Fosterage and Adoption

[ummtaalib]

The Fiqh of Adopting a Child

 

<QUESTION>

What is the Fiqh of adopting a child?

 

 

<ANSWER>

In the name of Allah, Most Compassionate, Most Merciful,

Adopting someone else’s child, bringing it up, seeing to its education and training and being kind and good towards him/her is very virtuous and a commendable act. If the child is an orphan and has no support, then the reward is much more.

 

In a Hadith recorded by Imam al-Bukhari in his Sahih, the Messenger of Allah (Allah bless him and give him peace) said:

“I and the guardian of the orphan will be in Paradise like this” and the Prophet (Allah bless him and give him peace) joined his index finger with his middle finger. (Sahih al-Bukhari)

 

Meaning that the one who looks after the orphan will be very close to the Prophet (Allah bless him and give him peace) in Paradise.

This is an extremely neglected Sunnah of our beloved Prophet (Allah bless him & give him peace), and we should definitely encourage ourselves and others towards this direction.

 

However, it should always be kept in mind that according to Shariah, the lineage of the adopted child does not become established with the adoptive parents. Adoption of a child has no legal effect in Shariah. The child should not be attributed except to the natural parents, and not to those who have adopted him/her.

 

This is a fundamental principle and ruling laid down by the Holy Qur’an. The people in the days of ignorance (Jahiliyya) used to treat an adopted child as the real one in all aspects. The Qur’an condemned this practice with the following verse:

 

“And He (Allah) did not make your adopted sons your sons. That is only your speech by your mouths. And Allah guides you to the right path. Call them by (the names of) their (real) fathers. It is more just in the sight of Allah.” (Surah al-Ahzab, v: 4, 5)

 

The Messenger of Allah (Allah bless him and give him peace) adopted the Companion Zaid ibn Haritha (Allah be pleased with him), thus the other companions (Allah be pleased with them) initially referred to him as “Zaid ibn Muhammad”. When the abovementioned verse of the Qur’an was revealed, they reverted to calling him “Zaid ibn Haritha”.

 

In view of this important principle of Shariah, the following points need to be taken in to consideration:

 

1) Legal adoption is not permissible. This means that one cannot change the lineage of an adopted child and substitute the names of his real parents with adoptive parents. The child should always be attributed to the real parents so that it becomes common knowledge amongst the people who the real parents are.

 

2) If the adoptive mother breastfeeds the adopted child, then it becomes their foster child. In this case the child will be similar to the real children with regards to the Nikah and Hijab rules, i.e. the child can not marry the foster parent, neither any of the foster parent’s children. However with regards to inheritance, the child will not inherit from the family.

 

3) If the adoptive mother does not breastfeed the adopted child, then the relationship of fosterage will not be established and the child will be classed as other children with regards to Nikah and Hijab. An adopted child can marry its adoptive parents and their children. Also if a male child is adopted by a woman, she will have to observe Hijab from him after he reaches the age of puberty and visa versa. The adopted child will also (after puberty) observe Hijab with the adoptive parent’s children.

 

4) An adopted child will not inherit from his adoptive parents and to regard an adopted child as a real child in the matter of inheritance is incorrect. However, it should be remembered that although the child cannot inherit from the adoptive parents, it is permissible, rather advisable to make a bequest in its favour in ones life time. This “will” for the child can be made up to one third of one’s wealth, provided the child is not already included in the list of inheritors.

 

5) It is necessary to allow the adopted child to meet its real parents. Preventing him/her from meeting them and creating any obstacles will be considered as oppression.

 

6) Good behaviour and conduct should be displayed towards the adopted children, especially if they are orphans. If a person cannot look after the adopted child in a proper manner, then he should not adopt, otherwise he will earn punishment rather than reward.

 

7) The wealth of the adopted child, who has not yet reached puberty, should be kept safe. If there is a need to spend the money on the child, then one can utilize the child’s money upon him. However it should be spent with extreme care and there should be no extravagance. Loans cannot be taken from the child’s money, nor can it be given in charity.

 

From the foregoing, all your queries should be answered; nevertheless here are the answers to your questions:

 

(1) Yes, the boy will be considered a brother to the children whose mother breastfed him, and therefore all the rules Nikah will apply.

(2) Yes, the boy will be a Mahram to the woman who breastfed her and thus Nikah with her or her children will be not allowed.

(3) No, the boy will not be a Mahram to the adoptive mother and will have to observe Hijab with her after reaching puberty and also the rules of Nikah will apply.

