Adoption in Islam

Answered according to Hanafi Fiqh by Fatwa.ca

Question:

Given the circumstances of Syrian children. is it allowed to adopt a Syrian child who lost his parents? I have been thinking recently about this and I know it’s not allowed. but I also know that it’s not safe to leave a Muslim child in Europe in a public institution.

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Answer:

In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

In order to address this dire issue, we must understand the definition of “adoption” within Islamic Fiqh.

Quite often those intending to open their lives to help and assist needy Muslim children tend to research this issue with the secular understanding of “adoption” in mind.

Cornell Law School mentions, “Adoption refers to the act by which an adult formally becomes the guardian of a child and incurs the rights and responsibilities of a parent. At the conclusion of the formal process, a legal relationship between child and guardian will have formed. The legal relationship results in the adoptee becoming the legal heir of the adopter and terminates any legal rights then in existence with the natural parents.”

It is this understanding of adoption whereby the process terminates the natural rights of the adoptee to his or her natural biological parents and links it to the new legal guardians/parents to such an extent that he becomes a legal heir to their estate as well.

In Islām this type of adoption is called Tabannee (customarily known as Mutabannā). This concept was present before Islam. People would adopt children, and link themselves to these adoptee and consider it a blood-pact. They would consider relationship formed through these children (like daughter in law etc.) to be as harām as they would be with your own flesh and blood’s wife. When Sharīʿah was revealed, such a process was abrogated.

Allah Taʿālā declares in the Qur’ān in Surah al-Ahzāb

…وَمَا جَعَلَ أَدْعِيَاءَكُمْ أَبْنَاءَكُمْ ذَلِكُمْ قَوْلُكُمْ بِأَفْوَاهِكُمْ وَاللَّهُ يَقُولُ الْحَقَّ وَهُوَ يَهْدِي السَّبِيلَ ۝
ادْعُوهُمْ لِآبَائِهِمْ هُوَ أَقْسَطُ عِنْدَ اللَّهِ فَإِنْ لَمْ تَعْلَمُوا آبَاءَهُمْ فَإِخْوَانُكُمْ فِي الدِّينِ وَمَوَالِيكُمْ…

And he has not made your adopted sons your [true] sons. That is [merely] your saying by your mouths, but Allah says the truth, and He guides to the [right] way. Call them by [the names of] their fathers; it is more just in the sight of Allah . But if you do not know their fathers – then they are [still] your brothers in religion and those entrusted to you.  (Qurʾān 33:4-5)

Without going extensively in detail about the reasons of this abrogation, it is sufficient to say that merely calling someone else as one’s own is not acceptable in Sharīʿah. It will not establish father-hood or mother-hood, nor will the child become an heir to the adopting parent.

However, there is yet another form of adoption within Islam which is called Kafālah (Guardianship). This is an integral part of Islamic social system, highly encouraged and means of immense rewards. In an Islamic welfare system, if someone becomes orphan, then it becomes a joint duty of the Muslim community to undertake care for those orphans and their wealth. The kafīl (guardian) who undertakes responsibility of them until they are age of adulthood.

The benefits of adopting children who have been orphaned in war-torn lands, or even by loosing their parents due to any number of reasons, can all be fulfilled through taking guardianship (kafālah).

Just as any facet of religion, one will need to familiarize with the scope and fiqh of kafālah over children before one can take any of these children under their care. The Qurʾān addresses this treatment towards orphaned children in different verses, always expounding that great care should to taken in giving out one’s care to them.

  • Under kafālah, the child maintains his biological lineage to his real parents.
  • The child can be taken in homecare and provided all the facilities one’s biological child would receive.
  • The child should be treated with love and respect, no different to one’s own children.
    • This should not mean that you raise him believing that you are his biological parents. In fact, it is psychologically better for the child to have transparency of this issue when he reaches an age of understanding.
    • The relationship of kafālah should not render the treatment any different, and if any he treatment towards this orphan child must be exceptionally loving and pure.
  • The child does not become an heir to the estate of the parent, however, the parent may (and should) give bequest for such a child under his care from 1/3rd of his estate.
  • The child does not take the rulings of blood-child, hence matters of mahramiyah (looking, touching, interacting and hijab rules with stranger male / female) will apply once the child becomes bāligh (sharʿan adult).
    • A way to curtail issues arising from such restriction about interacting with non-mahram who was taken in under kafālah is to seek children under the fostering age and let the wife feed them milk, thereby forming a fosterage relationship.

With these points in mind, it will be immensely meritorious to take in those Syrian children and take care of them until they are able to be on their own.

And Allah Ta’āla Knows Best

Mufti Faisal bin Abdul Hameed al-Mahmudi
www.fatwa.ca

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