Islamic adoptional jurisprudence
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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. This does not mean raising a non-biological child is not allowed. It means that the sponsored child doesn't carry the same name as its sponsoring parents. In Islam it is considered a blessing to take care of an orphan, in fact it is considered a duty to some.[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 known in Arabic as الكفالة (kafala), and is translated literally as sponsorship. The sponsored child can become a mahram to his sponsoring family, if he or she is breast-fed by the sponsoring mother (see milk kinship).[2]. Yet this rule of milk kinship applies to sponsored and non sponsored children, and is not specific to sponsored children, and does not confer the right to inheritance to the sponsored. 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. Prophet Muhammad also adopted Zaid as his son. Then later it was revealed in the Quran that Zaid must divorce his wife, and for Muhammed to marry her instead, in order to remove any hesitance that adopted people are not true sons / daughters to their adopters. And thus the prohibition banning fathers marrying their sons’ wives after the wives are divorced does not apply between adoptive parents and their children.
In the Pre-Islamic period 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 (biological) fathers." (33.5)[4]
Differences between various parent / child relationships
The western idea of adoption was known in the pre-islamic era. Prophet Muhammad himself had an adopted son called Zaid. Islam has specifically outlawed adoption in this sense, and the prophet Muhammad had to marry his adopted son's ex-wife to prove without doubt that the adoptive relationship is no longer legal in islam. Sura 33 Aya 4 in the Quran mentions specifically that "And he (Allah) has not made your adopted sons your (true) sons. That is (merely) your saying by your mouths, but Allah says the truth, and He guides to the (right) way".
Islam instead introduced a different system called "Kafala", which is literally translated as "sponsorship". The islamic system of sponsorship (Kafala) is significantly different from the western concept of adoption. For example while the sponsor provides for the sponsored child's maintenance and living expenses, sponsored children are considered alien to their siblings-by-sponsorship. As in, an adolescent biological daughter must wear hijab and be fully clothed in front of her adolescent brother-by-sponsorship. And it is possible for the biological daughter to marry her brother-by-sponsorship when they get older.
The words "Mum", "Dad", "Brother", and "Sister" are not used by sponsored children to describe members of the sponsor's family. Sponsored children do not inherit any money or possessings from their sponsoring parents, compared to biological children who do inherit.
| Qualities | Biological child | Sponsored child ("Kafala") | Milk kinship child |
|---|---|---|---|
| Right to inherit parents | Yes | No | No |
| Can marry within the immediate family | No | Yes | No |
| Can see siblings without Hijab (if adolescents) | Yes | No | Yes |
| Right to be called after father's name | Yes | No | No |
| Can call parents "Mum" and "Dad" | Yes | No | Can say "my nursing mum" |
| Right to living expenses | Yes | Yes - voluntarily | No |
Discussion
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[5] in August 2011 titled, "Adoption and the Care of Orphan Children: Islam and the Best Interests of the Child".[6] 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.[7]
Islamic law scholar Faisal Kutty[8] 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.[7] 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.[9] The situation is significantly different when we move to open adoptions, where there is not negation of the biological parentage. Kutty believes that there is sufficient basis in Islamic jurisprudence to argue for qualified support of adoptions and even international adoptions.[9] 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.[9] He argues that a reformed model [additional citation(s) needed] 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.[9]
See also
References
- ^ Huda. "Adoption in Islam". About.com Religion & Spirituality.
- ^ "Adoption". angelfire.com.
- ^ http://www.unicef.org/sudan/UNICEF_Sudan_Technical_Briefing_Paper_1_-_Alternative_family_care.pdf
- ^ "Cmje". usc.edu. Archived from the original on 2006-02-12.
- ^ "The Global Muslim Women's Shura Council - WISE Muslim Women". wisemuslimwomen.org. Archived from the original on 2012-11-26. Retrieved 2012-11-15.
- ^ "Archived copy" (PDF). Archived from the original (PDF) on 2013-02-10. Retrieved 2012-11-15.
{{cite web}}: CS1 maint: archived copy as title (link) - ^ a b "Islamic Law, Adoptions and Kafalah". jurist.org. Retrieved 2012-11-14.
- ^ "JURIST - Islamic Law, Adoptions and Kafalah". jurist.org.
- ^ a b c d e Faisal Kutty (2014). "Islamic Law and Adoptions". SSRN 2457066.
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