Madonna’s Failed Adoption – Celebrate or Mourn?

Dawn Davenport


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

07/04/2009 | by Dawn Davenport | Categories: Adoption, Adoption Blog, Blog | 29 Comments

29 Responses to Madonna’s Failed Adoption – Celebrate or Mourn?

  1. Avatar Alida says:

    Yes, I second Vivianne. This has been by far the best discussion I have read on your website. Thank you all for bringing up lots of valid points and different perspectives on this oh so much debated issue of international adoption.
    Dawn, thanks for keeping up this website, the blog and the radio show …. Thanks for everyhting you do!!!!

  2. Avatar Dawn says:

    Thoughtful comments all. I wanted to respond to Sally because she raises an issue I’ve been discussing lately with others in the adoption field. The Hague Treaty requires the use of a Hague accredited adoption agency. I support this treaty, but I realize that using an agency does add to the cost of adoption. I would love to see international adoptions be very very inexpensive as Prof. Smolin suggests, and yet the Hague requires a fairly expensive agency infrastructure, including hefty liability insurance coverage. Is is possible for an agency to become Hague accredited and offer quality post adoption services, and still keep the cost of adoptions very low. I don’t know the answer to this question.

  3. Avatar nippit queen says:

    It is very sad to know that people will be forced to give up their own children because they are unable to raise them. Maybe we should go back to the real root cause – responsible family planning. If only these parents can actually take more time to think about how they will raise their kids before making them…

  4. Avatar Linh Song says:

    Many thanks for keeping this thread going! It’s so important that we discuss these issues as a community and leave ourselves open to possibilities. Dawn is right, there must be ways to develop and improve child welfare systems and include international adoption as a loving option for so many children in need. Fortunately, there’s considerable work being done towards that end by large NGOs including the Hague, Holt, USAID,and UNICEF.

    Ethica has consulted in these projects, most recently our founder was in Cambodia to strengthen adoption policies and essentially prepare for the country to open again. We also referred Prof. Jini Roby to continue that work. The process is there, but it will take some time for political will and efforts against corruption to come through. I look forward to a day when Cambodia can open to American adoptions again, without the heartbreak and abuse that poor families, adoptive families, and children experienced before the moratorium.

    Child welfare reform in developing countries is a slow, arduous process but I think it’s picking up momentum as countries recover from genocides and civil wars. Funding these initiatives doesn’t seem to be so much of an issue as much as encouraging political resources and providing the necessary technical assistance.

    A good example of technical assistance is a year long evaluation of the Guatemalan system by Holt and UNICEF, with funding from the USAID. The report encouraged the government to make it a priority and clarify the legal status of institutionalized children. If they are eligible for adoption, then refer them to the CNA.

    This kind of evaluation would benefit many countries, especially since it seems like the reoccurring problem, as in Madonna’s case, is that the legal status on a child’s availability for adoption is unclear before referral. The countries themselves need to investigate the merits of good, legal documentation and formulate repercussions on trafficking and document fraud. Choosing a Hague country is all the more important considering the time that it takes for systems to be built and tested….

    Suzanne makes a good point about how ethical adoptions are not featured on Ethica’s website. We need to make an effort to share the good work of excellent agencies, but we need to be careful about that. Ethica is not an adoption agency referral service for liability reasons. Fraud and corruption stories are posted to educate prospective adoptive parents so that they can appropriately assess their agencies and the countries they are looking to adopt from. If they haven’t experienced the situations profiled on the site, then that’s a perfect indicator of how adoptions should work….and they do.

  5. Avatar Dawn says:

    Beth, I thought you threw out an idea that I’ve never once heard mentioned. Why not have a second, or third, or fifth, house in Malawi for 18 months. Apparently Mercy is not available for adoption, but there are many other young children that might be.

  6. Avatar Dawn says:

    I think Mary has hit on one of the fundamental problems with allowing intercountry adoptions between extemely poor countries and wealthy countries that are not both members of the Hague Treaty. But the problem to me is that there is such a need for adoptions of some, not all, children in these very very poor countries. So how do we, as members of the wealthy country, provide ethical international adoptions in a country that does not have, and will not soon have, the infrastructure to support such adoptions. I have to believe there is a way.

