Adoption in Islam

Tariq 1 ISLAMIC JURISPRUDENCE Fatima Tariq Question Islamic law and child adoption: Examining the impact of illegitimacy and inheritance related concerns in context of a child's right to an identity Answer The basis of this paper is essentially the subject of a status of ‘adopting’ children in eyes of Quran and Sunnah. An analysis, with particular focus on the role of names in the formation of an identity, will be made of Islamic principles. This paper will also consider the right to an identity with particular reference to inheritance. This paper will also discuss the concept of adoption itself and its types. ● Definition of Adoption:According to Collins COBUILD Dictionary, If you adopt someone else’s child, you take it into your own family and make it legally your son or daughter. From this definition, I exclude that, adoption, in the Western context is when one adopts a child, whether the parents of the child are known or not, and raises him just like his own. The biological parents of the child lose any legal right over the child as a result of the adoption. The child legally, becomes a son to his adoptive parents, in its literal meaning. Tariq 2 Types of Adopted Children:Children who are adopted are of three types. They are: 1. Foundling Children: Those children who are abandoned by their parents, usually in public places. Unless the authorities are able to find out their biological parents, they grow up without knowing their biological parents. 2. Orphans: Islamically, an orphan is a child, who has lost his father in his childhood. A child who loses his mother is not considered as an orphan, because his financially needs are usually met, by his father. That way, his intellectual and social growth are likely to be easy. 3. Children whose parents are known or are still alive: Adopted children whose parents are known, or whose parents are still alive, are children who are usually adopted by their relatives, family friends or neighbours. The child may grow up not knowing his biological parents, but his adoptive parents do know. ● Is adoption allowed in Islam? If by adoption means that you take a young child, a poor child and give him lodging, boarding, clothing bringing into your house, Islam has always stressed in the Quran that you should help the poor people, help the needy people. You can even get a child to your house, and give him your fatherly love. What Islam objects to is, you cannot legally adopt, meaning, you cannot give your name to the child. Legal adoption, is prohibited in Islam. There are especially three important aspects that need to be considered and put into practice. They are: Tariq 3 1. The child should not take the surname of the adoptive parent, in order to clearly preserve the lineage of both the birth father’s name and the adoptive father’s name. 2. Shari’a compliant inheritance rules need to be applied when an adoptive parent dies. 3. The Sunnah regarding the mixing of non-related males and females should be observed. Mostly, the question arises that “Why is it prohibited?” If a person adopts a child legally, there can be several complications: i. First, if the child, whether it is a girl or boy, it will lose its identity. ii. If suppose after you adopt a child, you may have your own children. No one can say, that you will never have children throughout your life. If you have your own children, you will be bias and partial towards your own child, than the adopted child. iii. If the children born to you, if they are of opposite sex of that of the adopted child, they cannot freely stay in the same house because they are not blood sisters and brothers, to each other. If the adopted child, after he grows up, If it is a girl, after she grows up she will have to do Hijab with the adoptive father, because he is not his original father. If the adopted child is a boy and he becomes elderly, he becomes a man, and then if he marries, there has to be Hijab between the daughter-in-law, and the so called father. iv. If you the adopt a child, and inherit your property to him/her, you will be depriving many of your relatives of their rights. When after a person dies, whatever property he has, is divided according to whatever is mentioned in the Quran. If the person has children, and if he adopts a child, he will be depriving a share of his own child. If the person, if he dies, if Tariq 4 he has a children, then the wife will get half the share as she should get. If there are children, your mother gets one sixth, if there are no children, she gets one third. Again if you adopt a child, you are depriving the share of your mother. So to prevent these complications, legal adoption is prohibited in Islam. ● Discussion in light of Islamic Principles