Chapter 15: Synopsis

Chapter 15 Synopsis Nadjma Yassari and Lena-Maria Möller Contents 15.1 Introduction...................................................................................................................... 15.2 The Legal Family ............................................................................................................ 15.3 The Biological Family..................................................................................................... 15.4 The Social Family ........................................................................................................... 15.5 Conclusion and Outlook.................................................................................................. References .................................................................................................................................. Keywords nasab Filiation Legal presumptions testing Adoption Foster care
15.1


403 404 405 408 410 411
Scientific evidence
DNA Introduction This volume’s overarching themes are nasab, the (partial) absence thereof, and legal structures to remedy such a deficiency as well as its social implications. Outside the narrow realm of law, translating nasab as merely ‘filiation’ would not capture its significance in both premodern and contemporary Muslim societies. Rather, nasab is equally used to describe a person’s lineage or descent, and thereby his or her general belonging within society.1 Being the proper legal child of someone, carrying one’s father’s name, and inheriting from him carries weight in Muslim societies and forms an important pillar of personal identity. Thus, while every person has, at least theoretically, both maternal and paternal nasab, it is the 1 Mohammadi 2016, pp 53–55. N. Yassari
L.-M. Möller (&) Max Planck Institute for Comparative and International Private Law, Mittelweg 187, 20148 Hamburg, Germany e-mail: moeller@mpipriv.de N. Yassari e-mail: yassari@mpipriv.de © T.M.C. ASSER PRESS and the authors 2019 N. Yassari et al. (eds.), Filiation and the Protection of Parentless Children, https://doi.org/10.1007/978-94-6265-311-5_15 403 404 N. Yassari and L.-M. Möller latter which the discussion usually circles around, and it is a lack of nasab which results in children being legally disadvantaged. This first category of ‘parentless’ (or ‘fatherless’) children is at the center of our inquiry, together with those children deprived of permanent caretakers due to the passing away of their parents or their parents’ inability to care for them for various reasons. The analysis therefore probes the extent to which premodern Islamic legal doctrine and contemporary Muslim family law regimes have developed structures which safeguard the care and protection of these parentless children, and, by extension, whether social family structure have emerged to complement those already established by operation of law and/or by biological facts. Based on ample examples contained in the collected reports comprising this volume, this short comparative exercise aims at shedding some light on the legal, biological, and social frameworks within which families in contemporary Muslim jurisdictions live and operate today. 15.2 The Legal Family Across the world’s legal systems, and for many centuries, a child’s legal status has been predominantly determined in relation to his or her wedded parents.2 The notion of children’s filiation first and foremost arising from and depending on their parents’ marital status has similarly formed the main pillar of legal family structures in contemporary Muslim jurisdictions; it epitomizes the premodern Islamic juristic maxim of ‘al-walad li-l-firāsh’ (i.e. ‘the child belongs to the conjugal/marital bed’). In addition, all jurisdictions covered in this volume require a minimum duration of the marriage (usually six months) for paternal nasab to be established by birth. The implementation of this time frame reflects a desire to increase the probability that the child is not only born into, but actually conceived in the said marriage. In this regard contemporary Muslim legislatures diverge from other jurisdictions around the globe, in which the mere existence of a marriage at the time of birth – if only for a split second prior to it – results in the married couple being considered their offspring’s legitimate parents. Nonetheless, in Islamically inspired legal systems too, the designation of the husband of the mother as her children’s father remains a (rebuttable) legal presumption that is not subject to further biological scrutiny. In consequence, only children born to a married couple within certain time limits will automatically acquire nasab with regard to both their parents. By way of contrast, children born under more doubtful circumstances, i.e. because the validity of their parents’ marriage is uncertain, will face serious legal and social challenges. They do not automatically become part of a legal family with two parents, and their nasab is established through their mother’s side only. The centrality of the marital status of the parents is one of the salient features of the diverse family law regimes 2 Stoljar 1973, Sect. 15. 