Adoption and the Care of Orphan Children Essay
A common conception is that Islamic law forbids adoptions. However, this belief misses the complexity of Islamic law, the scope of adoption laws and practices across the world, and the overwhelming emphasis on taking care of orphans and foundlings found within Islamic sources. Contemporary adoption practices are immensely complex issues, overlapping with children’s rights, international and national laws, human psychology, economic, social, and religious concerns, and the ethics of lineage, identity, property and inheritance rights.
In this position paper, the Muslim Women’s Shura Council considers whether adoption can be possible within an Islamic framework. After examining Islamic texts and history alongside social science research and the international consensus on children’s rights, the Council finds that adoption can be acceptable under Islamic law and its principle objectives, as long as important ethical guidelines are followed. This statement consults the Quran, the example of the Prophet Muhammad (sunna), the objectives and principles of Islamic law (maqasid al-sharia), Islamic Jurisprudence (fiqh), and social science data.
The Shura Council finds that, instead of banning adoption, Islamic sources have brought various ethical restrictions to the process, condemning dissimulation and foregrounding compassion, transparency, and justice. These restrictions closely resemble what is known today as the practice of open adoption. Therefore, when all efforts to place orphaned children with their extended family have been exhausted, open, legal, ethical adoptions can be a preferable Islamically-grounded alternative to institutional care and other unstable arrangements.
According to Islamic and universal standards of children’s rights, all children have the right to grow up in a nurturing, loving environment where their physiological, psychological, and intellectual needs are met. All children have the right to know their lineage and to celebrate their unique national, cultural, linguistic, and spiritual identity. All children have the right to a safe, supportive environment where their rights to dignity, education, and the development of their talents are well respected. The best interests of the child should be the primary consideration in all decisions relating to children, including adoption.
Different states and international institutions have different criteria for determining whether a child is an orphan. UNICEF classifies any child that has lost one parent as an orphan and estimates that approximately 143 million children are currently orphans.1 For the purposes of this document, an orphan is a minor who is bereft of parental care due to death, disappearance, or abandonment by either the mother or the father, as well as situations where the parent voluntarily or involuntarily terminates the parental relationship. This definition combines several concepts in classical Arabic, including yatim (fatherless child) and laqit (foundling).
Adoption can be defined as the legal creation of a parent-child relationship, with all the responsibilities and privileges thereof, between a child and adults who are not his or her biological parents. Adoptions incorporate a child into a family as offspring and sibling, regardless of genetic ties. There are two main categories of adoption practices, generally termed as closed adoptions and open adoptions. However, in reality most adoption practices fall somewhere on a continuum between fully open and fully closed. In “closed” or “confidential” adoptions, the birth family and the adoptive family have no identifying information about each other.
Children may not be informed that they have been adopted, and they may have no way of tracing biological kin. If the child comes from a different cultural background than his or her adoptive parents, their heritage might be marginalized or ignored. Closed adoptions, therefore, have the potential to dissolve all ties between an adoptee and her biological family. “Open” adoptions, which are becoming increasingly common across the world, allow for a full disclosure of identities on both sides. Open adoptions facilitate direct interaction between the adoptive family, the adopted child, and any birth relatives. The child’s birth culture may more easily be respected and promoted by the adoptive family and incorporated into the family’s daily life.
However, the categories of closed and open are better understood as idealized types, as most families experience a hybrid form of adoption that comprises elements of both open and closed adoption practices. The empirical data on the risks and benefits of each type of adoption has shown mixed results, with some adopted children embracing the opportunity to contact their birth families and others experiencing confusion and insecurity.2 Generally, however, open adoptions are associated with better psychological and behavioral outcomes for the child.
With the exception of Indonesia, Malaysia, Somalia, Tunisia, and Turkey, the laws of most Muslimmajority states do not currently permit legal adoption. Instead, laws permit a system of guardianship (kafala), which resembles foster-parenting, but is more stable. Kafala is defined as “the commitment to voluntarily take care of the maintenance, of the education and of the protection of a minor, in the same way a *parent would do for a child+.”5 According to Jamila Bargach, kafala is seen as “primarily a gift of care and not a substitute for lineal descent.”
In other words, kafala involves the obligations of guardianship and maintenance without the creation of legal ties, which would produce specific personal status legal entitlements. This type of guardianship does not sever the biological family bonds of the child or alter the descent lines for the adopting family. Unlike foster-parenting, kafala is intended to be a permanent arrangement for a minor. Like fosterparenting and adoption, kafala is mediated by the state, in contrast to informal or “customary” adoptions which take place within families or through secret agreements.
Convergences between Kafala and Adoption
Whereas this statement focuses on adoption and not kafala, in some cases kafala may lead to adoption. Countries with strict application of “non-international kafala,” like Iran, Mauritania, and Egypt, reject any legal recognition between kafala and adoption. Citizens of these countries who reside in other countries, where adoption is the law of the land, cannot gain guardianship of a child with the intention of adopting that child in their state of residency. Other states, like Morocco, Algeria, Jordan and Pakistan, allow for placements of kafala children abroad, particularly with nationals living in foreign countries, with certain stipulations. Tunisia and Indonesia allow for a full convergence of kafala and adoption, limiting adoptions to national applicants, whether living in the country or abroad.
The term “Islamic law” refers to two related, yet distinct concepts, which are often conflated: Sharia and Fiqh. Sharia literally means “the way” and is a transcendental ideal that embodies the justice and compassion inherent in the totality of God’s will. Fiqh, which literally means “understanding,” is Islamic jurisprudence and juristic law, which has developed from the eighth century onwards as a human effort to interpret the Sharia. Fiqh has been developed by Muslim legal scholars through analysis of the Quran and the example (sunna) of the Prophet Muhammad, with the aim of securing justice according to the context of each society, time (zaman), and place (makan).7
Adoption in pre-Islamic Arabia
During the pre-Islamic period in Arabia, adoption (al-tabanni) into a tribe often took place for socioeconomic and patriarchal reasons. Al-tabanni is derived from the Arabic word ibn, meaning “son.” In keeping with the patriarchal norms of the era, adoptees were usually, if not always, male.11 People adopted mainly to secure an heir and/or additional warriors for the tribe. Adoption could take place at any time in a person’s life, from childhood to adulthood, even if the adoptee’s biological parents were alive.12 The adoptee automatically earned full rights and the responsibilities of a biological child and was given the adoptive father’s name. Since male children were considered a source of wealth and prestige, this benefited the adoptive father.13
Often adoption was undertaken in self-interest with the intention of usurping an orphan’s property, as the adoptive parents would end up managing an orphaned child’s property. In addition, adoption was closely linked to enslavement; captors held the power to strip captives of their birth identities and appropriate them into their families.14 For these reasons, pre-Islamic adoption entailed a complete “erasure of natal identity.
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