Facing down the judges in Malawai

Entertainment media and adoption blogs have been abuzz lately with news of Madonna’s second adoption from Malawai. The singer’s petition to adopt four-year old Chifundo “Mercy” James was approved by Malawi’s Supreme Court of Appeals in an irreversible decision, ending a long, controversial legal struggle.

This most recent decision overturned a lower court’s denial, which found that Madonna did not meet Malawi’s strict residency requirements for potential adoptive parents, requirements meant to serve as safeguards against child trafficking. The higher court chose to view Madonna’s extensive charitable work in the country as equivalent to an extended stay. Framing the decision as a choice between growing up in a Malawian orphanage or life abroad with Madonna, the judges decided the adoption was in Mercy’s best interests.

Adoption reform activists expressed dismay that the higher court brushed aside concerns about the consequences this exception could have on future inter-country adoptions. Will having the means to make big donations be enough for hopeful adoptive parents to sidestep Malawaian law in the future? How will Malawai, not a participant in the Hague Convention, protect the rights of its children if  what requirements that are in place are softened?

Nor did the higher court’s opinion reference the protests of Mercy’s biological family–both of her maternal grandmother, who resisted releasing Mercy for adoption for several years, and of her alleged father, who expressed interest in taking custody but did not have the means to prove his paternity or press the matter in court. Reducing the matter to life in an orphanage vs. being adopted abroad oversimplified what is in reality a complex situation with no easy answers.

Adoptive parents untroubled by the Malawai court’s bending of the rules might consider the fact that judges in the U.S. go around the law at times as well, and not always in favor of the prospective adoptive parents.

Consider the Michigan judge who refuses to sign adoption orders unless at least one parent stays home full-time during the child’s first year and part-time through preschool–even when the child’s birth parents are fine with both adoptive parents working outside the home. His unofficial rule–which he applies only to adoptions of healthy newborns–effectively limits infant adoption to (1) couples (2) with the means to live on a single income. While I might agree (at least in principle) that it’s important to think about attachment even when adopting babies, having adoption policy created ad-hoc by a judge based on nothing more than personal beliefs is hardly something to applaud. Whether they’re bending the rules for a pop star in Africa or blocking adoptions here at home.

Heather writes at Production, not Reproduction when she is not following the news and her favorite million dollar celebrities.