ADOPTION: SHARIAH AND LAW
Dr. M. Aslam Khaki, Juris-consult Federal Shariat Court, Pakistan
A sizable literature has been developed on the recognition or otherwise of the adoption in Islam. The said literature has instead of clarifying the position has further confused the situation. This paper attempts to clarify the position by precisely elaborating the text and the context around the concept and practice of adoption in Islam.
With the increased rate of adoption in the Muslim world as well as in the Europe especially in Pakistan, the adoption issue has taken a status of one of the sensitive issues. The concept of adoption has caught the attention of the general masses mainly due to the shift in the social paradigms and the Laws governing it; it can also be due to the rising interest of the European Immigrants adopting’ Pakistani children. A sizable literature has been developed to clarify the concept as per Islamic Shariah but unfortunately it ended up confusing the minds rather than clearing the idea.
The Concept of adoption is not a new one, it is prevalent since the time unknown as it was the part of the dogmatic laws
ROLE OF SOCIETY FOR ADJUSTING THE ADOPTED
In this modern era, the responsibility of the Adopted Children falls on the Society as well as on the State, which work together for the welfare of its people and especially the children . Islamic society works on the principle of ;
“Cooperate in the matters of piety and good deeds”
The adopted children can broadly be classified into three main classes on the basis of how they are raised/adopted in a society. These are as follow
* Unclaimed Babies:
Children who are usually the product of culturally unaccepted or illicit relationships fall under this category. These are usually abandoned in unattended areas by their parents to conceal their sins of guilt. In Northern areas of Pakistan like Gilgit, Baltistan such children are ‘called ‘NALBU’ (illegitimate children) and are thrown into a NULLAH ((n. A water course, especially a dry one;) to meet their fate of death. One of a such kind of Nullah in Skardu is known as’ Nalbu’ Nullah’ (meaning the Nullah of illegitimate children) labelled after the way it is utilized that is to get rid of illegitimate children.
Organizations such as Ceena and Edhi are working in order to stop such kind of killings through introducing a scheme known as ‘Jhola Scheme’ which focuses on raising these unclaimed children and afterwards handing them over to desiring adoptive parents.
* Adoption for provision of better future:
In this type of adoption, the children are adopted by their own blood relatives with a promise of providing them with better living conditions. These children are usually adopted at the initial stages of their lives so they can adjust to the life style of adoptive family and can get better education and quality of life. In most of the cases, such children are adopted by the educated, financially sound blood relatives living either in big cities or in European countries. They may or may not be childless.
*Adoption of the orphans on the basis of need:
In this type of adoption, children are adopted at very early stages of their lives on welfare cum utility basis. The adoptive parents are usually childless so they raise these children as their own. These children get homes and in return they are beneficial to them as they assist them in the work or household works.
The issue in adoption not only involves getting the physical charge of the child but also determining the rights of such child: These rights can broadly be classified as:
1- Financial Rights:
(a) The adoptive parents should be bound to provide maintenance to the adopted child considering him/her as of their own.
(b) Though legally the adopted child is not entitled for the inheritance like the legal heirs-however he/she is entitled to get the property in form of the gift by his/her guardian in his own life time.
(c) The adopted child is also entitled for his/her share in the inheritance of the adoptive parents through a will which can be executed up to one third of the total property of the adoptive parents as at the time of their death.
2. Prohibited Degrees:
Unlike the real child, the adopted child does not share the same status in the matter of prohibited degree (Mahram). The ideology and the custom of treating’ the adopted child as a real child in the matter of marriage and to determine the prohibited degree relations was totally rejected by in Islam.
3. Identity of the adopted children:
The Identity of the adopted child is a sensitive issue and lot of debate has been done on it that whether the adoptive parents should be declared or presumed to be the real parents of the adopted child for sake of the child’s recognition in-the society as well as in the official records. This issue can be further diverged by classifying the adopted children into the classes of children with known parentage and that of unknown parentage/abandoned children.
As far the adopted child of known parentage is concerned, according to Islamic concept, he/she must be recognized through his/her natural /biological parents.
The above mentioned details clearly distinguish between the adopted children of known as well as of unknown lineage. It clearly orders for relating the identity of the adopted children with their biological parents if known but for those with the unknown parentage, it permits rather prescribes that they may be treated and identified as your brothers and associates.
This issue of lineage was again emphasized in the Last Sermon of the Prophet in which he categorically warned that No one should change his lineage. In Islam, lineage is very important as it is the basis for determination of rights and duties of an individual and due to the reason adultery has strongly been condemned and is punishable crime in Islam.
