This section covers the following topics:
Who is presumed to be a parent upon the birth of a child?
A child born to a woman during her marriage or marriage-like relationship with a domestic partner, or within 10 months of the marriage or relationship ending, is generally presumed (in the absence of proof to the contrary) to be the child of its mother and the spouse or domestic partner [see Family Relationships Act 1975 (SA) s 8]. Domestic partner is defined in s 11A to include those in a registered relationship, as well as those who have been living together in a close personal relationship (as a couple on a genuine domestic basis) for 3 years or who have had a child together.
Different presumptions apply where the child is conceived following fertilisation procedures [s 10C]. These serve to recognise the intended parents, rather than the biological parents. See also Reproductive technologies.
Who is responsible for registering a birth?
Both parents are jointly responsible for registering the birth of their child with Births, Deaths and Marriages, and both must sign the birth registration statement.
The Registrar of Births, Deaths and Marriages may accept a statement signed by only one parent if satisfied it is impossible, impracticable or inappropriate for the other parent to sign whether because of death, disappearance, ill health, unavailability or the need to avoid unwarranted distress [Births, Deaths and Marriages Registration Act 1996 (SA) s 15]. This might include circumstances involving family violence.
If only one parent signs the birth registration statement, they must attach an explanation of why the other parent has not signed. The Registrar has the authority to make further enquiries if not satisfied with the explanation given.
Births, Deaths and Marriages have prepared a useful fact sheet for circumstances in which one parent is registering the birth of their child, accessible via the sa.gov.au website.
If a child is born through a lawful surrogacy agreement, an intending parent/s may make an application to the Youth Court to be recognised as a parent/s [Surrogacy Act 2019 (SA) s 18(1)]. Section 8 of the Surrogacy Act 2019 (SA) states that parenting presumptions under the Family Relationships Act 1975 (SA) continue to apply to a child born as a result of a surrogacy agreement, until a court orders otherwise as to parentage. The Registrar of the Youth Court must then provide the Registrar of Births, Deaths and Marriages with written notice of the order and other details required for the purposes of birth registration [s 21]. For more information about surrogacy, see Surrogacy.
How is a birth registered?
A birth registration statement must be lodged with the Registrar of Births, Deaths and Marriages within 60 days of the child's birth. The maximum penalty for not doing so is $1,250 [Births, Deaths and Marriages Registration Act 1996 (SA) s 16(1)].
What if a birth is registered late?
A birth can still be registered outside the 60 day period and the Registrar must accept a birth registration statement even if lodged outside of this period [Birth, Deaths and Marriages Registration Act 1996 (SA) s 16(2)].
Information to be included in the birth registration statement
The birth registration statement must include at least the following information [see Births, Deaths and Marriages Registration Regulations 2011 reg 5]:
Children conceived as a result of a fertilisation procedure
The Minister may keep a register of donors of human reproductive material used in, or in relation to, assisted reproductive treatment provided in accordance with the Act and resulting in the birth of a child. (Assisted Reproductive Treatment Act 1988 (SA) s 15(1)].
The register contains:
A certificate stating that a donor was, or was not, registered on the donor conception register in relation to the birth of a specified child, and purporting to be signed by the Minister will, in the absence of proof to the contrary, be accepted in legal proceedings as proof of the registration, or of the fact that the person was not so registered [s 15(5)].
Can details of parentage be altered after the birth has been registered?
The Registrar may alter the details of parentage after a birth has been registered if [Births, Deaths and Marriages Registration Act 1996 (SA) s 18]:
A parent or child or somebody whose rights are affected by the relationship may apply to the Magistrates Court for a declaration of parentage [Family Relationships Act 1975 (SA) s 9].
Must the birth registration include the name of the child?
Yes, the birth registration statement must include the name of the child. Although the name is a matter of choice for the parents lodging the statement, the Registrar can assign a name to a child if the name stated in the birth registration statement is a prohibited name or the birth registration is lodged by both parents and they satisfy the Registrar that they are unable to agree on the child's name [Births, Deaths and Marriages Registration Act 1996 (SA) s 21].
What happens if there is a dispute about the child's name?
In the event of a dispute between parents as to the child's name, either parent may apply to the South Australian Civil and Administrative Tribunal SACAT for orders resolving the dispute. For more information, see Changing a child's name.
Access to reproductive technology
As of 21 March 2017, access to reproductive technologies such as artificial insemination is no longer restricted on the basis of infertility. This restriction had acted to prohibit fertile same-sex couples from accessing reproductive technologies. The focus on infertility has been replaced with the requirement that it would be “unlikely that, in the person’s circumstances, the person will become pregnant other than by assisted reproductive treatment” [ see Assisted Reproductive Treatment Act 1988 (SA) s 9(1)(c)(i)].
Prior to 2010, it was also a requirement that those seeking treatment be either married or in a de facto relationship of at least 5 years duration. There is not now any requirement of this nature.
