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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 60
March 15 , 2008

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Towards a just adoption law

Md. Alamgir

Recognition of the children as the future of the nation entails a massive responsibility for the states to do everything feasible for them. Childhood is an episode of life when nurture, attention and adequate care are necessary for a balanced promotion towards maturity. A responsible nation must take the mission to ensure those very essential factors necessary for every child. The situation as understood and perceived in poor, developing countries is showing almost an opposite picture. So, as a sophisticated issue the child rights must be brought in a comprehensive manoeuvre encompassing unique, distinctive approaches and some other acceptable experiences to expand its gravity, magnitude and promote and prosecute implementation skills.

In Bangladesh the child rights situation is in the most vulnerable stage. Thousands of children are engaged in domestic work, hazardous jobs in different forms of child labour. And thousands of street children pass their life is even more serious conditions. They face not only denial of basic rights such as safe shelter, food, health care, safe drinking water, education, guidance, security, recreation, but they are also subjected to many risks and different forms of exploitation such as bonded labour, physical torture, sexual abuse, and trafficking. Moreover, a large number of this susceptible segment becomes the victims of trauma, stigma and different types of mental disorder due to varieties of bitter experiences in their street life which in turn make them distrustful, diffident and distasteful towards life. A large criminal network takes advantage of street children in order to make profits, exploiting their vulnerability and ongoing struggle for survival. They are also engaged in crimes like smuggling and stealing, distribution of drug and weapons.

There is no mention of street children in the government's substantive policy document, the National Child Policy. The absence of legal recognition hampers mainstreaming of this segment to society and extending adequate protection and promotion of their human rights and dignity.

Government and other NGOs, INGOs and donor agencies have been trying to uphold the child rights for the last couple of years and the situation has also improved day by day but their reintegration or mainstreaming in the society has not much progressed yet. So, to establish the child rights and mainstreaming the distressed children in the society, along with the ongoing activities of the government, NGOs, civil societies, some alternative steps could be taken for their sustainability. In this regard I want to draw the kind attention of all the concerned authorities to opt for a new adoption legal framework in Bangladesh without prejudice to Muslim personal law or to the extent possible in conformity with the Islamic law.

Adoption involves the complete transfer of parental rights and responsibilities from one person to another. A transfer may occur from a birth parent to a relative, a step-parent, or even an unrelated person. Both minors and adults may be adopted. Each state has its own adoption laws, which govern the adoption process in their particular jurisdictions.

Adoption in Bangladesh is irrevocably linked to religious affiliation. Since there is no secular law regarding adoption in Bangladesh, so the dominant religion in the country has guidance upon the issue and this greatly decides how orphaned and abandoned children are received in the society. Many times religious institutions, government's shelter homes and other non-government organizations' shelter homes undoubtedly provide a lot of support both financial and emotional to the orphans and street children within their own jurisdiction. But these supports in many cases do not help the orphans and street children in mainstreaming into the society.

Bangladesh perspective
Although Bangladeshi law does not allow for full adoption of Bangladeshi children, but it is widely practiced and accepted in our society. Adoption of orphan/helpless child is a very popular and moral practice amongst our people. By adopting orphan/helpless child, people consider them as their own child. And very often they declare the orphan as their own son/daughter and pass onto them their investments including inheritance.

In Bangladesh, adoption happens in two forms: intra and inter. People do adopt children from their own relatives or community. As Islam is the predominant religion in the country, the law is also meticulously inclined by Quranic principles. While Muslim law prohibits adopting children, the Hindu law recognises adoption to continue one's genealogy, name and inheritance. There are some instances where it is seen that the foreigners are adopting Bangladeshi children without any recourse to law.

Adoption in Islam
Adoption in the technical sense is not allowed in Muslim Shariah law. The Qur'an gives specific rules about the legal relationship between a child and his/her adoptive family. The child's biological family is never hidden; their ties to the child are never severed. The Qur'an specifically reminds adoptive parents that they are not the child's biological parents:

"...Nor has He made your adopted sons your (biological) sons. Such is (only) your (manner of) speech by your mouths. But Allah tells (you) the Truth, and He shows the (right) Way. Call them by (the names of) their fathers; that is juster in the sight of Allah. But if you know not their father's (names, call them) your brothers in faith, or your trustees. But there is no blame on you if you make a mistake therein. (What counts is) the intention of your hearts. And Allah is Oft-Returning, Most Merciful." (Qur'an 33:4-5)

Source: [http://www.angelfire.com/ la/ IslamicView/Adoption.html]

The guardian/child relationship has specific rules under Islamic law, which renders the relationship a bit different from what is common adoption practice today. The Islamic term for what is commonly called adoption is kafala, which comes from a word that means "to feed." In essence, it describes more of a foster-parent relationship. Some of the rules in Islam surrounding this relationship are:

* An adopted child retains his or her own biological family name (surname) and does not change his or her name to match that of the adoptive family.

