Guardianship Without Erasure: Understanding Kafala in Islamic Law

In both legal and popular discourse, it is often claimed that Islamic law does not permit adoption. While this statement holds some truth when adoption is defined in Western legal systems, where a child's identity and lineage are legally transferred to the adoptive family, it overlooks the existence of deeply rooted Islamic mechanisms for childcare and guardianship. Chief among these is kafala (in Arabic literally means guarantee, surety, or taking responsibility for someone or something), a concept that provides for the ethical and material care of children without violating key principles of Islamic law, particularly the preservation of lineage (nasab).

This concern with lineage is well established in classical and modern Islamic legal scholarship. As Schacht observed, the Qur'anic prohibition does not reject care for children as such, but rather the legal fiction of assimilative adoption that severs genealogical truth. [1] Hallaq similarly emphasises that the rejection of assimilative adoption reflects a broader epistemic commitment in Islamic law to the preservation of identity and legal continuity, rather than an indifference to child welfare. [2] Contemporary family-law scholarship confirms that Islamic legal systems have long relied on functional equivalents, such as guardianship and bequests, to reconcile care with lineage. [3]

This blog post draws on legal scholarship and country case studies to explore how Islamic legal traditions have developed an alternative system of guardianship, how modern legal contexts have implemented it, and how colonial legacies have shaped contemporary misunderstandings of Islamic law's position on adoption.

Islamic Law and the Prohibition of Assimilative Adoption

The Qur'an provides clear guidance on the question of identity in adoption. Surah Al-Ahzab (33:4–5) declares: [4]

"He has not made your adopted sons your [true] sons. That is [merely] your saying by your mouths. But Allah says the truth, and He guides to the [right] way. Call them by [the names of] their fathers; it is more just in the sight of Allah…"

This verse reflects a foundational concern in Islamic law: the preservation of nasab, or biological lineage. In pre-Islamic Arabia, the practice of tabanni—a full legal adoption where a child's name and inheritance rights were altered to match the adoptive family—was widespread. [5] Islamic law rejected this model, but not the moral imperative of caring for vulnerable children.

Islamic law responded not by denying the need for childcare but by reframing the concept. The kafala system was introduced as a Sharia-compliant alternative that fulfills the ethical duty to support orphans and abandoned children, without erasing their legal identity.

What Is Kafala?

Kafala, often translated as guardianship or sponsorship, enables a non-biological family to raise a child, providing for their needs and welfare without assimilating them into the family line. The child retains their name, their legal identity, and their inheritance rights from their biological family—unless alternative arrangements are made, such as wasiat wajibah (obligatory bequests), which provide financial protection without violating inheritance rules.

As Shaheen Ali notes, the distinction lies not in the act of caregiving, but in the legal implications of identity and inheritance. [6] Kafala might compare with foster care in some legal systems when a child is brought up in their non-biological family, and treated and given the same resources as the other children, but not assimilated by giving them a new identity.

Comparative family-law scholarship has increasingly recognised kafala as a legitimate form of alternative care rather than a deficient substitute for adoption. [7] This understanding is also reflected in international children's rights law, where kafala is explicitly listed alongside adoption and foster care as an acceptable protective arrangement, provided that the child's best interests remain paramount. [8]

Country Case Studies: Sharia-Compliant Adoption in Practice

It is important to note that kafala does not operate uniformly across Muslim-majority jurisdictions. While some states, particularly in North Africa, have codified judicially supervised forms of kafala within family law, other regions, including parts of the Middle East and the Gulf, rely on administrative or welfare-based guardianship models that may diverge significantly from classical Islamic jurisprudence and offer more limited legal security to children and guardians. [9] [10]

Morocco provides a compelling example of kafala codified into national law. Prospective guardians must be Muslim and must not change the child's identity. Morocco also permits international kafala under strict Sharia-compliant conditions, allowing Muslim families abroad to care for children without violating lineage norms. [11]

Algeria has similarly developed a national kafala system, with particular attention to its diaspora. Algerian families living in France and Belgium have been able to obtain guardianship of children under the Algerian kafala model, often navigating transnational legal frameworks to ensure compliance with both Sharia and European child welfare laws. [12]

In several Middle Eastern jurisdictions, particularly in the Gulf, child care arrangements labelled as kafala are often administered through state agencies rather than family courts, and may not generate stable, enforceable family-law relationships. [13] Scholars have noted that these regimes reflect modern administrative governance as much as, or more than, classical Islamic legal doctrine, and should therefore be analytically distinguished from judicial kafala systems found elsewhere. [14]

In Pakistan kafala is recognized as a kind of guardianship according to which the minor will not inherit from or take the name of their guardian. It is a customary institution which does not necessarily need the court endorsement and therefore can be established also informally. [15]

Islamic courts in Indonesia recognise kafala as guardianship, while also permitting limited financial inheritance via wasiat wajibah. This approach maintains the child's identity while offering a legally enforceable support structure. [16]

These examples challenge the notion that Islamic law is incompatible with modern child welfare practices. They show instead that legal creativity and religious fidelity can coexist, adapting guardianship to cultural and legal contexts without abandoning Islamic principles.

European Jurisdictions and the Recognition of Kafala

Even in non-Muslim-majority contexts, kafala has been adapted into national legal frameworks.

