skip to content
Law Handbook banner image

Having a child

This section covers the following topics:

Parenting presumptions and birth registration

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 (irrespective of their sex or gender identity), 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 husband 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 and both must sign the birth registration statement. However, the Registrar 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.

If only one parent signs the birth registration statement, he or she 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.

See Births, Deaths and Marriages Registration Act 1996 (SA) s 15.

If a child is born through a recognised surrogacy agreement, either or both commissioning parents may make an application to the Youth Court to be recognised as parents [Family Relationships Act 1975 (SA) s 10HB(13)]. The Registrar of 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 10HD]. For more information about surrogacy, see Having a child, Surrogacy.

How is a birth registered?

A birth registration statement must be lodged with the Registrar of Births, Deaths and Marriages ('the Registrar') within 60 days of the child's birth. The maximum penalty for not doing so is $1 250.

See 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.

See Birth, Deaths and Marriages Registration Act 1996 s 16(2).

Information to be included in the birth registration statement

The following information must be provided in the birth registration statement [see Births, Deaths and Marriages Registration Regulations 2011 Reg 5]:

  • the period of gestation of the child (in weeks) and whether the child was born alive;
  • the date and place of birth;
  • the child’s sex (if determined);
  • the child’s weight at birth (in grams);
  • the child’s name (this can be provided for a still-born child but it is not mandatory in such cases);
  • if the child was the product of a multiple birth, the total number of children born and the place in the order of birth of the child;
  • the name of the child’s mother and, if it is different to her current name, the mother’s name at birth (or on adoption);
  • the date of birth, place of birth, occupation and residential address of the child’s mother;
  • the name of the child’s father;
  • the date of birth, place of birth, occupation and residential address of the child’s father;
  • if the child’s parents are married or in a registered relationship – that fact and the relevant date and place;
  • the name, sex and date of birth of each previous child of the child’s mother and father;
  • the sex and date of birth of each previous child of the child's mother and a person other than the child's father;
  • whether the child’s mother and father are of Aboriginal or Torres Strait Islander descent (or both);
  • the name and business address of the doctor or midwife responsible for the professional care of the mother at the birth.

In the case of children conceived as a result of a fertilisation procedure:

  • the name (if known) of the biological parent who donated the semen or ovum resulting in the child’s birth (the donor); and
  • the sex (if known) of the donor; and
  • the donor’s date of birth and place of birth (if known).

This information is also to be recorded in the Register [Births, Deaths and Marriages Registration Act 1996 (SA) section 14(2) and reg 6]. Once the Donor Conception Register is established under the Assisted Reproductive Treatment Act 1988 (SA), this information will no longer be required in the birth registration statement [s 14(5)].

Can details of parentage be altered after the birth has been registered?

There are provisions to allow alterations about a child's parentage under the following circumstances:

  • where the father and mother of the child make a joint application for the addition of the information; or
  • one parent of the child makes an application for the addition of the information and the other parent cannot join in the application because he or she is dead or cannot be found, or for some other reason; or
  • if a court directs the inclusion or correction of information in the Register; or
  • the Registrar is advised of a finding by a court that a particular person is a parent of the child.

See Births, Deaths and Marriages Registration Act 1996 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.

See 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.

Reproductive technologies

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:

  • at the time the child was conceived, the two women were living together in a marriage-like relationship, and
  • the child was conceived through a fertilisation procedure under the Assisted Reproductive Treatment Act 1988 (SA) (for example, IVF and artificial insemination carried out by a doctor, but not self-insemination), and
  • the partner consented to the fertilisation procedure.

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.

Surrogacy

The law in South Australia recognises only those surrogacy agreements that conform to the requirements outlined in the Family Relationships Act 1975 (SA).

A surrogacy agreement (‘recognised surrogacy agreement’) is an agreement under which a surrogate mother agrees to become pregnant, or to seek to become pregnant, and to surrender custody of, and rights in relation to, a child born as a result of the pregnancy to another party to the agreement [s 10HA(2)].

The only parties to a recognised surrogacy agreement are the commisioning parents and the surrogate mother, and, if the surrogate mother is married, either legally or living with a man as his wife on a genuine domestic basis [s 10A(1)], the surrogate mother's husband. No-one else may be a party to a surrogacy agreement [s 10HA(2a)].

