1 The term biological filiation is used to denote the relationship of a parent-child based on the assumption arising from the relationship between parents of the child. I use this term with caution bearing in mind that filiation was never based purely on biological grounds and still is not and is a rebuttable presumption.

2 I use the term societal to describe filiation that is not based on biological relationships. For example, where children are nurtured by kafeel (carers or those in positions of parental responsibilities), or where children are adopted.

3 It is a commonly held assumption among Muslim communities that children under kafāla or those who have been adopted were born out of wedlock and have been given up for adoption or kafāla to avoid the stigmatization of mother and child. The only time this assumption may be rebutted is when childless couples adopt a child with a known filiation.

4 Filiation was denied to a child born out of wedlock, including name and identity, inheritance from the father, or access to any of his resources. This approach was shared by common and civil law systems as well as the Islamic legal traditions. In a concise historical account of children's rights, Rebeca Rios-Kohn observes that “English common law did not recognise a legal relationship between parent and child, only between those parents and their legitimate children.” Rebeca Rios-Kohn, “A Comparative Study of the Impact of the Convention on the Rights of the Child: Law Reform in Selected Common Law Countries,” in Protecting the World's Children: Impact of the Convention on the Rights of the Child in Diverse Legal Systems, ed. Savitri Goonesekere (Cambridge: Cambridge University Press, 2007), 34–99, at 41.

5 Some conditions must be met. For instance, the man claiming paternity must have had access to the mother of the child. The age difference between father and child must be such that it was within the realm of possibility for the man to have conceived the child.

6 It only became an issue when challenged and until the Family Law Reform Act of 1969, Section 26. It required proof beyond a reasonable doubt due to the stigma of illegitimate birth. See the discussion in Serio v. Serio [1983] FLR 756. It then changed to being rebuttable on the balance of probabilities. In the United Kingdom and continental Europe, there has been a move away from stigmatizing children born out of wedlock. English law abolished the term illegitimacy in the Family Law Reform Act of 1987.

7 There is limited English language scholarship on Al-raqid. A few studies mainly linked to Morocco are the exception, including the following: Bargach, Jamila, Orphans of Islam: Family, Abandonment, and Secret Adoption in Morocco (Lanham: Rowman and Littlefield, 2002)Google Scholar; Satyal K. Larson, “Bearing Knowledge: Law, Reproduction and the Female Body in Modern Morocco 1912–Present” (PhD diss., University of California, Berkley, 2002); Amster, Ellen J., Medicine and the Saints: Science, Islam and the Colonial Encounter in Morocco 1877–1956 (Austin: University of Texas Press, 2013)CrossRefGoogle Scholar.

8 Sexual intercourse outside marriage (zina) is a criminal offence attracting the hudud punishments prescribed in the Qur'an, which are said to be definitive and not open to discretion. At the same time, for these offenses to be proved beyond reasonable doubt the threshold of proof is very high. For further discussion on the subject, see Quraishi-Landes, Asifa, “Her Honor: An Islamic Critique of Rape Laws in Pakistan from a Woman Sensitive Perspective,” Michigan Journal of International Law 18, no. 2 (1997): 287–320Google Scholar; Ali, Shaheen Sardar, “Interpretative Strategies for Women's Human Rights in a Plural Legal Framework: Exploring Judicial and State Responses to Hudood laws in Pakistan,” in Human Rights, Plural Legalities and Gendered Realities: Paths Are Made by Walking, Hellum, Anne, Ali, Shaheen Sardar, Stewart, Julie, and Tsanga, Amy (Harare: Southern and Eastern African Regional Centre for Women's Law, University of Zimbabwe with Weaver Books, 2006), 381–406Google Scholar.

9 Mulla, Diansh Farunji, Principles of Mahamoden Law, ed. Mannan, M.A. (Lahore: PLD Publishers, 1995), 505–19Google Scholar.

10 Larson, “Bearing Knowledge,” 5. Qur'an 9:36–37, 19:8–9, 19:19–21.

11 Larson, “Bearing Knowledge,” 18.

12 Miller, Susan Gilson, “Sleeping Fetus,” in Encyclopaedia of Women in Islamic Cultures, vol. 5, Practices, Interpretations and Representations, ed. Joseph, Suad (Leiden: Brill, 2007), 421–24Google Scholar.

