The highly publicised adoption of Malawian children David Banda and Mercy James by American pop star Madonna has turned the issue of adoption in Malawi into an important item for public debate. The resultant debate has helped to put the issue into the limelight as a process that needs to be governed by clear and watertight legal and policy frameworks to ensure that adoption serves the best interests of the children who are the subjects of the process.
This has necessitated the review of the Adoption of Children Act. The rationale for the proposed reform of the law is to align it with the current realities affecting children and the evolving views by the population on the concept and process of adoption. The overarching philosophy underlying this argument is that a law whose wisdom is not shared by the people it seeks to govern is illegitimate.
Its being argued that current law was adopted in 1949 when issues of HIV and Aids, globalisation, illiteracy and diminishing extended families, which adversely affect child protection, were not envisaged and provided for in the law. The opening up of borders between countries as a result of the process of globalisation has created its own problems such as human trafficking which has heightened the problem of human exploitation, a vice to which children are particularly prone because of their vulnerability.
In short, the reform seeks to create a law that advances the crucial principle of ensuring that the adoption process makes the best interests of the child as its heart and soul. However, while currently there is general interest in the issue of adoption, it is apparent that a lot of people in Malawi do not understand what the concept of adoption means and, more importantly, what its implications are on the relationship between the child and their natural parents on the one hand and the child and the adoptive parents on the other.
According to the Malawi Law Commission adoption has been defined as a legal process that permanently transfers a child from biological or natural parents to the adoptive parent or parents.
What this essentially means is that after the adoption, the child ceases to belong to the natural parents and becomes a member of the adoptive family which enjoys the same rights over the child as the natural parents. However, although this is the case in terms of the definition of adoption, in Malawi the practice is that the natural parents are allowed to maintain contact with the child, as is the case with the two Malawian children adopted by Madonna. The Malawi Law Commission acknowledges that this creates confusion in terms of the identity of the child since it gives the natural parents a reason to lay some claim to the ‘ownership’ of the child.
The idea that adoption is a permanent process has emerged as one of the most controversial aspects of the issue as evidenced by the concerns expressed in the media by chiefs and other people who feel that the law should stipulate that at some point in their lives, adopted children should be allowed to decide whether they want to return to their natural parents. Some people also argue that adopted children should be permitted to maintain contact with their birth parents and relatives to help them understand and remain in touch with their roots.
1. What should be done to ensure that while we share the understanding of adoption as a permanent process, we don’t destroy the natural bond that exists between the child and natural parents?
2. Should children be told that they are adopted? If yes, at what age should they be given this information?
3. Should the law permit contact between the child and natural parents? If yes, what kind of contact should be allowed?
4. What safeguards should the law provide for both domestic and international adoption to make sure that the adopted children live and grow up in conditions that serve their best interests?
5. Should prospective adoptive parents be allowed to choose the children they want or the Department of Social Welfare should decide which child goes to which parents?
6. Who should have the power to grant consent for the child to be adopted?.
View and Download the Policy Brief from this discussion
Dear MAKNET Members Once
Dear MAKNET Members
Once again we take this opportunity to invite you to participate to the new discussion on "The Adoption in Malawi: Where do we go from here ?“
The main objective is to identify the crucial areas that should be considered in the new Adoption of Children Act. Specifically the discussion aims at finding out what safeguards should be put to ensure that adoption serves in the best interest of adopted children.
Your contributions are considered important in chatting out the course of adoption in Malawi. For more information about the topic please read the introduction above.
I do not have particular
I do not have particular problems with adoption as long as it is for the betterment of the child. Yes some have argued that the child may lose the natural and original identity, in my view many of ius have lost it. At what age should the child be told? Well, in my view, before the child goes into puberty because that is the time they begin to explore the world, to try and understand it. If they arev made to know theyu will probably begin to respect their parents and appreciate the efforts to bring them up.
If I were to adopt a child, I really should choose who to be my child. The authorities may become corrupt so as to give certain children to a particular class of people and some to a kamanyanya such as me. I want to have the freedom to decide. If anything, I should be told whom is available forn adoption and if I am happy about it I may go ahead. Not that I should go to anybody and ask them to grant that I adopt their child, no this may bring chaos.
Recent statistics show that
Recent statistics show that there are about a million orphans in Malawi. As such I support adoptions whether by local malawians or by foreigners.
