Abstract
This chapter considers laws and social realities determining the status of the Moroccan child born inside or outside of marriage. It considers first, the legal grounds for filiation and second, the legal framework for guardianship of parentless (abandoned or orphaned) children. In both the legal and social approaches to these two issues, there are several constants over time, especially the strong – but not absolute – influence of Maliki jurisprudence. Proposed reforms in the deeply conservative fields of family and guardianship laws indicate that judges are not only considering the 2011 Moroccan Constitution, the 2004 Family Code (Moudawana) and the 2002 kafala (guardianship) law, but also the United Nations Convention on the Rights of the Child and its concept of the best interests of the child. I argue that in regards to kafala guardianships, which are handled under contract law rather than family law in Morocco, the state occupies an ambivalent position, mandating replacement care at the level expected of biological parents while denying the child the rights and responsibilities of biological children. Recent cases in the Moroccan courts question longstanding conservative approaches to gender as well as family, raising the possibility of female-headed families (not only households) by issuing family booklets to women, and increasing calls to recognize biological paternity as entailing responsibilities otherwise only expected of fathers with paternal filiation through marriage.
Katherine E. Hoffman is associate professor of Anthropology, director of the Middle East and North African Studies Program, and faculty member in the Legal Studies Program at Northwestern University.
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Notes
- 1.
This chapter calls this legal tool by its conventional translation, the Family Code (Ar. mudawwanat al-usra) even though it is a personal status code for all Moroccans regardless of their conditions of birth. Moroccan law considers personal status to be grounded in relations of the biological, legal family. This code is also commonly perceived to be the key to women’s rights in Morocco, but as Žvan Elliott has argued, its rights pertain only to married or previously married women, and not to never-married women (colloquially referred to as ‘girls’ (Ar. banat or anisat) because of the presumed virgin status of unmarried women). The normative and rights-bearing woman in Morocco is therefore a married woman and a mother who parents within the institution of marriage. This unstated qualification excludes a significant portion of Moroccan urban and rural dwellers. See Žvan Elliott 2015.
- 2.
Bargach 2002, pp 6 and 68.
- 3.
See Geertz 1979 for an example of the view that biological ties necessarily lead to the closest affective bonds between caretaker and child.
- 4.
This language is gendered as male regardless of the gender of the contracting guardian(s) or the makful child.
- 5.
Kiestra 2014 argues that the ECHR makes clear that the existence of de facto family life does not obligate member states to recognize these domestic units as ‘families’.
- 6.
The European Court of Human Rights (ECHR) upheld France’s right not to transform a kafala relationship into adoption when presented with Harroudj v. France in 2012, noting that there was no consensus among European states as to how to treat this institution. See Harroudj v. France, European Court of Human Rights (Fifth Section), Case No. 43631/09, 4 October 2012, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113819 (accessed 8 July 2015). See also the ECHR’s treatment of a notarial kafala in Chbihi Loudoudi et al. v. Belgium, European Court of Human Rights (Fifth Section), Case No. 52265/10, 25 August 2010, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113819 (accessed 28 July 2017).
- 7.
- 8.
Fioole 2015.
- 9.
Fioole 2015, p 260.
- 10.
Bargach 2002.
- 11.
In contrast, filiation in Algeria may only be ‘legitimate’. I put these terms in quotation marks because of the strong moralizing tone, despite their technical function in jurisprudence.
- 12.
The 2004 Family Code eliminated the need for a wali to legitimate a marriage, but still permits it. In many families, it is still preferred to have parental consent before marriage so as to avoid problems later if a troubled marriage leads a wife to return to her parental home and require protection from her husband. See Žvan Elliot 2015.
- 13.
Surrogacy is outlawed and not practiced in Morocco; in situations of surrogacy outside of Morocco, countries differ as to whether maternal filiation is assigned to the progenitor (contributor of the egg, who may be the surrogate mother or the intended mother entrusting the surrogate mother), or instead the woman who carries the fetus and gives birth to the child.
- 14.
Until 2014, the penal code allowed a rapist to avoid conviction if he married his victim. The widely publicized suicide of 16-year-old Amina Filali in 2012, who drank rat poison after being forced to marry her rapist, brought attention to this law. The suicide provoked widespread outrage and calls to dissolve the law. In response, in 2014, Article 475 was eliminated so that a family could no longer force a raped daughter to marry her rapist so as to avoid family shame, which was in practice the context for such marriages after rape.
