ADOPTION (TABANNI) IS PROHIBITED IN ISLAM; ONLY GUARDIANSHIP (KALAFA) IS ALLOWED
I made a comment that "No Malay will adopt a child of another religion and not raise them as Muslim." Taken without context it would seem that I was callous to make a racial/religious slight on what was an innocent humane story. The fact is the digital creator and I have a history of challenging each other's bias on religion and the Israeli-Palestinian conflict. I made the comment as a matter-of-fact statement from worldly observation. As usual, it brought on an onslaught of the usual hysteria, ad hominems and whataboutism from many Muslim commenters. I simply asked of them to educate me what they know about adoption in their world, a question that has gone unanswered. I am surprised by the interest shown on this issue from so many comments the post generated.
It appears there is interest on the issue and yet none has volunteered any knowledge. In this void, I present my understanding.
The Maria Hertogh case is often mentioned when discussing multiracial harmony, religious sensitivity and the need for responsible journalism. It was a legal custody battle that resulted in violent riots for 3 days from 11 to 13 December 1950, with massive damages and many civilian fatalities.
Maria was born in 1937 in Dutch East Indies (Indonesia) to Catholic Dutch parents. Her mother was an Eurasian, father a sergeant in the Dutch Army. They were in Singapore when Japan invaded in 1942. Her father was imprisoned and mother had to look after several children during the chaotic time. Her mother placed 5 year old Maria in a Roman Catholic church under the care of Che Aminah, an acquaintance. Taking Maria with her, Che Aminah moved back to the safety of her home town in Trengganu to avoid Japanese atrocities in Singapore. From 1942-1950, she raised Maria as her own child, converting her to Islam and changed her name to Nadra binte Ma'arof (this is religiously wrong which I will explain, and that's why knowledge is so important). After the war, the Hertoghs repatriated back to Netherlands. It took the family a long time to locate Maria. The British were in charge of Malaya but they hesitated to interfere in local Muslim matters. Through the Dutch consulate in Singapore, the family finally located Maria in Trengganu. Negotiations for return of the child failed. In 1950 the family applied for "habeaus corpus" in Singapore High Court. The court ruled in April 1950 that wartime guardianship had become permanent. In August 1950, at age 13, Maria was hurriedly married off to a 22 year-old Malay teacher. After strong diplomatic pressure from the Dutch side on grounds the marriage as a minor was invalid under Dutch law, Singapore High Court reversed its decision in December 1950 and ruled Maria must return to her natural parents.
The case exposed deep tensions over religion, colonial power and race, between Muslims and to some extent, between Malays and others. It was a time when secular laws on protection of women and children have not arrived. Thus there was a clash of British colonial courts and local Malay-Islamic culture. Muslims and Malays saw it as a colonial insult against legitimate Muslim marriage and guardianship.
But what ignited the tension into violence was insensitive journalism. British authorities placed Maria temporarily in a Catholic convent, and newspapers published photos of her kneeling before a statute of Virgin Mary. That sparked outrage amongst Malay and Indian Muslims and escalated into police opening fire on demonstrators near the Padang. The anger was directed at Europeans and colonial authorities, but soon Chinese shops and vehicles were up in flames. Chinese civilians were soon attacked and Chinese gangs retaliated. It had morphed into a Chinese-Malay/Muslim full-blown battle. Final count - 18 dead and 173 injured. Most of the dead were Chinese civilians, caught unprepared by Malay/Indian-Muslim mobs.
The violence was not organic, that is, it was not centrally organised. The Hertogh case was just the spark that ignited an underlying tinderbox of deep-seated Malay resentment over postwar inequality, economic hardship, and colonial racial hierarchy.
Fast forward to 2018 and we have an explosive landmark ruling in Malaysia's Federal Court. Not exactly an adoption case but it involved custodianship and conversion of a minor. M. Indira Ghandi, a Malaysian Hindu mother, had separated from her husband. He had converted to Islam, and shortly, with an interim Shariah court custody order, he converted his 3 children to the Islamic faith. Ghandi brought a case against her estranged husband in 2009 arguing a parent cannot unilaterally convert a minor child without the other parent's consent. The case bounced between Shariah and civil courts for 9 long years. In 2019 the Federal Court finally decided on equity, and ruled a unilateral conversion of a minor child was unconstitutional. It had broad social and political ramifications in a Muslim-majority country where there was an emblematic wider trend of unilateral conversions and erosion of non-Muslim parental rights. The wisdom of the Federal Court brought more clarity to a raw issue of religion vs civil law in competing jurisdictions of Shariah and civil courts.
We need to differentiate between 'legal adoption' (Tabanni) and 'guardianship' (Kafala). In adoption, the child takes on the adoptive parent's family name, thus a severance of lineage and inheritance ties. Under Islam, Tabanni is not permitted. Kafala is allowed - the child retains family name of biological parents and inheritance ties. At this point, note that Che Aminah changed Maria Hertogh's name to Nadra binte Ma'Arof which is is violation of Islamic laws.
As to religion, the Islamic view is a child's religion follows the biological parents. This effectively means a non-Muslim cannot adopt a Muslim child.
That effectively means my comment "No Malay will adopt a child of another religion and not raise them as Muslim." is a truism. I made a further challenge "Show me a Malay who has adopted a non-Muslim child" is also factual. Why is it online Muslims cannot have an honest conversation over this without the hysteria and ad hominems?
Let's see what are the practrices in some countries:
* Saudi Arabia - Adoption forbidden. Kafala allowed but always Muslim guardians.
* Egypt - No civil adoption. Kafala (regulated by Ministry of Social Solidarity) allowed but always Muslim guardians/Muslim children.
* Morocco - Non-Muslims may not adopt or be guardians of Muslim children. Kafala recognised legally and internationally, but guardians always Muslims.
* Algeria - Non-Muslims may not adopt or be guardians of Muslim children. Kafala allowed, but guardians must share the child's religion.
* Jordan - No adoption. Kafala or foster care through Islamic courts. Christian families can faster Christian children.
* Iran - Shariah-based law, no adoption. Kafala allowed for Muslims.
*Pakistan - No adoption. Guardianship allowedm but child's religion and lineage must remain intact.
* Turkey - Adoption allowed under secular civil law. Under Ataturk's reforms, adoption law is fully secular, religion is not a legal barrier.
* Singapore:
- Adoption is handled through the Family Justice Courts under the Adoption of Children Act (ACA). This applies to all residents -- ie citizens and PRs. It is a civil process. Anyone can adopt a child any child, regardless of religion. However, it is complicated by the parallel jurisdiction of Muslim law.
- When the child or biological parents (not adoptive parents) are Muslim, the Administration of Muslim Law Act (AMLA) applies to matters of marriage, divorce, inheritance, and guardianship or custody (Kafala) of Muslim minors.
- The Ministry of Social and Family Development (MSF) oversees adoptions. When a Muslim child's adoption is proposed, the Family Court takes advice from MUIS. As sure as day follows night, if the adopters are non-Muslim, MUIS will never approve. Thus, even though there is no formal legal ban on non-Muslims adopting Muslim children, in practice, it almost never happens.
- On the other hand, Muslims in Singapore never adopt any child as adoption (Tabanni) is prohibited. But there is no prohibition to Muslims fostering a child of any other religion and raising him/her as a Muslim.
How then did that Malaysian Chinese woman adopt that Malay daughter? In reality, there are many informal adoptions locally called "anak angkat". The caption in fact talks about Malay girl taken care of by Chinese woman since childhood. There's no adoption.
Note: My follow-up post deals with the sensitive topic of how Tabanni became prohibited.
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