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. Adoption in the western sense of the word is not recognized in Islam.[1][2]
Description[edit]
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.[3] 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.
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 and after Zaid divorce his wife, in order to remove any hesitance that adopted people are not biological sons / daughters of their adopters, prophet Muhammad married her. 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, till Allah revealed: "Call them (adopted sons) By (the names of) their (biological) fathers" (33.5).[4]
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[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 principal 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[edit]
References[edit]
- ^ "Adoption of Children from Countries in which Islamic Shari'a Law is Observed".
- ^ "Fostering and Adoption in Islamic Law" (PDF). Electronic Journal of Islamic and Middle Eastern Law: 7.
Referring to the outlined textual evidence, Muslim legal scholars agreed generally and without delay that creating a new legal and permanent parent-child relationship by terminating existing legal bonds through adoption is permissible"
- ^ Huda. "Adoption in Islam". About.com Religion & Spirituality. Archived from the original on 2011-11-21. Retrieved 2007-07-27.
- ^ "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. 6 November 2012. Retrieved 2012-11-14.
- ^ "JURIST - Islamic Law, Adoptions and Kafalah". jurist.org. 6 November 2012.
- ^ a b c d e Faisal Kutty (2014). "Islamic Law and Adoptions". SSRN 2457066.
Bibliography[edit]
- Pastena, Adele. Recognition of Kafala in the Italian Law System from a Comparative Perspective. United Kingdom, Cambridge Scholars Publishing, 2020.