- 15.
In 1957, the newly independent Morocco established the Supreme Court as the country’s highest court. Since October 2001, this Court has been called the Cour de cassation. This paper uses the term High Court for them both.
- 16.
Morocco, Cass. 25 March 2009 no. 546/2/1/2009.
- 17.
Morocco, Cass. 25 April 2009 no. 576/2/1/2007.
- 18.
Judge quoted in Hoffman 2015, p 44.
- 19.
Miller 2006.
- 20.
- 21.
See discussion of shubha and its innovative usage in the 2004 Family Code in Sonneveld 2017.
- 22.
See Sonneveld 2017.
- 23.
Sonneveld 2017, p 133.
- 24.
- 25.
See Human Rights Watch 2015.
- 26.
Sonneveld 2017 notes in her fieldwork with judges that judges tended to consider the best interests of the child in deliberations over paternity cases involving unmarried woman, as did the judges in my conversations with them in southern Morocco between 2009 and 2013.
- 27.
The best-known one here is Aicha Chenna’s Association that works across the country, Solidarité Feminine. Lesser-known associations benefitting women and representing them in legal affairs exist in numerous regions throughout the country and in the major Moroccan cities.
- 28.
Sonneveld 2017, p 135.
- 29.
See Hoffman 2015.
- 30.
See Sonneveld 2017.
- 31.
- 32.
The Minister of Family Affairs, Bassima Hakkaoui, recently called on legislators to require DNA testing to establish paternal responsibility for children born outside of wedlock, stating that the tests were necessary so that ‘every child will have a father, or at least to identify the person responsible for his conception.’ See Id Hajji 2017.
- 33.
In Al Zerda’s court in Tangier, the lump payment in this case was called nafaqa al-tifl or nafaqa al-awlad, terms commonly used for court-ordered child support. Elsewhere, the payment requested of the biological father was called compensation, particularly as it referred to the Code of Contracts and the harm the biological father caused the mother in impregnating her. For the former, see Al-Sahraʼ 2017.
- 34.
The foundation of this Quranic institution is found in sura 24:6–9 for repudiation by a husband of his wife for adultery in the absence of witnesses. Lican is used specifically for legal divorce on the grounds of adultery (zina) without formal, legal proof (i.e. witnesses). It is sometimes translated as ‘mutual repudiation,’ ‘renouncement,’ or ‘marriage dissolution,’ but none of these English translations captures the specific circumstance, moreover as it is used to refute paternity. See Oxford Islamic Studies Online (n.d.).
- 35.
Article 342, al. 2 French Civil Code, as amended by the Law of 15 July 1955.
- 36.
Morocco, Cass. 30 March 1983 no. 54758. On the modern state’s use of ‘Islamic law’, see Rosen 2000.
- 37.
Morocco, Cour Suprême 30 December 2004 no. R656.
- 38.
See video interview with Al Zerda in Arabic regarding his court’s decision, Qudri 2017.
- 39.
- 40.
See Kutty 2015.
- 41.
- 42.
Zine 2018.
- 43.
- 44.
The UNCRC in 1990 first introduced many individuals in non-Muslim countries to kafala as an alternative for parentless children when adoption was not allowed by a signatory state. Article 20 of the UNCRC lists kafala alongside adoption and fostering without equating them or ranking their relative merits. Some courts have presumed that this international legal tool renders the different forms of protection equivalent simply by their juxtaposition. Yet a close look at the protections entailed suggests they are not identical, particularly in terms of custody and inheritance subsequent to the death of the kafil parent/guardian, and access to rights constrained to officially recognized family members (e.g. hospital visitation rights restricted to immediate family). The fact remains that the mention of kafala in this international convention has led to its widespread recognition in international private law and to a greater acceptance of this institution as a form of care for parentless children born in countries using Muslim personal status law. See Assim and Sloth-Nielsen 2014.
- 45.
