Fatwa on limits of modesty between adopted children and adoptive family members

FATWA ON LIMITS OF MODESTY BETWEEN ADOPTED CHILDREN AND ADOPTIVE FAMILY MEMBERS

ADMINISTRATION OF MUSLIM LAW ACT

(CHAPTER 3, SECTION 32)

FATWA ISSUED

BY

THE FATWA COMMITTEE, ISLAMIC RELIGIOUS COUNCIL OF SINGAPORE

The Fatwa Committee 2013-2016 has discussed on the issue of the limits of modesty between adopted children and their adoptive family members during its 2^nd meeting on 12 December 2013 and 3^rd meeting on 13 March 2014.

FATWA

بسم الله الرحمن الرحيم

الحمد لله رب العالمين، والصلاة والسلام على سيد المرسلين وإمام المتقين نبينا محمد وعلى آله وأصحابه أجمعين. اللّهم أرنا الحق حقا وارزقنا اتباعه، وأرنا الباطل باطلا وارزقنا اجتنابه وبعد.

BACKGROUND

The Fatwa Committee received a query from the Academy of Muslim Family Development (APKIM) in a letter dated 14 January 2011, reporting the difficulties faced by Muslim adoptive families. These difficulties stem from concerns regarding the boundaries of ʿawrah (limits of modesty) between adopted children and their adoptive families.

1.             As a result of this, APKIM posed the following question to the Fatwa Committee: What are the religious rulings regarding the limits of modesty between adopted children and their adoptive families?

Caring for children in Islam

2.             A child is a responsibility entrusted by Allah ﷻ. Hence, it is an obligation to ensure that every child is protected, and their rights are fulfilled. In Islam, every child is born with an innate disposition (fiṭrah). The Prophet ﷺ states:

مَا مِنْ مَوْلُودٍ إِلاَّ يُولَدُ عَلَى الْفِطْرَةِ

Meaning: “Every child is born with an innate disposition (fiṭrah)” (Muslim, Saḥīḥ Muslim, hadith no. 2658d)

3.             Besides caring for one’s own biological child, Islam places emphasis on caring for orphans and abandoned children (manbūth/laqīṭ).¹ Several verses from the Quran and hadiths of the Prophet ﷺ emphasise the importance and virtue of caring for orphans. Allah ﷻ affirms in Surah al-Baqarah, verse 220:

﴿وَيَسْأَلُونَكَ عَنِ الْيَتَامَىٰ ۖ قُلْ إِصْلَاحٌ لَّهُمْ خَيْرٌ ۖ وَإِن تُخَالِطُوهُمْ فَإِخْوَانُكُمْ﴾

Meaning: “And they ask you ˹O Prophet˺ concerning orphans. Say, “Improving their condition is best. And if you partner with them, they are bonded with you ˹in faith˺.”

4.             Drawing from social science studies, adopted children nurtured within adoptive families will develop more holistically than those raised in welfare and foster homes.²

5.             There are several guidelines that need to be considered when adopting children. Among them is that Islam prohibits all forms of concealment in the process of adopting a child.³ Islam also emphasises justice and mercy in caring for an adopted child.⁴ In addition to that, efforts need to be made to ensure that a Muslim child is placed in the care of a Muslim family. This is in line with the maqāsid al-Sharīʿah, (higher objectives of the Shariah)⁵ which is to preserve the child’s faith and religion.

ʿAwrah between adoptive family members

6.             In order to meet the religious obligation to safeguard the welfare and religious upbringing of these children, all potential barriers ought to be broken down, including legal obstacles.

7.             The Fatwa Committee acknowledges that Islam establishes specific regulations regarding the obligation to preserve the ʿawrah. However, in the issue raised by APKIM, concerns about the ruling on ʿawrah have evidently become a factor inhibiting Muslim families from adopting Muslim children. This gives rise to a serious religious detriment, wherein the faith of these children cannot be preserved.

