In This Article Adoption

  • Introduction
  • General Surveys
  • Adoption in Antiquity and Late Antiquity
  • Adoption in Arabia Prior to the Rise of Islam
  • Adoption as a Sunna of the Prophet
  • The Abolition of Adoption
  • The Survival of Adoption until the End of the 1st Century AH
  • Foundlings, Orphans, and Orphanages
  • Modern Debates over Kafāla and Adoption

Islamic Studies Adoption
by
David Powers
  • LAST MODIFIED: 28 April 2016
  • DOI: 10.1093/obo/9780195390155-0226

Introduction

Adoption is the act of establishing a man or woman as parent to one who is not his or her natural child. Adoption practices are found in many human societies and the roots of the institution can be traced back to the beginnings of recorded history. The practice is driven, on the one hand, by childlessness (as a consequence of e.g., infertility or infant mortality) and, on the other hand, by parentlessness (as a result of e.g., death of a parent or abandonment). Adoption was widely practiced in the Near East—including Arabia—in Antiquity and Late Antiquity. The Arabic word for “adoption” is al-tabannī, literally “to make someone a son or daughter.” According to Arabian custom, the practice had two legal consequences: the adoptee took the name of his/her adopting father, and mutual rights of inheritance were created between the adopting parent and the adoptee. Five years prior to receiving his first revelation in 610 CE, Muhammad himself adopted a son who was known as “Zayd the son of Muhammad” and who was his heir. Adoption continued to be practiced by the community of believers for the next fifteen years. Thus, one might say that adoption initially was a sunna of the Prophet. In 5/627, however, Muhammad received a revelation stipulating that henceforth it would be a sin to refer to a person as the son or daughter of anyone other than his or her biological father. Lest there be any doubt about the matter, the Prophet himself is reported to have said, “There is no adoption in Islam: the custom of Arabia has been superseded” (Ibn Kathir, Tafsir, 3d ed., 1373/1954, 3:466). Henceforth, Muslim jurists treated adoption as a practice that had been prohibited (ḥarām). Muslims of course are not immune from either childlessness or parentlessness, and a substantial number of alternatives to adoption were developed to address the needs of parents without children and children without parents. These mechanisms include the care of an orphan by a close paternal relative who becomes the child’s wali or legal guardian, a legal assumption according to which the paternity of a child is automatically attributed to the husband of its mother (“the child belongs to the marriage bed”), the acknowledgement (iqrār bi’l-nasab or istilḥāq) of a child of uncertain parentage, and a contractual agreement—called kafāla—between caretakers and wards. There is an important fundamental difference between kafāla and the modern Western practice of closed adoption: The Islamic institution of kafāla ensures the continuity of the bond between a biological father and his child—even if the child is raised by someone other than the biological father: the child has an absolute right to know the identity of his or her father and, conversely, a biological father cannot disclaim his status as the father of a child. By contrast, in the West, the institution of closed adoption results in the—often permanent—severing of relations between an adoptee and his or her biological father and/or mother.

General Surveys

“Of all the institutions of Islamic law,” wrote Octave Pesle in 1919, adoption is arguably the one that [Muslim] jurists have most neglected” (p. 9). This is all the more surprising, Pesle continued, in view of the attention paid to this institution in the Qurʾan (see Q. 33:4–5 and 37), which attempts to create a new basis for it that was in conformity with changing ideas about the family. Rare is the jurist, he asserted, who devotes attention to these verses. This was the challenge faced by Pesle when he set out to write his doctoral thesis on adoption in Islamic law. The situation has not changed much in the intervening 100 years. There are few general surveys of adoption available for the student who wants an introduction to the subject. A good starting point is Children in Islam, which presents the traditional Islamic approach to the subject. For a more nuanced statement, also from a Muslim perspective, see the Muslim Women’s Shura Council report on Adoption and the Care of Orphan Children. Child Adoption situates the subject of adoption in Muslim majority states in a global perspective. The best academic introduction to the subject is Bargach 2002. For short encyclopedia articles that treat developments during the formative period of Islamic law, see Chaumont 2012 and Powers 2008. Pesle 1919, which reflects the state of the field at the beginning of the 20th century, is still useful, although it is marred, in parts, by its elitist perspective.