 

And Allah Knows Best

 

[Mufti] Muhammad ibn Adam

Darul Iftaa

Leicester , UK

[ummtaalib]

Q. Does fosterage refer to adoption in Islam?

 

 

A. If by fosterage you are referring to the breastfeeding/suckling (Radhaa’at) of a child, then there is a difference between fosterage and adoption in Islam.

If a child is breastfed/suckled before the age of two years, a bond of fosterage (Radhaa’at) is established. The relationship that is established through lineage will be the same relationship that will be established through fosterage (Radhaa’at). For e.g. ones foster mother, father, brother, sister etc. would be considered to be one’s Mahrams.

 

If a child is taken under one’s care and adopted without breastfeeding/suckling (Radhaa’at) the child, then no bond of fosterage (Radhaa’at) will take place. In this case, the child would not be considered to be ones Mahram.

 

The laws that govern breastfeeding/suckling/fosterage (Radhaa’at) are different from the laws of adoption in Islam.

 

And Allah Ta’ala Knows Best

 

Mufti Ismaeel Bassa

Confirmation:
Mufti Ebrahim Desai

 

(Islamic rulings on this Q&A newsletter are answered in accordance to the Hanafi Fiqh) 

 

Fatwa Department

Jamiatul Ulama (KZN) 

Council of Muslim Theologians

[ummtaalib]

Foster care of children in Islam

 

Question

Is foster care of children allowed in Islam? What is the proper method of adoption? What about organizations that require a couple to be married 3 years, is this required in Islamic adoption? What about purdah, is the child mehram or nonmehram to adoptive parents? Up to what age must the child be cared for? what about programs that wont give child until three years later?

 

Answer

If by adoption is meant that you take a poor child and look after his boarding, lodging and clothing, Islam has always stressed the importance of helping the poor and needy people. One can always give charity and fatherly love to the child.

 

It is reported in a Hadith that the one who assumes responsibility for the well-being of an orphan will be granted the nearness of Nabi (Sallallahu Alayhi Wasallam) in Jannat (Mishkaat). This is an extremely neglected Sunnat of our beloved Nabi (Sallallaahu Alayhi Wasallam) and we should definitely aspire in this direction; however, we must uphold the framework of the Shariah.

 

One cannot legally adopt; you cannot give your name to the child. Legal adoption like this is prohibited in Islam. If a person legally adopts a child there can be several complications. Firstly, the child will lose his identity. Secondly, suppose after adopting a child one has children of his own. It is natural that in such a situation you will show bias in favour of your own blood child. Thirdly, if the child born to you is of the opposite sex to the adopted child, they cannot freely stay in the same home because they aren’t blood related to each other. When the adopted child, a girl, grows up, she has to make Purdah (Hijaab) with the adopted father as he is not her real father. If the boy becomes a man and marries, there will be Hijaab between the so called father and daughter-in-law.

 

If you adopt a child you will be depriving him/her of many rights. If a person dies, the property that he leaves behind has to be divided according to what is mentioned in the Qur’an. If the person has children and if he legally adopted a child, he will be depriving his own child of his legitimate inheritance. If a person has no children when he dies, then his wife will get 1/4 the estate. If there are children she gets 1/8. Again the adopted child will reduce the share of the mother should this child be considered legally legitimate.

 

To avoid all these complications, legal adoption is prohibited in Islam. However this should in no way dissuade us from earning tremendous reward by taking care of orphan children.

 

and Allah Ta’ala Knows Best

Mufti Ebrahim Desai

askimam

[ummtaalib]

ADOPTION OF A CHILD IN ISLAM

 

Q: “In the secular legal system, adoption of a child by couples is lawful as we all know. Please elucidate the position of Shariah in this regard. How far such an adoption is permissible in Islam, and if so, what are the rights and obligations of the parties involved in such a situation?”

 

A: Adoption of a child has no legal effect in Shariah. One can adopt a child for his emotional and psychological satisfaction. He can treat him as his own son in the matters of love, affection and general behavior. Adoption of a child to provide shelter to him is a virtuous deed which carries much reward in the Hereafter. But so far as the legal aspects are concerned, adoption has no consequence. The child should not be attributed except to the natural father, and not to the one who has adopted him. Even in the matter of hijab adoption has no effect whatsoever. If a male child is adopted by a woman, she will observe hijab from him after he reaches the age of puberty, unless she is related to him in a prohibited degree. An adopted child can marry a daughter of his adoptive parents, because she is not his real sister. In short, adoption does not create a new legal relationship which did not exist before.

