Authored By: Khaliphani R Ndlovu
University of Johannesburg
INTRODUCTION
“But Baby Savers South Africa estimates that more than 10 000 babies are abandoned annually, with the majority found dead.”[1] This statistic is an estimate from a non-governmental organization that seeks to provide a safe way for parents to relinquish their newborns. However, in 2023, these organizations were declared illegal, but the legal battle goes on. This article argues that the prohibition of baby saving organizations is inconsistent with constitutional values, specifically the best interests of the child principle. This article will first outline the law of South Africa, together with relevant caselaw. The critical evaluation will then follow afterwards.
III. MAIN BODY
Legal Framework
Section 28 of the Constitution entrenches the rights allocated to children, and sub-section 2 specifically establishes that in all matters involving children, their best interests should be prioritised.[2] This provision has been affirmed by many South African courts, as it shall be shown later in the writeup, and rightly so. This principle is developed further in section 7(1)(l) of the Children’s Act, where the standards of the ‘best interests’ are outlined. One of the most important considerations is the need to protect the child from any physical or psychological harm.[3] This means that the state too, has a duty, to ensure that children are protected from such adverse conditions.
Key Caselaw
In commencement, the court in S v M held that when it comes to matters of child protection, systems must be flexible and not rigid.[4] This implied that children are vulnerable people, requiring heightened protection and that systems governing their issues must be adaptable, adapting to any situation, so long it would be in their best interests.
Furthermore, in AD v DW, it was held that the child’s emotional and developmental needs should be considered.[5] The court also leaned towards the reasoning of the afore mentioned case, that no ‘one size fits all’ mechanism must be used when dealing with children’s matters.[6] This shows that the principle enshrined in the constitution is important and deserves caution when deliberating around it.
Additionally, this principle was reiterated in a recent case, that when dealing with children’s matters, their best interests take the centre stage.[7] This recurring reasoning is based on the rule of law, that mandates the state to ensure the protection of human rights as entrenched in the Bill of Rights.
Critical Analysis
According to Dr Makhomisane, children exposed to adverse childhood experiences, may suffer in their future.[8] It is clear that dumping a child, either at a waste site or in a pit latrine is an adverse experience that may lead to a child experiencing trauma. When such happens, one’s life is affected negatively, and may struggle living normally even as an adult. The criminalization of safe relinquishment systems may undermine the state’s constitutional obligation to prioritise a child’s best interests. It is known that the government does not have enough resources, to run such organizations. Partnership of these organizations and the state, with regulation, may be a better response to the current situation facing the country.
A comparative study, shows us that in Namibia, there is a partnership between the government and these organizations. Section 2(1)(f) of the Child Care Protection Act, despite imposing conditions, does co-ordinate with baby saving organizations as a way of promoting the well-being of children.[9] The Texas Family Code is also flexible, as section 262.302(a)(1)(B) allows organizations to receive unwanted babies even if there has not been a court order, showing the prioritization of a child’s well-being.[10] It would be good if the South African government tries the same, as a way of combating the avalanche of baby dumping in the country. The continued legal battle that has taken months, and is not in the best interests of children, because the possibilities of them being exposed to bad conditions are still high.
It is argued that the state must distinguish between unsafe and safe abandonment of babies.[11] It is important to understand that due to different circumstances, some women find themselves abandoning their children in unpleasant places. These circumstances can be unwanted pregnancies, economic hardships, just to mention a few. To be clear, it is a grave wrong to dispose a child, and should not be a subject of consideration. However, the reality is that these things do occur, meaning, abandonments will likely continue occurring. It is therefore reasonable to argue, that leaving a child at an organisation is way better compared to dumping the child at a dump site, likely leading to loss of life. South Africa’s socio-economic conditions continue to contribute to child abandonment, but is it not better for them to be abandoned safely?
It has been shown that issues of baby dumping rose during the covid 19 lockdown.[12] Reports show that in 2020, 83 infants were unsafely abandoned, with only 34 surviving. In 2021, 60 were dumped, with 26 surviving. This was when many citizens had financial issues, and one can argue that there is a link between economic hardship and the levels of child abandonment. Instead of the state and organizations having battles, it would be reasonable to sit down and find a common ground, to combat the issue, and that would be in the best interests of the children. Drawing from the reasoning in S v M, courts should review the government policies and recommend much flexible ways of solving issues concerning children.[13] It is no secret that the economy is not good, and the establishment of such organizations by the state is currently impossible, a project that may take years to accomplish. A coalition between such organizations and the state may be a better and efficient mechanism of realising the constitutional right for children.