Registration of birth of child to female same-sex parents
Under section 10C of the Family Relationships Act 1975 (SA), the female partner of a woman who has given birth due to assisted insemination or assisted reproductive treatment (see the Assisted Reproductive Treatment Act 1988 (SA)) can be recognised as a co-parent of the child on the child's birth certificate. Recognition of the co-parent is subject to some conditions. A woman is recognised as the co-parent if:
Both women can be registered as co-parents even if they were not living together as domestic partners at the time of the birth, or at the time of registration.
If a birth was previously registered with only the mother as a parent, it is possible to change a child's birth certificate through Births, Deaths and Marriages to to include a female partner as a co-parent, as long as the conditions outlined above apply.
The law in South Australia recognises certain forms of surrogacy that conform to the requirements outlined in the Surrogacy Act 2019 (SA) and the Surrogacy Regulations 2020 (SA).
The Act and Regulations commenced on 1 September 2020, and repeal Part 2B of the Family Relationships Act 1975 (SA).
A recognised surrogacy Agreement under Part 2B of the Family Relationships Act 1975 (SA) that was in force immediately before 1 September 2020 will continue to be in force in accordance with its terms, and will be taken to be a lawful surrogacy agreement under the new legislation [Surrogacy Act 2019 (SA) s 11(1)].
Commercial surrogacy remains unlawful in South Australia, and Part 5 of the Surrogacy Act 2019 (SA) outlines specific offences relating to surrogacy.
A surrogacy agreement (‘lawful surrogacy agreement’) is an agreement under which a surrogate mother agrees to become pregnant (or seeks to become pregnant) and surrender parentage or custody of, and rights in relation to, a child born as a result of the pregnancy to another person or persons [ss 4,10].
The only parties to a lawful surrogacy agreement are the intended parent or parents and the surrogate mother [s 10(2)]. The Act allows a single parent to become an intended parent, whereas prior to 1 September 2020 two intending parents of a qualifying relationship were required.
An intended parent or parents are persons it is agreed will have custody of a child under a lawful surrogacy agreement.
Under section 10(4) of the Act, an intended parent must be:
- they are a female person who is unlikely to become pregnant, or be able to carry a pregnancy or give birth due to medical reasons; or
- there is a risk of genetic defect, serious disease or serious illness that would be transmitted to a child born to an intended parent; or
- there is a risk that becoming pregnant or giving birth to a child would result in physical harm to an intended parent (the harm being of a kind, or severity unlikely to be generally suffered by pregnant women); or
- it is unlikely in all of the circumstances of the intended parent or parents that an intended parent would become pregnant, or be able to carry a pregnancy, or give birth (whether due to gender, identity, sexuality or other reason)
Each intended parent must undergo prescribed counselling prior to entering a lawful surrogacy agreement (as outlined in section 14 of the Act) and must provide to the surrogate mother a criminal history report within the 12 months prior to entering a lawful surrogacy agreement.
The intending parent or parents must also ensure counselling is available to the surrogate mother during the pregnancy, and up to 6 months after the birth (for the prescribed requirements see section 15 of the Act). Failure to comply with this requirement is an offence, with a maximum penalty of $5,000. The reasonable costs of counselling must be paid by the intending parent or parents, and are recoverable as a debt from either parent.
The surrogate mother is the woman who is to have a child or children for the purposes of the lawful surrogacy agreement [s 10(2)(a)].
The surrogate mother must, under section 10(3) of the Act:
There is no requirement that the surrogate mother must live in South Australia, and could reside interstate instead.
A lawful surrogacy agreement must:
A legal practitioner for purposes of the Act includes an interstate lawyer [s 4].
An accredited counsellor is prescribed under section 4(1) of the Act, as a member (or person eligible to be a member) of the Australian and New Zealand Infertility Counsellors Association subcommittee of the Fertility Society of Australia [reg 4].
What are ‘reasonable costs’ payable to the surrogate mother?
A guiding surrogacy principle (outlined in section 7(1)(b) of the Act) is that a surrogate mother should not be financially disadvantaged as a result of her involvement in the lawful surrogacy agreement.
Section 11 of the Act outlines the permissible payments to a surrogate mother in respect of the lawful surrogacy agreement, and the circumstances in which they can occur. Payments made that are not in accordance with the Act and regulations are unlawful, and may constitute an offence under sections 23-26 (Part 5) of the Act. Nothing in the Act or associated regulations authorises commercial surrogacy [s 11(3)].
Such reasonable costs as may be incurred, or are likely to be incurred include:
The Surrogacy Regulations 2020 (SA) set out when payments can be made for loss of income, and any other prescribed payments for the surrogate mother.
Regulation 5 of the Surrogacy Regulations 2020 (SA) state the surrogate mother is entitled to loss of income payments, relating to the lawful surrogacy agreement for:
Guiding Principles of the Act
The 'best interests of the child' born to a lawful surrogacy agreement is the paramount consideration to the administration and operation of the Act, and also in making any Court orders that transfer or revoke parentage.
The human rights of all parties to a lawful surrogacy agreement (including the child born) must be respected, and the surrogate mother should not be financially disadvantaged as a result of her involvement in a lawful surrogacy agreement.
