Fiqh of Adoption and Fostering

Sometimes it's to a dynasty, al-Ayyubi.

For example, Salahuddin al-Ayyubi. Sometimes it's to a rank, al-Muhajir, al-Ansari. Sometimes it's to a job, al-Najjar, right? Isa (عليه السلام - alayhis-salam) is al-Najjar

The point that I'm making is that a nisba, which is the closest thing to a last name, existed as a form of ascription to something that that person was prominent for. Many times was the tribe, many times was the country, many times was the land. Therefore, you cannot say that the last name is equal to a patronym.

The patronymic system is the son of so-and-so, the daughter of so-and-so. The surname is really like a nisba, it is not patronymic.

But wait a minute, how does the lineage get preserved? It should still be preserved.

Ideally, it's preserved actually through the middle name. You know, in some places in Europe, like in Russia and Ukraine, it's actually legally binding that the middle name has to be the name of your father. Or it was that case for some time in history.

Patronymics, patronyms, which are the son of so-and-so, the daughter of so-and-so, which is the Islamic system and what will be called upon on the Day of Judgment. A lot of the names that we have, that we know. So for example, Williamson, literally means Ibn William. And it became Williamson or Peterson, literally comes from Ibn Peter. These are European systems and naming systems. Till now, we find that these naming systems are very, very complex.

So it is okay, and Allah knows best, for a person, actually Wilson is Ibn William, not Williamson, Wilson. It's okay for a person to change their last name inshallah, so long as the lineage is preserved through some other way. Because you cannot equate the last name to the patronym that we have in our sharia.

The lineage can be preserved elsewhere. It is a nisba. The last name is a nisba.

It's just like al-Qurashi, al-Hijazi, al-Baghdadi, al-Taymi, whatever it may be. It is a nisba. And Allah knows best.

So as long as you preserve it through some other way, then it's fine inshallah ta'ala. The same is for example for marriage. It's okay to have that as your last name.

But it's good to, for example, add a last name to your last name if you wanted to do that. If you wanted to have the same last name as your husband, it's okay. But still you should preserve your lineage.

Because in this country obviously, you change your middle name and your last name to your husband's. Right? So you become, you know, so and so. It's actually kind of weird, right? But your middle name and your last name change to the first name and the last name of your husband.

Okay? So you still have to find a way to preserve it. But if you wanted to make it legally easier, and you wanted to make it smoother in paperwork, and just add the last name of your husband to the end of your name, Allah knows best, but it's permissible. A lot of scholars do hold that opinion.

I hold that opinion that it's permissible, inshallah ta'ala, because it's simply a nisba at that point.

Practical Guidelines for Naming

So there's nothing wrong with a son calling his father, or calling the foster care father, my dad, or my mom, or calling brother, sister. We obviously know brother, sister.

We do it all the time. You know, we sound kind of awkward when we do it, but we do it all the time for everybody. So brother, sister, father, mother, also naming the child after you, so long as you try to preserve their biological lineage through something else.

Why? Because it's undue trauma on the child as well. The child goes to school with their brother and sister, and literally every single day they have to be reminded why they're different. Which is not healthy.

The other extreme of that is to not tell the child where they're from, and what their lineage is, and to wait until they're 18, 19 years old, and they show up at Valley Ranch Islamic Center at Sheikh Yasser's office or with me, crying because they just found out they're adopted. Happens in the Muslim community too as well, by the way. So that's also something that's a problem.

Medical Guidance on Adoption Disclosure

I actually have a quote from the American Society of Pediatrics. Adoption should not be a secret. Every youngster needs to have an honest understanding of his origin.

Adopted children who have not been told seem to sense that somehow they are different. The nagging intuition can influence their self-image. The longer you wait, the harder it will be to discuss it with your child.

Also, he is liable to find out from someone else, perhaps by overhearing the conversations of relatives, or from teasing by neighborhood children who have learned from their own parents that he is adopted. It's narrated by HealthyChildren.org, Rawahu American Society of Pediatrics. There are a lot of these differences.

It's funny because I was reading like a hadith, and I realized I was reading halfway through. I was like, it's not a hadith. But the point is that I'm not speaking as a pediatrician here, as a psychiatrist, but it is something that our deen mandates that a child knows.

They don't have to be reminded of it all the time. They don't have to be told that they're anything less. All the hadith that we've covered in the first session sort of clarify that they are indeed to be made to feel like

they are just like all your other children.

What they eat, what they drink, how they're treated, everything. So it's not a means of belittling them, but so that they have an honest conversation. They know, however, you establish very early on, you're not going to be treated any differently.

