Islamic adoptional jurisprudence

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This is a sub-article to the articles Islamic marital jurisprudence and Adoption.

Islamic views on adoption are generally distinct from practices and customs of adoption in other non-Muslim parts of the world like Western or East Asian societies.

Raising a child who is not one's genetic child is allowed and, in the case of an orphan, even encouraged. But, according to the Islamic view, the child does not become a true child of the "adoptive" parents. For example, the child is named after the biological, not adoptive, father. The child is also a non-Mahram to members of the adoptive family.[1] Thus many Muslims say that it is forbidden by Islamic law to adopt a child (in the common sense of the word), but permissible to take care of another child, which is translated into Arabic as Arabic: kafala‎. The adoptive child can become a mahram to his adopted family, if he or she is breast-fed by the adoptive mother before the age of two (see milk kinship).[2] There can also be confusion between a child that has been orphaned and one who has been abandoned but is presumed to have living parents.[3]

A hadith involving Aisha and Abu-Hudhayfah ibn Utbah's adoptive son Salim mawla Abu Hudaifa states:

Abu Hudhaifa, one of those who fought the battle of Badr, with Allah's Apostle adopted Salim as his son and married his niece Hind bint Al-Wahd bin 'Utba to him' and Salim was a freed slave of an Ansari woman. Allah's Apostle also adopted Zaid as his son. In the Pre-lslamic period of ignorance the custom was that, if one adopted a son, the people would call him by the name of the adopted-father whom he would inherit as well, till Allah revealed: "Call them (adopted sons) By (the names of) their fathers." (33.5)[4]

Muhammad himself had adopted a child, and was fed by an adoptive mother during the first two years of his life. Relevant issues include the marriage between Zayd ibn Harithah's ex-wife and Muhammad.

Discussion[edit]

There is now some discussion about reconsidering some of the rules about Islamic adoptions. A groundbreaking study was done by the Muslim Women's Shura Council in August 2011 titled, "Adoption and the Care of Orphan Children: Islam and the Best Interests of the Child". This report examined Islamic sources and concluded "adoption can be acceptable under Islamic law and its principle objectives, as long as important ethical guidelines are followed." The study represents a form of independent reasoning (ijtihad) and may raise some awareness and contribute toward shaping a future consensus (ijma) on the issue.[5]

Islamic law scholar Faisal Kutty argues that this report and a number of other developments in the area provide for some optimism that we may be at the cusp of a sea change in this area.[6] Kutty argues that the belief that closed adoption, as practiced in the West, is the only acceptable form of permanent childcare is a significant obstacle to its acceptance among many Muslims.[7] Kutty believes that there is sufficient basis in Islamic jurisprudence to argue for qualified support of adoptions and even international adoptions.[8] He writes that it is undeniable that taking care of orphans and foundlings is a religious obligation and that the best interest of children has been a recurrent theme among the various juristic schools.[9] Arguably one of the best ways to take care of these children is to place them in loving homes, provided that a child’s lineage is not intentionally negated or concealed.[10] He argues that a reformed model of Islamic adoptions will enable Muslims to fulfill this religious obligation while ensuring that the most vulnerable do not fall through technical cracks and will not be negatively impacted by formal rules that no longer serve their intended purposes.[11]

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