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Title:Is papa a rolling stone? The unwed father and his child in South African law: a comment on Fraser v Naude
Author:Mosikatsana, Tshepo L.ISNI
Periodical:The Comparative and International Law Journal of Southern Africa
Geographic term:South Africa
Subject:illegitimate children
Abstract:South African law does not recognize the biological relationship between an unwed father and his natural child as giving rise to parental authority over the child or to an inherent right of access (Section 18(4)(d) of the Child Care Act). This paper addresses the problems inherent in denying unwed fathers parental rights using the case of Fraser v Naude (1995). The applicant, Mr Fraser, and the respondent, Ms Naude, had a live-in relationship as a result of which a child was conceived. The relationship ended and some time before the child was born the mother arranged for it to be adopted at birth by third parties. The biological father sought to oppose the adoption, wanting to adopt the child himself. The paper comments and analyses this case, which is currently pending before South Africa's Constitutional Court. It examines the status of extramarital children under South African law and the legal position of the unwed father under the Child Care Act, and compares US Supreme Court practice with the South African constitutional context. In a report published in July 1994 the South African Law Commission proposed a draft bill which represents some attempt to ameliorate the inequities suffered by unwed fathers. However, the fundamental distinction between legitimate and illegitimate children has been retained. Notes, ref.