Tuesday, October 24, 2006

With all the talk about appearances of “baby buying” and preferential treatment for the rich and famous Madonna, it would be easy to overlook a crucial factor in this “international incident.” The Malawian law, to which Madonna and her husband Guy Ritchie are seeking an exception, sacrifices the orphan’s interest in a family to a nation’s interest in holding onto its children. This law, and its proponents who are challenging Madonna in Malawian court, are an example of the resistance that intercountry adoption often faces in countries around the world.

The law requires foreigners who wish to adopt a Malawian child first to reside in the country and act as the foster parent to the child for 18 months. The law’s practical effect is that there are virtually no intercountry adoptions from Malawi. Of course, celebrities should not be allowed to cut in line to adopt children, but there is no line in Malawi. Only seven children have been adopted by Americans in the past three years. It is difficult to see how this policy serves the best interests of David Banda and the other one million Malawian orphans. In general, we should respect a nation’s laws, but this law needs reform. Children are suffering and even dying as a result of not being adopted internationally.

Whether the child is adopted into the U.S. or the United Kingdom, the Ritchies will have to meet the same strict requirements that other intercountry adopters do. Government officials will determine the couple’s suitability as adoptive parents through a home study and background checks. They will also determine that the child qualifies under Malawian law as a legal “orphan” and thus is eligible for adoption.

Although Madonna’s humanitarian aid likely influenced Malawian officials to forego the residency requirement, the frantic concerns about Malawi’s law not being followed are misplaced. It is not unusual for courts to make exceptions to a law on the basis of a related legal principle, such as the best interests of a child. Moreover, if the process was illegal, the receiving country’s authorities will not approve the child’s status as a legal orphan, which would stop the adoption. Malawi has so far only granted Madonna temporary custody of the child for 18 months, at the end of which time the adoption will be finalized — unless Malawian adoption opponents block it in court. It’s up to a Malawian judge to determine whether a violation of parental rights underlies Mr. Banda’s conflicting statements.

There are dozens of countries around the world with millions of orphans in need of parents. But all countries of origin have some degree of negative nationalistic response to intercountry adoption. “We should take care of our children ourselves; they should not leave the home country,” they say. To a degree, this is an understandable response, which should be respected. Intercountry adoption advocates also agree that domestic adoption is the best option for orphans.

However, when a child is not being adopted domestically, let the child be adopted internationally. National pride should not prevent children from having families.

Resistance to intercountry adoption has resulted in an ongoing five-year shutdown of adoptions in Romania, a past moratorium in Russia, lawsuits against adopting parents in India and South Africa, quotas in China, proposed adoption-shutdown legislation in Korea, and delays in almost every country involved in intercountry adoption. Many thousands of children have lost their opportunities for families through adoption, due to such restrictive policies.

We empathize with prospective adoptive parents who observe this scene and feel that Madonna unfairly received preferential treatment due to her celebrity status. To them I say: keep the interests of this child in mind, note that the exception is being made to a highly restrictive law, and persevere in your own adoption journey. Your frustrations with the adoption process will dissolve into relative insignificance with that first hug you share with your child in your own home.

The facts are still unfolding in this case. Perhaps some new fact will arise that changes this perspective. But for now, the bottom line in the Madonna adoption story is this: A child who might otherwise die in an orphanage is receiving a loving family, $3-million in humanitarian aid has been pledged for Malawian orphans, and an exception is being made to a law that does not serve the best interests of children. It’s difficult to argue with those outcomes, it seems to this adoption advocate.

Child welfare advocates around the world will be watching the legal battle in Malawian courts over the next 18 months. Let’s hope that the child’s best interests prevail over a misguided view of the nation’s.

Thomas Atwood is the President and CEO of the National Council For Adoption, an Alexandria, Virginia-based adoption research, education and advocacy non-profit.

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