I love you just like I love my other children. You get that out of the way as early as possible. The longer you wait, the more you actually risk, again, violating hifz al-nasl, which is the preservation of lineage, which is a part of our deen, and also the psychological well-being of that child when they grow up.

So it is important to establish that, inshallah ta'ala, without causing undue harm to the child. Islam always has a middle ground between the two on these things.

The Issue of Inheritance

Some of you may have, who have been following the Sahih al-Bukhari class, we actually went through the issue of inheritance, and one of the things that we established in the issue of inheritance, contrary to what people think, the Prophet (صلى الله عليه وسلم - sallallahu alayhi wa sallam) when he allowed one third of a person's inheritance to go to charity, he says:

Bukhari 2744, Muslim 1628

He says one third, and one third is even really too much. Why? Because the most deserving of your inheritance are your children.

So it's a Muslim idea that when I'm passing away, let me just dedicate everything to the hospital. It's not my money anymore, I'm dying anyway, I might as well turn it all into sadaqah. So let me turn it all into an orphanage, or turn it all into a child.

No, the Prophet (صلى الله عليه وسلم - sallallahu alayhi wa sallam) said, it's better it goes to your family وَالثُّلُثُ كَثِيرٌ . And you have one third, and that one third is even a lot. So where does it come with the orphan? The orphan does not naturally, the adopted child does not naturally inherit, like the other children do.

Meaning, they have to be factored in. However, the orphan can be, and there's a precedence for this from Ibn Sirin rahimahullah ta'ala, even that his entire one third went to his orphans, his adopted children. The orphan can actually end up with more than a biological child.

But you work it out of that one third, and again, what you spend upon that child is family and it's sadaqah as well, it's charity as well, it's a means of charity as well. This is constant sadaqah that you're doing. So it's important inshallah to operate within that one third.

You can determine that portion, it is very flexible, and that is the best. Because the Prophet (صلى الله عليه وسلم - sallallahu alayhi wa sallam) says that to give charity to a family member is silah and it's sadaqah, it's establishing the ties of kinship, and it's a form of charity. So that child that you've raised in your house, and you called your son, your daughter, you treat with love inshallah ta'ala, you try to show them ihsan, you want to factor in something inshallah ta'ala within the inheritance that is just as much as the other children, if not more.

But the sharia has flexibility in that regard.

The Issue of Mahram

The third one which becomes a very complicated issue is the issue of mahram. How do we deal with the awkwardness of a child not being mahram? To be honest with you, it is a great hindrance.

And unfortunately, because of it, many Muslims have shied away from it altogether. Right? And I think that's probably the case for the majority is that this idea, well, how are they going to be mahram? And how do we make that happen?

Number one, if a child is breastfed by a woman within the first two years, that child becomes mahram to both parents and to everyone in the household. Right? Just like blood, the Prophet (صلى الله عليه وسلم - sallallahu alayhi wa sallam) said, the effect of milk is the effect of ad-dam, it's the effect of blood.

So that child becomes, for all practical purposes, just like any other child in the house. Okay? So ridaa establishes what the Prophet (صلى الله عليه وسلم - sallallahu alayhi wa sallam) said it establishes hurma, it establishes someone to be forbidden in marriage, just like blood would establish. The amount of breast feedings that would be required are five.

Five separate occasions. It used to be ten. Aisha (رضي الله عنها - radi Allahu anha) said that it was abrogated and it was reduced to five separate feedings.

So you might find some hadiths would say ten or some books that say ten. It was an abrogated ruling. An initial ruling was that it was ten and it was abrogated to five, which Aisha (رضي الله عنها - radi Allahu anha) narrates, which is in Sahih Muslim.

So up to two years, if a person went through, inshallah ta'ala, we have a sister who is a lactation nurse that could actually meet with sisters, talk to them inshallah ta'ala as well, and kind of go over some things with everybody inshallah. But if a sister was to be able to feed a child on five separate occasions, that child does become mahram altogether. And there's no dispute in that regard.

The dispute obviously becomes, or the issue becomes, what if the child is over two years old? Now within the madhhab, in fact in the Maliki madhhab and the Hanafi madhhab, a few months over two is usually disregarded. Okay, so if it's two years and a little bit more, it still falls within that hukm according to many of the scholars, where it still establishes that that child becomes mahram.

The Case of Salim ibn Ma'qal

Now what happens to a child after the age of two? There is a very interesting story that took place with the Prophet (صلى الله عليه وسلم - sallallahu alayhi wa sallam),which gives us a discussion.