8.             The Shariah mandates anything that may lead to harm must be eliminated. This is reflected in one of the legal maxims:

الضَّرَرُ يُزَال

Meaning: “Harm must be eliminated"⁶

9.             It is also in line with the fiqh maxim which espouses that in times of hardship, the Shariah seeks to bring about ease, as stated:

الْمَشَقَّةُ تَجْلُبُ التَّيْسِيرَ

Meaning: “Difficulty calls for facilitation"⁷

10.          Drawing from these two legal maxims and the principle of sadd al-dharāʾiʿ,⁸  the Fatwa Committee takes the position that one of the following two approaches could be considered as a solution to the issue of ʿawrah between adopted children and their adoptive families.

First approach: Breastfeeding by the adoptive mother

11.          A woman who intends to adopt may choose to breastfeed the child. Through breastfeeding, the adopted child will then become a maḥram to the breastfeeding mother and her husband. Breastfeeding can occur through (i) direct nursing from the breast or (ii) indirect methods, such as bottle-feeding or tube-feeding.

12.          The Fatwa Committee also finds no objection if a woman wishes to undergo certain medical treatments, such as hormone pills to induce lactation.

13.          Additionally, the Fatwa Committee is in alignment with the majority view of jurists (jumhūr fuqahāʾ) that it is permissible for a woman to breastfeed, irrespective of her marital status. The Maliki, Shafi'i, and Hanafi schools state that a woman who wishes to breastfeed a child need not be married.⁹

14.          If the child is breastfed in accordance with the determination of the jurists, the breastfed child attains the status of maḥram to the following individuals:

• The breastfeeding mother;

• Children of the breastfeeding mother, whether biological or other breastfed children;

• The husband of the breastfeeding mother;

• Other family members as specified by jurists.

15.          Prophet Muhammad ﷺ establishes:

يَحْرُمُ مِنْ الرَّضَاعِ مَا يَحْرُمُ مِنَ النَّسَبِ

Meaning: “What becomes unlawful through breastfeeding extends to that which becomes unlawful through blood relations.” (Saḥīḥ al-Bukhārī, hadith no. 2645; Saḥīḥ Muslim, hadith no. 1444b)

16.          Drawing from the Quranic verses and hadith of the Prophet Muhammad ﷺ, scholars have set out several conditions in order for breastfeeding to result in the establishment of maḥram relationships according to Shariah. They are as follows:

• The breastfeeding must reach at least five nursing sessions;¹⁰

• The milk must reach the child’s stomach;¹¹

• The child must not be more than two years of age, according to the lunar calendar.¹²

Second approach: Consideration of ʿawrah exceptions between non-mahram individuals

17.          Apart from the breastfeeding approach, adoptive parents may also consider this second approach to address the issue of the boundaries of ʿawrah between the adoptive family and the adopted child.

18.          This approach takes into account the rulings in the Shariah that allow exceptions pertaining to a woman’s observable ʿawrah with non-maḥram individuals. The Fatwa Committee has also examined the legal reasoning for each ruling (ʿillah ḥukum)¹³ and applied it to the context of an adopted child's ʿawrah with their adoptive family.

19.          The Shariah establishes that not all non-maḥram individuals are subject to the same ruling regarding the observance of ʿawrah. Legal concessions (rukhṣah) are given in certain situations due to necessity and observing the greater good. Among the issues identified where exceptions are given for a woman not to wear the hijab are as follows:

• A woman with her male slave.

• A female slave with her male master.

• A man who no longer has desires for women.

• A prepubescent boy.

• A woman who has reached menopause.

First: Concessions due to daily affairs

20.          In Islamic jurisprudence, a woman is allowed to not wear hijab due to certain daily affairs that she needs to attend to. For instance, in situations of necessity (al-ḥājah) when carrying out daily tasks, whether with her male servant or a young boy. The same provision extends to a man with his female servant.¹⁴

21.          The reasoning (ʿillah) behind this legal concession is founded on the difficulties faced by a servant who regularly handles the affairs within their master’s household.