13 Amster, Medicine and the Saints, chapter 5.

14 See Pearl, David and Menski, Werner, Muslim Family Law, 3rd ed. (London: Sweet & Maxwell, 1998), 399–408Google Scholar; Nasir, Jamal J., The Islamic Law of Personal Status, 2nd. ed. (London, Graham & Trotman, 1990) pp. 156–161Google Scholar; Mulla, Principles of Mahamoden Law, 505–19.

15 See reservations to the United Nations Convention on the Rights of the Child, accessed December 11, 2018, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&clang=_en.

16 This refers only to closed adoption, which is the basis of the common law system. There is no obligation in English law for parents to inform their children that they are adopted. In a personal conversation with me, Dr. Maebh Harding said, “[a]lthough it is commonly considered best practice and encouraged to, birth parents are not forced by law to tell their children the genetic truth and as adoptive parents are given the same rights no such obligation is placed on them either.”

17 This open adoption does not blot out the biological identity of the adopted child and is recognized by the Hague Convention on Inter-country Adoption 1993, accessed December 17, 2019, https://www.iss-ssi.org/2007/Resource_Centre/Tronc_CI/thcvloon.pdf. I am grateful to Dr. Maebh Harding for clarifying this point.

18 Ali, Shaheen Sardar and Khan, Sajila Sohail, “Evolving Conceptions of Children's Rights: Some Reflections on Muslim States’ Engagement with the United Nations Convention on Rights of the Child,” in Parental Care and Best Interest of the Child in Muslim Countries, ed. Yassari, Nadjma, Möller, Lena-Maria, and Gallala-Arndt, Imen (The Hague: Asser Press, 2017) 285–324Google Scholar.

19 Ali and Khan, “Evolving Conceptions of Children's Rights,” 316.

20 The Qur'an, 33:4–5. “Allah has not made for any man two hearts in his (one) body: nor has He made your wives whom ye divorce by Zihar your mothers: nor has He made your adopted sons your sons. Such is (only) your (manner of) speech by your mouths. But Allah tells (you) the Truth, and He shows the (right) Way.” (All quotations and references are to the Yusef Ali translation of the Qur'an.)

21 Yassari, Nadjma, “Adding by Choice: Adoption and Functional Equivalents in Islamic and Middle Eastern Law,” American Journal of Comparative Law 63, no. 4 (2015): 927–62CrossRefGoogle Scholar; Ali and Khan, ‘Evolving Conceptions of Children's Rights”; Muslim Women's Shura Council, Adoption and the Care of Orphan Children: Islam and the Best Interests of the Child: The Digest (New York: American Society for Muslim Advancement, 2011); Bargach, Jamila, Orphans of Islam: Family, Abandonment, and Secret Adoption in Morocco (Lanham: Rowman & Littlefield, 2002)Google Scholar; Chaumont, Eric, “Tabannin” in The Encyclopaedia of Islam, 2nd. ed., ed. Bearman, P. et al. (Leiden: Brill, 2012)Google Scholar, https://referenceworks.brillonline.com/entries/encyclopaedia-of-islam-2/tabannin-SIM_8913; David S. Powers, “Adoption,” in Encyclopaedia of Islam, 3rd ed., ed. Marc Gaborieau et al. (Leiden: Brill, 2008), https://www.oxfordbibliographies.com/view/document/obo-9780195390155/obo-9780195390155-0226.xml; Bunge, Marcia J., ed., Children, Adults and Shared Responsibilities: Jewish, Christian and Muslim Perspectives (Cambridge: Cambridge University Press, 2012)CrossRefGoogle Scholar.

22 Powers, David S., “Adoption,” in Oxford Bibliographies in Islamic Studies, ed. Voll, John O. (New York: Oxford University Press, 2016)Google Scholar, https://www.oxfordbibliographies.com/view/document/obo-9780195390155/obo-9780195390155-0226.xml?rskey=Xc9hFq&result=5&q=adoption#firstMatch.

23 Yassari, “Adding by Choice,” 927.

24 Yassari, 928.

25 This observation is the result of experience of the author when approached by immigration, asylum, and refugee organizations asking for expert guidance on the subject.

26 Landau-Tasseron, Ella, “Adoption, Acknowledgement of Paternity and False Genealogical Claims in Arabian and Islamic Societies,” Bulletin of School of Oriental and African Studies 66, no. 2 (2003): 169–92CrossRefGoogle Scholar.

