The kafala, an adoption that is not an adoption (1)
Marianne Roux-Bouzidi - 03/09/2012
In Islam, descent is only recognized by ties of blood. Adoption1 as practiced in most countries where parental rights are totally transmitted to the adopter is therefore proscribed. In fact, it is to preserve the patriarchal values such as patronymy, the inheritance system and forbidden marriage, that the Muslim law has established a regulation to substitute the model of adoption: the kafala.
Even today, in almost all Muslim countries (except Turkey, Indonesia and Tunisia - but in Tunisia, the Islamists want the government to open debate in order to change the law) it is the kafala that allows adults to take care of abandoned minors in accordance with Islamic law.
The kafala: a plural legal reality
In the Muslim legal system, the kafala is a kind of delegation of parental authority by which the kafil (adoptive parent) agrees to support the makfoul (adopted child) until he/she is of age. The verb takafala in Arabic means to take care of an orphan by providing all his/her basic needs (food, clothing, education).
In Morocco, there are two types of kafala: It is the judge who issues the judicial kafala that only concerns abandoned children permanently placed in orphanages (the child may have a known or unknown filiation). The notary-certified kafala is for children whose lineage is known. A notary establishes the deed with parental consent. Both are revocable at any time.
Traditionally, the notary-certified kafala was used within the same family. The new-born child was left to the care of a sterile relative or to a relative who for example has no male child. The child’s education was then taken care of by the whole circle of relatives. Today, since the nuclear household model has significantly undermined the institution of the extended family, this form of kafala is less practiced. In the specific case of Morocco, this form of kafala is used by rich families to employ young girls as domestic servants (in exchange for money or property given to their parents), thus diverting the protective guardianship function and turning it into an instrument of child exploitation and abuse.
In the case of the judicial kafala the procedures undertaken by the legal guardians are clearly part of the logic of adoption. It consists of taking care of an abandoned child who is in an orphanage. After the first draft of a law in 1993, is it the royal Dahir of 13/06/2002 governing the procedures for the care of these ostracized children. It took all this time indeed to ensure that authorities become aware of the phenomenon of child abandonment, which has amplified in 80’s and 90’s, and to develop an appropriate response to this situation.
Abandonments: a consequence of the stigmatised single mothers
In 2010, a study on abandoned children in Morocco conducted by UNICEF and the Moroccan League for Child Welfare described the dramatic situation. While the official statistics for 2008 counted 4554 children abandoned at birth, the number had to be revised upwards (as all abandonments were not counted) to reach 2% of total births of the country, i.e. 6840 children.
The study indicates that the majority of child abandonment is related to single women (80.9%) living in urban areas (75%). It also states that boys are more often abandoned than girls (53% to 65% depending on the region). These women are usually housekeepers / or unemployed workers, aged between 21 and 30 and who have not received education or just the basic level. Moreover, it is interesting to note that these children are mostly the result of a consenting sexual relationship with an unkept promise of marriage. According to the report, if they abandon their children for economic reasons, it is clear that this act is first experienced as “the price” paid not to be excluded from their families and society in general.
Thus, in Morocco, child abandonment is the result of the extremely marginal status of single mothers. They are doomed to shame for having “sinned” and are liable to prosecution under article 490 of the penal code that punishes sex outside of marriage. The man can obviously escape it by denying the facts. With no right to request a paternity test at court, the mother remains the only one guilty. In fact, the new Moudawana2 authorizes the use of science (via DNA) to prove or dispute parentage, only when the couple is engaged or married. Man is thus doubly protected: if his wife wants him to endorse a paternity that is not of his making but also he has other relationships outside marriage (rape or consensual relations) ... The law reflects how macho society is, in disregard of the mother and child’s well-being.
The future single mother has the following choices. She either abandons her child in the street after giving birth by herself or she gives birth in hospital, suffering the medical staff’s disregard, and escapes leaving the baby behind her. If she wants to keep her child or abandon him to the king's procurator, she may formally risk prison for debauchery (the law is in force but no longer applied). Finally, she can also make arrangements with a couple to whom she offers the child. This can either be done within the legal framework (kafala) or illegally (fraud on civil status), thus condemning the child to never discover his true lineage.
Although there are associations that help single mothers to keep their children (such as Aicha Ech-Chana’s Women’s Solidarity Association, the National Institute of Solidarity with Women in Distress or the Basma Home), the weight of religion in Moroccan society prevents these women from assuming the consequences of sexual relationships outside social norms. These children called ouled lharam (“children of sin”) are at the heart of Moroccan collective mental representations. Moreover, in everyday language the term ould lharam is the ultimate insult, the one that refers to vice, cunning, malice and intended to give the “Other” the status of a stranger to the common standard, violently denying him his humanity.
As an instrument for child protection, the judicial kafala court, is a device that has been in force for the past decade but it only alleviates the damage caused by a conservative society, steeped in religious taboos. The lack of sexual education and the prohibition of women to freely dispose of their bodies remains the fundamental debate that Morocco will have to address sooner or later, because the reality of the figures is implacable: every day 83 women give birth to children out of wedlock while 600 illegal abortions are performed in the Kingdom.
Translated from French by Elizabeth Grech
1 Verses 4 and 5 of Surah 33 of the Qur'an are explicit about this.
2 Moroccan Family Code, reformed in 2004.