receipt.   For further information on transition cases, please see theFAQs: Transition Cases and the Hague Adoption

NOTE: South African law recognizes two kinds of adoptions by foreigners: 1) those completed by foreign residents of South Africa, and 2) international adoptions where foreigners are given children to adopt in their home country. The first category requires the foreigners to be resident for five years in South Africa and the adoptions are handled by an accredited agency and finalized by the Department of Social Development. The second category is only available to citizens of countries with a working agreement between them and South Africa . At this time, the United States does not have a working agreement of this type.


CAUTION: There have been a number of cases in which American Citizens have been issued “Guardianship Orders” from the South African High Court. These orders do not constitute “irrevocable release for adoption and immigration” as required by United States Immigration Law. As such, they cannot be used for immigration purposes, essentially eliminating the possibility of Immediate Relative-4 (IR-4) visas (immigrant visas for orphans who will emigrate and be adopted in the United States ) from South Africa .


PATTERNS OF IMMIGRATION OF ADOPTED ORPHANS TO THE U.S.: Recent U.S. immigrant visa statistics reflect the following pattern for visa issuance to Southern African’s orphans:

Fiscal Year

Number of Immigrant Visas Issued

FY 2007

7

FY 2006

13

FY 2005

10

FY 2004

8

FY 2003

27


ADOPTION AUTHORITY IN SOUTH AFRICA :  The government offices responsible for adoptions in South Africa are the following:

Commissioner of Child Welfare
Private Bag X61
Pretoria 0001, South Africa
Tel: 27-12-328-4026
Fax:  27-12-321-8124

Department of Social Development
Registrar of Adoptions
Private Bag X901
Pretoria 0001, South Africa
Tel: 27-12-312-7592
Fax: 27-12-312-7837

The Commissioner of Child Welfare is responsible to the Department of Justice and is required for inter-country adoptions. The Department of Social Development is the central authority for all adoptions.


ELIGIBILITY TO ADOPT: For adoptive American parents living in South Africa , there is a 5-year residency requirement. Eligibility requirements beyond that, change based on the circumstances of the case in question. For example, family members will be given preference over non-relatives regardless of age.


RESIDENCY REQUIREMENTS: There is a five year residency requirement, which can include the two-year vetting process.  South African authorities will approve adoptions by U.S. citizen families who have been residents in South Africa or in cases in which one spouse is South African.


TIME FRAME:  It can take up to two years to complete South Africa adoption requirements.


ADOPTION AGENCIES AND ATTORNEYS: Prospective adoptive parents are advised to fully research any adoption agency or facilitator they plan to use for adoption services.  For U.S.-based agencies, it is suggested that prospective adoptive parents contact the Better Business Bureau and/or the licensing authority in the U.S. state where the agency is located or licensed.  Please also see Important Notice Regarding Adoption Agents and Facilitators at the Department of State, Bureau of Consular Affairs web site travel.state.gov.

Because South Africa is a Convention country, adoption services must be provided by an accredited agency, temporarily accredited agency, approved person, supervised provider, or exempted provider. These terms are defined in 22 CFR Part 96 and explained in the Department’s website brochure “A Guide for Prospective Adoptive Parents.”  For purposes of this document, accredited agencies, temporarily accredited agencies, and approved persons are referred to with the shorthand term “accredited adoption service providers.”

It is essential that prospective adoptive parent(s) seeking to adopt from a Convention country use an accredited adoption service provider.  The Department maintains a current list of accredited adoption service providers.  The list of accredited adoption service providers is also provided on the website of the Hague Permanent Bureau at www.hcch.net.


ADOPTION FEES IN SOUTH AFRICA:   The U.S. Embassy in South Africa discourages the payment of any fees that are not properly receipted, “donations,” or “expediting” fees, that may be requested from prospective adoptive parents.  Such fees have the appearance of “buying” a baby and put all future adoptions in South Africa at risk.


ADOPTION PROCEDURES: The adoption procedure is initiated by contacting an accredited welfare organization. They are tasked with identifying an orphan child eligible for adoption. After a home study has been completed by an accredited organization, the case is referred to a children's court for the final hearing. An order of adoption terminates all the rights and obligations existing between the child and any prior legally-recognized parents. The adopted child is thereafter deemed by law to be the legitimate child of the adoptive parent(s). The order of adoption confers the surname of the adoptive parent on the adopted child.

How a South African Child Becomes Eligible for Adoption
The consent of the child's biological father, except in cases of rape or incest, must be obtained before a child born out of wedlock is placed for adoption. Unmarried fathers have the right to apply for access, custody or guardianship. Previously, only the consent of the biological mother was required. However, married or biological divorced fathers can prevent their wives or former wives from having their children adopted.

According to South African law, a child born to parents who are not married to each other at the time of birth is illegitimate. A child born to unmarried parents becomes legitimate as soon as they marry. Normally, the mother of an illegitimate child is not only the legal guardian of her child, but also has custody even if she herself is still a minor. Only if it is proven that she is unfit to have custody can the child be taken from her and placed in alternative custody. Under current laws, the birth of an illegitimate child must normally be registered in the surname of the mother; the illegitimate child may take the surname of its father only if the father has formally acknowledged them in the birth register. The mother alone has the right to decide what the child's first name or names should be.