According to the Shia jurists, the responsibility falls on the society as well as on the government to rear and maintain the abandoned child. These jurists acknowledge this duty as Farz-e-Kifayah. For the determination of the faith of the adopted child, they believe that before adolescence the child shall be treated as Muslim if found in the territory of Islam. When such child become major/adult, he himself shall decide about the religion he wants to practice.
According to the NADRA (National Database and Registration Authority) registration procedure, the parentage of the adopted child with known parentage must be entered as that of natural/ biological parents.
Whereas parentage of the children with unknown parentage can be entered with some fictitious names to avoid social stigmas but at the background record of NADRA, there must be an evidence provided by the adoptive parents that the child is with unknown parentage to avoid any confusion or controversy over the rights or duties of the adopted child as biological child.
ISLAMIC IDEOLOGICAL COUNCIL:
Islamic Ideological Council in Pakistan, a Constitutional body, with advisory position in its meeting held in 2011, recommended that the word unclaimed or abandoned ( Arabic word: Laqeet) should not be entered in the National Identification Card, as it will stigmatize the child instead there should be the name of adoptive parents entered as guardian.
Though the recommendation seems impressive but it does not serve the purpose to save the abandoned child from the social stigma of being illegitimate as non-entry of parents and entry of adoptive parents as guardian will reveal the same story of being illegitimate. So the entry of the name of fictitious father may be the only solution.
DEFINITIONS OF ADOPTION IN SECULAR LAW:
Secular law defines the process of adoption in different way. Some of the major definitions are as follow:
Black’s Law Dictionary defines adoption:
“Legal process pursuant to state statute in which a child’s legal right and duties toward his natural parents are terminated and similar rights and duties toward his adoptive parents are substituted.” or
To take into one’s family the child of another and give him or her, the rights, privileges, and duties of a child and heir.
Stroud’s Judicial Dictionary:
According to the U.S – Adoption Act 1950, Section 4 — mean de facto adoption, defines adoption as an
‘Adoption order” that has the effect of removing a child once and for all and entirely from the parents”
As per Hindu Law:
Adoption has been thought as a new birth which is a term sanctioned by the theory of Hindu law
The theory itself involves the principle of a complete severance of the child adopted from the family in which he is born and complete substitution into the adoptive family, as if he were born in it. The fundamental idea is that the adopted child gives up the natural family and every thing connected with it as he is civilly dead or as if he had never been born in the family for all the purposes correct or logically applicable. Every male Hindu can lawfully take a son in adoption provided he is of sound mind and has attained the age of discretion and has no son, grandson or great grandson, natural or adopted, living at the time of adoption. The existence of a son who has renounced his Hindu religion or is deprived of his caste is no bar to the father taking another son in adoption.
Doctrine of Relation Back is applicable in Hindu adoption where it is well established that an adopted son acquires all the rights of a son and those rights relate back to the date of the death of the adoptive father.
Dubai Law and Practice Regarding Adoption:
According to the practice in UAE, when an abandoned child is found, it is taken to the police to report the case. The Criminal Intelligence Department investigates to trace the parents of the child while the child is looked after by the social workers. If the parents cannot be found, then the case is transferred to the public prosecutor who studies the applications for fostering, the case is then sent to the Shariah Court for decision.
In Dubai, “Ward 16” of AI Wasl Hospital is a mechanism to deal with this issue which provides the facility to look after and cares for children of unknown parents until such time as these children find homes. This process involves a very thorough study of the adoptive family and their home environment by the social workers which takes about 2-3, months. This process does not end here as the social workers keep the follow-up for a number of years after the legal fostering process has been completed.
Adoption in United Kingdom Law:
In United Kingdom, Adoption and Children Act 2002, deals with this issue. Its chapter 6: ‘Adoptions With a Foreign Element’, clearly explains the process of bringing children into out of the United Kingdom.
HAGUE ADOPTION CONVENTION:
The Hague Convention on Protection of Children and Co-operation in Respect of Inter- country Adoption is an international convention dealing with international adoption, child laundering and child trafficking. It was concluded on 29 May 1993 and entered into force on 1 May 1995.
The main objectives of the Convention are:
1. To establish_ safeguards to ensure that inter-country adoptions take place in the best interest of the child and with respect for his or her fundamental rights as recognized in international law;
2. To establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;
3. To secure the recognition in Contracting States of adoptions made in accordance with the Convention.
DIFFERENCE BETWEEN EUROPEAN AND THE ISLAMIC CONCEPT OF ADOPTION:
The Islamic concept of adoption is totally different and is legally in conflict with the secular or European concept of Adoption. The European concept shifts almost all the legal rights and duties of an adopted child from his natural or biological parents to the adoptive parents whereas in Islam it is only confined to the maintenance and care (Kifala) of the child by the adoptive parents. However, it does not exclude the power of adoptive parents to compensate the adoptive child by way of gift or the will.