Additionally, section 10 of the constitution enshrines the right to inherent dignity.[14] It is provided that the right must be protected and respected. Protection of one’s dignity, does include ensuring safe living conditions, especially in childhood. When a child is left at a dump site, his or her dignity is impaired as the child may be exposed to diseases, harsh weather conditions, just to mention a few. The state may therefore be failing to realise this right, due to its illegalization of baby saving organizations. This is because, children continue to be abandoned, despite it being a crime. Therefore, it is better, and in the best interests of children, to have a safe relinquishment, that eases the ‘burden’ on the parent, but still leaves the child safe and protected.
Some have advanced arguments that such systems leave the child without knowledge of his or her origins, and this is true to an extent. However, the right to know your origins and culture, is nothing, without the right to life. As indicated previously, less than 50% of those abandoned survive, and that must be a warning, that the primary concern must be preserving a threatened life. Before one can enjoy their human rights, they must be alive, and that is the most important.
CONCLUSION
In conclusion, it is important to note that the constitution is the yardstick for all policies, laws and conducts, and even the state should stay inline with it. The article delved to unpack the full meaning of ‘the best interests of the child’ principle in relation to the legality of baby saving organizations. It has been shown that the illegalization of such entities is not consistent with constitutional rights, especially when there is no relevant alternative. The author concurs with the argument that there is a difference between safe and unsafe abandonment. In light of these arguments, the author recommends that the state legalises baby savers, and consider what other nations are doing in such matters.
REFERENCE(S):
Cases
AD v DW 2008 3 SA 183 (CC).
Centre for Child Law v South African Council for Educators 2024 4 SA 473 (SCA).
S v M 2007 2 SACR 539 (CC).
Legislation
Childcare and Protection Act 3 of 2015 (Namibia).
Texas Family Code (USA).
The Constitution of the Republic of South Africa, 1996.
Secondary Sources
Tania Broughton, Is abandoning a baby in a safe box a crime or an act of love? Court to decide, 2026 < https://groundup.org.za/article/is-abandoning-a-baby-in-a-safe-box-a-crime-or-an-act-of-love-pretoria-high-court-to-decide/ > accessed 27 May 2026
Umamah Bakharia, Baby Savers for South Africa fights back, as Gauteng department cracks down on Centres, 2025 < https://mg.co.za/news/2025-05-04-baby-savers-south-africa-fights-back-as-gauteng-department-cracks-down-on-centres/ > accessed 27 May 2026
Whitney Rosenberg, “Covid-19 and its impact on infant abandonment in South Africa” in Socio-Economic Rights, Vulnerable Groups and the Covid-19 Pandemic (2020) 143
Wisani Makhomisane, “Children Exposed to Trauma and Violence may have their Adulthood Threatened” (2024) 1
[1] Umamah Bakharia, Baby Savers for South Africa fights back, as Gauteng department cracks down on Centres, 2025.
[2] The Constitution of the Republic of South Africa, 1996.
[3] The Children’s Act 2005.
[4] S v M 2007 2 SACR 539 (CC) [24].
[5] AD v DW 2008 3 SA 183 (CC) [50].
[6] Ibid (n5).
[7] Centre for Child Law v South African Council for Educators 2024 4 SA 473 (SCA) [16].
[8] Wisani Makhomisane, “Children Exposed to Trauma and Violence may have their Adulthood Threatened” (2024) 1.
[9] Child Care and Protection Act 2015 (Namibia).
[10] Texas Family Code (2024).
[11] Tania Broughton, Is abandoning a baby in a safe box a crime or an act of love? Court to decide, 2026.
[12] Whitney Rosenberg, “Covid-19 and its impact on infant abandonment in South Africa” in Socio-Economic Rights, Vulnerable Groups and the Covid-19 Pandemic (2020) 143.
[13] S v M (n4).
[14] The Constitution (n2)