15 Synopsis 405 discussed in this volume. Nonetheless, both premodern Islamic legal doctrine and contemporary Muslim jurisdictions uphold the possibility of remedying the legally disadvantaged status of children born under dubious circumstances or out of wedlock. As far as the first category of children is concerned, the law employs legal fictions, such as the ‘sleeping embryo’ (al-rāqid), which artificially extends the gestation period, or the concept of ‘al-waṭʾ bi-shubha’, through which the good faith belief of the biological parents that they were married suffices to establish paternal and maternal filiation of their offspring. In addition, the concept of acknowledgment or ‘iqrār al-nasab’ offers an opportunity to include children into the realm of a legal family. While generally everyone, including women, may acknowledge a child of unknown filiation (majhūl al-nasab) as their own, the most common form of iqrār is that which gives rise to paternal filiation. The country reports collected herein illustrate the different degrees and ends to which iqrār is being used, from ‘secret adoptions’ to the acknowledgment of biological children born under dubious circumstances. Nonetheless, iqrār remains an institution difficult to grasp fully. While its conditions seem rather lenient, the ways and ends to which iqrār is actually used in relation to the establishment of filiation remain ambiguous. While all jurisdictions formally reject the acknowledgement of children (notoriously) born out of wedlock, in some instances (unmarried) mothers have forced the biological father to register the child under his name, even if this did not imply the establishment of paternal nasab. Muslim jurisdictions therefore oscillate between two possibly conflicting interests: One is to safeguard the institution of marriage as the only acceptable realm to conceive children and raise them; the second is to ensure that as many children as possible have an established nasab to both parents. These interests also explain the very narrow legal options to disavow nasab once it has been established by legal presumption. In fact, the principle of firāsh is the strongest proof of filiation and may not be challenged by either biological facts or scientific evidence. It may be refuted only by a procedure called liʿān, which requires the husband to formally accuse his wife of adultery and take an oath that the child is not his offspring, a procedure that is hardly ever reported in the case law of any of the countries under review. At the same time, and despite the prominent position of legal presumptions for establishing filiation, the question remains if and how biology matters and possibly impacts the concept of nasab. 15.3 The Biological Family Generally, the principle of firāsh is a legal fiction that attributes paternity to the husband of the child’s mother. Biology matters to that extent that the presumption works in line with a medically plausible time frame; childbirth within a minimum of six months after the conclusion of the marriage means, inter alia, increasing the likelihood of the husband having actually fathered the child. Nonetheless, the biological reality is not a condition de fond for the attribution of paternity. 406 N. Yassari and L.-M. Möller Maternity, on the other hand, has always been and remains a matter of biology. This is true for all schools of Muslim legal thought, which, until very recently, have unanimously agreed that the woman who carries the child to term – i.e. the gestational mother – is the legal mother. However, with the emergence of new artificial reproduction technologies, ideas are evolving. Whereas Sunni scholars still retain the basic principle of the gestational mother being the legal mother, modern Shiite scholars have given priority to the owner of the gamete in the event the gestational and genetic mother diverge. Thus, in surrogacy cases for example, maternity is attributed to the genetic and not the gestational mother.3 In Sunni legal doctrine, biological considerations vis-à-vis maternity apply also to children born out of wedlock. Such children will always have a legal mother, as they will always be legally attributed to the woman who gave birth to them. In Shiite law, even when it comes to maternal nasab, the legality of birth remains a greater good than the biological fact; accordingly, a child born out of wedlock will have no filiation to his or her biological mother unless she acknowledges the child, as illustrated in Gleave’s contribution to this volume. At the