Most recently, a conference organized by the Plateforme Droits de l’Enfant (CDE Maroc) and the European Union on 25 January 2018 at the Académie du Royaume du Maroc in Rabat was called ‘Je veux mes droits, pas la charité! Séminaire sur les procédures de la Kafala’ (‘I want my rights, not charity! Seminar on the Kafala procedure’). It brought together speakers and audience participants from all of these professional domains and addressed the issues noted here.
- 46.
This is in contrast to the Algerian personal status law that covers both filiation and kafala guardianship, and explicitly prohibits adoption (al-tabanni), which the Moroccan law stops short of doing. Scholars have noted that the widespread Muslim prohibition of adoption as we know it today, or at least suspicion of adoption, was shared by Judaism and Christianity. European states only began permitting adoption in the 19th c. with the codification of their civil codes, and largely with the purpose of transferring inheritance and the male patronym. Adoption in Greek and Roman society was of adults for the purpose of transferring inheritance or continuity of economic interests, but not of protecting and raising minors without parents, the latter of whom were typically considered a threat to the biological, ‘legitimate’ family and, in later periods, as a deformation of God’s will which manifested in pregnancy within marriage. See for instance Rezig 2004. Some Muslim scholars and jurists have argued that the prohibition or lack of acknowledgement of adoption does not have solid grounding in the Islamic sources, which can be interpreted differently in themselves, and even more so when custom, which is a component of Islamic jurisprudence, is taken into consideration. See Libson 1997 on the role of custom in Islamic law. However, these challenges to the ban on adoption largely come from outside the countries influenced by the Maliki school of jurisprudence. See for instance Kutty 2015 and Suleiman 2017 and Muslim Women’s Shura Council 2011 for critiques of the dominant interpretation of Islamic sources as unequivocally opposing adoption, and for arguments in favour of adoption so long as it is revealed to the child. See also Sonbol 1995.
- 47.
Bargach 2001 calls the ‘adopted child’ ‘in historical terms, a recent category.’ Children deprived of their parents (the ‘surplus of children’) in earlier historical periods were absorbed into childless households or families that already had biological children. See also Barraud 2010 on the importance of the recognition of this demographic.
- 48.
See Bargach 2001.
- 49.
The phrase comes from Bargach 2002.
- 50.
See Howell 2006.
- 51.
- 52.
The gender difference in the termination point of the kafala contract is similar to that of the period of maintenance required of parents towards children, for instance after divorce, as stipulated in Chapter III Section I of the 2004 Family Code, except that for legitimate children, the age is capped at 25 for sons who pursue their education. Similarly, in both documents the custodian is responsible for maintenance of the handicapped child unable to earn a living independently.
- 53.
Bargach 2001, p 81 notes that, since the kafala is not considered part of family law/statute and instead is a contract, ‘the fuqaha clearly see kafala as a commercial transaction even while it is inscribed in a rather humane domain. One is indeed buying a place in paradise by engaging herself to the physical upkeep of an orphan or foundling. It is therefore similar to a business transaction.’
- 54.
Personal observation in Moroccan family courts, 2013.
- 55.
Despite the dominant interpretation of Islamic jurisprudence that changing a child’s surname is forbidden, it is crucial to note that in the time of the revelation of Quranic sura 33:4-5 – widely interpreted as forbidding the child to take the guardian’s family name (‘Call them by their fathers’ names, for that shall be more pleasing to God …’) – there were no surnames in use. Instead, an individual was called by given name ibn father’s given name, e.g. Zayd ibn Mohammed reverted to Zayd ibn Haritha when the Prophet declared his adopted son was not in truth his son, and that thereby the prohibitions on marriage to one’s son’s ex-spouse did not apply to him, rendering Zayd’s ex-wife licit to him. This was then confirmed in sura 33:40: ‘Mohammed was never the father of one of your men, but the messenger of God and the last of his prophets.’ Rezig 2004, p 153 notes that certain fuqaha’ said that ‘human reason precludes having two fathers, just as a person cannot have two hearts.’ Some have argued that taking on a parent’s family name in this way is similar to a woman assuming her husband’s name at marriage, and that it constitutes a descriptor (nisba) more than a surname (kunya). See Suleiman 2017 and Kutty 2015.
- 56.