Abu Hudhayfa (رضي الله عنه - radi Allahu anhu) was a close companion of the Prophet (صلى الله عليه وسلم - sallallahu alayhi wa sallam)a beloved companion of the Prophet (صلى الله عليه وسلم - sallallahu alayhi wa sallam). He and his wife Sahla (رضي الله عنها - radi Allahu anha) they adopted a child by the name of Salim, Salim ibn Ma'qal. So Salim was adopted before the ruling on tabanni, before the ruling on forbidding that type of adoption, the full closed adoption.

He was brought into their house, they already had him. And then when the ruling came down, they were put in a very difficult situation. Why? Salim was over two years old, he was a young man.

What young man here means like he was a child that was over two. He was not, you know, baligh yet. He was somewhere between puberty and being two years old.

So it's a very wide range there. But the point is that he was too old to become a child, to become a mahram through breastfeeding. So Salim was in a difficult situation.

Sahla, the mother, is in a difficult situation. Abu Hudhaifah was in a difficult situation. They did not know what to do because he was, for all practical purposes, their son.

And they did not know how to approach the situation. Sahla and Abu Hudhaifah started to become uncomfortable with him, entering upon her without hijab and so on and so forth, and hugging her. Because they didn't know what their situation was with Allah now.

Sahla went to the Prophet (صلى الله عليه وسلم - sallallahu alayhi wa sallam), and she told the Prophet (صلى الله عليه وسلم - sallallahu alayhi wa sallam)that Salim enters upon us, he's over the age of two, and Abu Hudhaifah feels very uncomfortable. Not because of jealousy, because obviously they raised him like a son, but because they were afraid they were violating the laws of Allah. What should we do? The Prophet (صلى الله عليه وسلم - sallallahu alayhi wa sallam) said to her:

(Abu Dawud 2061, Muslim 1453)

So he said to her, feed him and he will become mahram to you and that which is in the heart of Abu Hudhaifah will disappear.

Now some of you might remember there was a crazy fatwa that came out from, actually I'm not going to say the university, I get in trouble, I don't want to mar the university. There was a crazy fatwa that came out a few years ago. It said if you're having issues with your co-workers, we have to work together in the same office, it's okay, just breastfeed the co-worker, and everything will be alright, and then suddenly he's going to be mahram to you.

And it became a laughing stock in the Arab world and throughout the Muslim world, and unfortunately the Islamophobes really swallowed that up, right? That's actually, yes. The point is they really used that against us, and look at these crazy Muslims, and that's what they're talking about, and so on and so forth.

Scholarly Interpretation of the Hadith

What does this hadith mean? Ibn Hajar rahimahullah comments, and he says, Al-Qadi Ayyad rahimahullah established, and this is something established by a Nawawi as well, that she did not expose herself to Salim, but rather she took her milk and she put it into a vessel, Salim drank from it through five days, so he drank from it five different times, and Salim became mahram to her.

So the issue is, number one, there is no exposing to a child, because that's against modesty and things of that sort in the first place, right? So there's a problem with that. So it was within a cup, and it was within a vessel. Most of the ulama, the vast majority of the ulama say that this was a case makhsoos, it was specific to Salim.

Why? Because the Prophet (صلى الله عليه وسلم) says, that after two years the milk has no effect. So the vast majority of the scholars believe that this was a specific case, that the Prophet (صلى الله عليه وسلم) made a specific rukhsa to Salim. I'm going to say that again, the vast majority of the scholars.

It is the majority opinion that breast milk after two years has no effect.

Ibn Taymiyyah's Opinion

This is where we have an opinion that comes from Ibn Taymiyyah rahimahullah ta'ala, Imam Ibn Taymiyyah rahimahullah ta'ala. It also comes from, it's also ascribed to Ibn al-Qayyim, his student, Muhammad ibn Ismail al-Sana'ani, and Imam al-Shawkani.

So there are a few scholars that held a separate opinion. The opinion of Ibn Taymiyyah rahimahullah ta'ala was that in a normal situation a child under two years old is the only one that can become mahram through breastfeeding. But if you have a four year old, or a five year old, and you have a situation where it's necessary, and the choices between throwing that child out on the streets, or taking them in as a mahram, then he said, the case of salim is precedence.

So the case of salim becomes precedence for that child. And actually Ibn al-Qayyim rahimahullah ta'ala, he commented on that, he said that Ibn Taymiyyah said that the hadith of sahla is not makhsoos, it's not specific, nor is it aam, nor is it open. So it's not specific, nor is it open, nor is it mansukh, nor is it abrogated, but rather it is muqayyad, it is restricted to a person that has a need, a haaja, because the child is going to be entering frequently upon the mother, and those types of things.