  • Adoption and the Care of Orphan Children: Islam and the Best Interests of the Child: The Digest.” Muslim Women’s Shura Council. American Society for Muslim Advancement, 2011.

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    Argues that Islamic law does not prohibit adoption but rather modified the institution by allowing a child to know the identity of its birth father, to retain his name, and to inherit from him. What Islam prohibits is the type of adoption in which the identity of the child is merged with that of the caretaking father and/or family. Contains a useful definition of key terms and a review of historical developments. Notes that in the 21st century, adoption—in the full sense of the word—is legal in Indonesia, Malaysia, Somalia, Tunisia, and Turkey.

  • Bargach, Jamila. Orphans of Islam: Family, Abandonment, and Secret Adoption in Morocco. Lanham, MD: Rowman & Littlefield, 2002.

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    Analyzes the early history of adoption from historical, linguistic, and anthropological perspectives. Distinguishes between “plain” adoption—as understood in the West—which is prohibited in Islam, and culturally sanctioned forms of adoption, for example, gifting a child from one family to another; incorporating an infant into an accepting family via fictive childbirth, naming rituals, and the establishment of inheritance rights; and kafāla—a contractual agreement in which the parties are either the giving and receiving parent or, in the case of abandonment, receiving parents and the state. Based largely on fieldwork in Morocco.

  • Chaumont, Eric. “Tabannin.” In The Encyclopaedia of Islam. 2d ed. Edited by P. Bearman, Th. Bianquis, C. E. Bosworth, E. van Donzel and W. P. Heinrichs. Leiden, The Netherlands: Brill, 2012.

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    A good introduction to adoption and its abolition, with attention to hermeneutical issues (the abrogation of the Qurʾan by the sunna) and attempts by Muslim scholars to defend the Prophet from charges of lasciviousness and moral turpitude. Also treats the law of the foundling (laqīṭ) and modern legal developments, including the legalization of adoption, in the full sense of the word, by the Tunisian legislature in 1958 (on the latter see Borrmans 1977 and Pruvost 1996, both cited under the Maghrib and Africa). Available online by subscription.

  • Child Adoption: Trends and Policies. Department of Economic and Social Affairs Population Division. New York: United Nations, 2009.

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    Presents information on 195 countries relating to adoption policies and legislation, treaties on inter-country adoption, and the demographic characteristics of adoptees, adopting parents, and birth parents. One key finding: of the 195 countries included in the survey, 20 (all Muslim majority) have no laws regulating child adoption. In these countries, one finds alternative procedures, such as guardianship or the placement of children under the care of relatives. The conditions under which these alternative practices are pursued are shaped largely by religious considerations.

  • Pesle, Octave. L’adoption en droit musulman. Thèse pour le doctrorat ès-sciences juridiques présentée et soutenue publiquement, le 12 Avril 1919. Alger: Imprimerie F. Montégut, 1919.

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    An important but little-known history of the institution of adoption in the Islamic West. The monograph is divided into three parts: adoption in Arabia prior to the rise of Islam, the radical modification of the practice by the Qurʾan, and the subsequent history of the practice and its function in the Islamic West at the beginning of the 20th century. Pesle notes that the third section of the book is the principal object of investigation and, thus, its most substantial and important part.

  • Powers, David S. “Adoption.” In Encyclopaedia of Islam. 3d ed. Edited by Marc Gaborieau, Gudrun Krämer, John Nawas, et al. Leiden, The Netherlands: Brill, 2008.

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    Situates the Islamic understanding of adoption in the context of the history of the practice in Antiquity and Late Antiquity, with special attention to Muhammad’s adoption of Zayd c. 605 CE and to the abolition of adoption c. 627 CE. Also explores the connection between the abolition of adoption and the theological doctrine of the finality of prophecy. Good bibliography. Available online.

  • UNICEF. “Children in Islam: Their Care, Development, and Protection. Summary.” Al-Azhar University, 2005.

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    The report states: “Children deprived of parental care should be sponsored and provided for by people acting as if they were their parents. Hence, Shariah encourages Muslims to take up sponsorship to provide care for children in need, as indicated in a statement attributed to the Prophet: ‘I shall be in Paradise together with the sponsor of the orphan just as they two are.’ And he pointed his index and middle finger. There should be no discrimination between an orphan whose father is known and an orphan picked up without known ancestry,” p. 8.

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