Adoption in Islam
By Atika Ghaffar
The objective of this article is to provide an understanding of the Islamic view of the social institution of adoption. It will deal with the present global status of legal adoption, pre-Islamic customs of adoption in Arabia and their implications, how these customs were abolished by Islam, the Shari’ah (Islamic law) ruling on legal adoption, allowable forms of adoption in Islam and new forms of adoption such as embryonic adoption or artificial insemination. The cultural, social, economic, psychological and marital significance of pre- and post-Islamic adoption will also be noted. The article will show how Islam balances justice for all parties involved in adoption, as well as for society as a whole. Adoption today is a topic of hot debate in America as the adopted children, those, who adopted, and natural parents are being involved in all sorts of legal cases and there seems to be general confusion regarding the “us of adoption all over the world.
THE NON-ISLAMIC CONCEPT OF ADOPTION
To adopt is to take (a person) into a relationship he/she did not previously occupy. Adoption dates back to antiquity and presently exists in various forms throughout the globe. There are a number of factors including childlessness, the wish for an heir and compassion that have been essential in establishing adoption as an important social institution. Previously adoption was frequently regarded as a way of furthering the interests of the adopters, but more recently this has changed in some countries. It now reflects more on the child; primarily his or her needs, right to love, security and a normal family upbringing.
Ideally care is taken in adoption to protect the three parties concerned from risks which may lead to discontent. Children for example must be protected from adoption by people who are unsuitable for the responsibility of bringing them up or want children for the wrong motives. Similarly, the natural parents must be protected from hurried or panicked decisions to give up their children and from being persuaded to place them unsuitably. In their turn, the adopters must be protected from under- taking responsibilities for which they are not fitted or which they have not appreciated.
The truth is that no one can replace the natural father and mother. The complicated procedures and cases in courts and the resulting disputes between families testify that legal adoption never solves the problem. There are many cases in courts today where the natural parents are demanding back their children who have been adopted by unknown families and introduced to vastly different environments. Questions like, how long can a natural mother or father see her or his child in a stranger’s home?, are being asked frequently. Can the adopters be trusted to bring up the child in the proper way and give him or her proper care and attention? How will the child feel when he/she grows up to find that his/her natural parents give him/her away? The child’s reaction when he/she discovers that his/ her natural parents are unknown, or that his/her mother gave him/ her up because of fear, poverty, shame, or insecurity would also be indescribable. How will the adopted child be liked by other members of the adopting family? Will they like a strange child to take their name or lineal identity and inherit the properties to which they are the rightful heirs? The adopter’s feelings when the natural parents ask that their child be returned or when the child himself or herself desires to go back to his or her natural parents will further complicate things. The institution is no doubt unhealthy and may cause many harms to the child, to the parents, adoptive and natural, to other members of the adopting family, and to society at large. Adoption is also one of the main reasons that allow for the encouragement of many people to indulge in irresponsible activities and intimacies. It is also being commercialized nowadays by people who put up their children for “sale” or “trade.” This represents an increasingly growing problem in America.
PRE-ISLAMIC CUSTOMS OF ADOPTION IN ARABIA
The practice of adopting sons was a very important custom and was very deeply rooted in the society of pre-Islamic Arabia. The Arabs of jahiliyyah (time of ignorance) used to add any- one they wished to their lineage and family through adoption, as did other nations and societies during the course of history. A man would adopt (tabanna, “to make one’s son”) any boy of his liking as son (mutabanna), declare it publicly, and the boy would become like a son to him, sharing the responsibilities and rights of his adopting family and taking the family name. The adoption was allowed despite the fact that the adopted son might have a known father and come from a known lineage.
Before the advent of Islam pureblood tribesmen formed the core of the kinship unit in Arabian tribes. In addition to these, the group generally included a number of slaves and clients. The pureblood tribesmen consisted of the chief, his family and the group of families who acknowledged him. The clients consisted of three sub-classes: (a) freed men, (b) refugees outlawed by their own tribe, and (c) groups, such as the Jews at Medinah, who were not strong enough to stand by themselves.
Freedmen were often adopted by their patrons and, for all practical purposes, were considered members of the patrons’ tribe. There was no significant difference between “natural” and adopted sons of the tribe; they shared revenues and liabilities. Likewise, refugees were frequently adopted by the tribe of their protectors. Some allies, in Al-Madinah at least, had a claim to the inheritance of their protectors and received one- sixth of the estate. On the other hand, the adopting tribe or clan had the right to inherit the property of the adopted members. As a result, persons with means were sometimes invited to establish sworn alliances with other groups even though the recruits were regarded as being of humble status. Occasionally, however, there was unheeded opposition by prospective heirs to such adoptions and alliances.
