Many Muslim families have opted for the adoption of children. There is also, for historical and Islamic law reasons, some angst about the subject.
Adoption though has a special status in Islam. While in the days before the Prophethood of Muhammad (SWS) and during the earlier years of Prophethood, the concept of adoption was similar to how it is in the United States today. It is just another way of having children. Children come into your family, become your own, either through birth, or adoption.
Similar though is not identical. So there may be other rules and norms that existed in pre-Islamic times surrounding adoption that does not apply when it comes to adoption in California or other parts of the United States.
Purposes of Adoption in the US
Your children inherit from you. Adopted children similarly inherit by default. You need to actively exclude them from your estate planning documents for it not to be so. For purposes of state intestacy law (what happens when you do not have a will), adopted children and biological children are the same. They are also treated the same for other purposes in various statues. So, for example, next of kin can be an adopted child.
People have used adoption for many purposes, some of them shady. Adult adoptions are a relatively common device. You can adopt someone older than yourself as your “child.” There may be sentimental reasons to do this. A common form of adult adoption is when an adult adopted by a step-parent during adulthood. In many cases, adoption can be less innocent. Adoption can be part of an elder abuse scheme.
How Adoption is not the same as biological children
A corporation is a person under the law. Under the law, that is understood to be a legal fiction. A corporation can sue people, and people can sue them. A corporation cannot vote for the mayor. It has no right to public school education; it cannot marry, have biological children or adopt children.
Similarly adopted children are “children” of the adoptive parents. That means a whole lot. They inherit from parents, biologically unrelated “siblings” can inherit from one another in some circumstances under state intestacy law and so forth. They can be next of kin for things like medical decisions. But the law will only take this fiction so far.
Rania and Faisal adopted Hafsa and Elyas. Both Hafsa and Elyas have separate birth parents, but their adoptive relationship makes them “siblings.” As they grow up, they become very close. They marry each other.
This relationship is not incest, at least not in California. They are not blood relatives. If Hafsa and Elyas were actual biological siblings, they could be guilty of a felony. Under both California law and in the Sharia, their marital relationship is entirely legitimate.
The law structures adoptions to allow for a family relationship, but not place all restrictions that might otherwise exist if the relationship were biological rather than merely a legal fiction.
This notion of allowing for family relationships has another real consequence; Severing family ties, both physically and legally.
Tayyib and Aishah have a child, Sameena. When Sameena is 4, Tayyib and Aishah have a painful divorce. Aishah takes full custody of Sameena and visitation to Tayyib is severely limited. Sameena keeps her distance from her father as she grows up since she does not want to offend her mother, who has since married Abdullah. Besides, Sameena has a great relationship with Abdullah, who she calls “Baba.” At 16, she asks to be adopted by Abdullah, which makes him happy. Abdullah has no other children of his own. Abdullah divorces Aishah the next year, but still has a great relationship with Sameena.
When Sameena turns 18, she starts talking to and occasionally visiting her biological father Tayyib, his new wife, Bilquis and her four brothers and sisters. Tayyib and Abdullah both die before Sameena’s 19th birthday. Neither of them leaves a will or a living trust.
Sameena is now a legal stranger to Tayyib. She will not inherit anything from him under California’s intestacy statute. His other children will take what should have been her share in Islam.
Sameena will inherit from Abdullah. She will get his entire estate even if Abdullah has parents or other close biological relatives who would be his heirs in Islam.
What happens here is entirely legal, yet depending on your perspective, somewhat absurd. Why are we legally severing a biological relationship? Why do we deny actual biological family member their inheritance in Islam? Because you cannot be of two different families. The law can replace reality.
Origin of the Adoption “Prohibition” in Islam
Many Muslims know the story, but I will say it anyway. There is a lot more here, but Zayd (RA) was Muhammad (SWS)’s adopted son. Adoption was not a formal process like it is today. But this relationship was understood. Zayd (RA), by all accounts, had a difficult marriage with Zaynab bint Jahsh (RA). They divorced.
Allah revealed verses in the Quran about adoptions.
The Quran recognized this was a fiction. Calling someone your son does not make someone your son. You may feel real parental love for your “son,” or you throw that term around when you are explaining things to young people, it’s still not an actual thing. It’s just something you say with your mouths, as pointed out in the Quran. Muhammad (SWS) could marry Zaynab bint Jahsh despite whatever prohibition existed during that place and time. It does not make any sense to have make-believe relationships that restrict freedom to marry.
Under California law, there would be no prohibition against this kind of marraige. It is baffling to me why anti-Muslim websites and articles latch onto this relationship as somehow damming. In Europe, there was an ancient prohibition against such marriages. The rule was supposed to protect sexual competition between parents and children and shielded children from confusion and such. No such thing exists now. In any event, nobody seems to worry about such things anymore, at least as far as the law is concerned.