22.          Allah ﷻ expounds in Surah al-Nūr, verse 58, regarding the reasoning behind the legal concession given for the issue of ʿawrah between a servant and their master:

﴿يَا أَيُّهَا الَّذِينَ آمَنُوا لِيَسْتَأْذِنكُمُ الَّذِينَ مَلَكَتْ أَيْمَانُكُمْ وَالَّذِينَ لَمْ يَبْلُغُوا الْحُلُمَ مِنكُمْ ثَلَاثَ مَرَّاتٍ ۚ مِّن قَبْلِ صَلَاةِ الْفَجْرِ وَحِينَ تَضَعُونَ ثِيَابَكُم مِّنَ الظَّهِيرَةِ وَمِن بَعْدِ صَلَاةِ الْعِشَاءِ ۚ ثَلَاثُ عَوْرَاتٍ لَّكُمْ ۚ لَيْسَ عَلَيْكُمْ وَلَا عَلَيْهِمْ جُنَاحٌ بَعْدَهُنَّ ۚ طَوَّافُونَ عَلَيْكُم بَعْضُكُمْ عَلَىٰ بَعْضٍ ۚ كَذَٰلِكَ يُبَيِّنُ اللَّهُ لَكُمُ الْآيَاتِ ۗ وَاللَّهُ عَلِيمٌ حَكِيمٌ ۝٥٨﴾

Meaning: “O believers! Let those ˹bondspeople˺ in your possession and those of you who are still underage ask for your permission ˹to come in˺ at three times: before dawn prayer, when you take off your ˹outer˺ clothes at noon, and after the late evening prayer. ˹These are˺ three times of privacy for you. Other than these times, there is no blame on you or them to move freely, attending to one another. This is how Allah makes the revelations clear to you, for Allah is All-Knowing, All-Wise.”

23.          The aforementioned verse explicitly explains one of the main reasons for granting the concession between a servant and their master, as well as for prepubescent children. This is due to the constant movement in the house. This concession applies even in the absence of a maḥram relationship between them. Imam Ibn Kathīr explains in his exegesis:

ولأنهم { طَوَّافُونَ } عليكم، أي: في الخدمة وغير ذلك، ويُغْتفر في الطوافين ما لا يُغْتفر في غيرهم.

Meaning: “It is because of their ‘constant movement’ around you, i.e., in service and other activities. Hence, concession is given to those who constantly move around you, and this is not given to anyone else but them."¹⁵

24.          Prophet Muhammad ﷺ once visited his daughter Fatimah r.a. at her home. At that time, she was not fully covering her ʿawrah, to which the Prophet ﷺ said:

إنه ليس عليك بأس إنما هو أبوك وغلامك.

Meaning: “There is nothing to worry about. It is only your father and your slave.” (Sunan Abī Dāwūd, hadith no. 4106; Al-Sunan al-Kubrā, hadith no. 13545)

25.          In historical context, a similar ruling was observed regarding the ʿawrah of a female servant with her master. Despite the master not being her maḥram or husband, it was considered permissible for a female servant not to wear the hijab when engaging in daily tasks with her master.

26.          In line with the identified reasoning behind the law (ʿillah al-ḥukum), the Fatwa Committee views that the same principle can be applied to the situation of adopted children with their adoptive families. This position is predicated on the understanding that adopted children have intimate and constant interactions with the adoptive family members, and it would present difficulties for the family members to maintain ʿawrah within the household with the adopted child, particularly if the child was raised within the family since a tender age.

Second: Concession due to absence of sexual attraction

27.          The Fatwa Committee further observed that Shariah has delineated, in various contexts, the reasoning (ʿillah) behind the exemption from wearing the hijab due to the absence of sexual attraction. This pertains to situations where a woman interacts with individuals who lack sexual desire, such as prepubescent children and men who lack desire towards women, or when the woman herself no longer desires to marry due to advancing age. This is clearly stated by Allah ﷻ in Surah al-Nūr, verse 31:

﴿وَلَا يُبْدِينَ زِينَتَهُنَّ إِلَّا لِبُعُولَتِهِنَّ أَوْ آبَائِهِنَّ أَوْ آبَاءِ بُعُولَتِهِنَّ أَوْ أَبْنَائِهِنَّ أَوْ أَبْنَاءِ بُعُولَتِهِنَّ أَوْ إِخْوَانِهِنَّ أَوْ بَنِي إِخْوَانِهِنَّ أَوْ بَنِي أَخَوَاتِهِنَّ أَوْ نِسَائِهِنَّ أَوْ مَا مَلَكَتْ أَيْمَانُهُنَّ أَوِ التَّابِعِينَ غَيْرِ أُولِي الْإِرْبَةِ مِنَ الرِّجَالِ أَوِ الطِّفْلِ الَّذِينَ لَمْ يَظْهَرُوا عَلَىٰ عَوْرَاتِ النِّسَاءِ ۖ﴾

Meaning: “Let them not reveal their ˹hidden˺ adornments except to their husbands, their fathers, their fathers-in-law, their sons, their stepsons, their brothers, their brothers’ sons or sisters’ sons, their fellow women, those ˹bondwomen˺ in their possession, male attendants with no desire, or children who are still unaware of women’s nakedness.”

