Law opinion
Adoption laws in Islam: Some issues
Mohammad Zahidul Islam
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 a legal researcher currently working for Bangladesh Legal Aid and Services Trust (BLAST).
Secularism, state religion and religious freedom in eastern and western democracy
