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Accommodation is a Two-Way Street

Islamic Law, Adoptions and Kafalah

by FAISAL KUTTY

“There hasn’t been a concerted push to open doors for Muslim orphans because the expectation would be that those efforts would fall flat…”

— Chuck Johnson, chief executive, National Council for Adoption.

Conventional wisdom — among both Muslims and non-Muslims — holds that adoption, as practiced in much of the Western world, is alien and prohibited by dictates of Islam. This, of course, ignores the sophistication and nuances of both Western law and Islamic dictates. Indeed, adoption rights activists have struggled to find ways around the difficulties this simple binary causes for some children and prospective adoptive parents. With the growth of the Muslim population in the West, there is now an increased urgency to tackle this issue as some Muslims wish to adopt children from jurisdictions governed by Islamic law.

Four recent developments in the context of Islam and adoptions, including the European Court of Human Rights (ECHR) decision of October 4, 2012 (though not yet final), in Harroudj v. France, provide for some optimism that we may be at the cusp of a sea change in this area.

In addition to the many other challenges encountered in intercountry adoptions, those in the Muslim context raise the added issue of the real or perceived conflict with Islamic dictates. There appear to be three sources of tension between the two systems.

First, there is a definite gap between Western and Islamic law on adoptions. Islamic jurists are unanimous in holding that traditional closed adoption violates Islamic rules which emphasize lineage. Islamic jurists devised a guardianship model known as kafalah to work around this and to take into consideration the religious restrictions. Indeed, even some in the West have concerns about closed adoptions and have championed open adoptions, which are increasingly gaining traction. With respect to the Islamic context, there is still a gray area between the kafalah model and open adoptions that must be addressed and reconciled.

The second main source of tension arises from semantics. The conversations between the two systems appear to be using different frames of reference and terminology. Rather than exploring how the Islamic guardianship system of kafalah can contribute to this discussion some have dismissed it prematurely. There may be no western counterpart to the concept of kafalah; however, this does not mean that open adoptions cannot evolve by taking into consideration some of the Islamic objections while, at the same time, mining the Quran’s heavy emphasis on helping orphans and preserving child welfare to expand the notion of kafalah. This interaction, cross-fertilization and dance of accommodation can possibly cover some of the gray area. This is all the more viable and persuasive when we note that Islamic scholars are of the view that the restrictions on the pre-Islamic notion of adoption were actually intended to protect children, by ending abuses in pre-Islamic Arabian tribal society.

A third source of tension emanates from a very limited understanding and characterization of Islamic law. The context specific and evolutionary nature of the Shariah (which is much broader than Islamic law), Islam’s emphasis on child welfare, the maqasid al shariah (higher objectives of the Shariah), the principles of Islamic jurisprudence and the significance of human agency in the formulation of or “discovery” of fiqh (the actual laws derived from the Shariah) provides much leeway in reforming Islamic legal rules on adoption.

The root of each of these tensions can be traced to specific Islamic concerns revolving around lineage and filial continuity, inheritance, consanguinity (mahramiyya) and concerns about gender-based privacy boundaries. Notwithstanding these hurdles, as mentioned, four relatively recent developments in the area provide for some measure of hope by facilitating the reconciliation, or at least, by helping to address or minimize each of these real or perceived obstacles.

The first impetus for a possible transformation is the groundbreaking study by the Muslim Women’s Shura Council, “Adoption and the Care of Orphan Children: Islam and the Best Interests of the Child” [PDF]. This report examined Islamic sources and concluded “adoption can be acceptable under Islamic law and its principle objectives, as long as important ethical guidelines are followed.” The study represents a form of independent reasoning (ijtihad) and may raise some awareness and contribute toward shaping a future consensus (ijma) on the issue. Unfortunately, given that the group does not represent traditional male scholarship, the mainstream may not feel bound by the study at this stage. Islamic legal tradition is replete with instances where what was initially considered beyond the pale, or even heretical, became accepted by the mainstream over time through the principle of ijma.

Secondly, advocates for new, contemporary ijtihad among traditional scholars and jurists have started to grapple with issues specifically impacting Muslim minorities in the West. The work of Tariq Ramadan, in Radical Reform: Islamic Ethics and Liberation, as well as others, provides more hopeful prospects for a different approach to the issue, at least in the Western world. In fact, Ingrid Mattson even argues that the flexibility in Islamic law for accommodating local cultures and customs may lead to a solution in the context of adoption as well.

Thirdly, the 2007 program [PDF] launched in New South Wales, Australia, where child welfare officials created an outreach program specifically targeting Muslims by reinforcing the fact that the country’s adoptions are open and allow children to legally retain their lineage. This initiative, the first of its kind in a western nation, sets a good example for other Western jurisdictions. Accommodation is a two way street.

Lastly, on October 4, 2012, in Harroudj v. France, the ECHR upheld France’s refusal to allow an Algerian woman to adopt an Algerian baby, who was already under her care and control, pursuant to the Islamickafalah guardianship system. The Harroudj decision focused and turned on other issues, but for our purposes, the Chamber’s observations on the kafalah system are timely and encouraging. The court observed that under the UN Convention on the Rights of the Child, the kafalah model is accepted and defined as “alternative care,” which it deemed on par with adoption. The court also noted that the fact kafalah is acknowledged under international law should be a decisive factor in determining how States should accommodate it in their domestic law and deal with any conflicts that may arise. The court further noted that kafalah was fully accepted in French law and the granting of guardianship to Harroudj enabled her to make all the decisions in the child’s interest. In other words, Harroudj was not deprived of any rights in not being allowed to change the kafalah to adoption. This acknowledgement is a great step in the right direction and provides much in working toward a mutually accommodating framework for Islamic adoptions.

These four relatively recent developments provide a useful starting point to push for legal change from within the Islamic legal tradition, provided that the western legal system also gives way by facilitating accommodation.

Faisal Kutty, a lawyer, is an assistant professor at Valparaiso University School of Law in Indiana and an adjunct professor at Osgoode Hall Law School in Toronto. Follow him on Twitter@FaisalKutty.