Adding by Choice: Adoption and Functional Equivalents in Islamic and Middle Eastern Law
38 Pages Posted: 22 Jan 2016 Last revised: 25 Jan 2016
There is a perception in the literature that, because traditional Islamic law prohibits adoption, Muslim jurisdictions do not, by extension, recognize it. This view is reinforced by the fact that certain Muslim countries explicitly prohibit adoption (tabannī) in their statutes. As a consequence, Western courts generally refuse to recognize the "adoption" of a child, or any "alternatives" to adoption, which has taken place in a Muslim country. This Article reexamines this perception. It argues that the current state of opinion is based on a comparative analysis that fails to consider the changing nature and variety of adoption laws worldwide. A new approach to our understanding of adoption and its respective forms in Muslim jurisdictions is proposed. The starting point is a historical analysis of pre-Islamic adoption in these jurisdictions and its reception in traditional Islamic law. This look reveals that pre-Islamic adoption had little to do with the provision of new homes for parentless minors. On the contrary, it was practiced to strengthen the military and economic power of the tribe. Conversely, Islamic law pays great attention to the protection of children and has developed a multitude of protective measures for their care. While, as a principle, legitimate filiation can only be established by the conception of a child in a valid marriage, Islamic scholarship has developed legal devices for circumventing this rule and establishing kinship relationships between persons who are not genetically related. Traditional Islamic law thus holds great opportunities for the establishment of a comprehensive parent–child relationship between genetically unrelated persons. Moreover, a comparison of adoption regulations reveals a great variety of forms and effects in the various legal systems of the world. It emerges from this functional comparison that the essence of adoption today revolves around the creation of an enduring, intimate parent–child relationship, whereby the new parents are entrusted with full parental care and authority, with the best interests of the child being the paramount principle. It is against this background that the existing regulations on the placement of children in new homes in Muslim jurisdictions are further scrutinized. Through the lens of functionalism, this Article detects functional equivalents to adoption even in countries that have explicitly prohibited tabannī.
Note: This article is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, American Society of Comparative Law. All full-text AJCL articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet.
Keywords: comparative law, inter-islamic comparison, adoption, tabannī, kafāla, filiation, nasab, acknowledgment of parenthood, milk-relationship, functional equivalents, adoption surrogates, genetic descent, presumption of paternity
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