Adoption Laws In Islam: Some Issues

Adoption Laws In Islam: Some Issues

Adoption Laws In Islam: Some Issues

Zahidul Islam Biswas

This is basically in response to the write-up by K M Rasheduzzaman Raja, a Joint District Judge at Sirajgonj, published in the Daily Star on 3 September 2005 entitled ‘Adoption law is need of the hour’. Mentioning two examples, the honourable judge has tried to advocate for the provision of adoption in Muslim personal law. His first example tells the story that a wealthy elderly woman without any children was killed by her nephew who was her only heir. To expedite his inheritance he hired a professional killer to commit the grisly crime. It could have been otherwise if she had a child who should have taken care of her in her last days as the other children do in our society in the case of their parents. The other example is that an expatriate woman who was cherishing for motherhood for long time expressed her desire to adopt a baby, left in a clinic by its poor mother after delivery, and accordingly she filed a petition before the Family Court. Not surprisingly, the court frustrated her saying that the law can only provide her with guardianship of the child on consideration of her legal capacity, but cannot let it be adopted on consideration of her parental affection.

With these two examples followed by a short discussion on problems for not having provision of adoption in Muslim personal law, he concludes that at a certain age the wealthy industrialists, business tycoons or financially solvent persons having no issues become tired and cast a vacant look upon their hard-work-earned huge property and cast a deep sigh thinking that who would maintain their empire of wealth in their absence in the world. To let them come out of such despairing condition the adoption law can play a magic and keep them active till their last day to flourish the economy of the country.

Hence, it seems that the honourable judge has given a tremendous thought for a class of wealthy people of the country. However, with due respect to his views, I want to express the insights into the prohibition of adoption in Islam. This write-up is, simultaneously, expected to state whether adoption law is a solution to the problem.

The central notion of justice in the Shari’ah is based on mutual respect of one human being by another. The just society in Islam means the society that secures and maintains respect for persons and their rights through various social arrangements that are in the common interest and welfare of all members. Islam views adoption as a falsification of the natural order of society and of reality. And the prohibition of legal adoption in Islam has been, in fact, ordained to protect the rights, not of a single class, but of the adopted, adopter, natural parents, other individuals affected by the adoption, and society as a whole. This proposition will be made clear in the following.

The child is an extension of his father and the bearer of his characteristics. During his lifetime he is the joy of his father’s eyes. While after his father’s death the child represents a continuation of his existence and an embodiment of his immortality. The child inherits his features and stature as well as his mental qualities and traits, both the good and the bad, the beautiful as well as the ugly. The child is a part of the father’s heart and a piece of his body. These facts cannot be altered by adoption of that child by anyone and Islam has provided the inalienable right of the child to his lineage as well as that of the natural father to lineage.

The child in Islam also has the equally inalienable right to legitimacy. The principle of legitimacy holds that every child shall have a father and one father only. This is why Allah has ordained marriage and has forbidden adultery so that paternity may be established without doubt or ambiguity and that the child may be referred to his father and the father to his sons and daughters. Hence, adoption cannot be used in Islam to hide the illegitimacy or the paternity of the child.

By adopting someone’s child, as one’s own, the rightful and deserving heirs to the property of a man are deprived of their shares. Hence Islam has made it haram (forbidden) for a father to deprive his natural children of inheritance. Allah has established the distribution of inheritance in order to give each eligible person his or her share. In matters of inheritance, the Qur’an does not recognise any claim except those based on relationship through blood and marriage (Qur’an 8:75).

Taking a stranger, by adoption, into the family as one of its members and allowing him the privacy to be with women who are not close relatives (non-mahrem), is a deception, for the adopter’s wife is not the adopted son’s mother, nor is his daughter the boy’s sister, nor is his sister the boy’s aunt since all of them are non-mahrem to him and vice-versa for an adopted daughter. Also when the adopted child’s lineal identity or paternity is changed, it is quite possible that the adopted child may, unknowingly, enter into incestuous relationships by marrying close relatives of the natural parents (mahrem) or otherwise his marital chances may in general become subject to confusion.

When the adopted child receives a claim on the inheritance of the adopter, the anger and wrath of the real relatives may be aroused against the adopted who the relatives feel forces himself or herself upon them and usurps their rights, depriving them of their full inheritance. Often such anger leads to quarrels, fights, and even killings, as we see nowadays, and to the breaking of relations among relatives. Therefore, it is not conducive to family solidarity and overall harmony and peace, which are necessary for social stability.

However, “adoption” is also used in another sense. This use of adoption is not prohibited by Islam — that is, when a man brings home an orphan (including a foundling or abandoned child) and wants to raise, to educate, and to treat as his own child. In this case, he protects, feeds, clothes, teaches, and loves the child as his own without attributing the child to himself, nor does he give him or her the rights which the Shari’ah reserves for natural children. However, if a man is childless and has no children of his own, and he wishes to benefit such a child (orphan or foundling) from his wealth, he may give him whatever he wants during his lifetime. This is a meritorious and noteworthy act in Islam, and the man who does it will be rewarded by Allah.

