Adoption, rights of unmarried fathers

The application was brought by the father of an illegitimate child, whose mother wanted to place the child up for adoption. In terms of the now repealed Child Care Act, it was not necessary to obtain the consent of the father in the adoption of an illegitimate child. The applicant attacked the constitutionality of this provision, in that it infringed on the right to equality and the right to not be unfairly discriminated against (Note: this was decided in terms of the Interim Constitution). 
The court found it treated fathers in certain unions differently to father in other unions. For example, a father married to the mother in terms of Islamic law had no right to consent or withhold consent to his child’s adoption as Islamic marriages are not recognized in South African law, however customary marriages are recognized and thus a father in a customary union had the right to consent or withhold consent. It further discriminated on the basis of gender in that it treated mothers and fathers differently. Furthermore, it treated married and unmarried father unequally.
However, the Court found that the remedy was not to allow every father the right to consent or withhold consent (as then the father of a child born as a result of, for example, rape, would have the right to consent). The court found it was best left up to the legislature to decide how to remedy the legislation.