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Summary of question
Are there any rules, guidelines, and restrictions when it comes to adopting children?
question
Are there any rules, guidelines, and restrictions when it comes to adopting children?
Concise answer

There is no objection in providing care and protection to a child who is without protection or whose guardians are unable to protect it and who surrender their child with full consent to another person to protect and take care of it. When it comes to taking of such a child, it is permissible and there is no problem in it. However, some countries have enacted certain rules and regulations in order to better serve the interest of the child who does not enjoy enough authority and free choice during childhood. For instance, such a child is given to a couple who is medically infertile and cannot give birth to a child.

Islam does not treat an adopted child like one’s real child in terms of laws and rights. It has been even stated in the Holy Quran where it says: “nor has He made your adopted sons your sons”.  Hence, one of the discussions concerning an adopted child concerns with limits of his relationship with people around him. The question which is specifically dealt here is: How can an adopted child become mahram to the man and woman who take care of him? Certain ways have been proposed for creating mahramiyah which shall be mentioned in the detailed answer:

Detailed Answer

1. There is no objection in providing care and protection to a child who is without protection or whose guardians are unable to protect it and who surrender their child with full consent to another person to protect and take care of it. When it comes to such protection, Islam allows it and it has even encouraged Muslims to take care of a child who needs care and protection.  It has been narrated from the Holy Prophet (pbuh) that he said regarding a person who takes care of an orphan: “Such a person will be with me in Paradise”[1]

2.  Some countries have enacted certain rules and regulations in order to better serve the interest of the child who does not enjoy enough authority and free choice during childhood. For instance, such a child is given to a couple who is medically infertile and cannot give birth to a child. However, it does not imply that couples who have children cannot adopt another child. According to Shari’ah law, there is no objection to such a couple adopting a child.

3. There is no doubt that Islam does not treat an adopted child like one’s real child in terms of laws and rights. It has been stated even in the Holy Quran where it says: «وَ ما جَعَلَ أَدْعِیاءَکُمْ أَبْناءَکُمْ» “nor has He made your adopted sons your sons”.[2] To explain it further, it was customary in the time of Jahiliyah (ignorance) for people to adopt some children. They used to consider the adopted children as their own children. They even named the children after themselves and considered them to be entitled to all rights that a normal child enjoyed in relation to their fathers. For example, an adopted child would inherit from the adopter and the adopter would also inherit from him. There was permanent marriage prohibition between the adopter’s wife and the adopted child’s spouse. Islam strongly rejected these illogical and superstitious rules. It has been reported that the Prophet (pbuh) married the wife of his adopted son, Zaid bin Haretha after he divorced her. The marriage was aimed at doing away with this baseless and false tradition.[3]

4. One of the discussions concerning an adopted child concerns the limits of his relationship with people around him. The question which is specifically dealt here is: How can an adopted child become mahram to the man and woman who take care of him?

Some jurisprudents have proposed certain jurisprudential solutions for creating mahramiyah which are enumerated as follows:

A) If the child is a breastfeeding baby girl and she is suckled by one of the following people (albeit in accordance with the conditions of suckling prescribed by Shari’ah), she will be mahram to the man who has adopted her. Those people are the following: the man’s wife, mother, sister, sister’s daughter, brother’s wife and daughter. If one of these people breastfeed the girl, she will become mahram to him by way of suckling.

B) If the girl is not a breastfeeding child or she is a breastfeeding child but the people named above are not available, it is possible to create mahramiyah by way of temporary marriage contract between the girl and the man’s father or his grandfather. In this case, the girl becomes mahram to the wife of the man’s father. However, it should be noted that if the girl has not yet attained the age of puberty, it is necessary that marriage contract should be concluded with the permission of her legal guardian (father or paternal grandfather). In the absence of a guardian, it is necessary that a qualified Mujtahid’s permission be sought. In any case, if the girl is made mahram to the adopter by way of marriage contract, the marriage contract should not bear any harms or disadvantages for the girl. In fact, the marriage contract should be in her best interest.

C) If the child is a breastfeeding baby boy and is suckled by one of the following people (albeit in accordance with the conditions of suckling prescribed by Shari’ah), he will be mahram to the woman who has adopted her. Those people are the following: the woman herself, her mother, sister, sister’s daughter, brother’s wife and brother’s daughter.  If one of these people breastfeed the male child, he will become mahram to the woman by way of suckling.[4]

D) If the boy is not a breastfeeding child or the aforementioned people are not available to breastfeed him, in this case if the adopting couples have a daughter, they can marry her to him temporarily or permanently in which case the woman who has adopted the male child would be her mother-in-law. She will remain mahram to him even if his daughter separates from the adopted son, or if the boy’s father is alive, the adopting father can divorce his wife and she can, after the expiry of the her Iddah (waiting) period, contract fixed-time marriage with the boy’s father (though on the condition that they should not have sexual relations). Once the time of the temporary marriage is over, the adopting man can remarry his former wife in which case the boy will become mahram to the adopting mother but her daughter will remain non-mahram to him. These are some of the ways through which mahramiyah can be created and there is no other feasible or practicable way for mahramiyah.[5]

5. Finally, it is necessary to mention that an adopted child is not treated in the same way as one’s own child in terms of juridical and religious laws but it is not also correct to say that taking care of an adopted child is allowed only when he/she becomes mahram to the adopting parents. In fact, this problem can be solved by taking certain legal or juridical measures. As well, it is good to inform the child that he is not the real child of the family. Obviously, he should be informed in such a way that his/her morale or self-esteem is not affected. It is befitting for the adopting parents to consult family counseling centers before hand.

 


[1] - «قَالَ النَّبِیُّ صَلَّى اللَّهُ عَلَیْهِ وَ آلِهِ‏: مَنْ‏ کَفَلَ‏ یَتِیماً وَ کَفَلَ نَفَقَتَهُ، کُنْتُ أَنَا وَ هُوَ فِی الْجَنَّةِ کَهَاتَیْنِ. وَ قَرَنَ بَیْنَ إِصْبَعَیْهِ الْمُسَبِّحَةِ وَ الْوُسْطَى» Humairi, Abdullah bin Ja’far, Qurbul Isnad, p. 9, hadith 315, Aalul-Bait (a.s.) Institute, Qom, first edition, 1413 A.H.

[2] - Al-Ahzab, 4. The same verse has been translated by another translator as such: “nor has He made those whom you assert to be your sons your real sons.”

[3] - Makarem Shirazi, Naser, Tafsir Namunah, vol.17, p. 196, Dar al-Kutub al-Islamiyah, Tehran, first edition, 1374 (1995).

[4] - Fazel Lankarani, Muhammad, Jami’ al-Masail, vol.1, p. 408, Amir Qalam Publications, 11th edition (date not mentioned).

[5] - Tabrizi, Jawad, New Istefaat, vol.1, p. 336, first edition, (date and place not mentioned); Makarem Shirazi, Naser, Women’s Islamic Laws, p. 157, Imam Ali bin Abi Talib Religious School, Qom, 11th edition, 1428 A.H.

 

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