However, I look at this important issue from two perspectives. First, there should be clear guidelines separating adopting by locals from adopting by foreigners. Foreigners should not be allowed to bulldoze the country's laws inorder to adopt kids they want in this country. Secondly, I support the idea that adopted kids should later on be told say after reaching age 18 who their biological parents are. They should also be given an option to go back to their biological parents if they wish. So essentially I dont support permanent adoption because it robs off this helpless young one to return to their roots after they grow up.
Adoption as a process if
Adoption as a process if properly managed can save a lot of lives as it ensures children can grow in child friendly environment. On the other hand if improperly handled it would lead to children being exposed to despicable abuse. Continued monitoring and evaluation of adopted children's condition is thus paramount, in my opinion. The law should put it that any adoptive parents will submit to unscheduled evaluation as the responsible ministry sees fit until such a time as the child has reached adult age (as defined by law).
The pre-adoption process needs to be made as comprehensive as possible so that prospective adoptive parents are adequately assessed. In this case the distinction between those adopting to stay within Malawi and those intending to stay outside need to be clear. I don't think this distinction should be between citizens or non-citizens. My belief is that what matters is where you intend to stay with the adopted kid. Where you take the kid influences the law that the kid and parent will be under.
Consent of a child to be adopted rests with the immediate parents of the child. But if we look at a scenario where both parents are deceased then that consent has to come from the one raising the child. To avoid cultural conflict, in this case both sides of the child's family (father and mother) will need to be consulted. Ultimately the responsibility of ensuring that consent has been taken from the right person rests with the department responsible for social welfare (and or family matters!).
Telling an adopted kid who his or her biological parents is really a family thing, I would think. If the law says a child should be told who his biological parents are, my question is who will do it? How will the government ensure that this is done? I just think it is demanding too much of some one that has supported a child to force them to reveal identity of parents to adopted child. The onus is on individuals to be honest with their kids. In the same breadth I do not think it is fair for adopted parents to be told that at the age of say 15 return the child. What about the relationship that would have developed? What about support? Who will support the 'returned' child?
Our adoption law need to be made to ensure that the development and welfare of the children are safe guarded.
On the permanence of the
On the permanence of the adoption process, my view is that the law should not prescibe an age at which the adopted children can decide whether to return to their biological parents. I take this line because this would prevent some parents from engaging in what I would call 'value addition.' This is where parents who have the capacity, like David Banda's father, would decide to put up their children for adoption in the hope that after the adoptive parents have educated and 'added value' to the children, they can reclaim them to reap the benefits. Of course, the child should be given the right to maintain contact with the original parents/relatives such as visiting and communicating with them to help them understand where they are coming from.
By the way, we have not tackled the issue of what I would call 'second-generation adoption' (for lack of a better term) where adoptive parents would put up the child for another adoption. Should the law allow people like Madonna, for example, to let other people adopt David and Mercy? My view is that leaving the process open-ended would expose the adopted children to exploitation because one can adopt a child today and pass them on to other parents tomorrow in order to benefit in some way from the process. What's your take?
Ladies and gentlemen, thank
Ladies and gentlemen, thank you very much for your contributions so far on the issue of child adoption. However, I feel we need more input on the safeguards that the law should put in place to protect the adopted children from exploitation.
For example, Kondwa proposes continued monitoring and evaluation of adopted children's condition and that adoptive parents should submit to unscheduled evaluation by the responsible ministry until such a time the child has reached adult age. This is a good proposal which, if implemented alongside other safeguards, would protect the adopted children. For starters, since international adoption is more complicated and riskier than adoption within the country, what special tools do we need to include in the law to ensure that we don't expose our children to unscrupulous people? In addition, should adoptive parents be allowed to put up the adopted children for adoption to other people? If yes, under what conditions should the law allow this?
Let's reflect on these and other areas under the topic of child adoption.
Thank you very much for your continued interest in the issue. Let's help make the new law on child adoption a reliable tool for child protection.