The commissioning parents are the two persons it is agreed will have custody of a child under a recognised surrogacy agreement. The commissioning parents must be:

  • at least 18 years old [s 10HA(2a)(b)]
  • legally married or in a registered relationship, or have cohabited continuously together in a marriage-like relationship irrespective of their sex or gender identity for the period of 3 years immediately preceding the date of the agreement, or for periods aggregating not less than 3 years during the period of 4 years immediately preceding the date of the agreement [s 10HA(2a)(d)(i),(ii)]
  • residents of South Australia [s 10HA(2a)(c)].

A surrogacy agreement can only be entered into under the following circumstances [s 10HA(2a)(e)]::

  • it appears unlikey in the circumstances that a commissioning parent would become pregnant, or be able to carry through a pregnancy or give birth – this may be due to infertility, other medical reasons, risk to an unborn child or some other reason; or
  • there appears to be a risk that a serious genetic defect, serious disease or illness wouold be transmited to a child born to a commissioning parent; or
  • there appears to be a risk that becoming pregnant or giving birth to a child would result in physical harm to a female commissioning parent (being harm of a kind, or of a severity, unlikely to be suffered by females becoming pregnant or giving birth generally).

The surrogate mother is the person who agrees to become pregnant or to seek to become pregnant, for the purposes of the recognised surrogacy agreement [s 10F].

  • The surrogate mother and her husband must be at least 18 years old [s 10HA(2a)(b)].
  • The surrogate mother must be assessed and approved as a surrogate by an accredited counselling service in accordance with relevant guidelines published by the National Health and Medical Research Council and any other requirements as prescribed by the regulations [s 10HA(2a)(f)]. A certificate by a counselling service must be issued to the surrogate mother and her husband or partner (if any) and the commissioning parents [s 10HA(2a)(g)].

There is no requirement that the surrogate mother must live in South Australia. If the surrogate mother lives overseas, the surrogacy agreement must be approved by the Minister as an international surrogacy agreement [s 10F].

A recognised surrogacy agreement must state that:

  • the parties intend the pregnancy is to be achieved by the use of a fertilisation procedure carried out in South Australia [s 10HA(2a)(h)]
  • at least one of the commissioning parents will provide human reproductive material for the creation of an embryo, unless they have a medical certificate saying both prospective commissioning parents appear to be infertile, or there is a medical reason why it would be preferable not to use human reproductive material provided by the prospective commissioning parents to create an embryo for the purposes of achieving a pregnancy [ss 10HA(2a)(5)]
  • no valuable consideration is payable under the agreement (other than for expenses connected with the pregnancy and birth of the child, including reasonable 'out of pocket expenses' incurred by the surrogate mother) [s 10HA(2a)(i)]
  • the parties intend the commissioning parents will apply for an order recognising them as parents under s 10HB after the child is born [s 10HA(2a)(j)]
  • the commissioning parents will, in accordance with any requirements in the State Framework for Altruistic Surrogacy, take reasonable steps to ensure that the surrogate mother and her husband (if any) are offered counselling (at no cost to the surrogate mother or her husband) after the birth or still-birth of a child to which the agreement relates [s 10HA(2a)(k)].

A recognised surrogacy agreement must be in writing and signed by each of the parties, with the signatures being attested by a lawyer for the commissioning parents, and another independent lawyer for the surrogate mother and, if relevant, her husband or partner [s 10HA(6)].

An agreement entered into for valuable consideration and outside the requirements as listed in s 10HA of the Family Relationships Act 1975 is illegal and void [s 10G].

Offences [s 10H]

It is an offence to negotiate, arrange or obtain the benefit of a surrogacy contract on behalf of another for payment and in circumstances that do not meet the criteria for a recognised surrogacy agreement.

It is also an offence to induce another to enter into a surrogacy contract for valuable consideration.

The maximum penalty is 12 months imprisonment.

Contraception and abortion

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. Please see the chapter, Medical Treatment and Related Issues, 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]. However, in the case of P. v P. (1994) 181 CLR 583; [1994] HCA 20, the High Court held that where a child's parents have been married, the Family Court has the power to make an order approving sterilisation, notwithstanding a decision contrary by the Tribunal.