27 It is beyond the scope of this article to engage with similar development in the field of private international law.

28 A burgeoning literature on Islamic law and the CRC is emerging, including the following: Imran Ahsan Nyazee, “Islamic Law and the CRC (Convention on the Rights of the Child),” Islamabad Law Review 1, nos. 1/2 (2003): 65–121; Shaheen Sardar Ali, “A Comparative Perspective of the United Nations Convention on Rights of the Child and the Principles of Islamic Law. Law Reform and Children's Rights in Muslim Jurisdictions,” in Goonesekere, Protecting the World's Children, 142–208; Syed, Safir, “The Impact of Islamic Law on the Implementation of the Convention on the Rights of the Child: The Plight of Non-marital Children under Shari'a,” International Journal of Children's Rights 6, no. 4 (1998): 359–93CrossRefGoogle Scholar; Baderin, Mashood A., International Human Rights and Islamic Law (Oxford: Oxford University Press, 2003)Google Scholar. Some general works on children's rights also have a comparative element. See, for example, Bueren, Geraldine van, The International Law on the Rights of the Child (Dordrecht: Martinus Nijhoff, 1998)Google Scholar; Alston, Philip, ed., The Best Interests of the Child (Oxford: Oxford University Press, 1994)Google Scholar; Emon, Anver M., Ellis, Mark S., and Glahn, Benjamin, eds., Islamic Law and International Human Rights Law: Searching for Common Ground? (Oxford: Oxford University Press, 2015)Google Scholar.

29 In the Universal Declaration of Human Rights, the Child Rights Declaration, the International Covenant on Civil and Political Rights, the United Nations Convention on the Rights of the Child, and elsewhere.

30 In 1946, the UN took over this document, developing it further as the Declaration on the Rights of the Child in 1959.

31 On November 20, 1959, the Declaration of the Rights of the Child (the Child Rights Declaration) was adopted unanimously by all the then 78 members of the UN General Assembly.

32 Emphasis added. This formulation is repeated in Principle I thus: “Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, whether of himself or of his family.” Principle III elaborates further by stating, “[t]he child shall be entitled from his birth to a name and nationality.”

33 Emphasis added. It further prescribes that every child must be registered immediately after birth and have a name and that every child has the right to acquire a nationality.

34 A/RES/41/85.

35 The following excerpts from the Declaration are self-explanatory:

36 Detrick, Sharon, A Commentary on the United Nations Convention on the Rights of the Child (The Hague: Martinus Nijhoff, 1999), 16Google Scholar.

37 Detrick, A Commentary on the United Nations Convention on the Rights of the Child, 16.

38 “Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

39 Article 20 reads as follows:

40 Article 21 reads as follows:

41 Syed, “The Impact of Islamic Law on the Implementation of the Convention on the Rights of the Child,” 364.

42 Algeria, Iraq, and Morocco in particular recorded their objections to the proposals for inclusion of such an article. See Detrick, Sharon, ed., The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Preparatoires” (Dordrecht: Martinus Nijhoff, 1992), 149Google Scholar.

43 I do not discuss the Arab Charter on Human Rights here as it does not contain provisions specifically to child's right to name and identity. In the 1994 version of the Arab Charter, the only reference to children was in Article 38, which stated, “[t]he State shall ensure special care and protection for the family, mothers, children and the elderly.” Arab Charter for Human Rights art. 38, Sept. 15, 1994, https://www.refworld.org/publisher,LAS,,,3ae6b38540,0.html. Additional provisions related to children were added in the 2004 revisions, but none related to a child's right to name and identity. See Articles 10, 17, 29, 30, 33, 34 at League of Arab States, Arab Charter on Human Rights, May 22, 2004, reprinted in International Human Rights Reports 12, no. 3 (2005): 893–904. The Charter entered into force March 15, 2008. The Asian region does not have a human rights regime.

44 Another convention relating to children's rights is the 1996 European Convention on the Exercise of Children's Rights, CETS No. 160, has a preamble and twenty-six articles. It was opened for signature on January 25, 1996, and entered into force on July 1, 2000.

45 Details of Treaty No. 085, European Convention on the Legal Status of Children born out of Wedlock, accessed July 28, 2018, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/085.