The privacy requirements of a child born as a result of a surrogacy agreement are outlined in section 29 of the Act.
Rights of surrogate mother
A surrogate mother has the same rights to manage her pregnancy and birth as any other pregnant woman [s 16]. Any question relating to medical treatment to be provided to a surrogate mother, or to an unborn child to which a lawful surrogacy agreement relates, is to be determined as if the lawful surrogacy agreement did not exist. The Act does not limit the operation of any Advance Care Directive that the surrogate mother may have in place [s 17].
Enforceability of a lawful surrogacy agreement
A lawful surrogacy agreement (or a provision of a lawful surrogacy agreement) is not enforceable, except as otherwise specified in the legislation (for example, the recovery of reasonable surrogacy costs) [s 13].
This means that a surrogate mother may refuse or fail to relinquish the custody or rights in relation to a child born as a result of the lawful custody agreement, or may not consent to making of an order under section 18 of the Act (transfer of parentage). In this situation, the recovery of reasonable surrogacy costs would not be enforceable.
Court orders relating to lawful surrogacy agreements
The Youth Court may, on an application by one or both of the intended parents under a lawful surrogacy agreement, make any of the following orders in relation to a child born as a result of the lawful surrogacy agreement:
A court application to transfer parentage (under section 18 of the Act) must be made within the 30 days to 12 month period after a child is born as a result of the lawful surrogacy agreement. The time limit can only be extended if the Court considers it is in the best interests of the child, or that exceptional circumstances exist.
The surrogacy jurisdiction of the Youth Court is governed Chapter 8 Part 4 (rr 352.1-354.5) of the Uniform Special Statutory Rules 2022 (SA).
The Youth Court cannot make an order under section 18(1) of the Act unless it is satisfied that the making the order is in the 'best interests of the child' and that the intended parent or parents are 'fit and proper' to assume the role of parent of the child. The surrogate mother under the lawful surrogacy agreement must consent to the making of the section 18 order; as well as each intended parent to the lawful surrogacy agreement. The Youth Court can only dispense with the requirement to have the consent of the surrogate mother if satisfied that the surrogate mother is deceased or incapacitated, or that that the applicants cannot contact the surrogate mother after making reasonable inquiries.
An applicant must provide to the Court, if known, the identity of the donor of any human reproductive material used in relation to the lawful surrogacy agreement which resulted in the birth of a child [s 18(3)].
The Youth Court may, if it thinks it appropriate to do so, order that the child be separately represented in the proceedings, and make any other orders the Court considers necessary or appropriate to secure their separate representation.
A legal practitioner representing a child in proceedings under this Act must act in the 'best interests of the child,' having regard to any evidence reasonably available to the legal practitioner [s 20].
The Registrar of the Youth Court must, as soon as is reasonably practicable after the Court makes an order under section 18 or 19 relating to a child, give to the Registrar of Births, Deaths and Marriages written notice of the following matters [s 21]:
The Youth Court may only make an order that revokes an order under section 18 (the 'original order') in the following prescribed circumstances [s 19]:
The records of court proceedings relating to an order under section 18 or 19 of the Act will not be open to inspection, unless authorised by the Youth Court [s 22].
Offences
[ss 23-26 of the Act]
It is an offence for a person to enter, or try to enter, a commercial surrogacy agreement. NB: Payment does not include payment of reasonable surrogacy costs under the legislation.
Maximum penalty: 12 months imprisonment [s 23]
It is an offence for a person for valuable consideration to negotiate, arrange or obtain the benefit of a surrogacy agreement for another person.
Maximum penalty: 12 months imprisonment [s 24]
It is an offence to threaten, use dishonesty or undue influence to induce another person into a surrogacy agreement.
Maximum Penalty: 5 years imprisonment
It is also an offence for a person, who for valuable consideration, induces another to enter a surrogacy agreement.
Maximum Penalty: 2 years imprisonment [s 25]
It is an offence to advertise certain services relating to surrogacy for valuable consideration.
Maximum penalty: $10 000 [s 26]
Advice on contraception, pregnancy and abortion is readily obtainable from medical practitioners or other health services.
A person seeking advice or receiving contraceptive or pregnancy-related treatment does not need their partner or spouse's consent. Neither does a child or young person need the consent of their parent or guardian. However, in the case of a child under 16 years, a second medical opinion may be necessary for treatment. In some circumstances, an order of a court or tribunal may be required. Visit Children under 16 years for more information.
Where a child or any person is unable to give consent to an abortion or sterilisation (for example, due to an intellectual disability) only the South Australian Civil and Administrative Tribunal SACAT can give consent, not the person's parents, but they are given an opportunity to make submissions to the Tribunal [Guardianship and Administration Act 1993 (SA) s 61]. Visit When someone 16 or over can't consent for more information.
For more information, see Abortions and Abortions - Safe Access Zones.
Advice on pregnancy and abortion is readily obtainable from medical practitioners or other health services.
From 7 July 2022 the law on abortion in South Australia is covered by the Termination of Pregnancy Act 2021 (SA). The new legislation is intended to make terminations more accessible and abolish the offences under the Criminal Law Consolidation Act 1935 (SA).