As well, the “normal” mechanism to establish legitimacy was either acknowledgment and/or adoption by the real or the would be father, or by his tribe. The child could not gain its father’s status without his approval. But the father could at any time revoke his recognition and completely disown the child, particularly If the child had committed any act disagree- able to the father or his tribe. This situation is deplorable and must have created confusion and status anxiety in the minds of some individuals.
The implications of these jahiliyyah practices must have been far reaching. It seems that such declarations of adoption, legitimacy and alliance were not, and probably could not be, always mutually binding or equally reassuring. Nor do they appear to have been harmonious with the natural familial ties and expectations, which they not merely supplemented but also rivaled and sometimes replaced. Under such circumstances, divided loyalty, role conflict, and “family” disintegration are hardly escapable. A “kinship” unit could disown members without fear of great repercussions as long as “replacements” were easily available through adoption or sworn alliance. Conversely, a person could defy, desert or renounce his blood kin and join others at will where he might be welcome, especially if he was a brave warrior or a person with means. Any social system operating under these conditions would be pre- carious and unstable.
THE ABOLITION OF LEGAL ADOPTION BY ISLAM
Since the practice of adopting sons was very deeply rooted in the society of pre-Islamic Arabia, it was not easy for people to give it up. But Allah (The One God) wanted to eradicate it and it’s effects, not only by words but also by actions. In order that all doubts concerning the matter might be erased, that the believers might feel at ease with respect to marrying the ex-wives of their adopted sons and, more importantly, that they might know with certainty that the halal that which is permitted by Allah and that the haram is that which is forbidden by Him alone, Allah chose the Prophet Muhammad (peace be upon him) himself for this important task.
Before the advent of Islam, that is, before he received the call to prophethood, Prophet Muhammad (peace be upon him) had him- self adopted Zaid bin Harithah, who had been captured as a child during one of the raids on his tribe which were common occurrences during the period of jahiliyyah. Hakim bin Hizam had bought him for his aunt Khadijah, and after her marriage to the Prophet (sallallahu alaiyhi wassallam), Khadijah presented Zaid to him. When Zaid’s father and uncle learned his place of residence, they came to the Prophet (sallallahu alaiyhi wassallam) to demand Zaid’s return. The Prophet (sallallahu alaiyhi wassallam) gave Zaid a choice, and he chose to stay with the Prophet (sallallahu alaiyhi wassallam) in preference to his father and uncle. The Prophet (sallallahu alaiyhi wassallam) then set him free and adopted him as his son in the presence of others. He was thereafter called Zaid ibn Muhammad (son of Muhammad) and became the first of the freed slaves to accept Islam. Allah wished that this relationship that is, adoption, be discontinued.
Later on, Zaid married the Prophet’s cousin, Zainab bint Zahsh. Zaid and Zainab were not happy together, and Zaid became increasingly dissatisfied with his wife, complaining frequently to Prophet Muhammad (sallallahu alaiyhi wassallam). The Prophet (sallallahu alaiyhi wassallam) knew, through divine revelation, that Zaid would divorce Zainab and that he would afterwards marry her himself Thus, whenever Zaid complained to him about his wife, the Prophet (sallallahu alaiyhi wassallam) would tell him, “Hold on to your wife and fear Allah.” At that point Allah revealed some verses of the Qur’an (33:37) admonishing the Prophet (sallallahu alaiyhi wassallam) and at the same time fortifying his will to face society in demolishing the remnants of this ancient system, in this case, the established practice which prohibited a man from marrying the ex-wife of a stranger who had been adopted as a son. The Qur’an goes on to support the Prophet (sallallahu alaiyhi wassallam) in this action, confirming its lawfulness and re- moving any stigma attached to it:
“There is no fault in the Prophet in what Allah has made obligatory for him. That was Allah’s practice with those of old who passed away, and the command of Allah is a decree determined – those who delivered the messages of Allah and feared him, fearing none but Allah; and Allah suffices in keeping account. Muhammad is not the father of any man among you, but he is the Messenger of Allah and the Seat of the Prophets; and Allah is the Knower of all things. ” (Quran 33:38-40)
Hence, It can be clearly seen again that Allah wanted to abolish the jahiliyyah superstition, taboo, and institution of adoption.
THE SHARI’AH AND ADOPTION
There is no legal adoption in Shari’ah (Islamic law). It is haram (prohibited) for a person to legally adopt a son or a daughter of whom he is not the natural father. If a person adopts a son or a daughter, the Shari’ah will not confer on the adopted person the status or rights of a natural son or daughter. According to the Qur’an, if a person is not someone’s real son, he does not become his natural son merely by virtue of a declaration:
“… Nor has He made your adopted sons your (real) sons; that is simply a saying of your mouths. But A11ah speaks the truth, and He guides you to the (right way). Call them by (the names of their fathers; that is more just in the sight of A11ah. But if you do not know their fathers, they are your brothers-in-faith and your wards… ” (Quran 33:4-5)
This signifies that the declaration of adoption consists of words having no corresponding objective reality. A mere pronouncement does not change realities, alter facts, or make a stranger a relative or an adopted individual a son. A mere verbal expression or figure of speech cannot make the blood of a man run in the veins of the adopted son, produce feelings of fatherly affection in the man’s heart or filial emotions in the heart of the boy, or transfer either the genetic characteristics or physical, mental, or psychological traits.
