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 greater need that Muslim families, especially those living in more peaceful and affluent environments, come forward to care for these children. The Qur’an and Sunnah emphasize the care of orphans and promise God’s many blessings both in this world and the Hereafter for those who undertake this duty (90.11-16; 93:6; 93:9).
Caring for an orphan and 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:
- 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. The goal of domestic foster care is reunification with birth parents, unless the courts have terminated parental rights. Refugee foster children are typically teenagers and come to the U.S. without their birth parents as unaccompanied refugee minors. For many foster children whose parents are living but cannot care for them, we call on Muslim Americans to increase the number of licensed Muslim foster homes, support licensed foster families and foster children. We call on mosques to provide the support and create a friendly environment that support foster families and foster children.
Kafalah: The primary goal of fosterage, guardianship and kafalah is to provide care for a child who would otherwise be deprived of a family environment. Kafalah comes from the Arabic root “ka-fa-la,” (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 (3:37; 20:40). The Qur’an emphasizes the preservation of child’s lineage and identity. We urge the use of the term Guardianship (or Kafalah) for this purpose (33:4-5).
- Use of the legal documents: Fosterage and guardianship laws in most Western societies are complex and require knowledge and expertise. Lawyers and experts in the field should help find appropriate ways to preserve the child’s as well as the guardian family’s legal rights. We call on Muslims who are engaged in fostering or guardianship to consult with lawyers and experts in the legal system.
- Flexibility in Titles: 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.
- 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). In the case of the guardian and his biological and matrimonial family members are not mahram to the child under guardianship/kafalah and fosterage, the rules of mahram should be observed. Hence the Quran and the Prophetic model emphasize 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 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 restrictions related to acting with the opposite genders come after puberty.
Mahramiyah through Rada’ah: Guardian families can be advised of the possibility of creating mahramiyah through milk relationship (rada’ah) [4:23]. If the child is under two years old then it is unanimous that the child can become the mahram of guardian family, if the guardian woman nurses the child 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 feeding of the child and it will be considered as rada’ah. The feeding could also be through a cup or bottle (31:14).
- Special Rules of Seniors: Single women can obtain kafala/guardianship of girls and single males can obtain kafala/guardian of boys. Senior women or al-Qawa’id (post-menstrual women who cannot get pregnant or give birth) can be a guardian of orphaned and abandoned children. The rules of interaction with the other gender are relaxed for them.
- Laws of Inheritance: Children under kafalah are not the kafeel family’s legal heirs and they would not inherit from their guardian parents. However, permissible according to Islamic law, the Guardian can make a special will — one third of their wealth – unless more is accepted by the Sharia-designated heirs for the children under kafalah. The same rule will apply for the children’s assets for their parents. In Islam, individuals have the right to act as they please with their wealth while alive, but within the Shariah guidelines.
- FCNA and AMJA urge Muslim communities to make collective efforts in dealing with the orphaned and abandoned children crisis. Islamic centers as well as Islamic organizations should provide the spiritual, emotional, physical and financial assistant necessary for individuals who have the desire to care for orphans but they lack the financial resources.
- Moving forward: Organizations, groups and individuals caring for orphaned and abandoned children are welcome to discuss with FCNA and AMJA any challenges they are facing regarding relationship to the Islamic jurisprudence.
FIQH COUNCIL OF NORTH AMERICA (FCNA)
ASSEMBLY OF MUSLIM JURISTS OF AMERICA (AMJA)