Importantly to many devout Muslims weighing their ability to bring an unrelated child into their home, the child who is mahram does not need to veil (if a girl) or be veiled in front of (if a boy). This question is the most pervasive one in on-line forums on kafala and its practical implications for modesty in the home. As some legal scholars have emphasized, modesty should be practiced in all Muslim families anyway, and it is common for women to wear headscarves when male extended family members (such as cousins) come to visit, so it is not a radical departure from custom for modesty practices to be observed among the core family members as well. The Family Code Chapter 1, Article 38 states that: ‘Impediments to marriage resulting from kinship by breastfeeding are the same as those prohibited through blood kinship and kinship by marriage. Only the breastfed child – not his or her brothers and sisters – is considered the child of the woman who breastfeeds him or her and of her husband. Breastfeeding is only an impediment to marriage if it occurred during the first two years of the child’s life.’ For this reason, some kafila mothers promote the production of breast milk and encourage their young makful child to breastfeed, thereby integrating the child more fully into the family with the prohibition on marriage that otherwise only exists between related immediate family members. One can imagine that this lessens fears of sexual activity within the household as well. For more on milk siblings, see Ensel 2002, p 93.
- 57.
Unlike Morocco’s Family Code that excludes kafala, Algeria’s Family Code includes the provision on kafala in Articles 116 to 125.
- 58.
Article 32 of the 2011 Moroccan Constitution begins, ‘The family, founded on the legal ties of marriage, is the basic unit of society.’ English translation provided by Constituteproject.org.
- 59.
See Žvan Elliot 2015 for a sustained critique of the Moudawana as centred on the married woman-mother, erasing the unmarried, childless woman from policy considerations despite the growing number of educated, never-married, childless women now in their 30s, 40s, and 50s.
- 60.
Article 32 Moroccan Constitution 2011.
- 61.
UDHR Article 25: ‘All children, whether born in or out of wedlock, shall enjoy the same social protection.’
- 62.
This is according to the former Minister of Justice, Mustafa Ramid, in 2014. The association INSAF reported that in 2010, 24 of the 153 babies born out of wedlock each day are abandoned, or around 16% of these children, see Medias24 2014. INSAF has elsewhere reported that between 2003 and 2009, there were 210,000 children born outside marriage, or 30,000 annually, see Verdier 2017.
- 63.
See Bargach 2002 for a rich ethnographic account of social stigma and the ways in which stigma and marginalization, as well as integration, are lived by makful children and caretaker adults in kafala relationships. She details as well deviation from lawful practices such as secret ‘adoptions’ through the unauthorized inscription of abandoned babies into caretakers’ civil registries. Some of these arrangements were the result of agreements between biological mothers and wealthy couples or women, sometimes finalized before the child’s birth.
- 64.
Article 431 of dahir 1-59-413 amended the Penal Code, with a sanction of imprisonment from three months to five years and/or a fine of 200 to 1000 dirhams.
- 65.
Descriptions of conditions on the ground in institutions and courthouses are based on personal observations and open-ended interviews with staff personnel, social workers, occupational therapists, relinquishing mothers, prospective guardians, and laypeople over a 10-month period in southern Morocco, from December 2012 to September 2013.
- 66.
See Article 10 of the kafala law of 2002.
- 67.
Conversations with prospective parents and social workers in 2012–2013 indicated that girls were generally viewed as more adaptable and likely to fit in to families formed through kafala, and that they were kinder than boys. Bargach 2002 has noted that boys are suspected of being more susceptible to rejection of their adoptive parents, more aggressive and violent. Personal communication with kafil parents in France has suggested that in a minority of cases, girls taken in kafala and brought abroad are treated more as maids than as daughters, and we can suspect this it true within Morocco as well, even more so given that there is even less oversight by authorities after the child leaves the institution.
- 68.
Morocco authorized women to pass the exams to become judges in the 1960s, but their numbers were minimal until recent years. As of 2015, around 1000 of the country’s 4000 judges were women, a substantial increase that still falls short of the 50% parity set forth in the Moroccan Constitution.
- 69.
Article 9 of the 2002 Kafala law.
- 70.
Barraud 2013 notes that ironically the change in kafala laws in both Morocco and Algeria to permit single women to contract creates a new category of ‘single mothers’ legitimated by the state, in contrast to the low status of the single biological mothers of these children.