An abortion (termination) is the medical intervention which results in the end of a pregnancy without the birth of a child. There are two types of abortion:
In South Australia, abortions may be performed by medical practitioners acting in the ordinary course of their profession:
Early medication abortions may also be performed by registered health practitioners, including medical practitioners, administering or prescribing a drug [s 5(1)(b)].
Before performing an abortion, a practitioner is required to provide the pregnant person with information regarding access to counselling, including publicly funded counselling [s 8]. There is no obligation for a pregnant person to attend counselling.
Abortions cannot be performed for sex-selection of the child, except in limited circumstances where there is a substantial risk that the unborn child would suffer a sex-linked medical condition that would result in serious disability to the child [s 12].
There are specific rules relating to late-term abortions:
In emergency situations, where there is an immediate threat to the health of the pregnant person some requirements do not apply (such as the obligation to obtain a second medical opinion or to provide counselling information).
Some registered health practitioners may conscientiously object to performing, assisting or advising on abortions [s 11]. In these circumstances, treating medical practitioners are obliged to provide a pregnant person with contact information for another practitioner or service who they believe do not have a conscientious objection to terminations. A practitioner bears no civil liability for refusing to perform or assist in a termination or to provide advice about terminations [s 13] but are required to comply with their duties as practitioners in emergencies [s 11(5)].
Similarly, in the event that a child is born alive following an abortion, registered health practitioners are obliged to comply with their duty to provide medical care and treatment to the child [s 7].
A pregnant person has the right to safety, well-being, privacy and dignity whilst accessing abortion services, see Abortions - Safe Access Zones.
From 7 July 2022, there is no obligation for a woman to have resided in South Australia for any period of time before undergoing an abortion.
For more information, see the SA Health page on Abortions. For further assistance regarding abortions, including support services, please contact the SA Health Pregnancy Advisory Centre on 7117 8999.
Consent
A person seeking advice or receiving pregnancy-related treatment does not need their partner or spouse's consent.
For more information about consent for:
Offences and acts of abuse
Coercing a person to terminate, or not to terminate, a pregnancy can constitute an act of abuse resulting in emotional or psychological harm pursuant to the Intervention Orders (Prevention of Abuse) Act 2009 (SA) [s 8(4)]. Such acts can accordingly result in the granting of intervention orders.
It is no longer an offence to consent to, assist in or perform (including attempts to perform) an abortion on oneself [s 16].
Termination of pregnancy by unqualified person
An unqualified person (as defined by the Act) who performs a termination on another person commits an offence.
Maximum penalty: 7 years imprisonment
[s 14(1)]
An unqualified person (as defined by the Act) who assists in the performance of a termination on another person commits an offence.
Maximum penalty: 5 years imprisonment
[s 14(2)]
A person can only be prosecuted for a section 14 offence with the written approval of the Director of Public Prosecutions [s 15].
It is also an offence to publish information that identifies, or contains information tending to identify, a person who has sought a termination [ss 18-19].
On 17 December 2020, the Health Care (Safe Access) Amendment Act 2020 (SA) commenced. Part 5A was inserted to the Health Care Act 2008 (SA) to ensure the safety, well being, privacy and dignity of people accessing abortion services, as well as health professionals and other people providing abortion services [s 48C].
A health access zone is defined as the protected premises itself, and any public area within 150 metres of it. A protected premises is any premises at which abortions are lawfully performed (excluding pharmacies). A public area means an area or place that the public, or a section of the public, is entitled to use or that is open to, or used by, the public or a section of the public (whether access is unrestricted or subject to payment of money, membership of a body or otherwise).
Prohibited behaviour includes:
[s 48B].
The new offences
Certain behaviour prohibited in health access zones
A person who engages in prohibited behaviour in a health access zone is guilty of an offence.
Maximum Penalty: $10 000 or 12 months imprisonment
[s 48D]
Police officer may direct person to leave health access zone
A police officer may, if the police officer reasonably suspects that a person has engaged, or is about to engage, in prohibited behaviour in a health access zone, direct the person to immediately leave the health access zone.
A person who refuses or fails to comply with a direction under this section is guilty of an offence.
Maximum penalty: $10 000.
A person who, having been directed to leave a health access zone under this section, without reasonable excuse, re-enters the health access zone within 24 hours after the direction is guilty of an offence.
Maximum penalty: $10 000.
[s 48E]
Offence to publish or distribute recording
To publish means to disseminate or provide access to the public or a section of the public by any means, including by publication in a book, newspaper, magazine or other written publication; broadcast by radio or television; or public exhibition; or broadcast or electronic communication.
A person must not, without the consent of the other person, publish or distribute a recording of a person approaching, entering or leaving protected premises if the recording contains information that:
Maximum penalty: $10 000
[s 48F]
In Australia adoptions are the responsibility of the State Governments. In South Australia, the adoption process is governed by the Adoption Act 1988 (SA) and Chapter 8 Part 3 of the Uniform Special Statutory Rules 2022 (SA).