46 Van Bueren, The International Law on the Rights of the Child, 24.

47 African Charter on the Rights and Welfare of the Child, July 11, 1990, OAU Doc. CAB/LEG/249/49 (entered into force on November 29, 1999), accessed on November 10, 2018, https://www.refworld.org/docid/3ae6b38c18.html.

48 United Nations, Department of Economic and Social Affairs, Division for Social Policy and Development, “International Norms and Standards Relating to Disability,” part 3, paragraph 3.1, accessed December 19, 2019, https://www.un.org/esa/socdev/enable/comp303.htm.

49 African Charter on the Rights and Welfare of the Child art. 18(3).

50 Analysis of the various cases where judges have extended the scope and meaning of “birth or other status” to include children born outside marriage is beyond the scope of this article. For a sound analysis and survey (albeit now somewhat dated), see Syed, “The Impact of Islamic Law on the Implementation of the Convention on the Rights of the Child,” 359–83.

51 United Nations Human Rights Committee (UNHRC), Committee on Civil and Political Rights (CCPR) General Comment No. 18: Non-discrimination, 10 November 1989.

52 For discussion on some of these questions, see Rajabi-Ardeshiri, Masoud, “The Rights of the Child in the Islamic Context: The Challenges of the Local and the Global,” International Journal of Children's Rights 17, no. 3 (2009): 475–89CrossRefGoogle Scholar; Hashemi, Kamran, “Religious Legal Traditions, Muslim States, and the Convention on the Rights of the Child: An Essay on the Relevant UN Documentation,” Human Rights Quarterly 29, no. 1 (2007): 194–227CrossRefGoogle Scholar; Saeed, Abdullah, Human Rights and Islam: An Introduction to Key Debates between Islamic Law and International Human Rights Law (Cheltenham: Edward Elgar, 2018)CrossRefGoogle Scholar, in particular chapter 8.

53 Ali, Shaheen Sardar, Gender and Human Rights in Islam and International Law: Equal before Allah, Unequal before Man? (The Hague: Kluwer Law International, 2000)CrossRefGoogle Scholar, chapter 6.

54 A'la Maududi, Sayyid Abul, Human Rights in Islam, trans. Ahmad, Khurshid and Khan, Ahmed Said (Leicester: Islamic Foundation, 1980)Google Scholar.

55 Maududi, Human Rights in Islam, 15.

56 Tabandeh, Sultanhussein, A Muslim Commentary on the Universal Declaration of Human Rights, trans. Goulding, F. J. (Guildford: F. J. Goulding, 1970)Google Scholar.

57 Tabandeh, A Muslim Commentary on the Universal Declaration of Human Rights, 1.

58 From the preamble: “wherein all human beings shall be equal and none shall enjoy a privilege or suffer a disadvantage or discrimination by reason of race, colour, sex, origin or language.” Similarly, Article 9 in providing a right to asylum also mentions nondiscrimination thus: “Every persecuted or oppressed person has the right to seek refuge and asylum. This right is guaranteed to every human being irrespective of race, religion, colour and sex.” Universal Islamic Declaration of Human Rights, adopted by the Islamic Council of Europe on September 19, 1981, available at http://hrlibrary.umn.edu/instree/islamic_declaration_HR.html.

59 Mayer, Ann Elizabeth, Islam and Human Rights: Tradition and Politics, 2nd ed. (Boulder: Westview Press, 1995), 107Google Scholar.

60 This appears as an annex to resolution No. 49/19-P. Document A/45/421. S/21797.

61 OIC/9-IGGE/HRI/2004/Rep.Final.

62 Yassari, “Adding by Choice,” 927.

63 A further layer of plurality is also demonstrated in these examples in that there is diversity even among the same juristic school. For example, Pakistan and Bangladesh mainly subscribe to the Hanafi Sunni tradition, yet their responses to the CRC differ.

64 Initial Report of Saudi Arabia due in 1998, CRC/C/61/Add.2, at 43–44 (2000).

65 Committee on the Rights of the Child, Initial Reports of State Parties due in 1992: Indonesia, CRC/C/3/Add.10, ¶ 73 (1993) [hereafter, Indonesia First Periodic Report].

66 Second Periodic Report of States Parties due in 1997: Indonesia, CRC/C/65/Add.23, ¶¶ 206–08 (2003) [hereafter, Indonesia Second Periodic Report].