- 71.
Some judges approve temporary custody of the child by the adult applicant, with the final kafala contract issued only after approval subsequent to the investigations.
- 72.
Morocco, Cour Suprême 14 January 2004 no. S15.
- 73.
Interestingly, the French-language administrative website for the Government of Morocco has an explanation of the process of attributing names to children of unknown parentage or children whose fathers are unknown, but there is no mention of this on the Arabic-language version of the same website, see www.service-public.ma.
- 74.
See Bargach 2002.
- 75.
- 76.
- 77.
- 78.
The period was five years until revised in March 2016. Civil society actors and some politicians had been advocating for two years.
- 79.
Simple adoption is additive, so filiation is established to the kafil(s) while the original biological filiation, whether known or unknown, is retained. Plenary (‘full’) adoption replaces original filiation with the adoptive filiation and severs all ties to the original parent(s), when known.
- 80.
See Hoffman (forthcoming 2019) for a fuller discussion of transnational families through kafala in France and in the United States.
References
AEH (2017) Livret de famille: nouvelle décision judiciaire en faveur d’une mère célibataire. Medias24, 4 December 2017. www.medias24.com/MAROC/DROIT/178696-Justice-Une-mere-celibataire-admise-a-recevoir-le-livret-de-famille.html. Accessed 1 February 2018
Ait Musa cA (2017) Istiʼnafiyyat Tanja Tulghi Hukman Qada bi-‘al-Ictiraf bi-Bunuwat al-Tifl’ min cAlaqa ghayr Sharciyya [Tangier Appeal Annuls Ruling That ‘Recognized the Paternity of the Child’ from an Illegitimate Relationship]. Al-Sahraʼ, 10 October 2017. https://assahraa.ma/web/2017/139704. Accessed 2 February 2018
Alidadi K, Foblets M-C (2012) Framing Multicultural Challenges in Freedom of Religion Terms: Limitations of Minimal Human Rights for Managing Religious Diversity in Europe. Netherlands Quarterly of Human Rights 30(4):460–488
Al-Mufakkira al-Qanuniyya (2017) Al-Qada’ al-Maghribi Yuqirru Haqq Umm cAziba fi al-Husul cala Daftar cA’ili [Moroccan Judiciary Recognizes the Right of a Single Mother to Obtain a Family Booklet]. Al-Mufakkira al-Qanuniyya/Legal Agenda, 4 December 2017. http://legal-agenda.com/article.php?id=4084. Accessed 3 February 2018
Al-Sahraʼ (2017) Asdarathu Mahkamat al-Usra bi-Tanja maca Tacwid li-Faʼidat al-Umm: Awwal Hukm fi al-Maghrib bi-Bunuwat Tifla min cAlaqa Kharij Itar al-Zawaj li-l-Ab [Family Court in Tangier Issues Ruling with Compensation for Mother’s Benefit: The First Ruling in Morocco in Paternity of Child Born Out of Wedlock to Father]. Al-Sahraʼ, 24 February 2017. www.assahraa.ma/journal/2017/203545. Accessed 13 February 2018
An-Na‘im AA (1990) Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law. Syracuse University Press, Syracuse, NY
An-Na‘im AA (2010) The Compatibility Dialectic: Mediating the Legitimate Coexistence of Islamic Law and State Law. The Modern Law Review 73(1):1–29
Assim U, Sloth-Nielsen J (2014) Islamic kafalah as an alternative care option for children deprived of a family environment. African Human Rights Law Journal 14:322–345
Badel M, Pujolar O (2009) Kafala et droits sociaux. Droit de la famille 1:25–30
Baderin M (2001a) Establishing Areas of Common Ground between Islamic Law and International Human Rights. International Journal of Human Rights 5(2):72–113
Baderin M. (2001b) A Macroscopic Analysis of the Practice of Muslim State Parties to International Human Rights Treaties: Conflict or Congruence? Human Rights Law Review 1(2):265–303
Bargach J (2001) Personalizing It. In: Faubion J (ed) Ethics of Kinship. Rowman and Littlefield, Lanham MD, pp 71–97
Bargach J (2002) Orphans of Islam: Family, Abandonment, and Secret Adoption in Morocco. Rowman and Littlefield, Lanham MD
Barraud E (2010) La filiation légitime à l’épreuve des mutations sociales au Maghreb. Droit et cultures 59:255–282
Barraud E (2013) L’adoption entre France et Maghreb: de Terre et de Sang. Editions Non Lieu, Paris
Bollée S (2013) La conformité à la Convention européenne des droits de l’homme de l’interdiction d’adopter un enfant recueilli en kafala. Revue trimestrielle des droits de l’homme 717–724
Coulson NJ (1969) Conflicts and Tensions in Islamic Jurisprudence. University of Chicago Press, Chicago
Dahiri M (2016) Morocco. In: Nieto Morales C (ed) Comparative Intervention with Minors in Different Countries. Editorial Dykinson, Madrid
Detrick S (ed) (1992) The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux Préparatoires’. Martinus Nijhoff Publishers, Dordrecht et al.