All adoptions of children by residents of South Australia are conducted through the Department for Child Protection.
Because very few babies and children are relinquished for adoption in South Australia there has been a marked increase in interest in adopting a child from overseas countries, see Adopting an overseas child.
Adoption is a legal process where the rights and responsibilities of the birth parents are transferred to the adoptive parents. There are two types of adoption: local (i.e. from within Australia) and inter-country (i.e. from other countries).
Private adoptions (i.e. adoptions where a child is placed with adoptive parents without the involvement of an agency) are illegal in South Australia.
For more information on adoptions of children by residents of South Australia, visit the Department for Child Protection website.
Both children less than 18 years of age and persons aged 18 years or more may be adopted [see Adoption Act 1988 (SA) s 8(1)]. However, different criteria apply to the adoption of children less than 18 years and persons aged 18 years or more.
Adoption of children less than 18 years of age
The Court will only make an adoption order in relation to a child who is less than 18 years of age if satisfied that adoption is in the best interests of the child and is clearly preferable to any alternative order that may be made [s 10(1)]. The Court must also take into account any opinions expressed by a child aged 5 years or more at an interview conducted by the Court (unless the child is intellectually incapable), but may determine the weight to give the child's opinion [s 8A]. Children who are 12 years of age or more must be interviewed and consent to an adoption in writing [s 16]. Where it would be in the best interests of a child who is less than 18 years of age, the Court may order that the child be represented by a legal practitioner employed or engaged by the Legal Services Commission [Uniform Special Statutory Rules 2022 (SA) r 351.4].
Additional criteria for Aboriginal or Torres Strait Islander children
Before determining whether to make an adoption order in relation to an Aboriginal or Torres Strait Islander child the Court must consider a report of the Chief Executive of the Department for Child Protection setting out that consultation has occurred with a recognised Aboriginal or Torres Strait Island Organisation and any submissions that were made by or on behalf of the organisation [s 11(1a)]. In making an order for the adoption of an Aboriginal child, the Court must apply the Aboriginal and Torres Strait Islander Child Placement Principal [s 11(1b)]. An adoption order will not generally be made unless the applicant is a member of the child's Aboriginal or Torres Strait Islander community and where by customary law they have the correct relationship with the child, or if there is no such person wanting to adopt the child, the applicant identifies as another Aboriginal or Torres Strait Islander person [s 11 (2)]. However, an adoption order may be made where the applicant is not an Aboriginal or Torres Strait Islander person if the Court is satisfied that there are special circumstances and the child's cultural identity will not be lost in consequence of the adoption. The Aboriginal and Torres Strait Island Child Placement Principal is set out in regulation 4 of the Adoption (General) Regulations 2018 (SA).
Adoption of persons 18 years of age or more
Since 15 December 2018, the Court has been able to make an adoption order in relation to a person who is aged 18 years or more ('the child') where it is satisfied that [s 10A(1)]:
In determining whether a significant relationship existed, the Court may take into account whether the child was cared for by the prospective adoptive parent/s as their child before the child attained the age of 18 years and whether the child was placed in the care of the prospective adoptive parent/s under the Children's Protection Act 1993 (SA) before attaining the age of 18 years [s 10A(2)]. In proceedings for an adoption order in these cases, any parent or guardian or person who has a proper interest in the applicationmay make submissions to the Court (either personally or through a representative) [s 10A(3)].
Where a person 18 years of age or more requires care and guardianship, a power of guardianship is the appropriate solution. See Guardianship and Administration. This is an entirely different legal process and is not an adoption, nor can an adoption be undergone as an alternative.
Only those people who are listed on the Prospective Adopters Register are eligible to adopt a child. The Prospective Adopters Register lists all people who have expressed an interest in adoption and who have satisfied the requirements under the Adoption Act 1988 (SA). To determine whether an applicant is eligible to be listed on the Prospective Adopters Register, the Department for Child Protection must have an assessment report undertaken which outlines the suitability of the applicant to adopt a child [see Adoption (General) Regulations 2018 (SA) reg 10]. The assessment report must take into account a number of factors, including the parenting skills of the applicant, whether the applicant has care of any other child, the applicant's financial position, and the physical and mental health of the applicant [see reg 10(4) for full list of factors].
If, after considering the assessment report, the Department for Child Protection is satisfied that the applicant(s) is a suitable person to adopt a child, they will be listed on the Prospective Adopters Register [see reg 11(2)]. The Department must determine an application to be listed on the register within 18 months of it being lodged [see reg 11(1)].
A person dissatisfied with a decision of the Department for Child Protection in relation to registration matters (including assessment reports) may apply to the South Australian Civil and Administrative Tribunal SACAT for a review of the decision within 30 days of receiving the decision [see reg 17].
Only couples in a qualifying relationship eligible to adopt
Previous restrictions allowing only heterosexual couples to adopt have been removed. The requirement now is that a couple be in a qualifying relationship which includes same sex couples (see below). See the Department for Child Protection website for further information on the adoption process.