same time, Shiite scholars too place importance on biology, for instance when it comes to marriage impediments between a man and his biological daughter born out of wedlock. In premodern legal doctrine, one point of entry for biological considerations into the issue of nasab was the concept of physiognomy (qiyāfa/qāfa), a practice retained from pre-Islamic times to settle paternity disputes. While some schools of Muslim legal thought have theoretically upheld the option of proving paternity by physiognomy, Ibrahim’s chapter in this volume demonstrates that most Muslim scholars opted for a system which ‘privileged legal presumptions over biological investigations’. In consequence, qiyāfa was never able to overrule the firāsh principle. This hierarchy of evidence in premodern paternity disputes can be seen as the conceptual starting point for contemporary jurists and legislatures’ perspectives on DNA testing (and other means of scientific evidence). DNA testing is currently being discussed in most jurisdictions, it is explicitly referenced in the statutory law of many jurisdictions, and it has generally become a common aspect of contestation in paternity disputes. However, the possibility to order a DNA test or to have such results considered in court proceedings remains limited. A first constraint present in all countries under review is that a DNA test alone is not sufficient to establish nasab. Secondly, where paternity has been established on the basis of the principle of firāsh, it cannot be refuted through a DNA test alone.4 In other words, biological reality has no weight where a legal presumption is clearly established. Thus, a first observation is that DNA tests always need specific circumstances or certain additional features to become operative. Accordingly, DNA tests – and 3 Clarke 2009, pp 116–140. See, for instance, the country reports on Iran, Lebanon, Pakistan, Saudi Arabia, and United Arab Emirates, which detail that DNA tests have not been admitted in court for the sole purpose of the mother’s husband denying paternity established by firāsh. 4 15 Synopsis 407 scientific evidence in general – may be introduced in instances where nasab is somehow jeopardized, for example because the marriage of the parents is defective or its date of conclusion unclear. Similarly, where the child could be attributed (by firāsh) to more than one man, scientific evidence can be used to clarify the contesting paternity claims without the immediate risk of stripping a child of his or her rights vis-à-vis a father altogether.5 Further, DNA tests may be used when paternity is denied through the process of liʿān, as courts do occasionally resort to DNA testing prior to granting liʿān.6 A second observation is that DNA tests may not be used to establish nasab where nasab is impermissible. This applies in particular to children born out of wedlock. As mentioned above, none of the eleven jurisdictions covered in this volume recognize paternal nasab based solely on biological facts. Marriage still reigns supreme in all countries, and it is not foreseen that couples will have extramarital children. In consequence, the legal system does not offer any way to create nasab by proving biological descent alone. Establishing biological descent through a DNA test may however unfold certain legal effects, including not only the duty of the father to care financially for the child and to register the child with state authorities in order to have identification documents issued, but also the right of the child to know who his or her father is and in some cases to carry his or her father’s family name. These rights and duties are mainly the outcome of case law and illustrate the awareness of judges in attending to the needs of the child and thereby partially relieving him or her from bearing the costs of a very narrow understanding of legitimacy of birth. The third observation relates to terminology, as the admission of scientific evidence in paternity disputes and the subsequent creation of a legal relation between the father and the child have generated new legal terms in some jurisdictions. In Morocco, for instance, while nasab is still used to designate filiation according to Islamic legal doctrine, the expression ‘ubūwa’, a more neutral term for paternity, is employed when referring to the relationship between a biological father and his child. In the same vein, whenever nasab is to be established, the term to describe this procedure is ‘ithbāt al-nasab’, i.e. filiation ascertained through established means of evidence. However, where biological descent is at stake, the term used by the Algerian Court of Cassation, for example, is ‘ilḥāq al-nasab’, 5 This is the case, for example, where a child is born less than one year following a divorce and more than six months after the conclusion of a new marriage (thereby having two potential legal fathers). In this regard, see the country report on Jordan illustrating how, where a child has two potential legal fathers, courts have resorted to a consideration of scientific evidence (at least when all concerned parties demanded clarification regarding the biological reality) to answer the ensuing question of whose nasab a child holds and – as a consequence – who will carry the parental responsibility attached to filiation. 