Concept of adoption in West
Concept of Adoption in Islam
1.-Identificaion of Adoptive child is done through his Adoptive parents and the biogical identity is hidden.
Recently a trend has been set in
Europe to give the adopted child right to discover his biological parents
1= Identification is done through
his/her biological parents.
Identification is done on the basis of blood and lineage and not by, adoption or fosterage
2-Inheritance is done
2-Inheritance is not dune automatically.
Inheritance from the adoptive parents is not provided however
the child can be benefited from
the will of the gift deed of the
adoptive parents. Kifalah is only
provided in the life time of the
Adoptive parents this is done to
ensure that one doesn’t take the
will of his Adoptive parents to get inheritance
3-Real parentage is kept private
so that the adopted child should
not feel divided. 3-Real parentage is not kept
secret so that the child should
know about his/her lineage and
due to ignorance might not end up marrying his/her own sister/brother.
DIFFERENCE BETWEEN ADOPTION AND GUARDIANSHIP:
Unfortunately this issue has been negated in Islamic law and there is no specific law on Adoption in Pakistan, the adoption is carried out in the name of guardianship through the provision of Guardians and Wards Act 1890. In guardianship, there is no financial obligation upon the guardian of person /custodian (e.g. mother or friend) to maintain the child/ward out of his/her own pocket. The maintenance will be paid by the real/natural father. Even according to Section 22 of the supra Act, the guardian of the person can charge for the care of the child/ward.
IS THERE ANY LAW FOR ADOPTION IN PAKISTAN?
Until now there is no law in Pakistan that addresses the issue of adoption. Such word is alien to the law books of Pakistan. However, the process of adoption is carried out in the name of custody of the person of the child under Guardians and Wards Act 1890. The adoptive parents apply to the court under section 7 of the said Act and in case of child with known parentage, make the biological parents of the child as respondent who usually give consenting statement in favour of the applicant (adoptive parent).
Some of the questions regarding the process of adoption have, time and again, been highlighted are discussed below in relation to the process of adoption
Are the Non-Muslims or Non-citizens entitled tq apply for the adoption? Whether can they lake the adopted child out of the country.
Though there is no legal bar for the non-citizens or non-Muslims to adopt or to apply for the custody of a Muslim baby, however, under Guardians and Wards Act, 1890, the ‘welfare of the ward (child)’ is the main factor that is to be considered in granting custody of the child by the Pakistani court. The court may prefer that the adopting parents should be .Muslims. At the same time, it is the environment and the level of religiosity of the adoptive non-Muslims parents which may actually decide the issue. Generally in Islam there is no bar for a non-Muslim mother to be the guardian/custodian of her baby from her Muslim husband, hence it can be said that there is no bar for a non- Muslim to adopt a child of a Muslim lineage. However in such case, the court may appoint supervisors to look in to the fact that the ward (child) is not put to religiosity of the religion other than that of Islam. Usually the guardian courts have parental jurisdiction, they must have supervision over the ward (child).
In the above mentioned circumstances, the removing of the ward (child) without the permission of the court would be unlawful. The guardian is also bound to produce the ward (child) periodically or on the order of the court before the guardian court. So that. until and unless safety valves and firm guarantees are provided, the guardianship should not be given to the foreigners or non-citizens. However, if some understanding in this regard has been agreed upon between the countries, then it would be safer.
In case of parentless child, whether a Muslim State is responsible for welfare of the child?
In case of parentless/deserted child, a Muslim State is definitely obliged to look after his/her welfare and take full care of his/her all rights which are available to him/her by Shariah and by the Constitution of Islamic Republic of Pakistan 1973.
If we look into Quran and Sunnah we will come to know that there are a number of verses which lead us in this direction
O you who believe, do not violate (the sanctity) of the Marks of Allah, nor of the sacred month, nor of the sacrificial animal, nor of the garlands, nor of those proceeding to the Sacred House, seeking the grace of their Lord and (His) Pleasure. When you are out of Ihram, you may hunt. Malice against a people for their having prevented you from Al-Masjid-ul-Haram, should not cause you to cross the limits. Help each other in righteousness and piety, and do not help each other in sin and aggression. Fear Allah. Surely, Allah is severe at punishment.