To qualify as prospective adoptive parents a couple must be in a qualifying relationship (i.e. either married or de facto and either heterosexual or same sex) and have lived together continuously for at least five years.
A relationship of less than five years may be considered if the Court is satisfied that special circumstances exist [Adoption Act 1988 (SA) s 12]. Normally, the Chief Executive cannot select a person from the Adoption Register unless they have been living with another in a qualifying relationship for a continuous period of at least 3 years [Adoption (General) Regulations 2018 (SA) reg 19(3)(c)].
Circumstances under which only one person may adopt
Adoption orders in favour of one person can only be made in the following circumstances [s 12(3)]:
Who cannot adopt
Unless there are particular circumstances relating to the child to be placed and where those needs can be best met by other applicants, a person will not be considered as a suitable applicant for adoption if she or he:
It is a minimum requirement that a prospective parent be either an Australian permanent resident or citizen (in the case of joint applicants at least one of the applicants must be an Australian citizen).
A prospective parent must also be living in and domiciled in South Australia.
[see Adoption (General) Regulations 2018 (SA) reg 9]
See the Department for Child Protection - Adopting a Local Child website for more information on the process of adopting a local child within South Australia.
An adoption order will only be made if each parent or guardian gives their consent [see Adoption Act 1988 (SA) s 15(1)].
The consent of the father of a child born outside of lawful marriage is required if his paternity is recognised under the law of South Australia (see How is paternity determined?).
If it appears that a particular person may be able to establish paternity of a child, the Court will not make an adoption order without allowing that person reasonable opportunity to establish paternity. This excludes a person whose paternity arises from unlawful sexual intercourse with the mother [Adoption Act 1988 (SA) s 15(7)].
Counselling must occur before consent can be given [s 15(5)(b)(ii)].
The relinquishing parent must have been counselled at least three days before signing a consent to the adoption. Written information on the following must be provided to the relinquishing parent:
See Adoption (General) Regulations 2018 (SA) reg 5.
The consent must be in writing, be witnessed and endorsed by an authorised person with a statement that the required counselling has occurred. The witness must also satisfy himself or herself that the relinquishing parent understands the consequences of adoption and the procedures for revoking their consent [s 15(5)(b)(ii)]. If the parent or guardian is less than 16 years of age, the consent must be endorsed by at least 2 authorised psychologists with a statement that they have counselled the parent of guardian and that the parent or guardian appears to have a sufficient understanding of the adoption to be able to make a responsible decision to consent [s 15(5)(b)(iii)].
When consent can be given [s 15]
The mother's consent can only be given at least 5 days after the birth of the child [s 15(2)]. Consent given less than 14 days after the birth of the child will not be valid either unless the Court is satisfied that there were special circumstances justifying consent less than 14 days after the birth and the mother was able to exercise rational judgment on the question of consent [s 15(3)].
The consent may be revoked within 25 days although the Chief Executive may approve, during the 25 day period, for this time to be extended by another fortnight [s 15(6)].
Types of consent [s 15]
The consent may be in general terms authorising the child to be adopted by anyone [s 15(4)(a)]. If both parents consent in general terms, the Chief Executive becomes the child's guardian and must place the child for adoption with a couple previously placed on the Prospective Adopters Register [Adoption Act 1988 (SA) s 25(1)].
When a limited consent is signed, the Chief Executive does not become the child's guardian and has no responsibility for placing the child. The consent may be limited authorising the adoption of the child by:
[See Adoption Act 1988 (SA) s 15(4)(b)]
Consent of child required for children over age of 12 [s 16]
Adoptions of children over the age of 12 years cannot occur without the formal consent of the child to his or her own adoption. As with parents, the child must be counselled before consenting, must be given written information about counselling and support services available, about the implications of adoption and the consequences of consenting and the procedures and time limits for revocation of consent [reg 5]. The adoption application should not be heard until 25 days have lapsed after the consent was given and can be revoked by the child at any time up until the making of an order.
The Court must be satisfied after interviewing the child in private that the consent is genuine and that the child does not wish to revoke it.
Dispensation of consent [s 18]
Where a person does not or cannot consent to an adoption (other than a child) the Chief Executive or the applicant for an adoption order may apply to the Youth Court to dispense with that person's consent. The Court may dispense with a person's consent if there are circumstances suggesting the consent is properly dispensed with or, if satisfied that the person:
Where a child appears to be intellectually incapable of giving consent the Court may dispense with their consent [s 18(2)].
Before a court considers the application for adoption by a step-parent, the Family Court of Australia must first give approval for the adoption to proceed under s 60G of the Family Law Act 1975 (Cth) [see Adoption Act 1988 (SA) s 10(2)]. Approval is rarely given therefore legal advice should be sought if intending to adopt in such circumstances.
Although the Adoption Act 1988 (SA) provides for the adoption of a child by a step-parent, the legislation discourages inappropriate applications. A step-parent or relative can only adopt a child who is less than 18 years of age, if it is in the child's best interests and it is clearly preferable to any alternative order, such as a parenting order [s 10]. The child's parent and step-parent must have lived together for at least five years unless the Court is satisfied there are special circumstances [Adoption Act 1988 (SA) s 12]. The relationship between a child and a parent whose partner adopts the child is not affected by the adoption order.
