Download First, there is a definite gap between Western and Islamic law on

http://jurist.org/forum/2012/11/faisal-kutty-adoption-kafalah.php
Islamic Law, Adoptions and Kafalah
6 November 2012 at 4:40 PM ETedited by David Mulock
JURIST Guest Columnist Faisal Kutty of the Valparaiso University School of Law says that there
is hope for compromise between Western legal systems and Islamic law regarding the adoption of
children from Islamic countries...
"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, crossfertilization 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 genderbased 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 Islamic kafalah 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 is an assistant professor at Valparaiso University School of Law in Indiana and an
adjunct professor at Osgoode Hall Law School in Toronto. His areas of interest are legal writing
& reasoning, comparative law, international law, human rights and Islamic law. His most recent
work on the intersection of common law and the Shari'ah is a chapter in Debating Sharia: Islam,
Gender Politics, and Family Law Arbitration, published by the University of Toronto Press this
past summer.
Suggested citation: Faisal Kutty, Islamic Law, Adoptions and Kafalah, JURIST - Forum, Nov. 6,
2012, http://jurist.org/forum/2012/11/faisal-kutty-adoption-kafalah.php.
This article was prepared for publication by David Mulock, an associate editor for JURIST's academic commentary service. Please direct any
questions or comments to him at [email protected]
Posted in Academic Commentary