Introduction
Since the revolution in many Arab countries, the number of orphan children has consequently increased, for instance in Syria (United Nations Children Education Fund 2). These children are very vulnerable because their basic needs are not being met and their future is not secured (Sherlock 1). Adoption would be a viable solution alongside other social measures. Adoption is viable since many people in the Arab countries would want to adopt children for one reason or another. The impediment is that adoption of children under Islamic law is faced with many bottlenecks. Even if it is possible to navigate the many impediments, and according to Islamic scholars, it is possible (Muslim Women’s Shura Council 4), the issue of citizenship denies the children the security that they would otherwise enjoy.
Lineage issues and blood relationships also have a part to play in this issue. However, the interpretation of the Quran and the precedents set before provide a clear path that will be discussed amply in the paper. These issues do not impede the process of adoption. On the contrary, they place ethical restrictions that this paper does not dispute. Given that Islam places due care on children, and that adoptions can only be procured in the best interest of the orphaned children, these ethical restrictions are very appropriate.
Problem, Significance and Proposition
The problem that his paper seeks to solve is very significant. Traditional records indicate that Prophet Mohammed made a prophecy that the Islamic community would be recognized and honored above other communities because of its kindness towards children (Arfat 299). The implication here is that the Islamic community has a responsibility towards children, and that judgment shall consider the effort one has put towards ensuring that the rights of children are fulfilled. This includes ensuring that children grow up as educated members of the society (Arfat 299).
Definition of Adoption and Kafala
Adoption
Closed adoptions are not as common as open adoptions because of the requirements of Islamic law with regards to lineage, cultural identity and heritage. In closed adoptions, the adoptive family and the birth family do not have each other’s identifying information. Consequently, adopted children may never know of their status, or have a way through which they can track their biological parents. The risk with closed adoptions is that the children may lose their cultural identity and heritage, especially if they do not share a common cultural background with their adoptive parents. On the other hand, open adoption uses a full disclosure approach where identifying information between the adoptive parents and the birth parents is shared. This facilitates any interaction between the adopted child, the adoptive family and the birth relatives (Muslim Women’s Shura Council 5).
Kafala
Kafala reflects a commitment to volunteer to take care of the education, maintenance and protection of a legal minor similar to the way that a parent would. Kafala is a system of guardianship which is permitted by the law. This system is very common in Islamic countries that outlaw legal adoption. There is strong resemblance between Kafala and foster-parenting, although the former is more stable. It has been argued that Kafala is more than anything else a gift of care for children rather than a replacement for lineal descent. This sets Kafala out from adoption where legal ties and consequent bequeathments are established. Under a Kafala, the obligations of maintenance and guardianship are established (Muslim Women’s Shura Council 5).
However, the child has not personal status legal entitlements to the guardian because the legal ties requisite for these entitlements are not created. Additional the Kafala arrangement does not cut the bonds with the biological family for the child. It does not change the descent lines for the guardian’s family. The paper has drawn a comparison with a distinction between Kafala and foster-parenting. Another distinction between the two social arrangements is that Kafala is permanent arrangement unlike foster-parenting where the arrangements can be severed. Nonetheless, state mediation is required for Kafala, adoption and foster parenting (Muslim Women’s Shura Council 5).
Background of Children Rights in Islamic Law
As intimated earlier, Islamic law has a high regard for children and their rights. In order to ensure that the children rights are fostered in accordance with the prophecy of Prophet Muhammad, Islamic law has created various rights for children. This paper will ventilate on the laws relevant to the problem under consideration. The following are the children’s rights under Islamic laws that are relevant to the problem under consideration:
Right to Lineage
Under Islamic law, children have rights before they are born and after their birth. For instance, children have a right to a legitimate birth (Ishaque 2), a contravention of which is considered a heinous act of oppression. The right to lineage relates to one of the issues raised earlier on in the paper-the issue of names, name changes and cultural identity. Under the right to lineage, it is against the law to deny an orphan their original identity. The implication here is that Kafala children reserve the right to know their biological parents and to choose whether to maintain relationships with them. This means that hiding the lineage of an adopted or Kafala child by the use of fictive paternities denies he adopted child their right to lineage. This right is grounded on logical reasons. For instance, the argument for the right to lineage for an adopted child can be supported by the need to know from which genetic lineage one comes because of medical purposes. Additionally, the right to lineage feeds concerns related with incestuous relationships and marriages (Arfat 302).