Intercountry adoption is a very time consuming and complicated process. Due to the complexity of these matters a considerable amount of time can pass between making the application and the finalisation of the adoption.
Australia is a signatory to the Hague Convention with Respect to Intercountry Adoption, the purpose of which is to protect children against abduction and child trafficking. Under the Hague Convention all intercountry adoptions must be coordinated through a central government agency. In Australia this is the Commonwealth Attorney-Generals’ Department. However, as the processing of adoptions is done by the relevant state government authority, all intercountry adoptions in South Australia are administered by the Department for Child Protection. As a result, privately arranged adoptions are not recognised under Australian law.
The only exception to this is for expatriate Australian citizens, residing and working in an overseas country, who are eligible to adopt a child under that country’s laws (see Intercountry adoptions not involving an Australian state adoption authority).
It is important to understand that the Department of Home Affairs will refuse a child an entry visa unless adoption arrangements meet migration requirements. This may be the case even if the adoption has been lawfully arranged in the overseas country. It is important to obtain legal advice both in Australia and in the overseas country before considering an adoption not involving the South Australian adoption authority (i.e. the Department for Child Protection).
The Department for Child Protection will not normally give approval to adopt a relative or a child known to the prospective adoptive parents. In these cases there may be other options, such as applying for an orphan relative visa. For further information contact the Department of Home Affairs.
Step 1: Determining eligibility
After attending an information session conducted by the Department for Child Protection prospective applicants lodge an Expression of Interest. An interview is then arranged with a DCP worker to determine country eligibility and suitability.
Step 2: Orientation, Application and Assessment
Applicants will attend an Education workshop prior to being invited to lodge a formal application. After the application is received a Family Assessment will be conducted and a report prepared for the purpose of assessing the suitability of the applicants as prospective adoptive parents.
Applicants who are not approved will be advised of this and of their rights to appeal the decision. Those applicants who are approved are allocated a DCP social worker who will be their contact point throughout the adoption process.
Step 3: Applying to the overseas country
The application is sent to the chosen overseas country where it is evaluated by the overseas adoption authority. At this stage nothing can happen until the overseas authority makes the decision that a child can be adopted to a foreign country.
Step 4: Matching and placement of child
The overseas adoption authority will make a determination about whether the applicants are suitable adoptive parents for the child. This decision will also be considered by DCP before a formal allocation is approved.
After approval is given legal and administrative processes in the child’s country must be finalised. The child must also be medically examined and granted an Australian resident visa.
Step 5: Arriving home
After arriving home it may be necessary to apply for an adoption order if the adoption was not finalised overseas. In most cases the Department for Child Protection will be the legal guardian until the adoption process has been finalised. Some countries require ongoing reports about the child’s progress until they legally become an adult. Families are allocated a DCP worker to assist with providing progress reports.
Intercountry adoptions not involving an Australian state adoption authority
The Hague Convention prohibits privately arranged adoptions. However, the only exception to this is expatriate Australian citizens or permanent residents who are living and working in an overseas country. If they are eligible to adopt a child under the law of that country they may be eligible to apply for an adoption visa to bring the child back to Australia.
To be eligible for a visa for the adopted child the following criteria must be met:
Immigration issues to be aware of
Further information can be found at the Intercountry Adoption Australia website.
See also the Department for Child Protection - Adopting an Overseas Child website.
Prior to the changes made by the Adoption (Review) Amendment Act 2016 (SA) from 15 December 2018, upon notice of an adoption, the Registrar of Births Deaths and Marriages would cancel any entry formerly made in the register and make a fresh entry containing the names of the adoptive parents. This was the case unless the birth parents consented to the former entry remaining with a note only, and the Court so directing.
Now in every case a note only is added to any entry formerly made with the names of the adoptive parents or (if the child's birth is not yet registered in South Australia) an entry is made containing the date and place of birth of the child, the names of the child's birth parents (if known) and the names of the adoptive parents [Adoption Act 1988 (SA) s 41].
No one is able to access information in the register of births relating to an adopted person until the adopted person is 18 years of age, unless all the parties to the adoption agree to the information being accessed earlier and give the Chief Executive of the Department for Child Protection a consent notice [s 41(2)-(3)]. If the Chief Executive gives the Registrar the consent notice, then the Registrar may allow a party to the adoption earlier access to the information in the registry (including access to a cancelled entry) [s 41(4)(a)].
If the Registrar has not been given a consent notice, the Registrar may not allow access by the adopted person or the adoptive parents to a cancelled entry or to information in an entry relating to the birth parents or the name of the adopted person before adoption [s 41(4)(b)(i)], nor the birth parents access to the names of the adoptive parents or the name of the adopted person following the adoption [s 41(4)(b)(ii)].
A consent notice may be revoked at any time by any party to the adoption and ceases to have effect when the adopted person turns 18 years of age [s 41(5)].