 

All these rules are inferred from the principle laid down by the Holy Qur’an in this respect. The people in jahiliyyah used to treat an adopted child as the real one in all respects. The Holy Qur’an condemned this practice and the following verses were revealed:

 

وما جعل أدعیاءکم أبناءکم

ذ لکم قولکم بافواھکم

واللہ یقو ل الحق وھو یھدی السبیل

ادعوھم لا باءھم ھو أقسط عنداللہ

 

“And Allah did not make your adopted children your sons. That is only your words coming out from your tongues. And Allah says the truth and He guides you to the right path. Call them with reference to their (real) fathers. It is more just in the sight of Allah.” (Surah 33:V4)
However, it should be remembered that although an adopted child cannot inherit from his adoptive father, but it is permissible, rather advisable, for him that he, in his lifetime, makes a will in favour of his adopted son. Through such a will he can bequeath upto one third of his property to his adopted child who cannot otherwise share his inheritance.[1]

 

[1] Such a bequest to a non-heir is known as WASIYAH and must not exceed one-thirds of the estate after payment of debts.

 

Mufti Taqi Uthmani

[ummtaalib]

Custody for Adopted Children

 

Q. asalaam-alaikum wa rahmatullahi wa barakatuhu, My husband and I adopted two male children a few years ago from the orphanage. I breast fed them before they reached two years of age to establish mahram relationship with them. My husband and I are now divorcing due to many issues. Could you please tell me if the islamic custodian rulings for adopted children are the same a biological children? I’ve been told that the children will be with me until the age of 7 (unless i remarry, in which case I will lose them) and after that they will need to go to my husband and I will only have visitation privileges with them. Is this valid in the case of adopted children as well? please advise. jazakallah hu khairan.

 

(Question published as received)

 

 

A. The general rights and laws of custody (Haqq-ul-Hadhaanah) do not apply to adopted or fostered children. There are no fixed principles governing the rights of custody of adopted children in the case of divorce between spouses. Therefore, the couple should discuss the matter and reach a mutual agreement which will be in the best interests of the children. (Shaami 3/556)

 

And Allah Ta’ala Knows Best

 

Mufti Ismaeel Bassa

 

Confirmation: 

Mufti Ebrahim Desai

 

(Islamic rulings on this Q&A newsletter are answered in accordance to the Hanafi Fiqh) 

 

Fatwa Department

Jamiatul Ulama (KZN)

[ummtaalib]

Observing purda from adopted children

 

 

Q: Is observing purda necessary between a man and his adopted daughter or a woman and her adopted son when they reach the age of puberty?

A: We have prepared a detailed article on this issue. Below are the details:

Islam places great emphasis on the aspect of segregation between males and females and a woman concealing herself from na-mahram (strange) males i.e. males with whom marriage is permissible. Once Hadhrat Ali (Radiyallahu Anhu) was seated by Nabi (Sallallahu Alayhi Wasallam) when Nabi (Sallallahu Alayhi Wasallam) asked, “What is best for a woman?” All the sahaabah remained silent and nobody answered. Hadhrat Ali (Radiyallahu Anhu) said, “When I went back home, I asked Hadhrat Fatimah (Radiyallahu Anha), ‘What is best for a woman?’ In answer she said, ‘That men do not see them.’ So I mentioned that to Nabi (Sallallahu Alayhi Wasallam) and he said: ‘Fatimah is part of me.’” (Musnadul Bazzaar # 526) Likewise, Allah Ta`ala explains in detail in Surah Noor as to which men in whose presence a woman can appear without the need of fully concealing herself.

In light of this, the question arises as to the nature of the relationship between a woman and her adopted son, and a man and his adopted daughter. Will purdah be required or can they appear in the presence of each other? The answer to this will be based on the fact as to whether there was any type of foster relationship between the child and the stepmother. Hence, there can be one of three situations:

1. No foster relationship

In this case, if the adopted child is a boy then once he reaches the age of adolescence – nearing puberty, the adoptive mother and the other females of the family will have to observe purdah in his presence and count him as a stranger in the laws of purdah, seclusion, nikaah etc. If the adopted child is a girl, then once she reaches the age of adolescence – nearing puberty, she will have to observe purdah before the adoptive father and the other males of the family.

