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Minors

By:
Agostino Cilardo
Source:
The Encyclopedia of Islamic Bioethics What is This? A comprehensive reference work covering the major issues in Islamic bioethics, including medicine, clinical practice, genetics, theology, and Islamic law.

Minors

Background

Islamic law includes many provisions aimed to protect children, from conception to puberty, that is, the stage when the child acquires full legal capacity. According to Q. 22:5, 23:12–14, the development of a fetus passes through several stages; the last one, according to a Prophetic tradition, occurs at the 120th day (4 months) from conception and coincides with ensoulment. An abortion after the fourth month is punishable by penal law, while there are deep divergences among the legal schools about the lawfulness of abortion within 120 days. They range from the absolute freedom of abortion (Zaydī school) to its prohibition (Mālikī and Ẓāhirī schools). The Ḥanafī school maintains that abortion is lawful if justified by serious reasons, such as the woman’s inability to raise her son; or her family’s inability to provide children with adequate support. The doctrine of the Shāfiʿī and Ḥanbalī schools is situated between those of the Ḥanafī and Mālikī views. Islamic law also adopts a strict position in establishing lawful filiation (nasab), which can derive only from intercourse between spouses or, with regard to the earlier period of Islam, between a master and his concubine. Applying this rule to the modern techniques of artificial insemination, it is evident that only those methods that do not require the presence of a third person in the process of impregnation and gestation are lawful. Adoption (tabannī), although lawful in the pre-Islamic period, was prohibited in the Qurʾān (33:4-5).

According to this view, a legitimate child belongs to the father’s family, acquires the father’s name, and follows his religion as long as he/she is a minor, but apostasy of the father has no effect on the child’s status. The father or guardian exercises legal power (wilāyah) from birth to puberty. In contrast, children born of an unlawful sexual intercourse (zinā), that is, illegitimate children, have a family relationship exclusively with their mother and her family. Children are assigned exclusively to the mother when the paternity is unknown.

There is general consensus among Muslim jurists that the practice of the circumcision (khitān) of a male child is compulsory, while legal schools do not agree on the lawfulness of “female circumcision” (khafḍ or khitān al-unthā), classified by the World Health Organization (2008) as clitoridectomy, excision, infibulation, or any other harmful procedures to the female genitalia for non-medical purposes. Such practices are categorized by WHO as “female genital mutilation” (FGM).

Islamic law generally gives the mother the right to custody of a minor child. Mothers, including divorced ones, are also expected to breastfeed their children for a maximum period of two years: “[Divorced] mothers shall suckle their offspring for two whole years, for those who wish to complete the term. But the father shall bear the cost of their food and clothing on equitable terms” (2:233). Parents must guarantee maintenance and physical and psychological care to the child, according to their economic standard. The Qurʾān describes a series of moral duties that are incumbent on children toward their parents (17:23–24; 29:8; 31:14–15; 46:15–18).

Changes in the Modern Period

In addition to The Universal Declaration of Human Rights (1948), concerning “the inalienable rights of all members of the human family,” the United Nations enacted the specific Convention on the Rights of the Child (1989) (UNCRC), which emphasizes “the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.”

In response, the Organization of the Islamic Cooperation (OIC) enacted the Covenant on the Rights of the Child in Islam (2005), which follows the Declaration on the Rights and Care of the Child in Islam (1994). The Covenant (2005) is not in force because the minimum number of twenty instruments of ratification required has not been delivered to the Secretary-General of OIC (arts. 22–23). Nevertheless, this Charter has an Islamic imprint, being that its guiding principles are drawn from Shariʿah and the domestic legislation of the States Parties (art. 3). Thus, it shows the present formal Islamic view on the subject. The Covenant (art. 8.3) agrees with the basic principle internationally acknowledged stating that “States Parties shall take into account in their social policies the child’s best interests.”