DOCUMENTS REQUIRED FOR ADOPTION IN SOUTH AFRICA:   Because of the South African order of precedence for adopting orphans, the document requirements are different for each case. As such there is no comprehensive checklist to follow.  As a starting point, contact the Commissioner of Child Welfare and the South African Department of Social Development (see contact information above). 


AUTHENTICATING U.S. DOCUMENTS TO BE USED ABROAD:    For more information on authenticating U.S. documents to be used abroad, please see the Judicial Assistance section of our website.


SOUTH AFRICAN EMBASSY IN THE UNITED STATES:

Embassy of the Republic of South Africa
 3051 Massachusetts Avenue, NW .
Washington, D.C. 20008
Telephone: 202-232-4400

South Africa has Consulates in Chicago, Los Angeles, and New York .


U.S. IMMIGRATION REQUIREMENTS:  As of April 1, 2008, U.S. citizens wishing to adopt in a Convention country must begin the process by filing with the U.S. Citizenship and Immigration Services (USCIS) a form I-800A Application for Determination of Suitability to Adopt a Child from a Convention Country.  Prospective adoptive parents are strongly encouraged to consult the Department of Homeland Security, USCIS website to download forms and filing instructions.


U.S. EMBASSY AND CONSULATES IN SOUTH AFRICA:   Americans living or traveling abroad are encouraged to register with the nearest U.S. Embassy or Consulate through the State Department’s travel registration website, and to obtain updated information on travel and security within the country of travel.  Americans without Internet access may register directly with the nearest U.S. Embassy or Consulate.  By registering, American citizens make it easier for the Embassy or Consulate to contact them in case of emergency.  The Consular Section is located at:

U.S. Consulate General
1 River Street , Killarney, Johannesburg 2193
Tel: 27-11-644-8000
Fax: 27-11-646-6916

(The Consulate in Johannesburg handles all consular matters, including immigrant visas for Pretoria ) The United States also has Consulates General in Westlake (Cape Town) and Durban .


APPLYING FOR A VISA AT THE U.S. CONSULATE GENERAL IN JOHANNESBURG:  If an orphan has been identified for adoption and the prospective adoptive parent(s) have an approved Form I-600 orphan petition, the following additional documents are required for children who are fully adopted under South Africa law:

  1. The child’s original, unabridged birth certificate showing the new adoptive parents' names;
  2. Evidence that the child is an orphan, e.g. death certificate(s) of the orphan's parent(s), if applicable; or evidence that the orphan's sole or surviving parent cannot provide for the orphan's care and has, in writing, forever, and irrevocably released the orphan for emigration and adoption; or evidence that the orphan has been abandoned or deserted by, separated, or lost from both parents; or evidence that the orphan has been unconditionally abandoned to an orphanage.
  3. A final decree of adoption reflecting that both spouses (prospective adoptive parents) were parties to the adoption;
  4. Evidence of compliance with all relevant South African regulations
  5. A passport issued in the child’s correct, current name; and
  6. Child’s medical examination completed by one of the Consulate’s approved panel physicians


NOTE:  If all required documents are in order and the child is qualified for the visa, it generally takes between 2-3 days to issue the visa.  Unfortunately, it is not possible to issue the visa to adoptive parents on the day of the interview due to security procedures.


ACQUIRING U.S. CITIZENSHIP: Please see the Child Citizenship Act of 2000 for further information on acquisition of U.S. citizenship for adopted children.


ADDITIONAL INFORMATION:

  • U.S. Department of State Office of Overseas Citizens Services - For information on intercountry adoption and international parental child abduction, and security information for U.S. citizens traveling abroad, call Toll Free 1-888-407-4747. This number is available from 8:00 a.m. to 8:00 p.m. EST/EDT, Monday through Friday (except U.S. federal holidays). Callers who are unable to use toll-free numbers, such as those calling from overseas, may obtain information and assistance during these hours by calling 1-202-501-4444.
  • U.S. Department of State Visa Office - For information on immigrant visas for adopted orphans, call (202) 663-1225. Press 1 for additional information on visas, and press 0 to speak to a Visa Information Officer, available 8:30 a.m.  - 5:00 p.m. EST/EDT, Monday through Friday (except Wednesdays 11 a.m. - 12:00 noon)
  • U.S. Citizenship and Immigration Services (USCIS) - recorded information for requesting immigrant visa application forms, 1-800-870-FORM (3676).
  • National Visa Center (NVC) Public Inquiries (603) 334-0700, Email: nvcinquiry@state.gov.
  • Country Specific Information - The State Department has general information about hiring a foreign attorney and authenticating documents that may supplement the country-specific information provided in this flyer. In addition, the State Department publishes Country Specific Information for every country in the world, providing information such as location of the U.S. Embassy, health conditions, political situations, and crime reports. If the situation in a country poses a specific threat to the safety and security of American citizens that is not addressed in the CSI for that country, the State Department may issue a Travel Alert alerting U.S. citizens to local security situations. If conditions in a country are sufficiently serious, the State Department may issue a Travel Warning recommending that U.S. citizens avoid traveling to that country. These documents are available on the Internet at travel.state.gov or by calling the State Department's Office of Overseas Citizen Services Toll Free at 1-888-407-4747. This number is available from 8:00 a.m. to 8:00 p.m. Eastern Time, Monday through Friday (except U.S. federal holidays). Callers who are unable to use toll-free numbers, such as those calling from overseas, may obtain information and assistance during these hours by calling 1-202-501-4444.
  • USCIS web site