Author: Jatin Tiwari, New Law College, Bharati Vidyapeeth Deemed University, Pune
Abstract
Adoption has been a longstanding social institution across civilizations, serving as a means to provide care for orphaned or abandoned children. In Islam, adoption occupies a unique position, shaped by religious, legal, and cultural considerations. This paper traces the historical evolution of adoption in Islamic thought, beginning with pre-Islamic practices (Tabanni) and examining the reforms introduced by the Qur’an and Hadith. It explores the Islamic alternative to adoption—Kafalah (guardianship)—which preserves a child’s biological lineage while ensuring their welfare. The study also compares Islamic adoption principles with Western models and assesses contemporary challenges in Muslim-majority and non-Muslim societies.
Introduction
Adoption, the legal and social act of assuming parental responsibility for a child, has existed in various forms throughout history. In pre-Islamic Arabia, adoption (known as Tabanni) allowed children to be fully integrated into adoptive families, inheriting property and carrying the family name. However, this practice often led to complications regarding lineage and inheritance rights.
With the advent of Islam in the 7th century, adoption underwent significant reforms. Islamic teachings emphasized the preservation of biological lineage (nasab), leading to the prohibition of full legal adoption as practiced in pre-Islamic times. Instead, Islam introduced Kafalah, a guardianship system that ensures care for orphans without severing their biological identity.
This paper examines the historical, legal, and ethical dimensions of adoption in Islam, analyzing how Islamic principles balance child welfare with lineage preservation. It also explores contemporary challenges faced by Muslim communities in reconciling Islamic adoption laws with secular legal systems.
Literature Review
Scholarship on Islamic adoption highlights the transition from pre-Islamic Tabanni to Islamic Kafalah:
Coulson (1964) discusses how Islamic law redefined adoption to maintain lineage clarity, contrasting it with pre-Islamic practices.
Nasir (1990) examines Qur’anic injunctions (e.g., Surah Al-Ahzab 33:4-5) that prohibit altering an adopted child’s lineage.
Esposito (1991) emphasizes Islam’s ethical obligation to care for orphans while preserving family structures.
Broyde (2005) explores conflicts between Islamic adoption laws and Western legal systems, particularly in inheritance and custody matters.
El Fadl (2003) analyzes modern adaptations of Kafalah in countries like Egypt and Morocco.
Despite extensive research, gaps remain in understanding how Kafalah functions in non-Muslim legal systems and its psychological impact on adopted children.
Research Aim and Objectives
Research Aim
To analyze the historical development of adoption in Islam, from pre-Islamic Tabanni to the Islamic Kafalah system, and assess its contemporary applications.
Research Objectives
Pre-Islamic Adoption (Tabanni): Investigate how adoption functioned in pre-Islamic Arabia.
Islamic Reforms: Examine Qur’anic and Prophetic teachings that reshaped adoption.
Kafalah System: Analyze Islamic guardianship and its legal implications.
Ethical Considerations: Assess Islamic principles on orphan care and lineage preservation.
Modern Practices: Evaluate how Muslim communities navigate adoption today.
Chapter 1: Adoption in Pre-Islamic Arabia (Tabanni)
In pre-Islamic Arabia, Tabanni allowed adoptive families to fully assimilate children, granting them:
The adoptive family’s name.
Equal inheritance rights.
Full legal and social status as biological children.
This system provided stability for orphans but caused confusion in lineage and inheritance, leading to disputes over familial rights.
Chapter 2: Islamic Reforms in the Qur’an and Sunnah
Islam introduced key reforms through Surah Al-Ahzab (33:4-5):
“Nor has He made your adopted sons your real sons. That is but a saying of your mouths. But Allah says the truth, and He guides to the right way. Call them by (the names of) their fathers…”
The Prophet Muhammad’s (PBUH) adoption of Zayd ibn Harithah exemplified these changes. Initially called “Zayd ibn Muhammad,” he reverted to his biological name after this revelation.
Key reforms included:
Preservation of lineage: Adopted children retain biological family names.
Modified inheritance: No automatic inheritance from adoptive parents (though voluntary bequests are allowed).
Introduction of Kafalah: Guardianship without legal assimilation.
Chapter 3: The Kafalah System in Islamic Law
Kafalah is the Islamic alternative to adoption, providing:
Care and guardianship without altering lineage.
No automatic inheritance rights (though gifts or wills can be used).
Retention of biological identity.
Unlike Western adoption, Kafalah does not grant full legal parenthood, ensuring clarity in lineage and inheritance.
Chapter 4: Ethical and Social Dimensions
Islam emphasizes:
✔ Orphan care as a religious duty (Qur’an 2:220, 4:36).
✔ Preservation of nasab (lineage) for legal and social stability.
✔ Moral responsibility without severing biological ties.
This system balances compassion for orphans with Islamic legal principles.
Chapter 5: Contemporary Applications
Muslim-Majority Countries
Egypt, Morocco, and Indonesia recognize Kafalah within family law.
Inheritance issues are resolved through Islamic wills (Wasiyyah).
Non-Muslim Countries
Muslim families face conflicts with secular adoption laws.
Some use Kafalah while complying with local legal guardianship requirements.
Conclusion
Islamic adoption laws prioritize lineage clarity while ensuring orphan welfare through Kafalah. Unlike Western adoption, it avoids legal assimilation but provides care and protection. Modern challenges include reconciling Kafalah with secular legal systems, requiring further research on cross-cultural adoption practices.
FAQS
1. Is adoption allowed in Islam?
Islam permits guardianship (Kafalah) but prohibits full legal adoption that severs biological lineage.
2. Can an adopted child inherit in Islam?
No, unless the adoptive parent leaves a voluntary bequest (up to one-third of their wealth).
3. What is the difference between Kafalah and Western adoption?
Kafalah: Guardianship without legal name change or automatic inheritance.
Western adoption: Full legal assimilation, including name change and inheritance rights.
4. Why does Islam prohibit changing an adopted child’s name?
To preserve nasab (lineage), crucial for inheritance and family identity.
5. How did the Prophet Muhammad (PBUH) treat his adopted son, Zayd?
He cared for Zayd but maintained his biological lineage, setting a precedent for Kafalah.
6. Can a Muslim adopt a child in a non-Muslim country?
Yes, but they may follow Kafalah principles while complying with local laws.
7. What are the rights of a child under Kafalah?
The child receives care, education, and financial support but retains their biological family name.
8. How do Muslim-majority countries implement Kafalah?
Countries like Egypt and Morocco integrate Kafalah into family law, allowing guardianship without full adoption.
9. Can a Kafalah child marry their guardian’s biological child?
Yes, since they are not considered mahram (legal siblings).
10. How can Muslim adoptive parents ensure financial security for their Kafalah child?
Through Islamic wills (Wasiyyah) or gifts (Hiba) during their lifetime.
This study highlights how Islamic adoption laws balance religious ethics with child welfare, offering a unique alternative to Western adoption models. Further research is needed to address modern legal and social challenges in transnational adoption cases.