In connection to the development of bioethics, new rules have been created in the Islamic context, either with reference to the parents or the child. Some of them are mentioned in article 15 of the Covenant: the mother must be provided with care from the onset of pregnancy and during the natural nursing; a child has the right to necessary measures to reduce infant and child mortality rates; a compulsory medical examination for prospective couples is needed in order to ensure the absence or causes of hereditary or contagious diseases that portend danger for the child; neither the parents nor other family members have the right to interfere in medically altering the color, shape, features, or sex of the fetus, except for medical necessities; preventive medical care, disease, and malnutrition control, as well as the necessary health care for the child and his/her mother, must be provided; the right of the child to be protected from narcotics, intoxications, and other harmful substances as well as from infections and endemic diseases must be guaranteed.

The Covenant defines a child as any human being who has not attained puberty (art. 1), as it is in the Islamic tradition (contrary to UNCRC, art. 1, and African Charter, art. 2: below the age of eighteen years). The child has the right to life from the time when she is a fetus; but abortion is tolerated if justified by extreme circumstances, such as the health of the mother or the fetus (art. 6.1). Moreover, the child has the right to attribution of paternity, a prerequisite in order to acknowledge a series of rights deriving from filiation (nasab), such as ownership, inheritance, and support. The identity of a child is summed up in her right to a good name, to be registered, to have her nationality determined and to know her parents. A child of unknown descent is granted some basic rights, like the name and nationality, guardianship and care; however, adoption is prohibited (art. 7). Tunisia and Turkey are the only Muslim-majority countries that allow adoption.

The father or guardian has the obligation to promote the right of a child to a sound upbringing, consisting in the development of religious and moral values, sense of citizenship, and human solidarity, and in the encouragement to acquire education and skills (art. 11). For this aim, the child has the right to a free compulsory basic education guided by the principles of Shariʿah. The Islamic training deals also with a proper sex education designed to distinguish between the lawful and unlawful (art. 12). For a harmonious growth of the child, times for rest and play are also needed (art. 13).

The child capable of forming her personal views is free to express them, though only through means compatible with Shariʿah and traditional Islamic ethics (art. 9.1). The child also has the right to form and join any peaceful and civilian meeting, unless it adversely affects her behavior, health, or heritage (art. 10).

In addition, a series of duties is incumbent on the state. First of all, it cannot deprive the child of freedom, except in accordance with the rule of law, and it must undertake appropriate procedures and measures in the case of a lawsuit involving a minor. In particular, the child has a right to legal and humanitarian assistance and her case must be considered by a specialized juvenile court (art. 19). Special care is guaranteed by the state for disabled children and children with special needs concerning their education, rehabilitation, and training (art. 16). The state must allocate sufficient financial resources in order to protect the family in case of devastating economic hardship. In particular, it has to guarantee the rights of the child not to be separated from her parents against her will and parents shall not have their guardianship revoked, except under extreme necessity. Related to this is the right of the child to be permitted to leave her state to stay with one or both of her parents in another country (art. 8). The state must undertake the necessary measures to protect the child from the illegal use of drugs, all forms of torture or inhumane or humiliating treatment, all forms of abuse, particularly sexual abuse, by not involving her in armed conflicts or wars (art. 17). It must ensure that the child shall not engage in labor that is potentially dangerous (art. 18). Finally, the state has the responsibility to protect the child from practices detrimental or harmful to her welfare, dignity, growth, and health (art. 20). The same rights provided for the children within the national legislation of any state must be ensured to refugee children (art. 21).

Another regional document dealing with the care of minors is the African Charter on the Rights and Welfare of the Child (1990), entered into force on 29 November 1999. It is secular in inspiration because, on the one hand, it omits any reference to religion; on the other, its sources of inspiration are both the instruments adopted by the United Nations and African countries as well as the traditional African values and customs (art. 46).