67 Indonesia Second Periodic Report, ¶ 207.

68 Third and Fourth Periodic Reports of the State Party 2007: Indonesia, CRC/C/IDN/3-4, ¶ 103 (2012).

69 Initial Report of States Parties due in 1997: Malaysia, CRC/MYS/1, ¶ 229 (2006) [hereafter, Malaysia First Periodic Report].

70 Malaysia First Periodic Report, ¶ 232.

71 Malaysia First Periodic Report, ¶ 97.

72 Indonesia First Periodic Report, ¶ 23.

73 Periodic Reports of States Parties Due in 1997: Pakistan, CRC/C/65/Add.21, ¶ 203 (2001) [hereafter, Pakistan Second Periodic Report]. Paragraphs 204–05 of this report propose guardianship as an Islamic alternative to adoption. The initial Pakistan report presented to the CRC Committee in 1993 alluded to the fact that state-run orphanages and institutions were open to childless couples taking on fostering and guardianship of these children. See Initial Reports of States Parties Due in 1993: Pakistan, CRC/C/3/Add.13, ¶ 141 (1993).

74 Third and Fourth Periodic Reports of States Parties Due in 2007: Pakistan, CRC/C/PAK/3-4, ¶ 237 (2009).

75 Third and Fourth Periodic Reports of States Parties Due in 2009: Syrian Arab Republic, CRC/C/SYR/3-4, ¶ 171 (2010).

76 Initial Reports of States Parties Due in 1995: Syrian Arab Republic, CRC/C/28/Add.2, ¶ 124 (1996).

77 I note it even although it is outside the scope of this article.

78 Gil'adi, Anver, Children of Islam: Concepts of Childhood in Medieval Muslim Society (Basingstoke: Macmillan, 1992)CrossRefGoogle Scholar.

79 Geraldine van Bueren, The Best Interests of the Child: International Cooperation on Child Abduction (London: British Institute of Human Rights, n.d.), 51.

80 See, for instance, Muslim Women's Shura Council, Adoption and the Care of Orphan Children; Department of Economic and Social Affairs, Population Division, Child Adoption: Trends and Policies (New York: United Nations, 2009); UNICEF, Children in Islam: Their Care, Development, and Protection (Cairo: Al-Azhar University, 2005).

81 Sevda Clark, “The Child Subject. An Intertextual Reconstruction of Liberal Subjectivity” (PhD diss., Oslo University, 2018), 38–39.

82 Ibn Tufayl says, “I bring it to your attention solely by way of corroborating the alleged possibility of a man's being engendered in this place without father or mother, since many insist with assurance and conviction that Hayy Ibn Yaqzan was one such person who came into being on that island by spontaneous generation. Others, however, deny it and relate a different version of his origin.” Muḥammad ibn ʻAbd al-Malik Ibn Ṭufayl, Ibn Tufayl's Hayy ibn Yaqzān: A Philosophical Tale, trans. Lenn Evan Goodman, 5th. ed. (Chicago: University of Chicago Press, 2009), 105.

83 I am grateful to Professor Maurits Berger for highlighting the originality of this point.

84 Ali and Khan, “Evolving Conceptions of Children's Rights.” I am grateful to Sevda Clark for making this connection with my earlier work.

85 Lázaro, Fabio López, “The Rise and Global Significance of the First ‘West’: The Medieval Islamic Maghreb,” Journal of World History 24, no. 2 (2013): 259–307CrossRefGoogle Scholar, at 267.

86 Ali and Khan, “Evolving Conceptions of Children's Rights.”

87 Reporting to the CRC Committee, the Pakistan country report acknowledged overlaps between the CRC and Islamic law and laws of Pakistan. In paragraph 204, it states, “[a]s a substitute to adoption, Islamic law provides for a very strong system of guardianship through the immediate as well as the extended family.” In paragraph 205, the report observes that “[t]he appointment of the court-guardian is similar in some cases to adoption and the recommendation of this article is not totally alien to the law in Pakistan.” Pakistan Second Periodic Report, ¶¶ 204 & 205.

88 For example, Article 1 states, “[f]or the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

89 Conversations with lawyers and judges in a number of countries support this position, with these arguing that what for them is closer to home, as it were, rings true when arguing or deciding cases. Reticence to defer to regional and international treaties is evident, the United Kingdom presenting one of several examples in the Western hemisphere.