Should the judge bend Malawi's adoption rules and allow Madonna to adopt an orphan?
Should the judge bend Malawi’s adoption rules and allow Madonna to adopt an orphan?

I was going to sit out this whole Madonna adoption media blitz. I’m not all that interested in Madonna and don’t really like her music. Plus, I have some standards for my showbiz news, and as far as I know this controversy hasn’t made it to my standard bearer of all gossip news– People Magazine, so writing about it would require me to venture further a field in my research. But then I saw this statement in an article in the UK Telegraph, “In a surprise decision welcomed by charities and human rights campaigners, the High Court in Lilongwe rejected the pop star’s attempts to adopt a second child from the impoverished African nation.” Welcomed?……Welcomed??…..WELCOMED?!? Why would anyone, much less so-called human rights advocates, welcome the news that a child will grow up in an orphanage.

In truth, this case is far more complex than even the venerable Telegraph and NY Times can cover in one article, and certainly more complex that I’ll do justice to in this blog. In many ways, what happened in this case is a microcosm of the larger debate of the place of international adoption in the world. This, by the way, was the subject of last week’s Creating a Family show on Corruption in International Adoption.

I feel for the judge in this case, and when reading the excerpts of her ruling that have been published, I was impressed with much of what I read. It was a nuanced and well reasoned opinion. While acknowledging the “gripping temptation to throw caution to the wind and grant an adoption in the hope that there will be a difference in the life of just one child”, Judge Esme Chombo concluded that allowing the Malawi adoption laws to be circumvented in this case might encourage the trafficking of Malawi orphans. She may well be right. In fact, much as it pains me, I suspect I would have decided similarly if presented with this case. But even if “right”, the outcome should certainly should not be welcomed.

The Situation in Malawi

A little background is probably necessary here. Malawi is a desperately poor country, with an average income of about $160 (US), the third lowest in Africa. No one knows the number of orphans, but estimates range from 750,000 to 2 million. To be sure, not all of these children are being cared for by the state, since remaining family most often steps into the breach to parent their own, but Malawi has a disproportionately large number of children living in institutions. Malawi’s adoption laws are a bit vague, and have been bent in the past, including Madonna’s first adoption of her son David in 2006. The law requires a non-Malawi citizen to reside in Malawi with the child they want to adopt for 18 to 24 months prior to the adoption being finalized. Although not stated in the law, the usual reason for this type of requirement is to allow the government to “supervise” the pre-adoption period to assure that the best interest of the child is being met. In 2006, when Madonna and her then husband Guy Ritchie adopted David, the court agreed that the 18 month assessment period could take place in London rather than Malawi, so long as trained social workers made periodic reports back to Malawi about David’s adjustment and care.

This time, however, Judge Chombo would not waive the residency period for fear of setting a dangerous precedence. “By removing the very safeguard that is supposed to protect our children, the courts by their pronouncements could actually facilitate trafficking of children by some unscrupulous individuals.” In theory, she is right. A country should set up safeguards to make sure that their children are protected, and these safeguards should be adhered to regardless of who is trying to adopt. But from a practical standpoint, the 18-24 month residency requirement does little to safeguard Malawi’s orphans, and much to harm them. How much “assessing” do you really think is going on during that residency period? Malawi barely has the money to cover any child welfare programs, and I venture to guess that there is no money set aside to hire social workers to visit pre-adoptive homes to assess how the child and family are doing. In effect, all the residency requirement does is to limit adoptions to those few foreigners who are living and working in Malawi and condemns the vast majority of orphans to growing up in institutions.

How Can Malawi Safeguard Their Orphans

If Malawi wanted to safeguard their orphans they should set up and enforce realistic requirements to protect their children and birth families from the very real evils that can come along with the money from international adoptions. If they want regular post placement reports, they could allow the foreign parents to bring the child back to their home country, and require regular reports prepared by trained social workers for whatever period of time they feel is necessary before the adoption is finalized. Other safeguards to protect the children, birth families, and the Malawi legal system could include requiring that adoptive parents spend a couple of weeks with the child where the child is currently living before they bring the child to their home. They could limit adoption to parents that meet certain requirements, such as age, health, or marital status. I might not agree that all of these limitations, especially excluding singles, really results in better parents, but it is up to Malawi to decide, not me.

Another very important safeguard is to accredit the adoption agencies that are allowed to work in the country. There is already an accreditation system under an international adoption treaty (known as the Hague Treaty) in place, so all Malawi would need to do is write into their law that all adoption agencies must be accredited by the standards of the Hague Treaty. Perhaps the biggest safeguard that Malawi could put in place to protect all parties to international adoption would be limiting the fees that could be charged or paid for adoptions. These are just a few of the relatively easy measures that Malawi could take if they were really interested in safeguarding their orphans. Unfortunately, setting up these safeguards is not Judge Chombo’s job, she has to decide the case that is before her, and she decided that she should not make an exception in this case.