Two elements in the African Charter highlight a secular view of family relationships. The first concerns the difference of religion between spouses (e.g., the custom that a non-Muslim man cannot marry a Muslim woman) and the equality of their rights and duties in the family. The Charter promotes the principle of equality of rights and duties between spouses, even though some African governments still do not fully guarantee such equality. Indeed the African Charter (art. 18,2) states that “State Parties to the present Charter shall take appropriate steps to ensure equality of rights and responsibilities of spouses with regard to children during marriage and in the event of its dissolution.” The second element regards adoption. The African Charter (art. 24) promotes international adoption between the states that ratified or acceded to the Convention on the Rights of the Child or the African Charter. However, recourse to international adoption should be considered as an alternative means for the care of a minor, “if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin.” The lawfulness of adoption maintained in the African Charter is contrary to Islamic doctrine (33:4–5), which rejects it, as it is also confirmed by the Covenant of OIC (art. 7.3). Some Islamic countries have recently enacted laws concerning an alternative form of protection of minors, called kafālah. The “foster family” mentioned in the African Charter seems the only implicit reference to it.

Kafālah

Kafālah linguistically means “guarantee.” However, this term has been used in a figurative sense in some contemporary laws with reference to a “social protection” of minors. Thus, kafālah is not an institution of Islamic law. Kafālah is an agreement (ʿaqd) stipulated between a guardian (kāfil) and the parents of a minor (makfūl) or one of them if the other is either deceased or unknown, or the public guardian. It is established either in the presence of two notaries and ratified by a judge or through a legal procedure in the presence of a judge. A judge supervises the course of the kafālah and, in some cases, such as traveling abroad, the guardian must apply for his authorization. The guardian must be of legal age and in possession of his mental faculties, or an institution of assistance that takes charge of the protection of a minor until she comes of age. Under these circumstances, the guardian is equated with parents and as such is subject to the provisions regarding minors in the personal status laws; but, in order to safeguard the elements of the child’s identity, the guardian does not give his or her name to the minor. Besides, a guardian and a minor have no right to inherit from each other. In sum the minor retains all rights deriving from filiation. The reference to the Islamic religion of the guardian in the laws on kafālah is not always explicit, while nothing is said about the denomination of the minor. Presumably the guardian should be a Muslim, while a minor could be a non-Muslim.

Countries that regulate kafālah include Tunisia (law no. 27, 1958; three degrees of protection: public protection, kafālah, and adoption), Libya (Resolutions nos. 453–454, 1985; law no. 9, 1993), Algeria (Family Code, 1984, arts. 116–125), Egypt (law no. 12, 1996, arts. 46–49, which uses the new expression “substitute care,” riʿāyah badīlah, instead of kafālah), and Morocco (Dahir no. 1-02-172, 2002; Mudawwanah, 2004).

The institution of kafālah has acquired international recognition. The Convention on the Rights of the Child (1989; art. 20, 3: “Kafālah of Islamic law”) and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996) (arts. 3, 33) include kafālah among the alternatives for care for a child.

Bibliography

  • Al-Minawi K. M. The Child Rights in Islam, Riyadh: Dar al-Amal Publishing House, 1993.
  • Arda, B., and V. Rispler-Chaim, eds. Islam and Bioethics. Ankara: Ankara Universitest Basemevi, 2011.
  • Cilardo A. “Il minore nel diritto islamico. Il nuovo istituto della kafāla.” In his La tutela dei minori di cultura islamica nellarea mediterranea. Aspetti sociali, giuridici e medici, pp. 219–263. Naples: Edizioni Scientifiche Italiane, 2011.
  • Cilardo, A., and F. Mennillo. Due sistemi a confronto. La famiglia nellislam e nel diritto canonico. Padua, Italy: CEDAM, 2009.
  • Rahman, Fazlur. Health and Medicine in the Islamic Tradition: Change and Identity. New York: Crossroad, 1989.
  • Rispler-Chaim, V. Islamic Medical Ethics in the Twentieth Century. Leiden, Netherlands, and New York: Brill, 1993.
  • Tolino S. “La tutela dei minori in Egitto. Il Qānūn al-Ṭifl alla luce degli emendamenti del 2008 e il ruolo delle organizzazioni non governative.” In La tutela dei minori di cultura islamica nellarea mediterranea. Aspetti sociali, giuridici e medici, edited by A. Cilardo, pp. 377–418. Naples: Edizioni Scientifiche Italiane, 2011.
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