American Muslims Rethinking Islamic Ban on Adoption

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With many Muslim children orphaned due to humanitarian crises, Muslim voices advocating not only for care of orphans, but also for their adoption into Muslim families are starting to be heard, writes Nermeen Mouftah (Butler University, Indianapolis) in an article titled “The Muslim Orphan Paradox,” to be published in a coming issue of Contemporary Islam and already available as preprint (March, 2020).

Care for the orphans is a recommended form of giving in Islam, even more so because Prophet Muhammad himself was an orphaned child. However, at the same time, all Islamic legal schools consider adoption as prohibited. According to Islamic law, lineage is biological and a father’s name should not be given to a non-biological child. This does not rule out “formal and informal mechanisms of care” or guardianship, Mouftah writes. Some Muslims, however, consider care as more important than legal religious views and have adopted children.

Based on four years of fieldwork, the survey discussed in the article provides an example of the different ways Muslims negotiate the prescriptions of Islamic law (in an American context in this case). All the interviewees accept the Islamic tradition, but there are various ways of thinking about it or using it for shaping one’s daily practices.

The Muslim in favor of adoption “mobilize Euro-American, Christian, and secular values and concepts” in their efforts for advancing their views. But Mouftah warns that one should not see the debate as binary. Those who support the prohibition “are likewise concerned with creating a form of childcare that adheres” to Islamic law.

There are also attempts to clarify the traditional ban on adoption. A 2011 document from the Muslim Women’s Shura Council stated that prohibition applies only to the dissimulation of lineage. Connecting their advocacy to voicing the rights of women, this group also claims that a woman can adopt. A younger generation of Muslim leaders stresses that Islamic law should answer the needs of the Muslim community. Some have both an Islamic training and experience in social welfare. Mouftah observes that the challenge for Muslims in North America is “deploying unfamiliar Arabic terminology that does not have equivalents in the English language or international laws.”

Some families select positions from the different legal schools. The three key issues from an Islamic legal viewpoint are: identity, inheritance and the fact that a child who is not from the family lineage is considered as marriageable to members of that family .

According to the guidelines provided in 2017 by the Fiqh Forum, “The Islamic Position Regarding the Care of Orphans and Abandoned Children,” the inheritance issue can be solved through bequest and the third issue through breastfeeding: “In Islamic law, if a non-biological sibling drinks the same breastmilk than the biological one, the two are considered linked by blood: they cannot marry one another, and do not need to apply the modesty rule between each other).” As Mouftah remarks, the 2017 document should be seen as attempts by religious authorities to accommodate changes already underway. It does not fully answer the expectations of those who advocate for adoption but they siw it as a first step.

Mouftah concludes that these debates illustrate Muslims’ efforts to reform family law as well as their capacity of renegotiating the rules.

(Contemporary Islam – https://www.springer.com/journal/11562)

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