I feel an adopted child
I feel an adopted child should not be put for adoption. what was their reason for adoption in the first place. inayi ikhala child trafficking.
i think the main problem with
i think the main problem with most of our laws is that we coppied them from some foreign culture and never reviewed them until something controvential comes up.
personally, i think nobody from outside the family of the biological parents should be allowed to adopt a child.
the argument that HIV and AIDS or poverty should be a reason to export our people is too lame.Most of us grew up in situations that in todays life one would call extreme poverty.But somehow we made it through.I think the local person should be made aware that once the child is adopted, is gone for good.
by the way why on earth should someone come all the way from America or the UK and adopt a child in Malawi?what is the motivation?we know that there are lots of destitute children in America who need suport.
instead of softening adoption laws, i think it should be clearly outlined that non blood relations should be allowed to adopt in malawi.Even in situations where both parents are dead, there is someone related to the family who can be supported by the state to take care of the child.
What if/when the adoptive
What if/when the adoptive parents die, who should be responsible for the child? My view is that the adoption process should not be transferable, meaning that it should only be the adoptive parents who should have the rights over the child. When they die, the process should be invalidated so that some people do not acquire the rights over the child through the back door. The child should be returned to Malawi where government will be responsible for his/her care until such a time when/if another parent is ready to adopt the child. The rationale for this position is that before the adoption is authorised by the courts, there is a process of scrutiny that the prospective adoptive parents are subjected to, to ascertain their suitability. However, if relatives of the adoptive parents are automatically given the mandate to take over the care of the child, they will escape the necessary process of determining whether they are suitable as adoptive parents. Of course, they, like anybody else, should be free to apply to the courts to adopt the child should they so wish.
Our society have indeed
Our society have indeed thrived on extended family systems and am a great advocate of that for all benefits that exist (some mentioned in the discussion). Unfortunately in today’s Malawi things are changing and families are becoming nuclearised that is a fact. If we stand against adoption then what will happen with the children that have no one to support? Government social system (if it exists) is such that it cannot take care of these children. If there are people out there with capacity to care for our kids it would be irresponsible of us to deny the children a chance to be love by them. The only thing we can do is provide proper guideline and legislation to ensure that the right people are given the kids.
Permanency of adoption is something I advocate. Our law should encourage adopting parents to love and care for adopted kid as they would do their biological kids. If this is to come true then our law should advocate and emphasise on permanency of the adoption. In my opinion a foster parent will offer that love we demand if there is no uncertainty to their keeping the child. Where there is no permanency a parent would not want to be too attached for fear of losing out on 'invested' time and follow up heartache due to loss of a loved one. It is even more painful is that loss is not because you did anything wrong but rather because some people that failed to care for the kid have decided it is time for the kid to come back.
Adoption of adopted children is something that will need to be controlled based on prevailing circumstance. Take the obvious example what happens when foster parents are incapacitated be it by death or illness? In my opinion in such a case an evaluation of a probable foster parent/family should be allowed for. My reason is simple, environment. A child that has been raised in a certain environment needs continuity for better child development. Having the child adopted by those within the family circle of the original foster parents will provide for such continuity. However, I would propose that any such adoption should follow almost the same process that lead the child to be adopted in the first place. By this I mean the probable foster parents should be assessed just as the original foster parents.
Permanency of adoption is
Permanency of adoption is something I advocate. Our law should encourage adopting parents to love and care for adopted kid as they would do their biological kids. If this is to come true then our law should advocate and emphasise on permanency of the adoption. In my opinion a foster parent will offer that love we demand if there is no uncertainty to their keeping the child. Where there is no permanency a parent would not want to be too attached for fear of losing out on 'invested' time and follow up heartache due to loss of a loved one. It is even more painful is that loss is not because you did anything wrong but rather because some people that failed to care for the kid have decided it is time for the kid to come back.
Adoption of adopted children is something that will need to be controlled based on prevailing circumstance. Take the obvious example what happens when foster parents are incapacitated be it by death or illness? In my opinion in such a case an evaluation of a probable foster parent/family should be allowed for. My reason is simple, environment. A child that has been raised in a certain environment needs continuity for better child development. Having the child adopted by those within the family circle of the original foster parents will provide for such continuity. However, I would propose that any such adoption should follow almost the same process that lead the child to be adopted in the first place. By this I mean the probable foster parents should be assessed just as the original foster parents.
In this dicussion we need to
In this dicussion we need to discern which aspects require legal interventions and wich aspects are an issue of effective implementation and administration, which issues are of private matter and which issues are of social descriptive nature.