The press reported that the Malawi government was in favor of waiving the residency requirement for Madonna. The country’s information minister said that Madonna had helped in the country and was supporting over 25,000 Malawi orphans. That sounds uncomfortably close to saying that Madonna has spent a lot of money in Malawi, therefore we should break the rules for her. Madonna has indeed done a lot for the children of Malawi, but I think Judge Chombo was right in deciding that money is not a reason to bend the rules. In fact, money could be a very bad reason, and I’m all in favor of keeping big money out of international adoption. Money corrupts. If there is little money to be made, there is little incentive to buy or steal young children. So, as I said, as much as it pains me, I think Judge Chombo probably made the right decision.

The Media Circus Surrounded the Case

But what disgusts me is the celebratory atmosphere with which this regrettable decision has been received by some in the child welfare community in Malawi and out. The most active Malawian group opposing Madonna’s adoption, the Human Rights Consultative Committee, issued a statement saying Malawi could take care of its own orphans. Well then, damnit, do it! Rather than spending their very limited resources writing statements in opposition to Madonna’s adoption, why not spend them on reforming the Malawi child welfare system. “We should not create a picture that the state has failed to care for children and therefore that orphans should be taken away from their communities to other countries.” Create a picture?? You don’t have to create a picture, the picture already exists. It is called reality.

At a minimum, hundreds of thousands of orphans need care. Malawi officials have reported in the past that virtually no governmental money is going to support these children. Instead Malawi relies on a hodge-podge network of NGOs, churches, and UNICEF to provide these resources. These were the facts that existed when Madonna first adopted in 2006, and nothing has changed. Little to nothing has been done to rewrite the Malawi laws to strengthen safeguards for adoptions. Little to nothing has been done to support birth families that want to raise their own. Little to nothing has been done to improve the quality of life for orphans. One of the major players trying to do something is Madonna’s charity, Raising Malawi. Perhaps the Human Rights Consultative Committee should spend more time trying to actually take care of their own and less time railing against one of the many solutions available—international adoption.

And it is not just non-governmental organizations inside of Malawi that are jumping on this misdirected bandwagon. Ethica, a nonprofit whose mission is to promote ethics in adoption, has a campaign to “raise funds to assist Mercy James to be cared for within her country with her extended family of origin.” Assuming her grandmother has a real interest in raising her, this might be good for Mercy, but what about the child sleeping in the bed with Mercy, or the 125 others in the same orphanage, or the hundreds of thousands in other institutions or in the streets? Rather than collect money to support one child, wouldn’t their money be better spent helping Malawi create a real child welfare system where international adoption is one out of many resources available for children that can not be raised by their birth families. Malawi’s orphans need less publicity stunts and more practical on-the-ground solutions.

I am not saying that international adoption is the only solution, or even the best solution, for the children of Malawi that are not being raised by their parents. I’m simply saying that it is one solution—one arrow that should be in the child welfare quiver. Other arrows are needed as well because finding the best solution for children is complex and never amenable to the one size fits all approach. Money needs to be spent to help poor families raise their children or grandchildren rather than abandon them to institutions to be raised. But this too is not the best solution for all children. Another solution that might help is to disperse orphanages throughout the country to make it easier for parents and grandparents to play a part in children’s lives, even if they can’t raise them full time. Yet another improvement for Malawi’s orphans would be to shrink the institutions to preferably large family size, and pay the employees well enough to decrease turnover.

All of these solutions cost money—a scarce commodity in Malawi. So perhaps, just perhaps, international adoption can help. Reasonable fees paid to Malawi for international adoptions could be used by the government to create a network of support and solutions for children and families. This is not a perfect solution, I know. Ultimately Malawi’s goal should be to create a child welfare system within Malawi of family support and domestic adoption that would make international adoptions unnecessary. Phasing international adoption out would be complicated if the support system is dependent on this money. But as Voltaire said, “perfection is the enemy of good.” Although flawed, this solution is better than the status quo.

Malawi is a long long way from being able to provide permanent family-like homes for all her children. I believe that it is possible to use international adoptions as an interim solution and funding source. Complicated, yes; problematic, yes; but ultimately doable, and the best option I can think of. I welcome others to enter a real dialog on this and other solutions as well.

There are many real tragedies in this situation. First, in the almost 3 years since Malawi adoptions hit the news, little has been done to help extended families raise their children, little has been done to significantly improve the conditions in the orphanages, and little has been done to implement an adoption system that would ensure that not only Mercy, but all the children, could find a family.

Ultimately, the real tragedy is that little Mercy James will likely spend her life in the Kondanani orphanage . Maybe money will be provided to pay her grandmother to raise her, or maybe not once the media spotlight shifts. Maybe her grandmother wants to raise her, maybe not. But even if Mercy makes it out of the orphanage, what about the others?

Image credit: aktivioslo