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Orphan Care Adoption and Kafala
Jan 1, 2015

The need for orphans to receive adequate and comprehensive care is universal; it is present in every culture and religious group. It is a need that could threaten every child, though we pray that our own children never find themselves in such a situation. As parents, what does one want for one's children in the event that they're left without us? What if there aren't suitable family members to care for them? Who would be able to provide for their spiritual, as well as material, needs?

UNICEF defines an orphan as "a child who has lost one or both parents" (UNICEF Orphans). By this definition, UNICEF estimates that over 132 million children are orphans in sub-Saharan Africa, Asia, Latin America, and the Caribbean, not to mention the number of children in Western countries who can be encompassed with that broad definition. This definition is necessarily broad because to lose even one parent renders a child vulnerable to poverty, and educational and social neglect.

Of these many millions, roughly 13 million children are without both parents due to abandonment or death. Many of these children live with a grandparent or other family member who may be in need of support in order to care for the child or children. A portion of this 13 million are without extended family support and are served in orphanages, group homes, children's villages, and in some communities, foster families. Some of these children are permanently integrated into the life of an unrelated family, but many are left to their own devices on the street.

What is our responsibility to orphans? As do other holy scriptures, the Qur'an makes it clear that these children are everyone's responsibility, directly or indirectly. What is necessary and just to provide for our own children should not be denied to someone else's child. It is not the will of God that they remain neglected or are pushed aside in society. We need to remember the numerous injunctions in the Qur'an and the teachings of the Prophet Muhammad, peace be upon him, to care for orphans, to provide for their needs, and to treat them with justice.

In Chapter An-Nisa' (Women), the rights of orphans are specifically protected. "[...] you must be assiduous in observing the rights of orphans. Whatever good you do, surely God has full knowledge of it" (4:127). In Chapter Al-Ma'un, caring for orphans and others in need is required of us, pointing out that the ritual of our prayers are empty without service to humanity and that this does not go unnoticed in the Last Days.

"Have you ever considered one who denies the Last Judgment? That is he who repels the orphan, and does not urge the feeding of the destitute. And woe to those worshippers (denying the Judgment), those who are unmindful in their Prayers, those who want to be seen and noted (for their acts of worship), yet deny all assistance (to their fellowmen)." (107:1-7)

The Qur'an leaves no doubt that caring for vulnerable children is a vital component of a faithful life. The rights of orphans should be carefully guarded and the impact on those who violate those rights is spiritually devastating. Additionally, orphan care is also part of how we are instructed to worship. Worship of the Creator is a broad and life encompassing experience. Our actions and the way in which we conduct our lives is a form of worship. In verse 4:36 of the Qur'an, worship is linked to how we treat people who are in need, including orphans:

"And worship God and do not associate anything as a partner with Him; and do good to your parents in the best way possible, and to the relatives, orphans, the destitute, the neighbor who is near (in kinship, location, faith), the neighbor who is distant (in kinship and faith), the companion by your side (on the way, in the family, in the workplace, etc.), the wayfarer, and those who are in your service..." (4:36).

If we do not "do good" to vulnerable children, we are neglecting an explicit component of worship, according to the verse above.

The UNICEF definition of an orphan as given in the beginning is largely in line with the historical definition within mainstream Islamic jurisprudence. The Prophet Muhammad, peace be upon him, himself lost his father before he was born and lived with a foster family (a common practice at the time, not necessarily due to one's status as an orphan) as an infant until both his mother and foster parents deemed it wise for him to stay with his mother. At age six, he then lost his mother to illness. Imagine the constant transition, loss, social insecurity, and sorrow, all by age six. He suffered in the same manner as countless children do today. The tribe had the responsibility to provide for the needs of orphaned children, but handling such loss was a trial then as it is now – a challenge requiring spiritual as well as material care.

The experience of the Prophet is a vital and divine example clearly expressed in the Qur'an to elicit emotion and commitment, directed to both Muhammad, peace be upon him, and to all humanity. The Qur'an makes an example of God's Messenger and his experience as an orphan in Chapter Ad-duha (The Forenoon):

"Did He not find you an orphan and give shelter (to you)? And find you unguided and guide you? And find you in want and make you self-sufficient? Therefore, do not oppress the orphan; nor chide and drive away the petitioner." (93:6-10)

The Prophet also praised the ones who take care of orphans: "I and the person who looks after an orphan and provides for him, will be in Paradise like this," putting his index and middle fingers together (Bukhari).

Adoption and kafala

The full reality of adoption laws and practice interact with a web of issues including children's rights, human psychology, local culture, international and national laws, family and cultural identity, religious concerns, and even property and inheritance rights. When circumstance denies a relationship with a biological family, only culture prevents many children from being embraced by the deepest friendship of care and protection in a family setting, regardless of birth. Islam itself does not prevent this.

What Islam does is to protect the rights of orphans to know their origins and protects them against manipulation for the gain of those caring for them. All their needs are to be provided for with dignity, mercy, and justice.