In South Australia the law on abortion is covered by the Criminal Law Consolidation Act 1935 (SA) s 82A(1). To perform an illegal abortion on oneself or someone else is an offence with a maximum penalty of life imprisonment.

A woman (of any age) who has resided in South Australia for at least two months may have an abortion, at certain hospitals, by a medical practitioner who agrees with another medical practitioner with one of the following assessments:

  • the pregnancy continuing involves greater risk to the pregnant woman's life, or greater risk of injury to her physical or mental health, than terminating the pregnancy, or
  • there is a substantial risk if the pregnancy is not terminated that the child will be seriously handicapped from physical or mental abnormalities.

Adoption

Who can adopt and be adopted?

In Australia adoptions are the responsibility of the State Governments. In South Australia, the adoption process is governed by the Adoption Act 1988 (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.

Who can be adopted

Only children up to 18 years of age may be adopted [s 8(2)].

Where a person over 18 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.

Aboriginal children and adoption

Aboriginal children can only be adopted if, in the interests of the child, an adoption order is preferable to any alterantive order. This is because the legal process of adoption conflicts with Aboriginal culture, in particular, beliefs about family, kinship and the preservation of cultural ties. As a result there are strict rules governing the circumstances under which adoption of Aboriginal children can occur. An adoption order will only be granted where the applicant is a member of the child's Aboriginal community and where, by Aboriginal customary law, they have the correct relationship with the child. If there is no such person wanting to adopt the child, only another Aboriginal person can adopt [Adoption Act 1988 (SA) s 11].

Who can adopt

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. 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 Regulations 2004 (SA) reg 9(2)]. 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 9(3) 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 10(2)].The Department must determine an application to be listed on the register within 18 months of it being lodged [see reg 10(1)].

A person dissatisfied with a decision of the Department for Child Protection in relation to registration matters (including assessment reports) may apply to SACAT for a review of the decision within 30 days of receiving the decision [see reg 16].

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 qualifing relationship which includes same sex couples (see below).See the Department for Education 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 cohabiting with another in a qualifying relationship for a continuous period of at least 3 years [Adoption Regulations 2004 (SA) reg 19(3)(d)].

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)]:

  • where the person is in a qualifying relationship with a birth or adoptive parent of the child and has been living with that parent continuously for at least five years; or
  • where the person is in a qualifying relationship with the birth or adoptive parent and the Court is satisfied that special circumstances justify making the order; or
  • where the person is not in a qualifying relationship with the birth or adoptive parent of the child and the Court is satisfied that there are special circumstances justifying the making of the order.

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:

  • has had a previous registration (whether in South Australia or another state) cancelled on the grounds that it was improperly obtained;
  • has, at any time, had a child removed from their care and made the subject of an order under the Children's Protection Act 1993 (SA);
  • has been convicted of an offence involving violence towards a child, child abuse or child abduction.

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 Regulations 2004 (SA) reg. 8]

Relinquishing parents and their consent

An adoption order will only be made if each parent or guardian gives their consent.

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

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:

  • information on counselling and other support services available
  • the implications of adoption
  • the consequences of consenting to the adoption
  • the procedures and time limits for revocation of consent
  • arrangements that may be made for the care of the child as alternatives to adoption

The consent must be in writing, be witnessed and endorsed by an authorised officer with a counsellor providing endorsement that counselling has occurred. The witness must also satisfy himself or herself that the relinquishing parent understands the nature of the consent they are giving.

When consent can be given [s 15]

The mother's consent can only be taken at least fourteen days after the birth of the child.

The consent may be revoked within twenty five days although the Chief Executive may approve, during the twenty five day period, for this time to be extended by another fortnight.

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:

  • a relative of the child
  • a person who has been appointed guardian of the child by a court
  • a step-parent or
  • a foster parent in whose care the child was placed by the Chief Executive.