JUSTICE AS RESPECT TO PEOPLE
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. The prohibition of legal adoption in Islam has been ordained to protect the rights of the adopted, adopter, natural parents, other individuals affected by the adoption, and society as a whole.
LINEAGE:
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 immorality. 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.
LEGITIMACY:
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.
INHERITANCE:
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 recognize any claim except those based on relationship through blood and marriage (Qur’an 8:75).
MARITAL RELATIONS:
Taking a stranger 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. The Qur’an has thus, declared that only the wives of one’s real sons, “the wives of your sons who are from your (own) loins” (Qur’an 4:23), not the wives of the adopted sons, are permanently forbid- den in marriage. Accordingly, it is permissible for a man to marry the divorced wife of his adopted son, since, in actuality, she has been the wife of a “stranger” not related by blood. 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.
SOLIDARITY:
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 usurp their rights, depriving them of their full inheritance. Often such anger leads to quarrels and fights 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.
JUSTICE AS RESPECT TO ALLAH
Muslims believe that Allah is The One Who Created human beings and bestowed innumerable gifts on them. Thus Allah is the Wise, All-Knowing and Merciful God. Since Allah is merciful to His servants, He makes thing halal (permitted) and haram (forbidden) for a reason, with the peoples’ well being in mind. Thus, the 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 should also be regarded as the acceptance of the timeless power and knowledge of Allah.
ALLOWABLE FORMS OF ADOPTION IN ISLAM
1. ORPHANS:
“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 (yateem) and wants to raise, to educate, and to treat as his own child. He/She assumes GUARDIANSHIP of the orphan. In this case, he protects, feeds, clothes, teaches, and loves the child as his own without attributing the child to him- self, nor does he give him or her the rights which the Shari’ah reserves for natural children. This is a meritorious and noteworthy act in Islam, and the man who does it will be rewarded by being admitted to Paradise or Heaven. Prophet Muhammad (sallallahu alaiyhi wassallam) said once,
“I and the one who raises an orphan, will be like these two in the Garden “, and he pointed to his middle and index fingers with a slight gap between the two
There are also numerous Qur’anic revelations that support the taking care of orphans and enough cannot be said about how much Allah likes this noble and charitable act (Qur’an 2:220; 4:2, 6, 10, 127; 17:34).
2. FOUNDLINGS:
A foundling or abandoned child (laqeet) is also regarded as an orphan, and one may apply the term ‘wayfarer’ (ibn al-sabeel) to him as well. In this case too, as in the orphans, the child’s lineal identity must be unchanged and parenthood to the natural parents should not be denied. When the child’s parents are unknown, they must be made brethren in faith and clients of their fellow Muslims (Qur’an 33:4-5).
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.
MODERN FORMS OF ADOPTION ARTIFICIAL INSEMINATION
Islam safeguards lineage by prohibiting adultery (zina) and legal adoption. In the same way it forbids artificial insemination if the donor of the semen is other than the husband. Thus Islam keeps the family line clearly and unambiguously defined with- out any foreign element entering into it. The well-known professor, Shaikh Shaltut has given the declaration (fatwa) that artificial insemination by a DONOR as a despicable crime and a major sin, to be classified in the same category as adultery. He says, “It is a more serious crime and detestable offense than adoption, for the child born of such insemination incorporates in itself the result of adoption – the introduction of an alien element into the lineage in conjunction with the offense of adultery, which is abhorrent both to the divinely revealed laws and to upright human nature. By this action the human being is degraded to the level of an animal, who has no consciousness of the noble bonds (of morality and lineage) which exists among the members of a human society.”
CONCLUSION
In conclusion, Islam’s strict forbiddance on any form of infanticide for whatever the reason may be, should be clearly noted. Islam gives every child a right to life. Nobody including the parents has the right to take away the life of the child, whether a boy or a girl (Qur’an 17:3 1; 8 1:8-9). Islam outlines very severe punishments for such savage acts, which include abortion. Thus prohibition of legal adoption in Islam does not deny orphans, foundlings, and poor or needy children of known or unknown lineal identity the right to be reared, educated, fed, protected, clothed, and loved as any other child with natural parents. However, the real lineal identity or paternity of the child has to be maintained, and undue rights (those rights reserved for one’s own children in the Shari’ah) should not be granted.
