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FCNA Guidelines on Fostering and Guardianship

AUTHOR: Zainab Alwani

بسم الله الرحمن الرحيم

The Islamic Position Regarding the Care of Orphans and Abandoned Children

The Fiqh Council of North America (FCNA) & The Assembly of Muslim Jurists of America (AMJA)

The number of orphans and abandoned children has grown in recent years. There is a great need for Muslim families, especially those living in a more peaceful and affluent environment, to come forward to take care of these children. The Qur’an and Sunnah emphasize the care of orphans and promise Allah’s many blessings both in this world and the Hereafter for those who undertake this duty. Caring for an orphan and an abandoned child has been both a moral and legal imperative in the Islamic tradition. The Fiqh Council of North America (FCNA) and The Assembly of Muslim Jurists of America (AMJA) give the following guidelines for this purpose:

1. Foster Care: There are many Muslims currently in the foster-care system due to substance abuse, mental health issues of a guardian, homelessness and other reasons. Domestic foster-care is typically a short-term circumstance, unless parental
rights have been terminated. For many foster children, their birth parents are living, however cannot care for their children. We call on American Muslims to increase the number of licensed Muslim foster homes, support licensed foster families and foster children. We call on the masajid to provide the support and create a friendly environment that supports foster families and foster children.

2. Kafalah: Adoption and kafalah’s primary goal is to provide care for a child who would otherwise be deprived of a family environment. Kafalah comes from the Arabic root “kafa-la,” which means “to take care of.” In legal terms,kafalah is typically defined as “the commitment to voluntarily take care of the maintenance, education and protection of a minor. The Qur’an emphasizes the preservation of a child’s lineage and identity. We urge the use of the term guardianship (or Kafalah) for this purpose.

3. Use of Last Name: It is to be noted that the law in most Western societies does not require the adopting parents to give their last names to their adopted children. If for legal documents, health insurance and/or tax purposes it is needed to use the guardian family’s last name, it can be used. The guardian family, however, must make sure that the child’s biological name is retained as a last name or middle name. It is the role of the lawyers and experts in the field to find appropriate ways to preserve the biological identity of the child as well as any legal rights of the guardian family.

4. Flexibility in Titles: The Islamic law shows flexibility when it comes to calling an elder male or female “father” or “mother” out of respect, as well as, referring to a child as “son” or “daughter” out of love and compassion. This ruling might ease the way of communication between all persons involved.

5. Observance of the Rules of Mahram: The Quran emphasizes the knowledge and observance of the rules of “mahram” (the kin who are not allowed to marry each other). The guardian and his biological and matrimonial family members are not mahram to the child under guardianship/kafalah and fosterage. Hence the Quran and the Prophetic model emphasizes the loving and compassionate relationship in terms of living together in the same house. The rules have been set in order to preserve relational stability, respect privacy and protect all members who live together under one roof. The rules concerning
non-mahram in the household should be observed when the child under Kafalah grows up as an adult. All the restrictions related to acting with the opposite genders come after puberty.

6. Mahramiyah through Rada’ah: Guardian families can be advised of the possibility of creating “mahramiyah” through breastfeeding (rada’ah). If the child is under two years old then it is unanimous that the child can become the mahram of the guardian family, if he/she takes the milk of the guardian woman five times. The milk does not necessarily have to come from the guardian “mother” only, but someone in her family like her sister or daughter can also provide five feedings to the child for it to be considered rada’ah. The feeding could be through the cup or bottle.

7. Special Rules of Seniors: Single women can obtain kafalah/guardianship of girls and single males can obtain kafalah/guardian of boys. The senior women or al-Qawa’id, (the women of post-menstrual age and they cannot get pregnant or give birth) can be a guardian of orphans and abandoned children. The rules of interaction with the other gender are relaxed for them.

8. Laws of Inheritance: The children under kafalah are not the legal heirs of the kafeel family and they would not inherit from their guardian parents. It is, however, permissible according to Islamic law for the guardian to make a special will — one third of their wealth – “unless more is permitted by the sharia-designated heirs” for the children under fafalah. The same rule will apply for the wealth of the children for their kafeel parents. In Islam, the individual has the right to act as he or she pleases with his/her wealth while alive, within the Shariah guidelines.

9. FCNA and AMJA urge Muslim communities to make collective efforts in dealing with the orphaned and abandoned children crisis. The Islamic Centers as well as different Islamic organizations should provide the spiritual, emotional, physical and financial assistence necessary for individuals who have the desire to care for orphans but lack the financial resources.

Moving forward: Organizations, groups and individuals that are caring for orphaned and abandoned children must feel comfortable to bring to the Fiqh Council of North America FCNA and the Assembly of Muslim Jurists of America (AMJA) any challenges that they are facing in the field in relation to the Islamic jurisprudence.


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