A few days back, one of our client faced an unique problem about adoption in Islam and relevancy of legal guardianship as an alternative. As we know, Islam does not allow adoption in Islamic Sharia law, and many countries follow this law as Muslim personal law. So, our client, as a Muslim, belonging from Bangladesh, took legal guardianship of a child. Later, when she moved to Australia , and wanted to bring the child with with him, the government notified him, they allow adopted child but not the child they took legal guardianship. Here comes the question, how can someone take care of a child, other than his/her parents? Especially in unique situation that our client faced. Lets navigate into the adoption and legal guardianship in Islam and find answers.
Adoption in the West vs. Islam: Key Differences
Adoption is a common legal practice worldwide, allowing individuals or couples to take full parental responsibility for a child. However, the Western concept of adoption differs significantly from the Islamic approach (Kafalah), especially in matters of lineage, inheritance, and legal status.
Western Concept of Adoption
In many Western countries, adoption is a legal process that permanently transfers parental rights from the biological parents to the adoptive parents. They treat adopted child as a biological offspring, gaining all legal rights, including:
- Change of Identity: Parents change The child’s surname often to match the adoptive family’s name.
- Full Inheritance Rights: Adopted children inherit from their adoptive parents just like biological children.
- Legal Parenthood: Once they finalize the adoption, the biological parents lose all parental rights.
- No Restrictions on Interaction: After adoption, adopting parents treat the adopted child same as a biological child in terms of social and family interactions.
This approach focuses on integration and legal recognition, giving the child a new family identity. Now the question arises: is such adoption allowed in Islam? The simple answer is that adoption is not allowed in Islam. Now, we see what the alternative is.
It is important to distinguish between “adoption” and “legal guardianship.” Both involve the care of a child by someone other than their biological parents, but they have distinct legal importance.
Legal Guardianship or Kafalah
According to Section 4(2) of The Guardians and Wards Act 1890, “Guardian means a person having the care of the person of a minor or of his property, or of both his person and property.”
A guardianship is a legal relationship between a minor child and a guardian that gives the guardian certain rights and obligations regarding the child where he has to bear all expenditures of the minor. However, the minor cannot inherit his legal guardian’s property as of right. This is how adoption in Islam works.
‘Legal Guardian’ means a person whom the court declares as a guardian to take care the interest of a minor. The person willing to be a legal guardian of a minor has to file a petition to the appropriate family courts for legal guardianship. Upon filing a petition for appointment of guardianship, the court gives its decision considering the welfare of the minor and conducts an investigation to determine whether it’s in the best interest of the minor.
Adoption in Islam (Kafalah) vs. Western Adoption
| Aspect | Western Adoption | Islamic Kafalah (Guardianship) |
|---|---|---|
| Lineage | New parents can change the child’s surname and legal identity. | The child must retain their biological family name. |
| Legal Parenthood | Adoptive parents gain full parental rights, and biological parents lose all legal ties. | Guardianship does not replace biological ties; the child’s original identity is preserved. |
| Inheritance Rights | The child automatically inherits from adoptive parents. | The child does not automatically inherit but can receive a will (wasiyyah) of up to one-third of the estate. |
| Mahram (Non-Marriageable Kinship) | New family considers the adopted child as a full member of the family. | If the child is not breastfed (radā’ah), they are not a mahram and must observe hijab rules upon puberty. |
| Emphasis on Welfare | Focuses on legal adoption and integration into the new family. | Focuses on care, protection, and financial support while maintaining Islamic legal principles. |
Why adoption and Legal Guardianship Should be considered equally in Western Countries?
While legally distinct, adoption in Islam and legal guardianship in Islam serve the same fundamental purpose which is ensuring a child’s welfare, security, and upbringing by an adult who assumes full parental responsibility.
- Best Interests of the Child: International law, particularly the United Nations Convention on the Rights of the Child (CRC), prioritizes the child’s best interests. Article 3 of the CRC mandates that all decisions concerning a child must consider their best interests. Adoption or guardianship, the child is in permanent care arrangement with a responsible adult committed to their upbringing. Denying immigration rights based on a technicality undermines this principle.
- Functional Equivalence in Care and Responsibility: A legal guardian assumes parental duties, including financial support, education, healthcare, and emotional well-being—just as an adoptive parent would. The distinction is in terminology, not substance. The intent of laws permitting the immigration of adopted children is to ensure that children in need of care are not deprived of stable homes. The same principle should apply to children under legal guardianship.
Conclusion
The Western concept of adoption and Islamic Kafalah/Legal Guardianship differ in terms of lineage, inheritance, and legal recognition, the spirit behind both systems remains the same—providing love, care, and a stable home for children in need. Both emphasize the importance of ensuring a child’s well-being, security, and emotional support.
A Muslim following Kafalah, or adoption in Islam should not face any discrimination for adhering to Islamic principles. Scholars consider adoption on legal and social norms, Islamic guardianship is rooted in religious and ethical values. Both approaches serve the greater humanitarian purpose of uplifting orphaned and abandoned children. Understanding these differences with mutual respect ensures child welfare without prejudice.
Very useful content.. I was trying to adopt a child and confused About its legality in Islam.
Is legal guardianship as same as the adoption? I am non muslim. i Don’t understand