  7. Avatar Dawn says:

    I have been trying to find the time to jump into this discussion and now that this week’s Creating a Family show is over, I can sit down to respond. First, thank you all for your incredibly thoughtful comments.

    I want to address the issue that Colleen pointed out—Mercy’s extended family’s willingness to raise her. It is obvious now that Mercy is not a good candidate for international or domestic adoption because her grandmother and father have come forward and want to raise her. This is indeed a very good thing. When doing the research for my blog, I couldn’t find any reference to how involved the grandmother or aunts and uncles had been in Mercy’s life prior to the publicity over Madonna’s adoption attempt. Apparently, her father has never seen her, but now wants to be involved. Again, this is a good thing. I know nothing about the specifics of this case so I won’t begin to speculate, however, I do know what is often the case when children are placed in institutionalized care “temporarily”.

    In many countries families that are very poor, or overburdened with too many children or grandchildren to raise, or dysfunctional due to any number of reasons (drugs, divorce, new boyfriend, prison, etc.) place some or all of their children in an institution. Some in the child welfare community have alluded to these institutions as “boarding schools”. Sometimes the state takes the children away from neglectful or abusive families, and sometimes parents voluntary place their children. When done voluntarily, most parents claim that the placement is only “temporary”, but temporary can become permanent. Parents and extended family may seldom visit the children, bring them home on the weekends, or even remember them on special occasions.

    In fairness, sometimes, maybe even often, parents and extended family do not live near where the institution is located making visits difficult. Thus, one of the improvements I suggest is putting children in the nearest orphanage to extended family members. Institutions can do a lot to encourage participation, by requiring families to stay in contact with their children or to take them home at least one weekend a month, but it is hard to require anything since you have little leverage to make the family comply.

    I struggle with this situation quite a bit. I think this is indeed a cultural difference and I don’t think we necessarily have all the answers, but I worry that in these circumstances we are excusing what in reality is child abandonment in the guise of acceptance of cultural differences. I don’t know the answer, but I do know that just saying you are interested in raising or helping to raise a child doesn’t cut it. You have to actually do it. From a child’s standpoint, it doesn’t really matter if a parent terminates their rights by action or by law. It feels the same, and in fact, is the same. If you aren’t able to raise the child full time, parents and extended family member should at the very least visit the child once a month. I realize how difficult that can be, but it is even more difficult for a child to be abandoned.

    So, I have no idea if Mercy’s grandmother, aunts and uncles fall into this category or not. It doesn’t really matter now since they say they are eager to be involved now. It is in my opinion best for children to be raised by their family if at all possible. I just hope that this eagerness doesn’t wane with the spotlight.

    Linh, I was not asking that Ethica spend their limited operating budget on improving the Malawi child welfare system. That is not Ethica’s mission. Rather, my point was that rather than collect money to help one child be raised by her extended family, why not raise money to help Malawi create a truly functional child welfare system that support all birth families, keeps institutions near where poor families live, create foster care, promote domestic adoption, and yes, encourage international adoption for those children that don’t have extended family able or willing to be actively involved in their lives. I imagine that the call of action was to raise awareness, but I’d prefer if you were raising awareness of what I perceive to be the most fundamental issue—the lack of a coherent supportable child welfare policy. I worry about the symbolism of your call to action to support just one child. I do agree that Ethica should not be judged based on this one action, and I both know about and support your other works, which are many.

    Other than that, I’m not sure where any of us are disagreeing. I think we all agree that if possible children should be raised by their extended family, or at the least extended family should participate on a regular basis in the child’s life. Linh, you said “What we are saying is that it is entirely possible to involve kinship care and foster care in the mix of options for families here and abroad.” Amen! Yes, it should be not only “involved” in the mix, it should be the cornerstone of the mix. But I’d also throw international adoption into the mix. It shouldn’t be considered for children that have extended family to care for them. I loved how Prof. Jini Roby stated it—“the small role adoption can play to make a huge difference in the lives of individual children.” International adoption shouldn’t have the starring role, but even its small role can make a huge difference in the life of the children and families it touches.

    Again, I thank you all for your thoughtful comments. Please keep up the discussion.