We need to keep in mind, that the latest Child protection, welfare and justice bill tabled in June 2010 in parliament provides a framework for foster care, both by foster parents and foster homes. This might be closer to Malawi culture , but I think the option of adoption should still remain open to those who wish. I personally do not know many Malawi families who have formally adopted (it may be less obvious), but quite a number of mixed couples and families with European background who have adopted children and who might have been reluctant to a concept of foster care, that brings a lot of uncertainties for the future and not the same legal equality and protection for all children in their family, if they would ever move from Malawi or if the parents pass away.
The concept of adoption is fundamentally different from foster care. It is a radical concept. Therefore suggested idea, that adopted children should have a right to decide to return to their natural parents or that the natural parents can change their mind is not practicable in this context. This is also crucial because giving a child for adoption should remain an option to abortion. Secondly we also need to consider the perspective of adopting parents who would love to raise a child as their own child. The motivation may not only be a PR-gag, but due to biological problems or real social concern. There are adopting mothers who take hormones to breast-feed adopted babies! It would be hard to loose a child and threatening to the family structure in the adopted family.
If parents decide to give a child for adoption, they need to live with it. If they think they cannot live with it, they should be able to decide for foster care. Can we talk of free decision when you are poor? If a living mother gives up ones own child, he/she must have compelling reasons! Is it ever free? Since foster homes are a given alternative, I would say yes. But sufficient counselling and information on the dimension of the decision must become a legal must.
The right of the child to know its parents raises difficult issues. Most parents find ways to communicate about adoption to their children sooner or later as a family matter. However, for medical reasons (e.g. genetic dispositions, ...) it would be good, if children once they reach age of maturity know that they are adopted. We can think of models, where adopted children have the right to contact (in writing or through other comprehensible communication) their biological parents once they reach a mature age e.g. through the authorities/social welfare office. Then the contacted parents should remain free to refuse contact or may want to choose to begin contact. (Similar legal problems may arise in case of artificial insemination from donated sperms once it becomes more affordable in Malawi or as traditionally practiced among brothers but the later may be in the sphere of freedom of culture).
In order to prevent abuse and misunderstandings one should also work on the criteria under which children may be given for adoption (including informed consent procedures and freedom from undue influence) and give authorities sufficient powers and means to conduct pre-and post-adoption investigations for a limited period. The risk of child trafficking can be met with international co-operation among authorities. It may seem harsh on adopting parents (who feel disadvantaged to thos giving natural birth where nobody asksabout a baby's income and means of living), but a potential of abuse exists.
We can also think of a prioritiziation of adoption of children who have lost both parents (and grandparents) over those with one living parent, unless a special relationship exists. The two groups may both be in the same need at the moment, but unequal treatment may be justified due to the chance of a change of circumstance in the living parent.
The idea, that in event of death of the adopting parents the child "falls back" on the natural parents should only be a last resort, if the child is otherwise not take care of by relatives in the adopting family or if the relatives and biological parents agree.
A smaller issue would be, whether biological parents have a right to be informed of the death of the child or to attend its funeral?
Law tries to categories justice and law tries to categorize risk-areas. (e.g. in form of age-requirement, single male clause, residence requirement). Therefore the international reluctance on international abortion, which does not only stem from the fear of child trafficking but also from fear of difficulties in integration. A general clause on "unless the best interest of the child requires otherwise" would have made the work for the judges in the Madonna case (see www.safflii.org) much easier, but it would require human and wise judges in the future as well.
The number of orphans is extreme and therefore quite a number of them are not taken adequately care of. The number of orphans have reached numbers, that many other countries involved in international law making are not faced with. In my opinion, whoever rejects possible adoption of a child by willing parents acting in good faith with sufficent means and in a suitable environment, needs to offer that child a real alternative.
Keep the door to adoption open.
I have just heard that
I have just heard that Madonna is coming to adopt a third child. I am just wondering.... what is the new Adoption of Children Act providing for?can a person adopt more than 1 or 2 children.mainly if the adoptive parents are foreigners.what should be the ideal position?
In addition to the question
In addition to the question Martha has raised, I am also interested in a broad range of conditions that should be imposed on foreigners in terms of the maximum number of children they can adopt and other areas. Considering the fact that international adoption is trickier and riskier than domestic adoption, what unique conditions should apply to foreigners that domestic adoptive parents should be exempted from?