In France, kafala is not formally recognised as adoption but is treated as a form of guardianship. Given France's colonial history in North Africa, kafala cases often arise in the context of migration, where bilateral agreements like the Franco-Algerian Accord of 1968 allows for the recognition of guardianship in limited circumstances. [17]

In Belgium and Spain, kafala can, in some cases, lead to full adoption, but only after additional safeguards to protect the child's identity and welfare. In practice, however, this transformation often entails a shift from a non-assimilative guardianship model to an assimilative adoption framework under domestic law. While this hybridization reflects the legal cultures of these states, it also raises questions about how well Islamic principles can be preserved in jurisdictions with plural normative frameworks. [18]

The European Court of Human Rights has similarly acknowledged kafala as a lawful form of family life, holding that the absence of adoption does not negate the existence of protected private and family relationships under Article 8 ECHR. [19] French courts have followed this approach in immigration and residence cases involving children placed under kafala. [20]

National variability has been partially re-framed at the EU level by the Court of Justice of the European Union (CJEU). In SM v Entry Clearance Officer, Algeria, the Court held that a child placed under kafala may qualify as a "family member" for the purposes of EU free-movement law, even though kafala does not constitute adoption under Member State family law. [21] The judgment emphasised the child's best interests and the existence of a genuine family life, rather than formal assimilation into a lineage-based model of adoption. As commentators have noted, the decision illustrates how EU law can accommodate non-Western family forms without requiring their transformation into domestic adoption categories. [22]

Subsequent EU case law has confirmed this functional and child-centred approach. The Court has reiterated that the existence of family life for EU law purposes cannot be reduced to formal status under national family law, but must be assessed in light of the factual intensity and stability of the relationship. [23] Advocate General opinions have likewise stressed that kafala arrangements, when genuine and durable, fall within the protective scope of EU free-movement law. [24]

In the United Kingdom the limits of rigid family-law and immigration categories were already apparent in UK jurisprudence well before the CJEU addressed kafala directly. In a 2013 decision concerning the immigration status of an adopted child, the UK Supreme Court dismissed the appeal while explicitly recognising that the Immigration Rules failed to reflect the realities of family life and would require legislative amendment. [25] The Court nonetheless declined to intervene, reaffirming a strict separation between judicial interpretation and policy reform. Although the case did not involve kafala, it foreshadowed the structural difficulties faced by non-assimilative family forms when assessed through narrow legal classifications. [26] Subsequent UK jurisprudence has confirmed the persistence of this structural difficulty. While acknowledging the existence of de facto family life created through kafala arrangements, courts have continued to treat such relationships with caution in the absence of explicit legislative recognition, particularly in the immigration context. [27] This line of authority underscores the limits of judicial accommodation where family forms fall outside codified categories.

Unpacking the Confusion: Labour Kafala vs. Child Kafala

A recurrent source of misunderstanding in public and policy debates is the conflation of kafala as a system of child guardianship in Islamic law with the so-called labour kafala regimes governing migrant workers in parts of the Gulf. [28] Although the two share a common linguistic root—kafala, meaning guarantee or surety—their legal functions, historical trajectories, and normative foundations are fundamentally different. Child kafala is a family-law institution concerned with care, protection, and the preservation of a child's legal identity, and is rooted in longstanding Islamic legal principles. By contrast, labour kafala is a modern administrative framework developed in the twentieth century to regulate migration and employment in oil-based economies. It operates primarily as a mechanism of state labour control and has no grounding in Islamic family law or child-welfare doctrines. [29] The widespread criticism of labour kafala for enabling exploitation should therefore not be projected onto the guardianship kafala of Islamic law, which addresses an entirely different legal and ethical domain.

The Colonial Legacy

Modern misunderstandings of adoption in Islamic law are not accidental. As Nadjma Yassari and others have shown, colonial authorities often attempted to codify Islamic legal practices using Western legal categories, creating hybrid codes that neither reflected Islamic norms nor properly adopted European ones. [30]

The modern understanding of adoption is heavily influenced by a colonial interpretation which overlooked the Islamic principles regarding the right to identity. This legacy continues to influence European case law and family law reform debates across the Muslim world.

Conclusion: Reframing the Discourse

Rather than repeating the simplified claim that "Islamic law does not permit adoption," it is more accurate—and legally more productive—to recognise that Islamic law has developed a distinct and coherent system of guardianship grounded in ethical responsibility, legal continuity, and the protection of identity.

Kafala is not a residual or deficient substitute for adoption. It is a principled legal institution, articulated and applied in markedly different ways across Muslim-majority jurisdictions, ranging from highly formalised, court-supervised systems in North Africa to more administrative or welfare-based arrangements in Gulf countries and more hybrid solutions attentive to customary law and practices in Asia. These internal variations reflect not doctrinal incoherence, but the adaptability of Islamic legal reasoning to diverse social and institutional contexts.

The reception of kafala in Western legal systems has been uneven. While European and international courts have increasingly acknowledged kafala as a genuine form of family life—particularly in migration and free-movement contexts—domestic family-law frameworks often continue to privilege assimilative adoption models. As a result, kafala is frequently accommodated functionally but not fully recognised conceptually, leaving children and caregivers navigating legal uncertainty.

Reframing kafala as a legitimate form of alternative care, rather than an obstacle to child protection, allows for a more nuanced engagement with plural family forms. It also opens space for legal systems—both in Muslim-majority and plural Western contexts—to better align child-welfare objectives with respect for identity, culture, and legal tradition. In this sense, understanding kafala is not merely a matter of comparative family law, but a test case for how contemporary legal systems respond to normative diversity in an increasingly interconnected world.

[30] Nadjma Yassari, 'Adding by Choice: Adoption and Functional Equivalents in Islamic and Middle Eastern Law' (2015) 63(4) American Journal of Comparative Law 927–962.