28.          Islam emphasises the protection of the ʿawrah for Muslim woman. As such, this verse mandates that a woman must always preserve her ʿawrah, except when in the company of individuals who are maḥram to her, such as her father, father-in-law, and others. In the same vein, this verse clarifies that the requirement to observe the ʿawrah is dispensed from individuals who potentially lack sexual desires, and women who interact with them.

29.          This legal determination parallels the situation of an adopted child with their adoptive family. Having been nurtured by the adoptive family from a tender age and being regarded as their biological child by the entire family, an adopted child can be considered as a group to whom the Shariah has granted a legal dispensation to observe the ʿawrah among family members, as stated in the aforementioned Quranic verse.

DECISION OF THE FATWA COMMITTEE

30.          The Fatwa Committee takes the position that adopting children by capable and willing families is a necessity. It is a responsibility entrusted upon the Muslim community. When a Muslim family assumes the care of a Muslim adopted child, it guarantees the preservation of the child’s well-being and religious welfare.

31.          Therefore, the issue concerning the ruling on ʿawrah should not be a barrier to fulfilling this heavy responsibility. In the presence of constraints prescribed in the Shariah, solutions should be considered through legal concessions (rukhṣah) as elaborated above, either through (i) the approach of breastfeeding or (ii) the application of the principle of alleviating difficulties (rafʿ al-ḥaraj) based on the legal concessions for individuals who constantly move about and interact with family members. Additionally, taking into account the legal dispensation concerning the ʿawrah between a servant and their master, a young child, and individuals who lack sexual desire.

والله أعلم

والله ولي التوفيق، وصلى الله على سيدنا محمد وعلى آله وصحبه وسلم.

DR MOHAMED FATRIS BAKARAM
CHAIRMAN, THE FATWA COMMITTEE
THE MUFTI OF SINGAPORE

[1] Manbūth means abandoned, and laqīṭ means a child who is fostered. One of the main reasons for child-neglect may stem from the child being illegitimate, born out of adultery. In order to conceal the disgrace of the sin that has been committed, the offspring born out of the illicit relationship is neglected. This issue has been discussed in detail by scholars. Refer to: Ibn Rushd, Bidāyah al-Mujtahid wa Nihāyah al-Muqtaṣid; 2:309; Al-Qalyūbī dan ʿUmairah, Ḥāshiyatā al-Qalyūbī wa ʿUmairah ʿalā Minhāj al-Tālibīn, 3:123; Al-Shirbīnī, Mughnī al-Muḥtāj ilā Maʿrifah Maʿānī Alfāẓ al-Minhāj, 6:374; Al-Dardīr, Al-Sharḥ al-Saghīr ʿalā Aqrab al-Masālik ilā Madhhab Mālik, 4:178.

[2] Johnson, Dana E., Adoption and the Effect on Children’s Development, Early Human Development 38, (2002), 39-54; Marinus H. van IJzendoorn, Femmie Juffer, and Caroline W. Klein Poelhuis, Adoption and Cognitive Development: A Meta-Analytic Comparison of Adopted and Nonadopted Children’s IQ and School Performance, Psychological Bulletin, 131:2, (2005), 301-316.

[3] This matter is clearly stated through the command of Allah ﷻ not to attribute the child to anyone other than his father. Allah ﷻ says which means: “Name your adopted sons after their real fathers: this is more equitable in Allah’s eyes.” (Surah al-Aḥzāb: 5)

[4] There are various verses in the Quran that emphasise the aspect of justice for those who safeguard the welfare of orphaned children, including the verse of Allah ﷻ which means: “Give orphans their wealth ˹when they reach maturity˺, and do not exchange your worthless possessions for their valuables, nor cheat them by mixing their wealth with your own. For this would indeed be a great sin.” (Surah al-Nisāʾ: 2)

[5] The Shariah is designed to safeguard the welfare of humanity, which is upheld through the preservation of five aspects, namely the preservation of religion, life, intellect, wealth, and lineage. The preservation of these five aspects is known as maqāsid al-Sharīʿah, i.e., higher objectives of the Shariah. According to Imam Al-Shātibī: “The primary purpose of the Lawgiver (Allah) in revealing the Shariah (legal rulings) is to achieve welfare and avoid harm.” Al-Shātibī, Al-Muwāfaqāt, 220.