6 This is the case in, inter alia, Jordan, Saudi Arabia, and the United Arab Emirates, where a potential father’s request for liʿān may not be heard should a prior DNA test reveal that he is the biological father of the child in question. In Pakistan, courts haven even annulled a liʿān already pronounced after scientific evidence revealed that the claimant was in fact the child’s biological father. 408 N. Yassari and L.-M. Möller possibly to highlight that this kind of relation is solely based on scientific proof. The terminological differentiation points to the appearance of another class, possibly a ‘second-class category’ of nasab having unspecified legal implications. Notwithstanding these multiple limitations and constraints placed on scientific evidence vis-à-vis legal filiation, these developments are also indicative of the evolution and emergence of factual familial communities, thereby inviting the question whether a social definition of family is emerging in contemporary Muslim societies. 15.4 The Social Family The perhaps most common form of a social family set-up is the so-called ‘patchwork family’, where relatives and non-relatives (in particular, stepparents and stepchildren) form a common household. Such patchwork families exist in various forms in most Muslim jurisdictions, with their numbers having increased lately due to more recent family law reforms which have allowed either divorced parent to retain custody of his or her children after remarriage.7 Yet, while patchwork families are built on the basis of the collapse of two family units, in some instances the family breakdown is such that a reconstruction is not possible. If parents have been stripped of their parental rights because of their own deficiencies, or whenever children have been abandoned or their parents have predeceased them, alternative arrangements must become operative to protect and care for the left-behind children. All jurisdictions under review have dealt with these issues, and all have devised some schemes for alternative caretaking. While their legal implications as well as their labels and practical relevance diverge, they have led to the creation of familial communities based on social bonds, thus connecting persons who share neither legal nor biological lineage. It is thus worth investigating whether a social definition of parenthood is emerging in Muslim jurisdictions and societies. Such an endeavor is even more appealing against the background of the general rejection of the concept of adoption by Islamic jurisprudence, both in Sunni and Shiite legal doctrine.8 With due respect to the differences of each jurisdiction, four categories of alternative caretaking schemes can be broadly distinguished: First, the complete incorporation of a child into a new family – what one would label full adoption under a mainstream definition – is an option currently available only under Tunisian law.9 The parent-child relationship created by Tunisian Law No. 58-27 of 4 March 1958 is entitled ‘tabannī’ in Arabic and displays all the legal effects of a full adoption, including the creation of parental care and authority, 7 8 9 Cf. Möller 2016, pp 483, 486; Yassari et al. 2017, 341. On the background of this rejection, cf. Yassari 2015. Prior to independence this option was available in Algeria too. 15 Synopsis 409 reciprocal inheritance rights, and the right to carry the adoptive parent’s surname. In Malaysia too, Muslim parents may adopt a child, albeit with certain shortcomings: While an adoption can be registered by Muslims, no comprehensive legal framework has been established which would govern all its aspects, including the rights and duties of the adoptive parents. There thus remains a void regarding the implications of such an arrangement which is left to the courts to fill. The second category comprises legal schemes allowing for the wide-ranging incorporation of a child into a new home. Interestingly, none of the examined jurisdictions has used the legal term of tabannī to designate these structures. Instead, legislatures have been careful to resort to new terminology.10 Likewise, the corresponding regulations have often been ‘hidden’ in separate or unrelated legislative acts, possibly to dilute the impression of a full-fledged accommodation of adoption in their legal systems.11 The respective statutes describe the effects of the arrangements in some detail, essentially