One of the primary difficulties faced in conversations about "adoption" between parties in the West and traditionally Muslim communities is simply how we define the term "adoption." In the West, the term "adoption" (or equivalent word in varying languages) carries different meanings depending on the circumstances of a particular family. It can range from a situation shrouded in secrecy where a child is never told that he or she is adopted to a situation in which there is ongoing personal contact with the biological family of the child who are, for one reason or another, unable or unwilling to care for the child themselves. Legal adoption, at least in the United States, does mean that the child will automatically inherit from the adoptive parents (and not from the biological parents) in the event of their death, and it is increasingly rare for there to be no acknowledgement of the child's heritage. Of course, a will written by either the biological or adoptive family would allocate the distribution of inheritance in any way that the parents desire, overriding an automatic distribution. These are relatively small details that have straightforward solutions if they are in conflict with Islamic ethics.

A primary concern about "adoption" according to the Muslim community is that it erases the biological family. This is not necessarily so as practiced in the United States. Adoption is a legal construct that provides permanency in a child's living situation and cultural experience. It allows for a consistent and potentially deeply bonded emotional and social experience that an orphanage or foster care does not provide. The outcome for children who grow up in a family which is committed to their care is significantly more positive than for those who grow up in institutional care. Statistics supporting this assertion began to be widely publicized in the United States beginning in the early twentieth century. None of this precludes ongoing contact with the child's heritage.

Many of the stipulations regarding family care of an orphan in traditional Islamic family law are very similar to what is known as "open" adoption in the West, an arrangement in which full disclosure about identity is required and in some cases even allows for ongoing interaction between the adopted child and their family of origin. Experience has shown that some level of openness provides a better outcome over time for the well being of the child. The other side of the coin is "closed" adoption in which all ties to the child's biological family are severed, even to the point of not informing them that they are adopted. This is what is forbidden in Islamic law and in practice is more traumatizing for the child than open adoption.

The traditional form of "adoption" in Islamic jurisprudence is called kafala. Kafala is very similar to open adoption or legal guardianship in that a child's identity is always maintained and respected. It is a form of guardianship which resembles foster-parenting, but is more stable. It is defined as, "The commitment to voluntarily take care of the maintenance, of the education, and of the protection of a minor, in the same way a parent would do for a child," but maintains recognition of the child's family background, including automatic inheritance rights (Shura Council). Even in a fully legal adoption in the Western context, if the arrangements are "open," there is no mystery as to the child's origins.

Both open adoption and kafala provide care for children in a stable manner that is ongoing and provides the network and knowledge of family life that we require in order to fully function throughout our lives.

An additional difference between adoption in the West and kafala is that Western adoption views adopted children as unmarriageable to members of the adoptive family. Any relationship between adopted children and members of the adopting family would be considered incest. This is not technically so under the kafala system. Non-related children raised in one's home are technically considered "marriageable" (non-mahram), though it is important to realize that this does not mean such a marriage should take place or will. This is perhaps one of the greatest barriers for families who might otherwise decide to raise orphans in their home.

Concern over issues of privacy can inhibit families from caring for orphans long-term in their homes. I have encountered this concern as a reason to not take in orphans despite there being no actual discouragement from doing so in Islamic jurisprudence. In the abstract, without an actual child in front of you, it is easy to worry about privacy for individuals who are non-mahram and the desire to be relaxed within one's own home. A place to start in approaching this issue is to keep in mind the strong injunction to provide for the needs of orphans and the well-documented observation that children are cared best when they have an experience of family-life that they feel entitled to and caregivers who are uniquely committed to their welfare. Concern about privacy does not cancel out this necessity and people should draw a balance between responding to this need while maintaining their privacy.

There are many cultural dynamics that are intermingled with religious practice in relation to matters of privacy, dress code, and behavior in a family. Many cases of sexual abuse are a result of psychiatric disorders and social ties are as important as blood ties. The Qur'an clearly encourages treating orphans as brothers and sisters when interacting with orphans. A sudden segregation of an adopted child at puberty may cause severe damage to the child and other members of the household. Yet, it is necessary to be cautious and observe prescriptions that relate to intermixing within the family to avoid privacy violations. Thus, it is important to develop a very finely tuned relationship in the case of adoption where transition to adulthood may cause sensitive zones to arise among the household. Parents should be extremely careful during such times and never compromise from sincere affection to the adopted kid.

Each individual situation requires wisdom and a sincere desire to meet the needs of adopted children and other household members. We all have a responsibility to contribute directly or indirectly to orphan care. We need to deeply consider adoption alternatives in the care of children so that they have a safe haven within the community. The ability of communities to care for their most vulnerable is an indicator of spiritual health. Flexibility and faith in the All-Merciful while trying to understand the meanings of our scriptures are vital in practicing a religion. If our cultural practices place barriers between us and fulfilling the ordinances of the scripture, we need to re-evaluate our cultural practices with courage and immediacy.