  8. Avatar Linh Song says:

    Suzanne –

    SOS Children’s Villages has some stats:

    There are additional publications available through the International Foster Care Organization:

    But I think Prof. Jini Roby (who is coincidentally a Korean adoptee and close supporter of Ethica’s work), puts kinship care in perspective best of all. Jini has worked in Uganda, Guatemala, and we most recently recommended her for a position to get the Cambodian adoption system ready for international adoption:,5143,645194628,00.html

    “I’m not proposing adoption as the first and best solution,” she said. “First of all, we need to keep the families intact. In Uganda this summer, I saw mothers infected with HIV who were staying healthy and alive for 15 years or more. First, we need to keep parents alive. Then we need to support the extended families willing to care for these children. A lot of my work is focused on those two areas. This paper is about the small role adoption can play to make a huge difference in the lives of individual children.”

    She argues that more adoptions need to happen from and within Africa. So yes, Ethica agrees that there IS an orphan crisis and need for international adoption. Ethica has NOT argued against this stark reality. What we are saying is that it is entirely possible to involve kinship care and foster care in the mix of options for families here and abroad. If you continue to be incredulous about this as being a supportive versus competing reality, I recommend that you pose the same questions to JCICS (a group that we’re also a member of) as they, too support family preservation before considering international adoption.

    PS Jini is also the author of the academic paper, “If I Give You My Child, Aren’t We Family?” It also details international kinship care.

    Linh Song, MSW
    Board of Directors

  9. Avatar Linh Song says:

    Hello Dawn,

    Ethica in was not advocating for this child to be raised in an orphanage. I repeated this stance in my radio interview, emphasizing that international adoption is a last resort but recognizing that institutionalization is not an ideal situation either….obviously. Our stance on international adoption as being a last resort is in accordance to the Hague Convention and the Convention for the Rights of the Child. More importantly, this policy is supported by most adoption agencies, JCICS, and other adoption advocates. Tom Defilipo said this himself, family preservation is our first priority.

    Where we differ is how willing we are to allow for kinship care and family-based foster care as an alternative to international adoption.

    Your blog post presents many “maybes” and suggests that these maybes shouldn’t be explored in order for this adoption to happen. But as child advocates, don’t we owe it to the children to find answers to these questions, first? This child’s birthfamily had expressed that their interests were not presented in court and that they did not have legal counsel. That alone is worrisome, and warrants further investigation.

    Let’s not suggest that this child “will likely spend her life in the Kondanani orphanage” until we know that the family has legally relinquished the child, with a complete understanding of what that means, until the child returns to her family, or perhaps is even adopted locally.

    Why is it important to explore these questions? Take for example, Ethica’s work. Hundreds of adoptive families have suffered through similar situations where they’ve learned that their children were not in fact orphans, others had the children reclaimed by birthfamily after learning that the children were kidnapped or sold by extended family. These are horrific, tragic situations with families losing thousands of dollars to hire investigators, attorneys, and bear unexpected travel costs in order to answer questions that should have been answered by their adoption agencies AND sending country officials.

    This is not to mention the pain that these unwilling birthfamilies experienced. We’ve learned that in order for international adoptions to continue (and we hope they do), important questions need to be answered; whether birthfamily received informed consent, how the children came into care, and if there were monetary incentives to place children.

    This recent initiative is meant to explore these issues and more. As we work with Malawian NGOs and social workers, we’ve come to learn that there’s a working network of kinship care for thousands of children. An adoptive mother of Vietnamese children, who was a Peace Corps member in Malawi, noted that there are successful efforts for children to be cared for by extended family and by their communities. This is wonderful, wonderful news. Think of the children who can escape the dark realities of institutional care through this route….think of how this can be done in partnership with international adoption. If ultimately, we are not able to secure an independent trustee for the funds we’ve raised, this is the kind of initiative we would support.

    You ask about the welfare of other Malawian children and suggest that our fundraiser is a publicity stunt. I welcome your support and concern for Malawian children. Ethica is not a large organization like UNICEF or Save the Children. We also do not have revenue from say, publications. We are an all volunteer organization with a budget of around $25,000 (a mere pittance compared to adoption agencies we work with and contend with.) Our 990s should be on Guidestar, but you can see that nearly half of that was sent to Vietnam last year in order to feed and clothe 642 children in 4 orphanages for 30 days.