[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 at least three days 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. The adoption application should not be heard until twenty five 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 parent does not or cannot consent to an adoption the Chief Executive or the applicant for an adoption order may apply to the Youth Court to dispense with that parent's consent. The court may dispense with a parent's consent if there are other circumstances that allow the consent to be properly dispensed with or, if satisfied that the parent:

  • cannot be found or identified after reasonable enquiry
  • due to a physical or mental condition is not capable of properly consenting
  • has abandoned, deserted or persistently neglected or ill-treated the child

To protect the rights of a natural parent the Act provides that notice of the application must be given to a parent whose consent is required and who has not consented to the adoption. The court does not dispense lightly with the consent of a parent (or guardian) and will provide every opportunity to parents to present arguments why their consent should not be dispensed with.

Where a child appears to be intellectually incapable of giving consent the court may dispense with consent [s 18(2)].

Step-parent adoption

Before a court considers the application for adoption by a step-parent, the Family Court must first give approval for the adoption to proceed under s 60G of the Family Law Act 1975 (Cth). 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 if, in the interests of the child, an adoption order is clearly preferable to 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 spouse adopts the child is not affected by the adoption order.

Adopting an overseas child

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:

  • the adoptive parents must have been living overseas for more than 12 months at the time of lodging the visa application;
  • they must be able to show that their residence overseas was not solely to circumvent the adoption requirements under Australian law;
  • the adoption is in accordance with the laws of the country in which the child lives;
  • the adoption grants full and permanent parental rights (i.e. the legal ties between the child and its birth parents are severed)

Immigration issues to be aware of

  • An adoption visa cannot be granted to a child who has been adopted in circumstances other than those detailed above, even if the child has been adopted lawfully in another country (e.g. if Jane and John who are living in South Australia arrange a private adoption in China without the involvement of the Department for Child Protection, a visa will not be issued, even if the adoption is lawful in China).
  • State adoption authorities will not usually give approval for the adoption of a child who is a relative, nor will they support the adoption of a specific child where the adoption has not been arranged by them
  • In some countries it is not possible to be granted full parental rights in the adoption process. Where an adoption order fails to grant full parental rights to the adoptive parents a visa will not be granted.
  • You should seek legal advice, both in Australia and in the relevant overseas country, to ensure that the adoption will be recognised and that the child will be able to be granted a visa before proceeding with an adoption that is not being arranged by the South Australian adoption authority i.e. Department for Child Protection.

Further information can be found at the Intercountry Adoption Australia website.

Birth certificates

When making an adoption order the court usually instructs the Registrar of Births, Deaths and Marriages to cancel the original birth registration and to issue a new registration, which names the applicants as parents as if the child had been born to them [Adoption Act 1988 (SA) s 41].

The applicants can ask the court not to cancel the original birth certificate but add their names to it. The child can then apply for a birth certificate with the names of the natural and adoptive parents recorded on it or a copy which only names the applicants as the lawful parents. However, if a natural parent is still alive the original birth registration must be cancelled unless the child knows the natural parents or the natural parents approve of the child having access to this information [Adoption Act 1988 (SA) s 41].

Searching for birth relatives

Once an adopted child turns 18, he or she is entitled to information concerning his/her birth parents held by the relevant government department through the Adoption and Information Service [Adoption Act 1988 (SA) s 27].

The information that can be released includes:

  • the names and dates of birth of the birth parents
  • any other information in the possession of the department relating to the birth parents and the circumstances of the adoption
  • any message, information or item given to the department by a birth parents with instructions to provide it to the adopted child
  • information relating to a sibling (whether whole or half) of the person who has been adopted and who has also turned 18

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)].

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.

However, as of 18 December 2017, under the revised section 27B of the Act the power to request a veto will be phased out with all vetoes expiring within five years from the commencement of the new provisions (i.e. 17 December 2022). Existing vetos will remain 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:

  • where its release would be an unjustifiable intrusion on the privacy of the person to whom the information relates; or

  • where its release would give rise to a serious risk to the life or safety of a person; or

  • in the case of information relating to a person adopted prior to 17 August 1989 – it would not be in the best interests of the adopted person, taking into account the rights and welfare of the adopted person and any other prescribed matter.

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 of Child Protection is providing support during the transitional period. Support can also be sought from the Post Adoption Support Service of Relationships Australia (SA).

    Having a child  :  Last Revised: Thu Nov 23rd 2017
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.