Adoption crisis; flaws in Malawi’s international adoption process

In 2006, United States pop-star Madonna adopted David Banda from Home of Hope Orphanage in Mchinji District.

This was the same year the “Queen of Pop”, as she is fondly referred to, together with Michael Berg, co-founded her charity called Raising Malawi.

Banda was placed in the orphanage as his father, Yohane, was failing to provide for him and his mother had, unfortunately, died soon after giving birth to him.

Madonna, who at the time was in Malawi with his then-husband Guy Ritchie on a humanitarian trip, found David at the orphanage, then battling with malaria and pneumonia.

David was only 14 months old by then. But adopting David was a struggle for Madonna.

The bone of contention was on Malawi’s laws, which stipulate that adopters must have at least lived in the country for at least 12 months.

“An adoption order shall not be made in favour of any applicant who is not resident in Malawi or in respect of any infant who is not so resident,” reads part of the Adoption of Children Act.

But this requirement was later waived, allowing Madonna to take David to London before the adoption was finalised in 2008. The move, however, attracted criticism, with Malawians questioning the rationale of waiving the particular requirement.

Madonna later expressed her frustrations on David’s adoption on the talk show; The Oprah Winfrey Show-a United States talk show hosted by Oprah Winfrey.

A year later, the High Court of Malawi rejected Madonna’s adoption of Mercy James, basing on the same requirement which was extended to 18 months. But a successful appeal at the Malawi Supreme Court of Appeal allowed Madonna to adopt Mercy James.

Then in 2017, Madonna was also granted permission to adopt twins, Esther and Stella Mwale.

Nearly a decade after Madonna made her first adoption in Malawi, gaps still lurk in such international adoption processes, a situation that puts adopted children at risk of being subjected to all forms of abuse, including trafficking.

The situation is compounded by the lack of understanding the meaning and implications of adoption, in particular, among parents and guardians giving up their children for adoption.

According to a 2025 Malawi Human Rights Commission (MHRC) study on the adoption landscape in Malawi, identified gaps in the adoption process give room for manipulation, especially on the part of the would-be guardians.

MHRC instituted the study following escalating reports and complaints of unprocedural international adoptions as presented by parents and guardians whose children were internationally adopted as well as from media reports.

The study findings state that while adopters often take advantage of the existing gaps as regards to adoption, on the one hand, families feel entitled that it is the obligation of those adopting their children to continuously support them.

Part of the report reads: “Most parents, as they come from poor family environments, expect continued benefits from the adopters after the child is taken outside the country.”

One of the key gaps identified in MHRCs study is that Malawi lacks capacity to conduct assessments of families seeking to adopt children in the country.

Malawi cannot do such assessments of the potential adopters in their respective countries because it is not a party to the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption.

Simply, the Hague Convention is an international agreement to safeguard intercountry adoptions. It aims to ensure children are protected from irregular and illegal adoptions abroad.

This international agreement, therefore, ensures that intercountry adoptions are conducted responsibly and ethically and it prevents the abduction, sale, or trafficking of children in the context of intercountry adoptions.

Key principles guiding the Hague Convention emphasise respect for a child’s human rights, cooperation between countries involved in intercountry adoptions and the best interests of the child as paramount consideration.

“The Convention sets up safeguards to ensure that all intercountry adoptions are in the best interests of the child and respects their human rights,” reads part of the international agreement.

With Malawi not being a party to this important agreement, it means children getting adopted internationally are put at risk of all sorts of harm considering that no checks can be done.

MHRC observes in its study findings that risks associated with such a scenario include sexual or economic in nature, aside from trafficking and other abuses.

According to MHRCs study, key drivers of children’s vulnerability to adoption include poverty, abandonment and orphanhood.

In most scenarios, as per details of the report, parents and guardians-a majority of who cannot afford basic necessities for the children-are forced to give up their children for adoption as they anticipate that the would-be guardians will be better placed and capable of giving the children a better life.

Compounding the situation further is the fact that Malawi is still using an archaic 1949 Adoption of Children Act which is not in sync with modern day practice.

Worse still, a new Adoption of Children’s Bill which has power to change this unfortunate situation has been met with lack of political will throughout the years.

MHRC further observes in its findings that lack of regulations in Child Care Institutions (CCIs) is also another factor that continues to worsen the scenario.

According to MHRC, oftentimes, more children are internationally adopted from CCIs.

Further reads the report: “The Child Care Institution [CCIs] sector that contributes more children for international adoption has no regulations to provide checks and balances on adoption matters.”

MHRC is, therefore, proposing some recommendations to address the gaps and improve the international adoption processes.

The State-funded institution wants the Ministry of Gender, Community Development and Social Welfare to expedite review of the new Adoption of Children’s Bill and subsequently submit it to the Ministry of Justice.

Besides, MHRC also wants the government to consider effecting a moratorium to ban intercountry adoptions within the meterm-term.

This, according to MHRC, should be done pending the passing of the Adoption of Children’s Bill into law.

To effectively address the observed gaps, MHRC further wants the Ministry of Justice and Constitutional Affairs to expedite finalisation of the Child Care Protection and Justice Act (Foster Homes) Regulations.

“The Ministry of Gender, Community Development and Social Welfare, the Ministry of Justice and Constitutional Affairs and the Ministry of Foreign Affairs should initiate and expedite the process of ratifying the Hague Convention to ease post-adoption follow-up processes for the children as well as ensure the best interest of a child in cases of inter-country adoption,” reads MHRCs recommendations.

Ministry of Gender, Community Development and Social Welfare Principal Secretary Nertha Mgala expresses commitment to ensuring the Adoption of Children’s Bill is passed into law.

She is of the view that a joint work plan to expedite the legislative processes remains important, oozing confidence that it will be set up.

According to the Adoption of Children’s Act, applicants are required to state their income, wealth, businesses and any land they may own.

The subsidiary legislation—the Adoption of Children (Subordinate Courts) Rules—states that it shall be the duty of the guardian, described as the person appointed by the court to oversee the adoption, to investigate as fully as possible all circumstances of the infant and applicant.

The law also requires the guardian to establish what insurance, if any, has been effected on the life of the infant.

Part of the law reads: “The magistrate may make such orders as to costs as he shall think fit, and may direct that all the costs of a petition under the Act be borne and paid by the petitioner.”

Professor of Law at United of Cape Town Danwood Chirwa stated in his 2016 article published in the African Human Rights Law Journal that it is clear from the provisions of the Adoption Act that it does not see adoption primarily as a means of providing alternative care.

Titled ‘Children’s Rights, Domestic Alternative Care Frameworks and Judicial Responses to Restrictions on Intercountry Adoption: A case study of Malawi and Uganda’, Chirwa argued that rather, adoption is conceived largely from the perspective of the rights and privileges of adults.

Reads part of the article: “To begin with, the Act pays little attention to the question of the adoptability of children. All it says is that any child under the age of 21 years, who has never been married and is resident in Malawi, may be adopted.

“It does not specify any concrete adoptability criteria related to the child’s lack of parental care or the need to protect the child from destitution, abuse, exploitation or domestic violence. In contrast to the scant attention given to the child’s adoptability, the Act dedicates considerable attention to the issue of the eligibility of adoptive parents”.