    It’s possible that you are also unaware of our humanitarian work from 2003, when Ethica delivered 27 tons of food and medical aid to approximately 5738 Liberian orphans during the civil war; providing sustenance and assistance for four months until long term relief arrived. During the crisis we assisted a number of adoptive families by securing emergency medical visas and assuring them that their promised children were being fed and care for, even as NGOs fled and the U.S. Embassy was being shelled.

    Our humanitarian efforts happen at the request of, and in partnership with, adoptive parents. And although we do work with international birthparents, most of whom are distraught and seeking the whereabouts of their children, we have never until now, sought to fund family preservation efforts. My hope is that the community won’t take too much issue over the several hundred dollars that we’ve raised so far in order to raise awareness of one child’s situation, a poor child welfare system, and lack of protections needed so that kinship care, foster care, domestic and international adoption can thrive.

    Linh Song, MSW
    Board of Directors

  10. Avatar simba says:

    Forgot to mention:
    How sad that almost all of the agencies listed on the US department of state website that were DENIED Hague accreditation are the ones that don’t discriminate against any single adoptive parents, while the ones that are accredited for the most part only allow single women to adopt internationally. The Hague Convention is full of S–T and should go out of commission or change their policies quickly before God judges them accordingly.

  11. Avatar simba says:

    If you can find the right agency, with a program in a country that is not too behind the times, anything is possible. I’m a single 24-year-old guy trying to adopt a son from the Congo. It would be nice if I was married, but women don’t like me that much, but it doesn’t mean I can’t parent. Once I’m 25 (US law), I don’t plan on waiting until I’m married because the Congo requires that couples be married at least 5 years. If I get married afterwards, then so be it. I was raised with three younger sisters and no brothers, I could raise all the boys (or girls) that a country would want to give me with or without a wife. I find it a little unethical that she was able to use her celebrity status to circumvent Malawi’s laws, but u know what? some of these countries allow single women to adopt any child but don’t allow single men to adopt girls (and in some countries any children). If I were someone like Lionel Richie, Bruce Springsteen, or any of them, and I could use my name to circumvent these Countries’ sexist, ignorant, and one-sided laws, then more power to me!!!

    Here’s a new bill to introduce to the Hague:

    Adoptions laws in regards to single parents must coincide with ONE of the following three provisioins:

    (1) ALL single parents, men and women, may adopt any minor child, male or female. OR

    (2) ALL single parents may adopt ONLY children of their SAME sex. OR

    (3) NO single parents may adopt.

    Furthermore, all other requirements including income, age (of both the parent and child), homestudy evaluation, etc. MUST be consistent to both male and female adoptive parents who are single, and there can be NO sex discrimination whatsoever.

    Failure to implement and enact this policy by 2014 could result in forfeiture of Hague membership or termination of international adoption rights to/from Hague countries.

    Pipe dream, most likely.

  12. Avatar Vivianne says:

    This blog and these comments have been the best discussion of this complex topic that I’ve read. I so appreciate your blog Dawn (actually I love all your blogs) and my understanding has deepened with every comment. Thank you all for commenting. I am going to go back and download a bunch of the Creating a Family shows tonight and then listen to them on my commute each morning. They are such a valuable resource.

  13. Avatar Margaret says:

    Some good issues raised here by all. Dawn- I agree with what you are saying here about the “temporary” placement or use of the orphanage as a “feeding center” or “boarding school”- while that may be a cultural thing- I think it is a cultural thing that does not put what is best for the child first. Maybe what should happen here ( ideally, as obviously the country of origin makes their own rules), is that there should be a time limit placed on how long the child can be left in “temporary care” of I would propose a year- before a decision must be made by the family whether they choose to care for the child or release the child for the possibility of adoption- either domestically or other. As an advocate for children it is hard to just sit back and say it is okay to leave a child in “temporary” care in an orphanage for 5 years- when they could have a home- I just don’t think that is in the best interest of the child. And possibly it would eliminate some of the “grayer” areas of adoption as to what children are truly available or not. I do think the judge made the right decision in the Malawi case but it is only with great sadness that I say that- as I think this little girl could be stuck in an institution because of it. I hope her father and grandmother really do get her out and raise her.