Di Noto R (2011) Le droit au respect de la vie privée et familiale, nouveau paradigme en droit international privé des personnes? In: Alleweldt R, Callsen R, Dupendant J (eds) Human Rights Abuses in the Contemporary World. Peter Lang, New York, pp 145–168
Donders Y (2013) Cultural Pluralism in International Human Rights Law. In: Vrdoljak AF (ed) The Cultural Dimension of Human Rights. Oxford University Press, Oxford, pp 205–239
Duca R (2014) Family Reunification: the Case of Muslim Migrant Children in Europe. Athens Journal of Social Sciences (April) 111–120
Emon AM (2016) Codification and Islamic Law: The Ideology Behind a Tragic Narrative. Middle East Law and Governance 8:275–309
Ensel R (2002) Colactation and fictive kinship as rites of incorporation and reversal in Morocco. Journal of North African Studies 7(4):83–96
Fetzer J, Soper C (2005) Muslims and the State in Britain, France, and Germany. Cambridge University Press, Cambridge
Fioole JCCM (2015) Give me your child: adoption practices in a small Moroccan town. Journal of North African Studies 20(2):247–264
Fricero N (2012) Respect du droit à la vie familiale en dépit du refus dʼadoption: CEDH, 5e sect., 4 Oct. 2012, n° 43631/09, Harroudj c. France. Procédures: Revue Mensuelle commentaires 16–18
Geertz H (1979) The Meanings of Family Ties. In: Geertz C, Geertz H, Rosen L (eds) Meaning and Order in Moroccan Society: Three Essays in Cultural Analysis. Cambridge University Press, Cambridge, pp 315–391
Goody J (1969) Adoption in Cross-Cultural Perspective. Comparative Studies in Society and History 1(11):55–78
Gouzes G (2001) Pour une éthique de l’adoption internationale. Rapport au Premier ministre. La Documentation française, Paris
Hallaq WB (2009) Shari`a: Theory, Practice, Transformations. Cambridge University Press, Cambridge
Hammje P (2012) L’interdiction d’adoption face aux droits fondamentaux. Recueil Dalloz 43:2947–2951
Hervieu N (2012) L’adoption internationale aux prises avec la kafala sous le regard européen. Lettre ‘Actualités Droits-Libertés’ du CREDOF, 8 October 2012
Hoekema AJ, van Rossum WM (2010) Empirical conflict rules in Dutch legal cases of cultural diversity. In: Foblets M-C et al (eds) Cultural Diversity and the Law: State Responses from Around the World. Bruylant, Brussels, pp 851–888
Hoffman KE (2015) Pratiques juridiques et idéologies langagières dans un tribunal non officiellement multilingue. Anthropologie et Sociétés 39(3):29–50
Hoffman KE (forthcoming 2019) Famille, filiation, et foi: le traitement judiciaire de la tutelle islamique (kafala) en France et aux Etats-Unis. In: Fillod-Chabaud A, Odasso L (eds) La famille et la nation: Pour une sociologie juridique des migrations et des circulations familiales. Presses universitaires de Rennes
Howell S (2006) The Kinning of Foreigners: Transnational Adoption in a Global Perspective. Berghahn Books, New York
Human Rights Watch (2015) Morocco: Prison Terms for Adultery. Unfair trial of Activist, Friend. www.hrw.org/news/2015/06/02/morocco-prison-terms-adultery. Accessed 9 February 2018
Hunter-Henin M (2006) Droit des personnes et droits de l’homme: combinaison ou confrontation? Revue critique de droit international privé 4:743–775
Hussin I (2007) The Pursuit of the Perak Regalia: Islam, Law, and the Politics of Authority in the Colonial State. Law & Social Inquiry 32(3):759–788
Id Hajji L (2017) Bassima Hakkaoui en faveur d’un test ADN obligatoire de paternité. Medias24, 20 December 2017. www.medias24.com/MAROC/SOCIETE/179109-Bassima-Hakkaoui-en-faveur-d-un-test-ADN-obligatoire-de-paternite.html. Accessed 6 February 2018
Immigration and Refugee Board of Canada (2013) Morocco: Application of adultery laws, in particular, of Article 490 of the Penal Code and of the articles that follow it; treatment by family members and in-laws of people who commit adultery (2010-August 2013), 9 September 2013. www.refworld.org/docid/53732b014.html. Accessed 1 February 2018.
