Hearing Only One Voice: What does the future hold for Mercy and Malawi?

June 15, 2009

On June 13, 2009, the Malawi Supreme Court of Appeals overturned the lower court’s ruling and granted Madonna’s adoption of Chifundo “Mercy” James. Because of Madonna’s adoptions and her work with her charity “Raising Malawi,” the court found that she did not arrive in Malawi “by chance or as a mere sojourner” and, therefore, satisfied residency requirements. The court was also clear in their ruling that they believed the choice for Mercy’s future to be strictly two-part: adoption by Madonna or life in an institution. Therefore, they ruled adoption by Madonna to be in her best interest.

Ethica is disappointed and concerned about the short and long term consequences of Friday’s ruling. The lower court judge had stated, in part:

But 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 who would take advantage of the weakness of the law of the land. It is necessary that we look beyond a particular petitioner, and may be even consider the consequences of opening the doors too wide. Anyone could come to Malawi and quickly arrange for an adoption that might have grave consequences on the very children that the law seeks to protect.

The higher court spoke to this concern:

With the greatest deference to the judge in the court below we think that she fell in error by looking beyond the particular petitioner and the particular benefactor that were before the court and basing the decision on some imaginary unscrupulous individuals allegedly involving themselves in child trafficking. These unscrupulous individuals were not before the court. They have not applied for an adoption order. The Appellant has. The Judge also fell into grave error in deciding to protect some imaginary children who were not parties to these proceedings thereby ignoring the particular infant CJ who was before the court. The court ought to have based its decision on the particular appellant and the particular infant that were before the court

Ethica agrees that the merits of each individual case deserve individual attention and consideration. However, we have all seen countries fail and close due to the failure of their systems to be transparent and ethical. Malawi currently has no system in place to address these issues. History has shown that where a public figure such as Madonna adopts, others follow. Ethica is concerned about the precedential value this case will have on future adoptions in Malawi. Will the case be construed as an open invitation to effectively prioritize international adoption of Malawian children over natural families and local placements? The fears the lower court judge expressed may very well become reality on the tail of this high profile case.

But further, Ethica is deeply concerned that the biological family was not properly or fairly represented in this case. The ruling was clear:

Secondly it is a fact that since the case of infant CJ surfaced itself there has not been a single family in Malawi that has come forward to adopt infant CJ neither have there been any attempt by anybody to place infant CJ in a foster family. The only person who has been bold and compassionate enough to come forward and ask the courts to adopt infant CJ is the Appellant.

This statement reflects that there was no evidence in the record concerning James Kambewa’s allegations that he is Mercy’s biological father who not only protests the adoption but desires to take custody of this child. Mercy’s maternal grandmother has verified that he is, to her knowledge, the biological father. But let’s presume this is untrue and he holds no biological ties to the child – he is still a vocal party interested in adopting the child. That Kambewa had no means to come forward and participate in the case creates an unfair result. As far as the court was concerned based on the record before it, not a single family in Malawi came forward to adopt the child and that seems inaccurate. Further – the maternal grandmother’s opposition was strong enough to stay steady against repeated attempts to pressure her to consent to the adoption by orphanage workers, priests and others who visited her over a three year period. She only relented after years or pressure when she reportedly had had enough. It appears to have been the case of “who can be worn down first”.

Our concern is that the biological family – both the maternal grandmother and the alleged biological father – did not have equal or fair representation to make their case. They certainly did not have financial means to equal Madonna’s in which to defend their position or continue fighting. They do not have the resources at their fingertips to hire legal representation. They were given no voice.

If Mercy had been living in Vietnam or Guatemala, our government would have required DNA testing paid for by Madonna as well as an interview with the birth family to ascertain their knowledge and intent to consent. Instead, in this case, the alleged father was willing and able to submit to DNA testing but lacked both the funds and the time to make his case. So the case will be presented as “birthfather unknown” despite allegations otherwise. While in other countries the responsibility of proving the child’s qualifications for a U.S. visa is borne by the adoptive parents, in this case we fear this burden is on the birth father. Likewise in some other countries our Embassy would conduct an interview with the birth family to investigate their intent to place but that is not expected in this case. Surely if an interview were conducted, the birth family would finally have a voice.

The most important factor, everyone agrees, is the best interest of the child. Where there is disagreement is in deciding what the best interest is for this particular child in this particular case. But we wonder how the best interest of the child can truly be determined without hearing all voices, equally?

Ethica hears from adoptees who struggle with the questionable circumstances that brought them into their adoptive families. We also hear more and more frequently from struggling adoptive parents who face the challenge of how best to share corrupt, unethical or questionable histories with their adopted children. These are painful and difficult situations for adoptees to struggle with. In Mercy’s case, she will certainly go on to live in a comfortable and safe home. That can’t be denied. But her history and the facts that brought this child into the world of international adoption also can’t be denied. They, too, are forever a part of her. Today this adoption may have been approved but the issues that Mercy will face based on how the adoption was handled will remain with her for a lifetime.

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