  14. Avatar Sally says:

    The biggest problem, in my opinion, is how can we make international adoption virtually free? Adoption from foster care in one’s own state is practically free. I think the adoptive parents have to pay for a home study, but that is all, no other fees, and in some cases, the state will provide the home study as well. Compare that to paying over ten thousand dollars, and usually much more if not double, to an adoption agency for an international adoption. Now, it has been frequently reported over the years that the incentive given to birthmothers in poor countries for relinquishment of their child is equal to 50 US dollars. There is no way on earth that the Hague Convention or any other means can adequately police international adoption in poor countries, because the absolutely low sum of money that is given to the birthparents is really not fathomable to us. In other words, if the adoption fees were reduced very, very significantly, and it only cost in total say $2,500 for an international adoption, that would still be more than enough to coerce a relinquishment from a birthparent. Money is the issue and adoption should be free, whether domestic or international. This might remove the need for international adoption agencies and only the neediest children would be able to be adopted internationally. But maybe that is the way it should be.

  15. Avatar Charlene says:

    I am disappointed to see a blog post about a specific child — Mercy James — but the discussion of her potential adoption is generalities (“many kids placed in an orphanage temporarily end up there for life”, etc). Mercy is not “many kids”. Her orphanage is not “most orphanages”. Her grandmother is not “most people who put their kid in an orphanage.” They are real people, places and circumstances.

    I don’t expect everyone to know every detail about this child but I do expect this – if you are going to talk about this child in a blog, do at least minimum review of what info is out there on this child, the adoption and the orphanage. This child is a live human being with a REAL history and a REAL grandmother. A brief review of press reports would have revealed that the grandmother has always intended to remove the child from the orphanage by or before age 6, when the child will able to attend school all day and a good age for building up immunity to diseases that are rampant in this area. In fact, Western care workers in the country encourage this in some cases.

    Who the heck are we to say the grandmother is lying? Or that we doubt her story? Or that we know anything about this family’s circumstances at all? It is beyond belief that folks could sit here and “debate” something like this when they haven’t even picked up the phone and made the simplest of inquiries!

    In my opinion, nobody should blog about about removing a 4 year old child from her country (as against the ruling set forth by the Judge) and express opinions when they haven’t checked the facts. I’m an attorney but I’d never act like an expert on all legal issues. So the fact that the blogger has traveled and has been in the business of adoption doesn’t excuse her. Without the facts, the blog post is setting up a bunch of strawmen and then knocking them down.

    Also, can’t believe folks are demanding Linh Song to “prove” something or provide statistics. If you disagree with the Judge’s order, feel free to fly out to Malawi and tell the Judge you want “proof” of this or that. While there you can also explain to the grandmother that you know what’s best for Mercy b/c “most orphanages are X”, “most third world country kids are Y” and “most extended family is Z”.

    One of the commentors asks argues, concerning the intent to remove Mercy from the orphanage at age 6, “But how do we know that’s true”? To that I say — have you even seen the papers admitting Mercy into care? In any event, Mercy’s grandmother doesn’t have to “prove” anything to you about her intentions. She has stated her intent and who are you to suggest, on this blog, that she might be lying?

    I am certain that when Mercy is older and sees this blog post, she will think “Who the heck are all these men and women injecting themselves into my life and judging me and my family?”

  16. Avatar Tara says:

    What about the rights of the children? I feel like all rights are given to the birthfamilies–blood does not make a family. Are there any limitations to how long a child can be “temporarily” placed in an orphanage? I am a mother–I would rather my child be placed in a loving family than have to live out his entire childhood in an orphanage with occasional visits. To me, that is what a mother ( or in this case, family) does, puts her child’s needs above her own. I know it is a terrible situation and I feel for those families, however, a child can never regain those lost days. I think social reforms to allow the child to stay in her birthfamily to begin with would certainly be ideal, but in reality how can we impose these reforms in their country when we need to do lots of work here at home? I think the reality of a thriving foster care system in Malawi is quite some time away–definitely not in time to help little Mercy for the next 3 years she has been left to spend in the orphanage. And please don’t think I am referring to adoptions where parents are lied to or are stolen–i think everyone would agree that this is horrific. I know that many will diagree with what I have written, but I feel strongly that the child’s right to have a decent life is often superceded.
    Tara, mom to 2 wild boys and 1 Vietnamese Princess

  17. Avatar Mary says:


    We only have media reports to go on, so keep that in mind as I go on. But several reliable news outlets, including the Daily Mail, have reported that Mercy’s grandmother and uncles have always visited her regularly. I wouldn’t argue that this is an ideal situation, but in a country where her single working grandmother can’t apply for food stamps or social services to help her, it does make sense. And I don’t see that someone should be able to adopt a child who has a family just because they are richer.