Iraqi Z (2002) L’enfant abandonné. Thèse de doctorat de médecine, Université Mohammed V, faculté de médecine et de pharmacie de Rabat
Izdinne M (2011) Adultère: le dernier tabou. MarocHebdo, 16 March 2011
Kiestra LR (2014) The Impact of the European Convention on Human Rights on Private International Law. T.M.C. Asser Press, The Hague
Kutty F (2015) Islamic ‘Adoptions’: Kafalah, Raadah, Istilhaq and the Best Interests of the Child. In: Ballard RL et al. (eds) The Intercountry Adoption Debate: Dialogues Across Disciplines. Cambridge Scholars Publishing, Newcastle upon Tyne, pp 526–563
La Ligue Marocaine pour la Protection de l’Enfance, UNICEF (2010) Enfance abandonnée au Maroc: Ampleur, état des lieux juridique et social, prise en charge, vécus. www.unicef.org/morocco/french/2010-Etude_Enfance_abandon_UNICEF-LMPE.pdf. Accessed 9 February 2018
Lahsini C (2017) Historic First in Morocco: Justice Recognizes Natural Filiation. Morocco World News, 22 February 2017. www.moroccoworldnews.com/2017/02/209083/historic-first-moroccan-justice-recognized-natural-filiation. Accessed 2 February 2018
Lakhdar Y (2017a) Hukm Qada’i Yamnahu ‘Umman cAzibatan’ al-Haqq fi Hiyazat Kunnash al-Hala al-Madaniyya [Court Ruling Grants ‘Single Mother’ the Right to Acquire a Civil Status Booklet]. Hespress, 6 December 2017. www.hespress.com/societe/373699.html. Accessed 2 February 2018
Lakhdar Y (2017b) Qissat al-Umm al-cAziba bi-Tanja.. Wacd bi-Zawaj wa-Ightisab wa-‘Haqq’ Yatabakhkharu [The story of the single mother in Tangier … Promised Marriage, Rape and ‘Right’ Evaporates]. Hespress, 16 October 2017. www.hespress.com/societe/368036.html. Accessed 1 February 2018
Le Boursicot M-C (2006) Les enfants recueillis en Kafala par des ressortissants français. Journal du droit des jeunes 10(260):46–49
Le Boursicot M-C (2010) La Kafâla ou recueil légal des mineurs en droit musulman: une adoption sans filiation. Droit et cultures 59:283–302
Libson G (1997) On the Development of Custom as a Source of Law in Islamic Law: Al-rujūcu ilā al-curfi aḥadu al-qawācidi al-khamsi allatī yatabannā calayhā al-fiqhu. Islamic Law and Society 4(2):131–155
Lixinski L (2013) Narratives of the International Legal Order and Why They Matter. Erasmus Law Review 1:2–5
Medias24 (2014) 5377 enfants légalement abandonnés au Maroc en 2013. Medias24, 15 October 2014. www.medias24.com/SOCIETE/15069-5.377-enfants-legalement-abandonnes-au-Maroc-en-2013.html. Accessed 12 February 2018
Miller SG (2006) Sleeping Fetus: Overview. In: Joseph S (ed) Encyclopedia of Women & Islamic Cultures, vol III. Brill, Leiden and Boston, pp 421–424
Murat P (2009) Le refus de la transformation en adoption. Droit de la famille 1:37–41
Muslim Women’s Shura Council (2011) Adoption and the Care of Orphan Children: Islam and the Best Interests of the Child. American Society for Muslim Advancement. https://bettercarenetwork.org/library/the-continuum-of-care/adoption-and-kafala/adoption-and-the-care-of-orphan-children-islam-and-the-best-interests-of-the-child. Accessed 12 February 2018
Nishitani Y (2014) Global Citizens and Family Relations. Erasmus Law Review 3:134–146
Oubrou T (2009) La kafala et la sharia. Droit de la famille 1:10–16