awarding the new caretakers all relevant rights and duties arising from nasab. These include full parental care and authority (i.e. custody, ḥaḍāna, and guardianship, wilāya) resulting in full legal representation without state interference, a recommendation or a duty of the new caretakers to erect an irrevocable will to bequeath to the child up to one-third of their property prior to the placement of the child into the new home to account for the lack of intestate inheritance rights of the child vis-à-vis the new parents, and the right of the child to carry the caretaker’s family name.12 Finally, and most importantly, the statutes are silent on an automatic termination of the caretaking arrangement and, by extension, the legal relationship between the child and the caretakers. As a result, a permanent social family bond is being established assuring robust legal protection for the child. Thus, while from their own domestic perspective these schemes do not establish nasab and do not result in a full parent-child relationship, they undoubtedly constitute functional equivalents to adoption given the family units they recognize.13 The third category comprises structures that (only) provide for the temporary caretaking of parentless children and could therefore be labelled ‘foster care arrangements’.14 Under those schemes, the custody of a child is generally awarded to new caretakers, while the court or the competent authorities retain guardianship 10 For example, the term sarparastī is used in Iran, ḍamm in Iraq, and kafāla in Algeria. Such being the case in Iran and Iraq. 12 See the country reports on Iraq, Algeria, and Iran. Under Iranian sarparastī, even a child with known nasab may carry his or her caretakers’ family name, but the child’s original name must be recorded by the competent authorities. 13 Cf. Yassari 2015. 14 The terms used to denote these structures are diverse, such as iḥtiḍān in Jordan and Saudi Arabia, riʿāyat al-aṭfāl majhūlī al-nasab in the United Arab Emirates, and kafāla in Morocco and Tunisia. 11 410 N. Yassari and L.-M. Möller and oversight authority.15 While under some of these structures the child may carry the caretaker’s surname, in particular when the child is of unknown nasab, no compulsory inheritance arrangement has to be made nor is any financial deposit in favor of the ward demanded. Finally, the legal relationship ends (at the latest) automatically with the child coming of age. To facilitate everyday life within the new familial community, and since no marriage restrictions exist between the child and the foster family, the creation of a milk kinship is advised.16 Finally, forming the fourth category, only two out of the eleven jurisdictions covered in this volume, namely Lebanon and Pakistan, have no formalized legal framework for the placement of parentless children into new homes. In Lebanon, foundlings, orphans, and children of unfit caretakers are mostly cared for in residential care institutions. Secret adoptions (through iqrār, i.e. acknowledgement of nasab) are practiced informally, and in very rare cases judges have consented to non-relatives fostering a child, yet no legal basis for this practice exists. In Pakistan, fostering and adoption (including cross-border cases) take place within the framework of the Guardians and Ward Act of 1890, whereby the potential foster family will be awarded guardianship and custody through court order. While the different structures that have been established to care for and protect parentless children in the eleven countries under review in this volume differ as regards their legal implications, they have led to the creation of alternative family bonds based on the will of the participants to build a community closely resembling that of parents and their legal and/or biological children. 15.5 Conclusion and Outlook A strict legal regime governing filiation naturally disadvantages those children who do not fit the narrow category of being conceived and born in wedlock. Premodern Islamic legal doctrine has remedied these children’s status through various concepts, including that of iqrār, by which children can be acknowledged and thereby acquire the status of the acknowledger’s legal child. Contemporary Muslim jurisdictions have maintained this option. At the same time, most likely in an attempt to deter unmarried couples from having extramarital children, many legal regimes have excluded children born out of wedlock from such a remedy, at least formally. Therefore, from the legislature’s perspective, iqrār is primarily devised to solidify a doubtful kinship relation and to provide for foundlings and children of unknown filiation. 15 In some countries, foster parents may be designated as appointed guardians (Sing. waṣī) by court order, see, for instance, the country reports on Morocco, Jordan, Saudi Arabia, and the United Arab Emirates. 