[6] Al-Suyūṭī, Al-Ashbāh wa aḷ-Naẓāʾir, (Beirut: Dār al-Kutub al-ʿIlmiyyah, 1983), 88.

[7] Ibid., 76.

[8] The principle of sadd al-dharāʾiʿ is to block any means which could lead or has the potential to lead to something unlawful and harmful.

[9] Al-Shirbīnī, Mughnī al-Muḥtāj, 3:420; Ibn Rushd, Al-Bayān wa al-Taḥṣīl, 5:153; Fatāwā al-Hindiyyah, 1:343.

[10] It is reported from ‘Aisyah r.a. that the Prophet Muhammad ﷺ instructed the wife of Abū Hudhaifah to breastfeed Sālim five times, thereby establishing a foster relationship. Consequently, Sālim was thereby permitted to enter her home freely. Refer to: Aḥmad, Musnad Aḥmad, hadith no. 25414.

[11] Prophet Muhammad ﷺ establishes: Be sure as to who is your foster brother, for foster suckling relationship is established only when milk is the only food of the child.” Al-Bukhārī, Saḥīḥ al-Bukhārī, hadith no. 5102; Muslim, Saḥīḥ Muslim, hadith no. 1455.

[12] Allah ﷻ says: “Mothers suckle their children for two whole years, if they wish to complete the nursing ˹of their child˺.” (Surah al-Baqarah: 233)

[13] ʿIllah al-ḥukum: which translates to the reason or motive behind the establishment of a law. Scholars diligently seek to discern the reason/motive behind a particular ruling for a specific issue. The objective is to facilitate the application of the ruling to contemporary issues that bear resemblance to it, even if the ruling is not explicitly stated in the Quran or Sunnah. Imam Al-Shatibi is amongst those who contend that there is no distinction between the ʿillah and ḥikmah (wisdom) behind a ruling. Both are considered as the reason of a particular ruling. However, some Usul Fiqh scholars distinguish between them. Refer to: Al-Shātibī, Al-Muwāfaqāt, 160.

[14] According to the Shafi'i school of thought, it is permissible for a woman who has a male servant to remove her hijab when dealing with the servant. This is based on the Quranic verse in Surah al-Nūr, verse 31:

﴿وَلَا يُبْدِينَ زِينَتَهُنَّ إِلَّا لِبُعُولَتِهِنَّ أَوْ آبَائِهِنَّ أَوْ آبَاءِ بُعُولَتِهِنَّ أَوْ أَبْنَائِهِنَّ أَوْ أَبْنَاءِ بُعُولَتِهِنَّ أَوْ إِخْوَانِهِنَّ أَوْ بَنِي إِخْوَانِهِنَّ أَوْ بَنِي أَخَوَاتِهِنَّ أَوْ نِسَائِهِنَّ أَوْ مَا مَلَكَتْ أَيْمَانُهُنَّ أَوِ التَّابِعِينَ غَيْرِ أُولِي الْإِرْبَةِ مِنَ الرِّجَالِ أَوِ الطِّفْلِ الَّذِينَ لَمْ يَظْهَرُوا عَلَىٰ عَوْرَاتِ النِّسَاءِ ۖ﴾

Meaning: “Let them not reveal their ˹hidden˺ adornments except to their husbands, their fathers, their fathers-in-law, their sons, their stepsons, their brothers, their brothers’ sons or sisters’ sons, their fellow women, those ˹bondwomen˺ in their possession, male attendants with no desire, or children who are still unaware of women’s nakedness.” (Surah al-Nūr: 31)

[15] Ibn Kathīr, Tafsīr Ibn Kathīr, (Riyadh: Dār al-Ṭaibah, 1999), 6:82.