Oxford Islamic Studies Online (n.d.) Lian. www.oxfordislamicstudies.com/article/opr/t125/e1345. Accessed 30 January 2018
Qudri S (2017) Bi-l-Fidiyu: Qadi bi-Tanja Yakshifu can Hukmihi Manaha al-Ubuwa li-Tifl min Umm cAziba [Video: Judge in Tangier Makes Known His Ruling to Allow Paternity for a Child Born to a Single Mother]. Le360, 24 February 2017. http://m.le360.ma/ar/societe/102979. Accessed 1 February 2018
Rezig M (2004) Les aspirations conflictuelles du droit de l’adoption: Etude Comparative. Arab Law Quarterly 19(1/4):147–168
Rosen L (2000) The Justice of Islam: Comparative Perspectives on Islamic Law and Society. Oxford University Press, Oxford
Sonbol A (1995) Adoption in Islamic Society: A Historical Survey. Children in the Muslim Middle East. University of Texas Press, Austin
Sonneveld N (2017) Seeking Portia and the Duke: Male and Female Judges Dispensing Justice in Paternity Cases in Morocco. In: Sonneveld N, Lindbekk M (eds) Women Judges in the Muslim World: A Comparative Study of Discourse and Practice. Brill, Leiden, pp 123–152
Suleiman O (2017) Adoption and Fostering: Fiqh of Islam. Presentation. Yaqeen Institute for Islamic Research, Irving, TX, 17 May 2017
Syed S (1998) 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(4):359–393
van Loon H (2010) The Accommodation of Religious Laws in Cross-Border Situations: The Contribution of the Hague Conference on Private International Law. Cuadernos de Derecho Transnacional 2(1):261–267
Verdier M (2017) Le Maroc reconnait la paternité d’un enfant née hors mariage. La Croix, 24 February 2017. www.la-croix.com/Monde/Afrique/Le-Maroc-reconnait-paternite-dune-enfant-hors-mariage-2017-02-24-1200827205. Accessed 12 February 2018
Verhellen J (2013) Lost in Nationality: Private International Law and Cultural Diversity. In: Foblets M-C, Yassari N (eds) Legal Approaches to Cultural Diversity. Martinus Nijhoff Publishers, Leiden/Boston, pp 521–572
Zine G (2018) Enfants nés hors-mariage, 200 000 bombes à retardement. Dîn Wa Dunia, 8 February 2018. http://dinwadunia.ladepeche.ma/enfants-nes-hors-mariage. Accessed 12 February 2018
Žvan Elliot K (2015) Modernizing Patriarchy: the Politics of Women’s Rights in Morocco. University of Texas Press, Austin
Acknowledgements
This paper benefitted from research assistance by Madeline Ewbank, Isabelle Laskero, and Mathilde Karekezi. Funding for portions of this research was provided by the Institute for Advanced Study in Lyon (the Collegium) and by the Northwestern University Office of Undergraduate Research. Earlier iterations of the project benefitted from discussion with members of the Max Planck Working Group on Child Law and Collegium fellows. I wish to thank in particular the Social and Political Dynamics of Private Life working group of the Max Weber Center, Université de Lyon 2, and especially Gaelle Clavandier and Isabelle Sayn. Exchanges with Jamila Bargach undergird my inquiry and analysis. All errors remain my own.
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Hoffman, K.E. (2019). Morocco. In: Yassari, N., Möller, LM., Najm, MC. (eds) Filiation and the Protection of Parentless Children. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-311-5_9
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