Muslims believe that Allah is the Wise, All-Knowing and Merciful. He makes things halal (permitted) and haram (forbidden) for a reason, with the people’s well being in mind. Thus, a Muslim is not required to know exactly what is harmful in what Allah has prohibited; it may be hidden or not clear to him but could be apparent or clear to someone else, or its harm may not have been discovered during his lifetime but may be understood at a later time period or era. A great example of this is the prohibition of the eating of pork in Islam. Scientific research, after centuries of this prohibition, has now shown the presence of parasites and deadly bacteria in its flesh. True believers have to accept Allah’s Wisdom and Knowledge in the forbidding of any act since He sees and knows things on a universal and timeless basis for all mankind unlike the ability of human beings to focus mainly on individual and present needs. Thus the acceptance of the prohibition of legal adoption, as it is personal affairs of Muslims and affecting no person of other religions, should also be regarded as the acceptance of the timeless power and knowledge of Allah.

The author is an advocate of the Supreme Court of Bangladesh. This article was first published in the ‘Law and Our Rights’ section of the The Daily Star, Issue No: 206; September 10, 2005, Bangladesh.

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Adoption and The Laws of Adopting an Baby

Adoption and The Laws of Adopting an Baby

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Adoption is so widely recognized that it can be characterized as an almost worldwide institution with historical roots traceable to antiquity.

In most ancient civilizations and in certain later cultures as well, the purposes served by adoption differed substantially from those emphasized in modern times. Continuity of the male line, which could be important for political, religious, or economic considerations, was the main goal of most adoptions. Thus most adopted persons were male and many were adult, and little attention was paid to their welfare.

In contrast, modern adoption laws and practices aim to promote child welfare and are regarded as an integral part of government efforts to protect the interests of the young. This new approach became common in Europe and the United States in the period following World War I, when vast numbers of children were orphaned and the number of “illegitimate” births increased. The approach was later given scientific support by studies in psychology and sociology that stressed the beneficial influence of a stable family life on a child’s development.

The first modern adoption legislation, the Adoption of Children Act, was passed in the U.S. state of Massachusetts in 1851. It required judges to determine that adoptive parents had “sufficient ability to bring up the child” and that “it is fit and proper that such adoption should take effect.”

In Great Britain adoption was not legally permitted until 1926; the delay in legislation can be attributed in part to the existence of other legal means for protecting and caring for homeless children. Several of the Commonwealth nations passed adoption laws well in advance of the British statute. In New Zealand, for example, the first law was enacted in 1895, and in Canada adoptions were first permitted in Nova Scotia in 1896. Adoption of minors for the purpose of creating permanent, comprehensive bonds between parents and children is a relatively recent phenomenon in France, dating from 1923. In Germany and the Scandinavian countries, adoption laws are part of comprehensive child-welfare legislation.

The frequency of international adoptions, or adoptions of children from foreign countries, increased dramatically after World War II. The number of such adoptions, as well as the countries of origin of most adopted children, have varied with the incidence of poverty, wars, natural disasters (such as famine or disease), and large-scale human rights problems. Since the mid-20th century, thousands of children from South Korea, Guatemala, Peru, eastern Europe, various African countries, and China have been adopted by mainly American and western European parents.

In the United States the practice of interracial adoption, which primarily involved African American and Native American children and white parents, was a subject of considerable controversy during the 1970s. Critics charged that the practice deprived such children of their cultural identity and amounted to a form of “cultural genocide”; defenders argued that it promoted integration and interracial understanding and that it was much better for children than life in an orphanage or in foster care. In the late 20th century the issue continued to be addressed in court rulings and legislation.

In 1978 the federal Indian Child Welfare Act required that placements of Native American children living on reservations give preference to applicants from within the child’s tribe or extended family. Another federal law, the 1994 Multiethnic Placement Act, prevented child-welfare agencies that receive federal assistance from denying or delaying an application for adoption solely on the basis of the race or national origin of the adoptive parents or child.

In the 1960s and ’70s, as attitudes toward sex and marriage in most Western countries became more permissive, the stigma traditionally attached to children born out of wedlock and to their mothers was gradually reduced. This development, along with the greater availability of birth control, contributed to a dramatic decline after about 1970 in the number of children available for legal adoption. This in turn stimulated changes in traditional restrictions on age differences between adoptive parents and children, on the income level of parents, and on the mother’s employment outside the home. Single-parent adoptions came to be accepted by a number of agencies, and in some countries there was an increasing acceptance of adoptions by same-sex couples.

Beginning in the 1970s, a growing adoptees-rights movement in the United States called for the repeal of confidentiality laws in most states that prevented adoptees as adults from viewing their adoption records, including their original birth certificates. In subsequent decades several states passed legislation that allowed adult adoptees access to their records under certain conditions, usually including the absence of a “veto” from the natural parents. In 1998 the state of Oregon passed a referendum that granted to Oregon-born adoptees 21 years of age and older an unconditional right to a certified copy of their original birth certificates.

Although adoption of adults is permitted in most countries, legal provisions are generally formulated in terms of child adoption, and the adopter must usually be an adult. The laws typically provide for the consent of any older child (commonly one over 12 or 14 years), an investigation of the suitability of the prospective home according to criteria stated in the governing statute, and a probationary period of residence in the adoptive home.

In the matter of inheritance, laws differ considerably. As a general rule, the child may inherit from the adopting parents and they from him. Inheritance by the child from his natural parents, once commonplace, is increasingly prohibited, with the exception of adoption by stepparents. In addition, there has been a tendency to broaden the child’s right to inherit from relatives of the adopting parents, though laws vary greatly on this point.

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