    In the end, because we only have incomplete news reports for information, it really must be up to the Malawi government to determine the family’s intent. Which all adds up to — I couldn’t agree with David Smolin more!

  18. Avatar Suzanne Smith says:

    Mary: I agree that the judge made the right ruling, adoption laws should not circumvented by adoptive parents, wealthy or otherwise. Having said that, if a child is left in an orphanage for four years by a parent who never checks or inquires about the child, could this not be intepreted as a rather powerful signal that the parent has decided not to play a role in his child’s life?

    Elizabeth Bartholet in a statement about Madonna’s adoption makes the following point “For no better reason than that these children may have living relatives, he [director of Save the Children UK) believes that they should always remain in their original communities. Unfortunately, Nutt ignores the fact that these children’s presence in an orphanage is the surest indication that their relatives are deceased or, if alive, unable to care for them.”

    Regarding maintaining the intergrity of international adoption I think David Smolin made some great points on Dawn’s show a couple of weeks ago:

    1) Remove money from the equation and that will undermine child trafficking substantially
    2) Work must be done to ensure that parents are not forced to give up their children soley because of poverty.

  19. Avatar Beth says:

    When I read about this adoption and the rejection of it, my first thought was….Why can’t she buy/rent a house in Malawi and live there for the required time? She can probably afford it. I’m sure she can travel while living there. She might have to change her work schedule but if I was required to live there to be able to adopt a child (and I could afford it) I would do it. This would also give her son David the chance to spend time in his biological culture. Anyway, that was my first thought.

  20. Avatar Mary says:

    Yes, Suzanne it is sad, isn’t it? To my mind, it highlights the problems with an adoption that tries to circumvent the rules, especially in a country with so few rules in place to begin with. The government in Malawi *should* have checked to make sure the child was available for adoption and truly abandoned. They *should* have searched for the father themselves, rather than leave it to a British tabloid. They should have rules and laws in place to protect their own citizens from even accidental exploitation from rich westerners. If they don’t have such rules, then I think we as APs still bear responsibility for asking these questions ourselves before adopting. While many of us don’t have the resources to do so individually, Madonna does. At the least, we as APs can push our national government to enact federal regulations about adopting from non-Hague countries that don’t even have a memorandum covering rules about adopting with the US. Who of us ever wants to be as devastated as Madonna must be now? But better rules and enforcement on both the US and Malawi sides could have prevented much of the drama and sadness.

  21. Avatar Suzanne Smith says:

    For Linh Song: Thanks for including these links and I will read them. You and I agree that more needs to be done to help families and communities care for their young.

    “She argues that more adoptions need to happen from and within Africa.” Well, obviously, but people always make statements like this and then there is never, ever the resources or money to get anything done in a way that is significant. Again, in theory it is right on target. Also, adoption already only plays a very small role in this. Very few children in ther grand scheme of things are adopted internationally. International adoption rates in the U.S. are down this year.

    But I looked at your web site again and I still do not see any example of you stating support for ethical adoption (except in yor mission statement) All the articles are about fraud and adoption problems (and these are VERY important stories to tell, there are HUGE problems in the system, no mother should be coerced into giving up a child) and messages from your Board members cheering decisions made against adoptive parents (Madonna and one regarding a recent domestic decision)

    This is where I am confused. I simply don’t see anything that reflects anything positive related to ethical adoption – domestic or international. Am I missing something?

  22. Avatar Colleen says:

    If Madonna is so concerned with helping this child why didn’t she pay the family to keep the child. Wanting a child is one thing; wanting someone elses child is completely different and she spent millions to take not one but two children who had family, more specifically fathers, not true orphans. Malawi should not be used as a baby market by Madonna or anyone else. Go in a pick the cutest one regardless of true need. As the article I linked to stated, her FAMILY was devestated at the thought of loosing her. They had no intention of Mercy spending her life in the orphanage.

  23. Avatar Suzanne Smith says:

    Response to Linh Song:
    “Where we differ is how willing we are to allow for kinship care and family-based foster care as an alternative to international adoption.”

