Islamic Law and Adoptions

Abstract

Throughout history, adoption has held a contentious and ambiguous role in the social imagination of many cultures. Adoption is a complex social, legal, and economic phenomenon that has existed in one form or another in most societies since ancient history. Religion has served to both advance and restrict adoption and similar childcare arrangements. Some religions have encouraged adoptions, others have initially been interpreted to restrict them, and yet others continue to restrict or advocate alternative arrangements.

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. Adoption rights activists—and prospective adopters—have struggled to find ways around the difficulties this simple binary view causes for the millions of children around the world who could benefit from a loving home. With increasing numbers of abandoned and orphaned children and a growing number of hurdles, there is now an added urgency to tackle this issue. It is beyond the scope of this chapter to grapple with all of the nuances and issues raised by adoption in Islam. The goal of this chapter is more modest. It is to contribute to a better understanding of Islamic views on adoptions, provide insights into some of the tensions and points of convergence, lay groundwork to help in bridging the gap, and fill the existing void in properly caring for orphans, abandoned children, and children of unknown parentage consistent with contemporary notions of child welfare and the spirit of the Sharia. Part I provides a basic background on Islamic law, its sources, principles and methodology for development and evolution. Part II sets out a description of adoption and alternatives under classical Islamic law as understood and accepted by the orthodox Sunni community. Part III explores and highlights the areas of tension and convergence with modern western conceptions of adoption and child welfare. The chapter then concludes with some parting thoughts.

The chapter demonstrates that there is sufficient basis in Islamic jurisprudence to argue for qualified support of international adoptions. It is undeniable 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 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.

Keywords: Kafala, Raadah, Istilhaq, Islamic law, adoption, closed adoption, open adoption, best interest of the child, Fiqh, foundlings, orphans, intercountry adoption, Shariah, acknowledgement of paternity, suckling, milk bonds, illegitimate child, Shari'a, Sharī’ah