* An adopted child inherits from his or her biological parents, not automatically from the adoptive parents.

* When the child is grown, members of the adoptive family are not considered blood relatives, and are therefore not muhrim to him or her. "Muhrim" refers to a specific legal relationship that regulates marriage and other aspects of life. Essentially, members of the adoptive family would not be permissible as possible marriage partners, and rules of modesty exist between the grown child and adoptive family members of the opposite sex.

* If the child is provided with property/wealth from the biological family, adoptive parents are commanded to take care and not inter-mingle that property/wealth with their own. They serve merely as trustees.

These Islamic rules emphasize to the adoptive family that they are not taking the place of the biological family -- they are trustees and caretakers of someone else's child. Their role is very clearly defined, but nevertheless very valued and important.

It is also important to note that in Islam, the extended family network is vast and very strong. It is rare for a child to be completely orphaned, without a single family member to care for him or her. Islam places a great emphasis on the ties of kinship -- a completely abandoned child is practically unheard of. Islamic law would place an emphasis on locating a relative to care for the child, before allowing someone outside of the family, much less the community or country, to adopt and remove the child from his or her familial, cultural, and religious roots.

Rationalities to establish a pertinent law/regulation
Though in Islam adoption is strictly prohibited but caring for the orphan, destitute children and neglected people who are under grief is always encouraged. The Prophet Muhammad (peace be upon him) once said that a person who cares for an orphaned child will be in Paradise with him, and motioned to show that they would be as close as two fingers of a single hand. An orphan himself, Muhammad (sm) paid special attention to the care of children. He himself adopted a former slave and raised him with the same care as if he were his own son.

Allah on many occasions calls for the Muslims to take care of orphans, such as:

It is not piety that you turn your faces towards the east or west; but piety is the one who believes in Allah, the last day, the angels, the book, the Prophets, and gives his wealth, in spite of love for it, to the kinsfolk, to the orphans, and to the poor who beg, and to the wayfarer, and to those who ask... (2:177)

The prophet himself was an Orphan:
And did He (Allah) not find you (Muhammad) an orphan and gave you a refuge? And he found you unaware and guided you? And He found you poor and made you rich? Therefore treat not the orphan with oppression (94:6-9). Source: [http://www.angelfirecom/ la/IslamicView/Adoption.html]

However, there is a long history of care for those without parents in Islam. The Prophet Muhammad's own father died before he was born and by the time he was eight he had lost both his mother and the grandfather who named him. He was subsequently raised by his uncle Abu Talib who continued to be his protector until his own death, when Muhammad was an adult of almost fifty years of age. Indeed when Prophet's first wife Khadijah presented him with a slave named Zaid, the Prophet freed the boy and raised him as if he were his own son. So it can be seen that orphans were cared for in the very advent of the religion, and in my opinion it is this point that needs to be emphasized so that no abandoned or orphaned or helpless child goes uncared for.

If a general law/regulation could be made regarding adoption then it will be helpful in two ways: a. Barren father and mother will get a child which is the ultimate desire of any father and mother, b. many distressed children will receive permanent shelter, while a legal framework will govern the issue in systematic manner.

Bangladesh, though a signatory to the UN Convention on Rights of the Child, 1989 has made a reservation to Article 21 which entrusts a responsibility to frame a child-favourable adoption legal framework. It runs as follows:

“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status..”

The best interest theme of this provision hints us to make an adoption law on the point. Indeed, best interest of the children is the ringing tune of CRC. As adoption has become a real practice irrespective of religious barrier, time has come to rethink to lift this reservation. Bangladesh has rationalized many aspects of Muslim personal law to safeguard the interest of children and women some of which are not at par with the Islamic imperatives. It can be argued that schemes based upon purely humanitarian ground should not purport to clash with the religious fervour. Bangladesh Shishu Adhikar Forum (BSAF) a national network of 235 Child Rights organizations under its NACR (Networking and Advocacy for Child Rights in Bangladesh) Project, funded by DANIDA is trying to establish a modified adoption law without prejudice to the Islamic practice.

Md. Alamgir is Research & Advocacy Officer, Bangladesh Shishu Adhikar Forum (BSAF).


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