When the Personal Status Code was issued on August 13, 1956, Tunisian families became able to adopt foundlings, name them after their adoptive father and bequeath them. But since the Islamic Ennahda Movement’s rise to power, there have been attempts to repeal the law of adoption and replace it with the kafala system—legal guardianship— which is a grave risk for foundlings.
When the Personal Status Code was issued on August 13, 1956, Tunisian families became able to adopt foundlings, name them after their adoptive father and bequeath them. But since the Islamic Ennahda Movement’s rise to power, there have been attempts to repeal the law of adoption and replace it with the kafala system—legal guardianship— which is a grave risk for foundlings.
Abandoning adoption was the only amendment the Ennahda Movement explicitly declared in its intention to make to the Personal Status Code. Rashid al-Ghannoushi, the Ennahda Movement Leader, has stated that adoption violates the Islamic Sharia law and must be replaced with kafala.
The same opinion was reiterated by Suad Abdulrahim, a member of the National Constituent Assembly (NCA) for the Ennahda Movement, to a Tunisian newspaper: “No item in the Personal Status Code will be revised, other than the adoption, which will be turned into kafala.”
In addition, the Grand Mufti, Othman Battikh, said “adoption is a falsification of facts and is forbidden according to Sharia, whereas kafala is permissible and desirable.”
Under the insistency of the Islamic Ennahda Movement to repeal adoption as being “forbidden in Islam,” by virtue of two clear verses in the Quran, it was obvious that this controversy would pass to the NCA. Half of the 22 members of the Rights and Liberties Committee have voted in favor of repealing adoption and replacing it with kafala.
A human rights issue
This urgent desire to abandon adoption has faced a condemnation campaign by many human rights activists since the aim of adoption is to protect and provide care for the most vulnerable component in society. Criticism has mainly been against the call for abandoning adoption rather than for the inclusion of kafala because it has already been included in the Tunisian law for tens of years according to the law of general guardianship, kafala and adoption, issued on March 4th, 1958. Hence, tackling kafala as an alien system to the Tunisian law is untrue.
However, official statistics issued by the National Institute of Child Protection (NICP) show that very few Tunisian families go for kafala, whereas nearly 2,000 children were adopted during the period 2008-2011.
Figures indicate that Tunisian families prefer adoption to kafala for many reasons: adoption entitles an adoptive couple to name the adoptee after them, whereas under kafala, a child keeps the name of its biological father, even if it has been made up by NICP, in the case of foundlings.
On the other hand, an adoptive father has the right of guardianship; i.e. representing and protecting the adopted minor children, as is the case with a “normal” family. And when the father becomes disable or dies, the right of guardianship is automatically transferred to his wife.
As for kafala, guardianship remains with the biological father or the NICP, if the custody contract is signed with it. Accordingly, a child under kafala remains closely linked to its biological family, if it is known, while the family who takes a child under the kafala system can never hold the position of the legal guardian, a matter that makes the child in a state of fragmentation between two families.
The substantial difference between the two systems is that kafala automatically ends when the child turns 20. Thereupon, the family is no longer obligated to financially support the child, leaving him or her without financial support at an early age and probably unable to continue studies. This makes kafala a system based on financial relation.
A number of human rights reports show that kafala may be used as a means for child labor. Additionally, the court may, at the request of any party, nullify the kafala contract for the best of the child’s interest. This completely goes against the familial relationship, which is supposed to be established between caregiver and child, ultimately resulting in destructive psychological effects for the child.
Commitment to the child
Adoption makes the relation non-dissolvable in principle. The law explicitly states that “an adoptee shall have the same rights and duties of a legal son, and the adopting party shall have, toward the adoptee, the same rights and duties recognized by law for biological parents.” The adoptee has the right to inherit from its adoptive parents while a child under kafala doesn’t enjoy such a right.
Allowing both systems, the Tunisian law gives families the freedom to choose. But should only the kafala system be kept, as the Ennahda Movement seeks, a foundling would be under the threat of being excluded from society and deprived of living with a family, away from orphanages with all their harsh psychological conditions.
Why should the mechanism that completely protects children’s rights and which Tunisians have been resorting to for decades, especially those who cannot have children, be abandoned?
Furthermore, the deeper problem is with the status of the children who have already been adopted; they may find themselves, in case adoption is abandoned, in a state that violates the new law.
