An orphaned child, according to Islamic law and as Islamic scholars agree, is a child below age 18 who parents, particularly the father, has died (“The Child’s Mother Died Will the Child be Called Orphan?” n. p.). The Arabic term for the word “orphan” is yatim, which means “singular” or “alone” (Al-Funaysan n. p.). Under the Kafala system, there are categories of orphans that can be adopted. Two of the more important categories include (a) the foundlings, children whose parentages are usually unknown, and (b) the children of imprisoned parents, especially when they were sentenced to stay a very long time in jail, including a lifetime, and no relative is available to take the children in.
Moreover, in most of the Western countries, an orphaned child may also include children whose parents neglect, abuse, or abandoned them or their parents disappeared or separated (in addition to having died or abandoned them). At any rate, international adoption need not involve only orphaned children. That makes international adoption system differ significantly with the Kafala system. In the United States, for instance, the Citizenship and Immigration Services (CIS) defined the conditions for orphanhood as death, disappearance, and loss of parents either through abandonment or desertion or separation (“Orphan” n. p.). Children of unwed mother or parents who survive their spouses who cannot provide adequate care for their children may also be considered orphans and, thus, available for adoption or emigration when, and only when, their parents irrevocably release them in writing.
Certain legal complications, however, involve orphaned children of unwed mothers. CIS indicated that orphaned children of unwed mothers will continue to be so until two conditions occur. First, the unwed mothers marry, which, in effect, gain the orphaned children stepfathers (“Orphan” n. p.). Second, the biological fathers of these children decide to legitimate them. In all these conditions, orphanhood ceases as the orphaned children gain stepfathers or legitimate fathers. The same outcome applies to orphaned children of surviving parents upon remarriage wherein they gain stepfathers or stepmothers.
In the case of abandonment or desertion wherein one or both parents voluntarily abandoned their parental duties with no legal act of transferring these duties to someone else (Balair and Weiner n. p.), the abandoned children become legally orphaned. This applies even if children were transferred to adopting institutions by non-parental persons after the abandonment has happened. Neighbors, for instance, who were able to retrieve abandoned children in their neighborhood to an orphanage constitutes a classic adoption case of abandoned children.
Conversely, willful surrendering of children for adoption either to specific persons or institutions, whether public or private, constitutes no abandonment due to the voluntary transfer of parental duties to the receiving or adopting third party. Institutions, like government agencies and orphanages, are third parties empowered by child welfare laws to adopt children legally and directly from volunteering parents. Thus, in this context, children adopted in institutions are considered abandoned in the absence of parental transfer of duties to the adopting institutions.
However, there is a case of temporary transfer of parental duties to institutions with legal authorities to adopt children that does not constitute adoption or parental abandonment or desertion. Although, a transfer of parental duties occurred, the temporariness of the condition neither results to abandonment or adoption due to clear parental intention to retrieve the child.
Meanwhile, Black’s Law Dictionary defines an orphaned child as an infant or a child in minority age, which either lost both or one of the parents (Black and Nolan n. p.).
“Orphan.” U.S. Citizenship and Immigration Services. Web. 6 Dec. 2015.
“The Child’s Mother Died Will the Child be Called Orphan?” (Trans.) Islam Web-Fatwa Center.
3 Jun. 2009. Web. 29 Nov. 2015.
Al-Funaysan, Sheikh Saud. “Islam Today – English.” The Orphan in Islamic Law. 18 Dec. 2008.
Web. 27 Nov. 2015.
Black, Henry C. and Joseph R. Nolan. Black’s Law Dictionary: Definition of the Terms and
Phrases of American and English Jurisprudence, Ancient and Modern. St. Paul, MN: West Publishers, 1993. Print.
Balair, Marianne and Merle H. Weiner. International Family Law Convention, Statutes, and
Regulation Materials. Durham, NC: Carolina Academic Press, 2003. Print.