How we view adoptions
What do we have in the difference in how we view adoptions: In Islam, we do away with formal adoptions because they are not real and create absurd consequences. In the United States, we have adoptions, but we do away with some absurd results by statute but leave others intact. It is fair to say the term “adoption”- like many terms, means different things at different historical periods and different geographic locations.
If you want to adopt, you need to have a definition that fits your values, which, if you are reading this blog, presumably means in keeping with Islamic tradition.
Being a guardian of a minor child does not make you an adoptive parent. The birth parents continue to have their parental rights. Guardians do have many of the same rights parents do; however, concerning the child’s education and healthcare. However, they do not inherit from their wards.
In wills, we typically include language about guardianship for minor children. When a parent dies, they name people, often family members, to care for their children. A court appoints the guardian. This process is entirely appropriate and does not cause any problems from an Islamic perspective.
Muslims want to adopt to build and grow their families. There are orphans out there with no relatives capable of taking care of them. We have children in foster systems all over the country.
So go ahead, adopt. Yes, it is a legal fiction. Yes, it can create absurd consequences. But you can and should adjust your planning for these consequences.
Inheritance for your adopted children
Adopted children do not inherit in Islam. When I say inheritance, I mean inheritance by right. That is not the same thing as saying they cannot get anything after an adoptive parent dies. However, the share of the adopted child or children is limited to the wasiyyah, which is no more than ⅓ of the estate in the aggregate.
Sultana has three biological children: Muhammad, Ahmed, and Hamid. She also has an adopted daughter, Hamida. If Hamida were her biological child, her inheritance share would be 1/7th. However, she is not. So she gets nothing by right. Sultana can give a wasiyyah to her adopted daughter. She can give up to ⅓ of her estate to her daughter. She can give more to her adopted daughter than her biological son.
We do have a problem however when parents have only adopted children as their heirs.
Judy and Robert are married and are both converts to Islam. Nobody from either person’s family is Muslim. They have adopted three children and have raised them all as Muslim. They want all of their children to inherit from them. What do they do?
Another mechanism for Estate Planning is lifetime gifting. Neither Judy or Robert can make their adopted children their heirs for more than ⅓. The only heir in Islam for Judy is Robert, and the sole heir for Robert is Judy. Robert dies first, and Judy survives and does not remarry before death, then the only family she is survived by are her three adopted children. Under Islamic law, 2/3rds of the estate passes to Baitul Mal, which is the Islamic treasury under the Khilafah. In case you were wondering, no such thing exists anymore. So we have Islamic charities pinch hit for this role. This kind of solution would be dissatisfying for Judy and Robert.
One possibility for them is to take some assets and place it in a business entity and irrevocable trust or a combination of those (what they do precisely depends on their goals and the assets in question). They give away the assets during their lifetime. So, for their home, they create a Qualified Personal Residence Trust. In this trust, they keep a present interest in this trust but give away a future interest (after say 30 years) to their adopted children. The gift is not connected with their death and is not inheritance. If they want to continue living in the home 30 years later, they will pay rent to the trust for the benefit of their adopted children.
Why not just give stuff away outright? Because they may lose it through divorce, lawsuits or bankruptcy. Also, because you may only want to give a portion of the asset away while maintaining control of it, kind of the way a company owner sells shares off to raise capital.
That is just one example of a solution that may be available for Judy and Robert. Whatever solution, Judy and Robert will have some assets of their own if they die without and Islamic heir, and that only ⅓ of those assets, in the aggregate, can pass on to adopted children. There is just no getting around that.
Maintaining ties with the biological family
As a general rule, adoptive Muslim families should not permit cutting off ties with the biological families of their adopted children. Cutting off family ties is a sharia issue. It might make you an oppressor. Maintaining family ties would mean keeping the name, facilitating communication and also, when relevant, trying to get the biological parents to include their children in their estate plans, notwithstanding the adoption.
In many instances, it may well be the case that the birth family is embarrassed and does not want to have anything to do with their prior life. The child may be a product of trauma. The existence of the child may be a secret with extended family. Of course, these are all considerations adoptive parents need to work out before they decide to restore family ties.
Adoption is hard
Adoption is a remarkable challenge and many parents. It is admirable what many parents go through as they build their families. Many parents adopt children from traumatic backgrounds, with health challenges or special needs. Many parenting challenges are similar to families with only biological children, while others are different. However, the act of adoption is charitable. I mean “charitable” in the sense that parents who do it act for the benefit of humanity by giving wealth, time, love and everything else they have into this endeavor. It is not however precisely the same thing as having biological children.
When we plan our estates, we need to reflect our values. We also need to reflect reality.