There are also a number of references found in Quran that directs us (the Muslims) to cooperate with each other in the matter of Welfare and the good deeds. It has been commanded in Quran that to own the child that one decides to bring into this world
Do not kill your children for fear of poverty. We provide sustenance to them and to you, too. Killing them is a great sin indeed.
Quran says that no body and particularly the children cannot be deprived of their right to the life. It has been written clearly in the Article No.9 of the Constitution of Islamic Republic of Pakistan 1973 that the security of life is one of the fundamental right of the citizens of Pakistan.
“No person shall be deprived of life or liberty saves in accordance with law”
Quran has strict laws against killing of a human being so much so that killing of a man is considered as the killing of the whole humanity
For this reason, We decreed for the children of Isra’il that whoever kills a person not in retaliation for a person killed, nor (as a punishment) for spreading disorder on the earth, is as if he has killed the whole of humankind, and whoever saves the life of a person is as if he has saved the life of the whole of humankind. Certainly, our messengers have come to them with clear signs. Then, after all that, many of them are there to commit excesses on the earth.
Whereas saving of one life is considered as that of saving of whole humanity
“And who saves the life of a person is like saving the lives of the people…”
Therefore throwing away or abandoning the child by the biological parents is like killing him/her as usually he/she dies unattended or killed. Whereas, through adoption of such abandoned children either by an individual or by the organizations will result in saving their life and ultimately saving the humanity.
In Islam there is no concept of seeking the permission of government to adopt a parentless child as it is ‘considered as the duty of every individual as well as of the society to save the life and support the abandoned children, However keeping in view the public interest and to safeguard the interest of the child, permission of the government is must which will examine the genuineness and credibility of the adoptive parents and will also have a ‘following—up’ of the adopted child.
“The authority of the government over its citizens must be exercised in public welfare.
(AL-Majellah: Maxim No.58)
It is legal as well as Islamic requirement that the adoption must be procured through State authority as the State is the guardian of the public, especially, of those who have no guardian.
It can be said that the process of adoption is not a simple and easy one as it may appear. It involves a lot of requirement, pre and post guarantees from the individual and also from the State. All the above discussion leads us to certain inferences which are as follow:
1. Adopting a child is commendable act in Islam and is given the status of one of the supreme act of piety.
2. There is a major difference between the Islamic law and Secular law when it comes to the rights and duties of the adopted child.
3. In Secular law, the adopted child enjoys the status of that of the biological child and ,therefore, he/she has a right to the maintenance, care, inheritance, marriage prohibition, identity etc. whereas in Islam it is only restricted to the provision of maintenance and care (Kifalah) by the adoptive parents as the concept of adoption in Islam is that of Kifalah and patronage but not of the real parentage.
4. In Secular law, the adopted child has to severe his/her relationships and identified with his/her adoptive parents whereas in Islam it is not the case. The adopted child maintains the identity with the real/natural parents. He/she inherits from his/her natural parents and is also benefited from the property and inheritance of his/her adoptive parents by way of gift and will’.
5. Basically there is no bar in adoption of a Muslim baby by Non-Muslim parents, but it is subject to some precautionary measures. The environment of the home does not play any decisive role in selection of the faith. Holy Moses was brought up in Pharos home.
6. There is no explicit law on adoption in Pakistan. Adoption is done in the name of Guardianship though application under section 7 of the Guardians and Wards Act 1890.The Guardians and Wards Act 1890 bars the non-citizens to adopt a child as it is done to ensure the welfare of the child. However it is required that, in case of adoption, the child must be produced before the court periodically as the parental jurisdiction and authority continues to vest with the court which can overview its decision even after the issuance of guardianship certificate to the adoptive parents.
7. The Concept of Guardianship is not synonymous to that of the concept of adoption in Islam. It also varies from the secular/European concept and law of adoption as the adoptive parents living in UK or European countries have to go through the registration of the adopted child again according to the required law of that country.
1. (Abu Daud-Majmooa Siha Sitta Vol. 2, page 236).
2. (Nailul-Autar, Vol. 6/137 + Supra Vol. 6 page 190).
11 (Jami ul Jaffri, Translation of Sharaul Islam by Najmuddin Abul Qasim Kutub Khana Lahore, PP.276, 278, 280, 282).
12 (Black’s Law Dictionary 6th Edition West Publishing Co. U. S.1990).
13 (Stroud’s Judicial Dictionary fifth edition by Jobn.s James Sweet and Maxwell London, 1986).
14 (Prem’s Judicial Dictionary, by Dawlat Ram Prem, Bharat Law Publication, Jaipur, 1992).