16 In Saudi Arabia, creating a milk kinship has become a de facto requirement. 15 Synopsis 411 In consequence, a very cautious stance has also been taken towards scientific evidence and biological descent. While modern technologies haven been woven into the religiously grounded family law regimes, their application and recognition in court proceedings is under debate and differs significantly from country to country as well as from court to court. To have scientific evidence negate established social and normative orders seems, at least for now, unthinkable in the eleven Muslim jurisdictions under review. While the position towards biological parenthood without legal ties is strict, social families are emerging and provide parentless children with a home and family environment. At the same time, these new communities do create difficulties for legal and social systems that abide by a single familial leitmotif: the conception of children in a valid marriage. Undoubtedly, broad-scale social acceptance of these new communities remains a long way off. On the bright side however, the legal structures discussed in this volume also bear witness to state legislation that has begun to (better) address the situation of parentless children. Filiation and the question of who forms a family are presently very much in motion. References Clarke M (2009) Islam and New Kinship – Reproductive Technology and the Shariah in Lebanon. Berghahn Books, New York and Oxford. Mohammadi A (2016) The Ambiguity of Maternal Filiation (nasab) in Early and Medieval Islam. The Graduate Journal of Harvard Divinity School 11:52–68. Möller L-M (2016) Improving Women’s Rights Through Children’s Rights? The Reform of Custody Laws in Contemporary Muslim Jurisdictions. In: Jänterä-Jareborg M, Tigroudja H (eds) Women’s Human Rights and the Elimination of Discrimination/Les droits des femmes et l’élimination de la discrimination. Brill, Leiden and Boston, pp 465–489. Stoljar SJ (1973) Children, Parents and Guardians. In: Drobnig U et al. (eds) International Encyclopedia of Comparative Law Online. http://dx.doi.org/10.1163/2589-4021_IECO_ COM_040701. Accessed 12 October 2018. Yassari N (2015) Adding by Choice: Adoption and Functional Equivalents in Islamic and Middle Eastern Law. Am J Comp L 63:927–962. Yassari N, Möller L-M and Gallala-Arndt I (2017) Synopsis. In: Yassari N, Möller L-M and Gallala-Arndt I (eds) Parental Care and the Best Interests of the Child in Muslim Countries. T.M.C. Asser Press, The Hague, pp 325–353. 412 N. Yassari and L.-M. Möller Nadjma Yassari is a senior research fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany, where she heads the Department for the Laws of Islamic Countries. Since April 2009, she has led the Research Group “Changes in God’s Law – An Inner Islamic Comparison of Family and Succession Laws.” Her main fields of research are national and private international law of Islamic countries, particularly the Arab Middle East, Iran, Afghanistan and Pakistan, with a special focus on family and successions law. In her monograph Die Brautgabe im Familienvermögensrecht – Innerislamischer Rechtsvergleich und Integration in das deutsche Recht (Mohr Siebeck 2014), she considers the function of the dower within the marital property law regimes of pre-modern Islamic law, contemporary Muslim jurisdictions and German law. Born on 6 March 1971 in Tehran, Iran, she studied law in Vienna, Paris and London. She holds an LL.M. from the School of Oriental and African Studies at the University of London and an LL.D. from the University of Innsbruck in Austria. In 2000/2001, she spent a year at the faculty of languages of the University of Damascus in Syria. In 2016, she was awarded a post-doctoral degree (Habilitation) from the University of Hamburg. Lena-Maria Möller is a senior research fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany. Holding an M.A. in Middle East studies and a Ph.D. in law, she has taught and researched in the area of Islamic law, with a particular focus on Muslim family law, as well as in comparative and private international law. She has held teaching positions at the University of Hamburg, the University of Augsburg and, most recently, the University of Münster, where she served as visiting professor of Islamic law. She is the author of Die Golfstaaten auf dem Weg zu einem modernen Recht für die Familie? (Mohr Siebeck 2015) and a co-editor of Parental Care and the Best Interests of the Child in Muslim Countries (T.M.C. Asser Press 2017). Her articles have been published in journals including Hawwa (Journal of Women of the Middle East and the Islamic World), Journal of Private International Law and The American Journal of Comparative Law, and she is a contributor to Brill’s Encyclopedia of Law and Religion and the Encyclopedia of Women and Islamic Cultures.