 

2. Foster relationship through breast milk that was naturally produced due to pregnancy

The adoptive mother and father will now be counted as the foster parents and their children will be counted as the foster siblings of the adopted child. Hence, in matters of purdah, seclusion and nikaah they will treat each other as one would treat one’s blood siblings. Therefore, purdah will not need to be observed and marriage with the foster sibling will not be permissible. If the adopted child is a boy then he will be a mahram for the adoptive mother and his foster sisters. Similarly, if the adopted child is a girl then her adoptive father and his sons will be her mahrams. Likewise, the parents of the adoptive mother and father will be regarded as the foster grandparents of this child.

3. Foster relationship through breast milk that was unnaturally produced through the aid of medication etc. and not pregnancy

The adoptive mother will be regarded as the foster mother, but not the adoptive father. The children of the adoptive mother will be regarded as the foster siblings of the adopted child. Hence, in matters of purdah, seclusion and nikaah they will treat each other as one would treat one’s blood siblings. Likewise, the parents of the adoptive mother will be regarded as the foster grandparents of this child. Nonetheless, on account of the adoptive father being the husband of the foster mother, the adopted daughter will not have to observe purdah before him. However, the children of the adoptive father from another wife will not be regarded as the foster siblings of the adopted child. Similarly, the parents of the adoptive father will not be regarded as the foster grandparents of the adopted child. Thus, the adopted child will be treated as a stranger for them in matters of purdah, seclusion, nikaah, etc.

And Allah Ta'ala (الله تعالى) knows best.

عن علي رضي الله عنه أنه كان عند رسول الله صلى الله عليه وسلم فقال أي شيء خير للمرأة فسكتوا فلما رجعت قلت لفاطمة أي شيء خير للنساء قالت ألا يراهن الرجال فذكرت ذلك للنبي صلى الله عليه وسلم فقال إنما فاطمة بضعة مني (المسند البزار رقم 526)

وفي المحيط البرهاني 4 / 93 - 94 : فالرضاع في إيجاب الحرمة كالنسب والصهرية. والأصل فيه قوله عليه الصلاة والسلام (يحرم من الرضاع ما يحرم من النسب) . . . . قال أصحابنا رحمهم الله تعالى: وما يتعلق به التحريم في النسب يتعلق في الرضاع إلا في مسألتين . . . . والتحريم بالرضاع كما يثبت من جانب المرأة يثبت من جانب الرجل وهو الزوج الذي نزل لبنها بوطئه ويسميه الفقهاء لبن الفحل. وبيانه: أن المرأة إذا أرضعت بلبن حدث من حمل رجل فذلك الرجل أب الرضيع، لا يحل لذلك الرجل نكاحها إن كانت أنثى

وفي الفتاوى الهندية 1 / 343 : وهذه الحرمة كما تثبت في جانب الأم تثبت في جانب الأب وهو الفحل الذي نزل اللبن بوطئه كذا في الظهيرية يحرم على الرضيع أبواه من الرضاع وأصولهما وفروعهما من النسب والرضاع جميعا حتى أن المرضعة لو ولدت من هذا الرجل أو غيره قبل هذا الإرضاع أو بعده أو أرضعت رضيعا أو ولد لهذا الرجل من غير هذه المرأة قبل هذا الإرضاع أو بعده أو أرضعت امرأة من لبنه رضيعا فالكل إخوة الرضيع وأخواته

وفي الفتاوى الهندية 1 / 343 : رجل تزوج امرأة ولم تلد منه قط ثم نزل لها لبن فأرضعت صبيا كان الرضاع من المرأة دون زوجها حتى لا يحرم على الصبي أولاد هذا الرجل من غير هذه المرأة
وفي الدر المختار مع هامشه رد المحتار 3 / 317 : (ولبن بكر بنت تسع سنين) فأكثر (محرم)

(قوله ولبن بكر) المراد بها التي لم تجامع قط بنكاح أو سفاح وإن كانت العذرة غير باقية كأن زالت بنحو وثبة حموي والحرمة لا تتعدى إلى زوجها، حتى لو طلقها قبل الدخول له التزوج برضيعتها لأن اللبن ليس منه قهستاني ط؛ أما لو طلقها بعد الدخول فليس له التزوج بالرضيعة لأنها صارت من الربائب التي دخل بأمها بحر عن الخانية

وفي رد المحتار 3 / 221 : ولهذا لو ولدت للزوج فنزل لها لبن فأرضعت به ثم جف لبنها ثم در فأرضعته صبية فإن لابن زوج المرضعة التزوج بهذه الصبية، ولو كان صبيا كان له التزوج بأولاد هذا الرجل من غير المرضعة بحر عن الخانية

Answered by:

Mufti Yusuf Mulla

Checked & Approved:

Mufti Ebrahim Salejee (Isipingo Beach)