Friday, April 3, 2009

Have Mercy

It seems that Madonna won't -- have Mercy James as her child, that is. MSNBC reports that a Malawian judge rejected her application to adopt because Malawian law requires adoptive parents to be residents of Malawi for 18 to 24 months prior to an adoption:
In a lengthy ruling, Judge Esme Chombo sided with critics who have said exceptions should not be made for pop superstar, who has set up a major development project for this impoverished, AIDS-stricken southern African country.

Noting that Madonna had last visited Malawi in 2008, the judge said the pop star “jetted into the country during the weekend just days prior to the hearing of this application.”

“In my opinion, this would completely remove (Madonna) from the definition of ‘resident,”’ the judge said.

Malawi requires prospective parents to live in the country for 18 to 24 months while child welfare authorities assess their suitability — a rule that was bent when Madonna was allowed to take her now 3-year-old son David to London in 2006 before his adoption was finalized two years later. Madonna has two other children, Lourdes, 12, and Rocco, 8.

Chombo said other foreigners have adopted in Malawi, but Madonna’s was the only case in which residency was waived, and she indicated concern that doing so again could set a precedent that might jeopardize children.

“It is necessary that we look beyond the petitioner ... and consider the consequences of opening the doors too wide,” the judge said. “By removing the very safeguard that is supposed to protect our children, the courts ... could actually facilitate trafficking of children by some unscrupulous individuals.”

Madonna's attorney has filed notice of appeal.


Wendy said...

Way to go Judge Esme Chombo. I am so glad he was not swayed by cash, instead looking out for future adoptions and the legacy his decision would transfer to future children and AP's.

Phil said...

Doesn't this girl deserve a home? She'll just sit in the orphanage otherwise. I don't see any evidence that her birth family wants to keep her in any way. Or is able. Madonna seems genuinely commited to being a good Mom. It sounds like the laws need to be changed for ALL these orphans, not just Madonna.

malinda said...


I agree, all children should have permanent homes, but not just any old home will do! Malawi's residency requirement seems rationally related to the desire to screen applicants for suitability before allowing an adoption. Malawi doesn't have an international adoption program that accepts applicants from England, where Madonna currently resides, so they have no mechanism to accept a dossier from there like currently exists in a number of countries, including China. Malawi is also not a signatory to the Hague Convention. Madonna has chosen to adopt from a country that does not allow international adoptions, so it's not too surprising that she's run into trouble. The surprise is that David's adoption was allowed, not that Mercy's adoption was denied (so far).

Madonna has an option, of course (one that her fortune would make eminently doable) -- she can establish residency in Malawi, like all other prospective adoptive parents from Malawi. If she does that, and passes the screening, she can adopt Mercy in accordance with the rule of law (and as a nice side benefit, the whole family, and especially David, can learn about Malawian culture, history, and tradition while living there!).

I know nothing about the Malawi legal system, so I don't know how firmly the rule of law is established in that country. I have to say that I wouldn't be too surprised if the appellate court bows to pressure to allow the adoption -- even U.S. courts aren't immune to the effects of fame and fortune. But as a lawyer, I hope this turns out to be a victory for the rule of law. Especially when the rule of law protects children.