So at that point, even if the child is older than two years old, the hukm would still apply. That's the fatwa of Ibn Taymiyyah, and he actually ascribed it to Aisha (رضي الله تعالى عنها) and to some others as well. He

ascribed it to Al-Layth, the teacher of Imam Malik, Al-Layth ibn Sa'ad, and others.

So in that situation, Ibn al-Qayyim particularly mentioned al-laqeet, which is the abandoned child, the child that was abandoned by the parents. So he said this is one of the hawaaj, one of the necessities to wear kathratu dukhoorihi ala nisaat. That this young man, he's going to grow up, and he's going to have to enter upon his mother, the mother who's taken him in, his sisters, the other girls in the house.

So in that case, even after two years old, according to Shaykh al-Islam Ibn Taymiyyah rahimAllah, and Ibn al-Qayyim, and others, and this is something, in the very famous commentary on bulugh al-maram, a very classical textbook, which is subul al-salam by Muhammad ibn Isma'il al-Sana'ani, and I know these are just really, really long names, and things that I'm just sort of rattling off to you, but there are other scholars that actually praised that opinion, and they said it's a good opinion because it combines between all of the evidences, and it gets people out of a difficult situation.

So if a person is in that difficult situation, it still becomes permissible, and Allah knows best. So even if a child is three, four, five years old, obviously if you want to stay on the safe side, and whatever it is, and accommodate the majority of the scholars, again the vast majority of scholars, then you try to look for a child that's under two.

I'm going to leave that to Sister Sara to sort of talk about that, if that's even an option. But if there's a case where that's not an option, if there's a case there's a very needy child, and the option is between leaving that child in a situation where their Islam is going to be sacrificed, where their care is going to be sacrificed, and bringing that child in on the basis of a minor, yet evidence-based opinion, then you choose the minor, yet evidence-based opinion to accommodate that child. Or you bring that child in and you accommodate them in a separate way, where the mahram laws are not going to be abused, and you'll find a way out for that child inshallah ta'ala.

But the point is, there is wus'a, there is expanse in this masada, in this question. There are ways around the difficult situations that we have. And in that situation, inshallah ta'ala, it becomes okay.

Practical Application of Scholarly Opinions

And usually, when Imam Ibn Taymiyyah gives an opinion, this is maybe just a fiqhi tangent, but when he gives an opinion that's not really the norm, a lot of people will criticize him for that opinion, yet they'll adopt it in their own lives. So for example, Ibn Taymiyyah has the famous opinion that three talaqs in one sitting, the triple talaq in one sitting, does not lead to three talaqs, but rather it counts as one. He held that opinion.

It's definitely a very minor opinion. And you know what, the mufti, the diyar al-fatawa in Egypt, though they reject the opinion, they apply it. Because it gets people out of a difficult situation.

So there's haraj in this situation, there's a very difficult situation that we're facing with. We're not in a society where a woman that's a widow will easily remarry, or a woman with children will easily remarry, and these children will be taken care of. We have very difficult situations that we need to deal with, inshallah ta'ala.

So again, adopting an opinion that's not a majority opinion, but it's evidence-based, is okay in this situation, inshallah ta'ala, to get ourselves out of that difficulty. And again, as you can see on all of these different masal, on all these different issues, there are ways to provide a normal upbringing without violating any aspect of your faith, inshallah ta'ala, while still receiving all of the rewards.

Conclusion

We ask Allah to grant us the murafiqah, the companionship of the Prophet (صلى الله عليه وسلم) in Jannat al-Firdaus, and to enable us, inshallah ta'ala, to fulfill the sunnah as a community, to revive the sunnah.

I really hope that this lecture, maybe it's being too idealistic, but I hope it's a game-changer in our community in some ways. I really do hope, inshallah, some people will rise to the occasion, inshallah. And we do have Sister Sara Haydar from New Star Kafara Agency now, inshallah, who will go over the practical aspects, inshallah ta'ala, so how we can actually move forward with an adoption agency, inshallah ta'ala, if we wanted to take that.

So JazakAllah khair. I'm going to hand it over to her, and then afterwards, inshallah ta'ala, we'll move to questions for the rest of the evening.

All content from the original lecture has been preserved while correcting Arabic texts, adding proper Islamic references, and organizing the material with clear headings and subheadings for enhanced readability. The complete discourse on the fiqh of adoption and fostering remains intact.