The right lineage also has an implication on the names of an orphan and how this might change in case of an adoption. The stand of Islamic law in this is very clear. When the parents of an orphan specifically or a child in general are not known, another parent cannot claim parenthood of the orphan through direct or indirect adoption. The Quran does not consider adopted children as the real offspring of adoptive parents. The Quran further states that adopted children must and should be related to the biological parents irrespective of whether their biological parents are known or knowable. In any other circumstances, the adopted children should be considered as brothers in faith (Al-Qur’an: 33:4-5, cited in Arfat 302).
In order to fructify the issue regarding names, it is necessary consider the case study involving Prophet Muhammad SAW. When Prophet Muhammad SAW adopted Zaid, the child was called by his father’s name (Zaid bin Haristah) and not by Prophet Muhammad SAW’s name (Zaid bon Muhammad). This is in accordance to Islamic law that requires that heredity status through blood be recognized during child adoption. As such, the child’s names should reflect those of the biological father and not the adoptive father. The Child Protection Law No.23 of 2002 also requires that blood relations between the birth parents and the adopted child be maintained. Additionally, the law requires that the adoptive parents inform the child of his biological lineage and the birth parents (International Development Law Organization 1).
Inheritance rights
Adoptive children have inheritance rights under Islamic law. Both the adoptive father and the adopted child have the right to a portion of the inheritance in terms of compulsory bequeathments. With regards to the child, the implication of this is that upon the demise of the adoptive father, the adopted children are entitled to compulsory bequeathments by default. The compulsory bequeathments amount to one thirds of the inheritance that belonged to the adoptive father (International Development Law Organization 1).
Right to basic education
Under Islamic law, a child is entitled to basic education. More precisely, governments are tasked with the responsibility of ensuring that it exhausts all means to through which individuals in the community can be helped to get education (Arfat 304)
Proposed Solution
After considering the factors discussed above, I propose the amendment of laws in order to grant citizenship to the adopted children. This is very important to the protection of their lives, maintenance and sustenance. This proposal is feasible because it does not contradict any laws in Islam. Additionally, it aligns with the importance that is given to children in the Islamic communities. Granting the adopted children citizenship identity does not challenge the doctrines of the preservation of biological lineages with the birth parents. Granting the adopted children citizenship does not also challenge the applications of the ethical restrictions governing adoptions. What it does is create a secure environment in which the adopted children can enjoy the rights resulting from their acquired status. Additionally, the proposal for reforms in adoptive laws and citizenship laws is in line with fiqh. The understanding of the Quran by Islamic law scholars, the aim of which is to secure justice - in this case for the orphaned children – in accordance with the context of the society, place and time (Muslim Women’s Shura Council 6).
Conclusion
Even before the revolution in Arab countries, orphans still existed. However, since the start of the revolutions, there has been an increase in the number of orphans. This problem is set to escalate even further with continued crisis in the Arab world. Orphans can be put up in institutions where they are maintained together. Alternatively, orphans can be adopted and brought up in a family set up where they can experience the love and security that befits a child. As highlighted in the paper, adoptions are regulated through ethical restrictions that are grounded in logical reason. The paper has also highlighted that so long as these restrictions are followed, and the adoption is in the best interest of the child, adoption is not outlawed by Islamic law. The paper has also unequivocally highlighted the issues of lineage and names, and how these issues might affect the proposed solution. The Islamic law is very clear and direct on the rights to which adoptive children are entitled under Islamic law and also clarified the issues with the preservation of biological ties and the conditions under which the name of the adopted child can be changed. In order to ensure that the orphan children enjoy the rights to which they are entitled, it is important for governments in the Arab world to implement this proposed solution. With a citizenship identity, the children will be protected. They will enjoy good education, nutrition and grow to their full potential.
Works cited
Arfat, Shabina. Islamic perspective if the children’s rights: An overview, Asian journal of social sciences and humanities, 2.1 (2013):299-307.
International Development Law Organization. Status of adopted children in Islam, Web. 19 Nov. 2014
Ishaque, Shabnam ( 2012). Islamic Principles on Adoption: Examining the Impact of Illegitimacy and Inheritance Related Concerns in Context of A Child's Right to an Identity. International Journal of Law, Policy and Family 26(3)
Muslim Women’s Shura Council. Adoption and the care of orphan children: Islam and the best interests of the child. American society of Muslim advancement, 2011: 1-20.
Sherlock, Ruth. Thousands of Syrian children left to survive alone, says UN. The Telegraph. 29 Nov 2013 Web. 19 Nov.2014.
United Nations Children Education Fund. Syria’s children: A lost generation? United Nations Children Education Fund. Web. 19 Nov. 2014.
