PLINSCHI CĂTĂLINA SOFIA RICCI

ADOPTION IN
ISLAMIC LAW
 INTRODUCTION: WHY IS THIS TOPIC SO
RELEVANT NOWADAYS?

01
to show the basic 03
features and to show it in perspective
transformations of this with the UNCRC;
legal institution; 02
to trace a
comparison among
the approaches
ISLAMIC ADOPTION IS A
followed by Islamic
courts. REFLECTION OF THE USE OF QURAN
AND SACRED TEXTS AS JURIDICAL
LEGAL GROUND.
Establishing child’s origin and paternity

Nasab: Thus, if paternity is associated with the presence of

marriage, motherhood remains a matter of biology. Why is this
extremely important in Muslim countries?

A child born out of wedlock does not have the right to establish
his/her origin and, as a result, faces significant discrimination

Mitigation of these extreme consequences: often times due to wars

or natural catastrophes.

The example of Indonesia: children born out of wedlock are

legally bound to their biological father if their relationship is
convincingly proven using medical technology. What does that
mean?
 Kafala: Quranic sources

Call your adopted sons after their true fathers; that is more equitable in the
sight of Allah. But if you do not know their true fathers, then regard them
as your brethren in faith and as allies. You will not be taken to task for your
mistaken utterances, but you will be taken to task for what you say
deliberately. Allah is Most Forgiving, Most Compassionate” 33:5.
The interprets trace a clear distinction between filiation, that regards only
children born inside the wedlock, and adoption. This concept is reinforced
by another verse

“Muhammad is not the father of any of your men, but he is the Messenger of
Allah and the seal of the Prophets. Allah has full knowledge of everything”
33:4
*Requirements for the kafil

01 Religion;

02 Mariage;

Be able to
guarantee the
03 child’s adequate
care and a good
education.
 KAFALA AND U.N. CHILDREN RIGHTS CONVENTION
ARTICLE 20: PROTECTION OF CHILDREN WITHOUT
PARENTAL CARE

1.A child temporarily or permanently deprived of his or her family

environment, or in whose own best interests cannot be allowed to remain
in that environment, shall be entitled to special protection and assistance
provided by the State.

2. States Parties shall in accordance with their national laws ensure

alternative care for such a child.

3. Such care could include, inter alia, foster placement, Kafala of Islamic
law, adoption, or if necessary placement in suitable institutions for the
care of children. When considering solutions, due regard shall be paid to
the desirability of continuity in a child's upbringing and to the child's
ethnic, religious, cultural and linguistic background.

Source: https://archive.crin.org
Saudi Arabia: adoption is substituted
tout court with Kafalah.

Pakistan: Foster placement is not

recognized under any law.

Indonezia: acknowledged adoption as

stated in the CRC.
 Hague Conventions
1993: „Kafalah is not an
adoption, which is
prohibited by Islamic law,
and has no effect on
parentage”.
1996:“the placement of
the child in a foster family
or institution, that is its
custody with kafala or
with a similar custody”
Adoption among the religious
minorities in Muslim countries

In some countries, non-Muslims cannot

be foster parents at all.

A non-Muslim child who is adopted by a

Muslim shall be considered Muslim.

The easiest way to adopt a Muslim child –

to convert to Islam.
 Reunification of the immigrants’
family in Europe

The right of family unification is the expression of the person’s

right to maintain the familial unity as ratified by different
international laws. Among these we remember: the Universal
Declaration of Man’s rights (art. 12 and 16), the European
Convention of Man’s rights (art. 8), The civil and political right
Pact Right (art. 23); the Pact on economical, social and cultural
rights (art. 10).

Analysing the case of kafala, some contrasting values appear

clearly: on one hand, protection of the child and of family unity, on
the other hand the reduction of migration flows and the defence of
the Country Territory.
Reunification of the immigrants’
family in Europe
Italian judges consider as makful’s best interest,
the right to re-join to their own kafil regularly
resident in Italy, in order to live in a safe familiar
environment.

In most cases the jurisdiction for reunification

with a makful who lives in France will be
rejected.

In England, the adoptive parents must prove that

they lived together with the child at lest 18
months and that they assumed the parents role.
 Conclusions
1) The process of transformation of our
societies pushes the European legal
systems into constant confrontation
with foreign legal institutions,

2) It shows how the concept of the best

interest of the child is not univocal.
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child's right to name and identity in Islamic and international law. Journal of Law and
Religion, 34(3), 383-407. doi:10.1017/jlr.2019.44

• Ali, S. (2007). A Comparative Perspective of the Convention on the Rights of the Child and
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· https://www.childwelfare.gov/pubPDFs/best_interest.pdf
 · O’Halloran K. (2015) The Adoption Process in an Islamic Context. In: The Politics of
Adoption. Ius Gentium: Comparative Perspectives on Law and Justice, vol 41. Springer.

· Rebeca Rios-Kohn, A Comparative Study of the Impact of the Convention on the Rights of
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· Yassari, Nadjma., Adding by Choice: Adoption and Functional Equivalents in Islamic and
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927–962. JSTOR, www.jstor.org/stable/26425445. Accessed 11 May 2020.

· Van Engeland Anicée, Introduction to Islamic Law.05.05.2020, Trento University.

· Andreas Harsono, Indonesia’s Religious Minorities Denied Adoption Rights,

https://www.hrw.org/news/2017/10/23/indonesias-religious-minorities-denied-adoption-
rights

· Committee on the Rights of the Child, Initial Reports of State Parties due in 1992: Indonesia,
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· Duca, Rita., Family Reunification: The Case of the Muslim Migrant Children in Europe, in
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Thank you for
your attention!