Thursday, 14 February 2013

Changing the Family Name of an Adopted Child

بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ

The following is a fatwa by Shaykh ‘Ali Juma’ah.  It is legally impermissible in shari’ah to give the adopted child the full name of the foster family which would be reflected in the legal rights that the adopted child will share with the adoptive family.  Allah (s.w.t.) Says in the Qur’an:


Call them by (the names) of their fathers: that is more just in the Sight of Allah but if ye know not their father's (names, call them), your brothers in faith, or your mawali ... (Surah al-Ahzab:5)

It is also well known that the noble companion, Zayd ibn Harits (r.a.) was previously known as Zayd ibn Muhammad as he was adopted by Prophet Muhammad (s.a.w.) who treated him like his own child and attributed his name to him.  After Allah (s.w.t.) Prohibited attributing the name of the foster father to the adopted child, the Prophet (s.a.w.) returned Zayd’s (r.a.) name back to his biological father and was known for it.

It is legally permissible to give the adopted child only the family name of his foster family which guarantees loyalty of the adopted child to his new home without claiming biological ties with the adopted child which is prohibited in shari’ah.  Adding the family name of the foster family would be more like the attachment of loyalty which was popular among the Arab tribes.  There is no legal impediments to such act as the prohibited adoption would be to fully give the child the name of the foster father as if the child is his own which has legal repercussions in terms of inheritance, lineage, rules of modesty with foster sisters and so forth.

As for the verse quoted above, Hafizh ibn Katsir (r.a.), in his Qur’anic exegesis, stated that calling the adopted child ‘son’ out of love and kindness is not prohibited and he used the prophetic tradition which was reported by Imam Muslim (r.a.) in which the Prophet (s.a.w.) called his servant Anas (r.a.) as ‘son.’  Therefore the mere fact of attaching the family name of the foster family to the adopted child, which does not have any legal repercussions, is not prohibited in Islam.

In Islam attributing the family name to a person who does not belong to the family biologically can be done for a number of reasons.  It can be done because of emancipation.  When a slave is freed, he usually takes the family name of his emancipator such as the poet, Abu al-Buhturi ath-Tha’iy who got his last name from the tribe of his emancipator.  It may be done as a pledge of allegiance, usually formed among tribes for mutual support and defense against attacks.  It is common for the people of the two allied tribes to take the name of the allied tribe as their last name.  It may also be done as a pledge of companionship due to business or knowledge.  It was common if a man stayed long enough in the company of another for the sake of learning and gaining knowledge or if they had commercial dealings to take his family name.  And it was done as a pledge of religion; if a person was guided to Islam through another, it is permissible to take the latter’s family name.

Imam ibn asw-Swalah (r.a.), the renowned scholar, stated that the attribution of a man to a tribe which is not his own was common.  For example, there were people who did not take their father’s name but actually took their mother’s name such as Sharhabil ibn Hasanah (r.a.) and others took their grand mother’s name such as Ya’li ibn Muniyah (r.a.) and others took their grand father’s name such as Abu ‘Ubaydah ibn al-Jarrah (r.a.) and others were attributed to men who were not their fathers such as al-Miqdad ibn al-Aswad (r.a.) who was raised in the house of al-Aswad ibn ‘Abd Yaghuth.

So these are examples which prove that it was common for a man to take other people’s names as long as it does not entail legal repercussions which deem such act impermissible.  The same goes also for the adopted child when he takes the family name of his adoptive family.  Taking the family, name especially for a child with an unknown lineage, is crucially important for his psychological wellbeing and his healthy upbringing.  In the case of an illegal relationship where the lineage is known, it is permissible to give the child the family name of the legal husband but not his first and second name.


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