Restricting access to/Accessing identifying information
Where an adoption occurred prior to the commencement of the Adoption Act 1988 (SA) (i.e. 17 August 1989), a birth parent had the ability to direct the Chief Executive not to authorise the adopted person access to a cancelled entry. Such a direction was effective for a period of five years and could be renewed by the birth parent.
Since 15 December 2018, under the new section 41A of the Act these directions from birth parents are being phased out with all directions expiring within five years from the commencement of the new provisions (i.e. 15 December 2023). Existing directions will remain in effect from 15 December 2018 but they will not be able to be renewed, as was previously the case.
After these directions expire, the Registrar will be able to allow access to information in the register by a person adopted before 17 August 1989.
Under the new section 41A, the Registrar may also generally allow access to cancelled entries (which are not the subject of a direction) to a birth parent or the adopted person, if they are aged 18 years or more.
Due to the issues that will be raised for many people as a result of these changes the Department for Child Protection is providing support during the transitional period. Support can also be sought from the Post Adoption Support Service of Relationships Australia (SA).
Prior to the changes made by the Adoption (Review) Amendment Act 2016 (SA) from 15 December 2018, the grounds for discharging an adoption order in South Australia were very narrow, relating only to whether the adoption order was obtained by fraud, duress or other improper means. Applications may now be made on the grounds that it is in the best interests of the adopted person, taking into account their rights and welfare. The interests, rights and welfare of the adopted person now determine whether a discharge order is made on this ground or any other, as well as whether any related orders are made.
Grounds for discharge order
From 15 December 2018, the adopted person, the birth parent, the adoptive parent or the Chief Executive of the Department for Child Protection may apply for an order discharging an adoption order on the ground that the discharge order is in the best interests of the adopted person, taking into account the rights and welfare of the adopted person [Adoption Act 1988 (SA) s 14(1)(b)]. It continues to be possible to apply for a discharge order on the ground that the adoption order or consent for the adoption order was obtained by fraud, duress or other improper means [s 14(1)(a)].
Investigation into case
If the Court is satisfied there may be grounds for a discharge order, the Court must direct the Chief Executive of the Department for Child Protection to carry out an investigation into the circumstances of the case. The Court may also direct another person nominated by the Attorney-General to carry out an investigation [s 14(2)-(3)]. If, after considering a report from an investigation, the Court is satisfied that the discharge order should be made and the discharge order would not be prejudicial to the rights, welfare and interests of the adopted person, then the Court will make the discharge order [s 14(4)].
Effect of discharge order
If the Court makes a discharge order, any consent for the adoption ceases to have effect [s 14(5)]. In addition, unless the Court otherwise orders, the rights, privileges, duties, liabilities and relationships of the formerly adopted person with all other persons will be the same as if the adoption order had never been made [s 14(7)]. However, this does not affect anything lawfully done, the consequences of anything unlawfully done or any proprietary right or interest that became vested in a person while the adoption order was in force [s 14(8)].
Other related orders
When making a discharge order the Court may also make other related orders it considers necessary taking into account the rights, welfare and interests of the adopted person [s 14(6)]. This may include orders relating to:
Once an adopted child turns 18, he or she is entitled to information concerning his/her birth parents held by the Department for Child Protection through the Department's Freedom of Information team [Adoption Act 1988 (SA) s 27].
The information that can be released includes:
The information may be given to a lineal descendant of the adopted child if they consent or where they are deceased or cannot be located.
Similarly, where the adopted child has reached 18 years, birth parents may also obtain any information, messages, or items held by the department relating to the adoptive parents or the adopted child.
Adoptive parents may also obtain information, messages, or items held by the department relating to the birth parent or the adopted child, provided the adopted child has reached 18 years and consents.
Where an adopted person’s birth parent was themselves an adopted person and is dead or cannot be located, the adopted person may obtain, if known, the names of their birth parent’s birth parents (i.e. their biological grandparents) and any other information in the possession of the department relating to their birth parent’s birth parent [s 27(3a)].
For further information see the Department for Child Protection - Provision of Adoption Information website.
Restricting access to/Accessing identifying information
Where an adoption occurred prior to the commencement of the Adoption Act 1988 (SA) (i.e. 17 August 1989) an adopted child, adoptive parent or birth parent had the ability to veto the release of identifying information. These vetoes were effective for a period of five years and could be renewed if the restriction was still required.
Since 18 December 2017, under the revised section 27B of the Act the power to request a veto has been phased out with all vetoes expiring within five years from the commencement of the new provisions (i.e. 17 December 2022). Existing vetos remained in effect from 18 December 2017 but they will not be able to be renewed, as was previously the case.
The effect of this is that after five years a party to an adoption can apply for information regarding the adoption except in the following circumstances:
A person who has lodged a veto under the old section 27B may, at any time before the expiry day, give the department a written statement setting out their wishes (Statement of Wishes) in relation to contact by another party to the adoption.
Due to the issues that will be raised for many people as a result of these changes the Department for Child Protection is providing support during the transitional period. Support can also be sought from the Post Adoption Support Service of Relationships Australia (SA).
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