Islam placed great significance on the name of a child. Names are important in Islam as many laws relate to blood relationships; these include marriage, custody and inheritance, among others. Thus, the relationship between guardian and child is more of a foster relationship, where the adults do not replace the biological family but perform an extremely valued role in looking after a child who will always belong to someone else. The child who is raised by “parents” who are not blood relations is not permitted to inherit from them; however he or she may marry “relatives” created by this bond. Even if a child has been abandoned and its father is not known, he or she may not be named after the family that takes him or her in. Allah Almighty in Holy Quran clearly states: “ Nor has He made your adopted sons your (biological) sons. Such is (only) your (manner of) speech by your mouths. But Allah tells (you) the Truth, and He shows the (right) Way. Call them by (the names of) their fathers; that is juster in the sight of Allah. But if you know not their father's (names, call them) your brothers in faith, or your trustees. But there is no blame on you if you make a mistake therein. (What counts is) the intention of your hearts. And Allah is Oft-Returning, Most Merciful.” [Qur'an 33: 4-5] Tariq 5 However, if one wants to raise, educate and treat an orphan or an abandoned child as one's own, without giving him or her the rights reserved for natural children, Islam regards this as a meritorious and commendable act. There are many Quranic revelations that advocate the care of orphans, leaving one in no doubt of the merits of such a deed, Allah Almighty states in Surah Baqarah that; “ They ask thee concerning orphans. Say: 'The best thing to do is what is for their good; if ye mix their affairs with yours, they are your brethren” Quran 2:220 Hence, according to Islamic law, adopting a child essentially entails treating him/her as one's own and offering them love, protection, food, clothing and education, but without changing the child's lineal identity and denying parenthood to the natural parents. The adopted child cannot partake in inheritance of the adoptive parents, just as the adoptee parents cannot inherit the property of the adopted. They can marry their foster siblings as they remain 'Na- Mehram' for the foster family. It is also permissible for a foster father to marry the divorced wife of an adopted son (Quran 33:37- 40). ● Misconceptions about the role of adoption in Islam:There are often misconceptions about the role of adoption in Islam. The fact is that the Islamic form of ‘adoption’ is called ‘Kafâla’, which literally means sponsorship, but comes from the root word meaning ‘to feed’. It is best translated as: i. foster parenting ii. Kafala iii. legal fostering Tariq 6 It is the promise to undertake without payment the upkeep, education and protection of a minor, in the same way as a father would do for his son. “Kafala’’ is an Arabic legal term for a formal pledge to support and care for a specific orphaned or abandoned child until he or she reaches majority. A form of unilateral contract, it is used in various Islamic nations to assure protection for such minors. It is very much encouraged in Islam to look after the orphan and there are many authentic hadiths [sayings and action of the Prophet Muhammad ‫ ] ﷺ‬on the subject. There is a great blessing and reward in taking care of orphans. In the Qur'an and Sunnah, the Believers are urged again and again to take care of the orphans. The Prophet Muhammad ‫ ﷺ‬said, "I and the guardian of an orphan will be in Paradise or Jannah like these two fingers and he joined his two fingers." (Al-Bukhari) The Prophet Muhammad ‫ ﷺ‬said, "The best house of Muslims is one where an orphan is cared for." Another Hadith states that, “Jannah is Farz or Wajib (obligatory) on the one who cares for an orphan.” ● Conclusion The foregoing discussion demonstrates that there is sufficient basis in Islamic jurisprudence to argue for a qualified support of child adoptions. We have clearly established that taking care of orphans and foundlings is a religious obligation. 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. A reformed model of Islamic adoptions will enable Muslims to fulfill a religious obligation. Tariq 7 Works Cited “Adoption in Islam.” Islamweb, www.islamweb.net/en/article/135420/adoption-in-islam. Kutty, and Faisal. “Islamic Law and Adoptions.” By Faisal Kutty :: SSRN, 20 June 2014, papers.ssrn.com/sol3/papers.cfm?abstract_id=2457066. Pickthall, Mohammed Marmaduke. Holy Quran: English Translation. Begum Aisha Bawary Waqf, 1930. “World's Number One Quran Search Engine.” TheIslam360.Com - Search in the Quran and Hadith, www.theislam360.com/.