    Kinship care and family-based foster care is of course ideal. And there may well be successful efforts to get these projects going but exactly what are the statistics? How many of these “orphans” are actually benefiting from these efforts? Very few I imagine. I simply do not believe that the majority of “orphans” in institutional care in Malawi are being supported by their families and the communities. If you can prove otherwise, please do.

    You must be able to show numbers and I doubt that you can. There is always a tension between fixing the bigger problem (helping impoverished people care for their children) and dealing with children on a case by case basis.

    And if you are looking at how well kinship and foster care works – take a look at the U.S. system. NO one sees foster care as benefiting children. It is not a system in whch US children thrive.

    There is theory and there is reality. You are working at a theoretical level, and theoretically you are absolutely right. But realstically? I think you are missing the mark entirely.

  24. Avatar Colleen says:

    There is a recent article that says that she will remain in the orphanage until she is six and then return to her family. Based on this article, it is a wet-nursing orphanage. At six she is beyond the age when most childhood diseases are fatal and go home to the family as was originally intended.

  25. Avatar Julia says:

    I couldn’t agree more with pretty much everything you said, from the ultimate decision (respecting the current laws regardless of the amount of philanthropic work Madonna is doing) being the correct one to a disgust with the celebratory nature of the reporting about it. It’s as if people want to “stick it” to Madonna because they don’t have her money. I was particularly disappointed with Ethica. It seems like they were trying to play keep away with the life of a child.

  26. Avatar Suzanne Smith says:

    There is one aspect of this that no one has put out there blatantly, so I will. The idea that Mercy James’ family was interested all along in being part of her life may be true and it may not. The fact is she was put in the orphanage and her father never once visted her, ever. From what Dawn says there seems to be no information about how often she was visted by extended familiy members. People are people whether they are rich or poor. With worldwide media attention on the family – what do you think they are going to say? The family may be very close and involved in Mercy’s care. They may also have planned all along to remove her when she is six – but we cannot know that for sure. I am not ascribing ill motives, I am saying that the response from the family now may not have been its reponse before the attention. We simply will never know. But I think that families who are hunted down by reporters and asked to comment on their children will, like all of us, put their best foot forward. The good news for Mercy is that thanks to Madonna her father now wants to be involved in her life.

  27. Avatar Maureen says:


    Thank you for taking the time to verbalize what I believe so many of us are feeling. I had very mixed feelings about this situation and the position that organizations such as Ethica (whom I greatly admire and respect) had taken regarding fundraising for one child. I too agreed with the decision the judge made. However, I was deeply saddened for the loss to both the child and her potential adoptive family. Bending international adoption laws for some could lead to corruption in other circumstances. You reasoned out some very thoughtful possibilities for change that would positively impact Mercy and the many young children who live in poverty and orphanages in Malawi. Hopefully, someone is listening.

  28. Avatar Suzanne Smith says:

    Dawn, I agree with you that the judge made the right decision in upholding the residency law. But I also agree with you that the decision is an unhappy outcome for Mercy James.

    While international adoption needs to be carefully regulated if not overhauled to protect against corruption and child trafficking, it is also true that we are talking about a tiny fraction of abandoned or orphaned children who are affected by it. Orphanages – institutionalized care — do not provide any benefits for children living in them. As one of the guests on your show about adoption corruption said, there is no benefit to children raised in these conditions, only problems associated with lack of close personal care, poor nutrition, physical and developmental delays.

    I have read Ethica’s web site and I find their mission (ethical adoption) to be nconsistent with their message (adoption as a new spin on colonialsim). Of course, children should be raised in their own communities,and these countries should be helped so they can manage their own, but the reality is these programs are simply not in place. And the problems are so complex as to be impossible to “fix.” How many times has Mercy James’ family been to visit her in the orphanage? How is she learning about her culture and her country’s traditions from inside an impoverished institution?

    I think the best position is to support programs that strive to help communitiess and families keep their children. But in the meantime? Save a life. Adopt a child.

  29. Avatar Eli says:

    I agree with most of what you said, but I think you may be incorrect when you express in two words “Money corrupts.” It’s not quite as simple as that. Money itself doesn’t corrupt. Money in the hands of dishonest and broken systems corrupts. And frankly I would trust MADONNA with my money before I would trust the government of Malawi.

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