Adoption in Tunisia: Turning Back the Clock on a Legal Achievement


2014-10-16    |   

Adoption in Tunisia: Turning Back the Clock on a Legal Achievement

In a step that seemed bold at the time, Tunisian lawmakers legalized the formal adoption of children (under Law No. 27 passed on March 4, 1958). Although institutionalized adoption was originally seen as an innovation that was alien to Tunisia's social traditions, half a century of its practice has transformed it into a social institution that has contributed to the stability of the Tunisian family. Childless families have benefited from it, and neglected children and those of unknown parentage have been able to enjoy the right to an identity and family care. The statistics clearly show that adoption has become a social tradition: figures from the National Institute for the Welfare of Children show that between 2008 and 2011, 2,000 children were adopted in Tunisia, in comparison to 4,082 children who were adopted in France in 2008 alone. Given the cultural characteristics of the two countries and the demographic disparity between them, the figures show that adoption in Tunisia has become one of the fundamental legislative mechanisms for protecting marginalized children.

By changing the structure of Tunisian families and their ideas about paternity, the law impacted legal questions pertaining to the subject. Before the revolution, the legitimacy of adoption was no longer contentious. Problems surrounding legal paternity were confined to [derivative] matters. These were related to the possibility of renouncing adoption, its legal nature (whether it arises from a judicial ruling, or from a commitment undertaken by the adopting party), and to the right of adoptees to discover their birth parents through an institutional concept that ensures the basic right to identity. However, the revolution and the official and political proposals that followed brought the debate back to square one, i.e., discussions about the extent to which adoption is legitimate under the precepts of Islamic law. After the elections of October 23, 2011, the official religious establishment abandoned its traditional silence on the subject when the Grand Mufti [top state-linked Islamic cleric] of Tunisia declared that adoption was un-Islamic.[1] On March 5, 2014, the minister of religious affairs in the new government reformulated the same position when he asserted that the adoption law was incompatible with the tenets of Islamic law and should be repealed.[2]

The two positions were in harmony with statements by prominent politicians affiliated to the parliamentary majority, who said they were determined to pass a law abolishing adoption and replacing it with a system of guardianship that would meet the requirements of Islamic law. Once the Islamist Ennahda party won the majority of seats in the constituent assembly, the party’s president, Rashid al-Ghannushi, said Ennahda -which was committed to preserving the Code of Personal Status as a valid interpretation of Islamic law- had decided to abolish adoption because it violated Islamic law.[3] Ennahda party and assembly member Souad Ben Abderrahim stated the same position when she said that Tunisian family laws would be reviewed only with regard to adoption, which would be replaced by guardianship. Her comments appeared on the surface to be in line with the U.N. Convention on the Rights of the Child (UNCRC). The latter treats guardianship and custody derived from Islamic law as equivalent to adoption,as in both fulfill the state's commitment to provide “alternative care” for children who are deprived, temporarily or permanently, of a family environment.[4] However, it is well known that the text of the Convention is drafted in a way designed to achieve consensus between the states that helped to pass it, which is bound to revive questions about the criticisms of adoption. Additionally, it must be noted that Article 49 of the new Tunisian Constitution prohibits parliament from infringing on the rights and freedoms that the Constitution guarantees. This prohibition raises the question of whether the rights arising from adoption are covered by this article, which would prohibit any such infringement.

Adoption and Worries of Incestuous Marriage

Those opposed to adoption say that it can lead to incest, which might in turn lead to violations of Tunisian and Islamic law. However, despite this criticism, Tunisian legislators have been careful to respect the objectives (maqasid) of Islamic law. They have stated that the latter was one of the sources of law, even if they appear to have somewhat violated some prohibitions imposed by Islamic law. Article 15 of the adoption law states that, “in cases where the relatives of the adopted child are known, the prohibitions on incestuous marriages remain in force”. Implementing this legal text would, in effect, prevent incest in a way that has the same restrictive effect as the Islamic legal system. One could argue that allowing adoption prevents incestuous marriages more effectively, because banning adoption leads to practices designed to circumvent the law; those who want to adopt a child resort to erroneously claiming that they are their biological child.[5] When such a practice becomes widespread, it prevents the law from reflecting reality and leaves the door wide open to trafficking of children on the one hand, and possible incestuous marriages on the other.

The Advantages of Adoption as Against the Proposed Alternatives

Guardianship has been proposed as a possible alternative to adoption. However, the reality of the Tunisian legal system shows that guardianship is already a separate institution. The same law that endorses adoption regulates guardianship in Articles 3 and 5, defining it as “The contract by means of which a legally competent adult or legal entity acts as guardian to a minor”.[6] Guardianship is also a contract that entails obligations of care on the part of the guardian, who must be a legally competent person or a legal entity. The obligations are essentially those of custody, i.e., to provide healthcare, to protect the child's right to education and to maintenance. Guardians have a duty to provide financial support within their means to provide their charges with their requirements. This obligation expires as soon as the charge reaches the age of legal majority, i.e., 18 years of age, and it has no effect on the civil status of the charge or of the guardian. It does not imply any inheritance or any financial rights in the event of the guardian dying before the charge reaches the age of majority. Thus, it can be inferred that the guardianship does not confer on charges any identity “that ensures they are not victims of social exclusion”, and guardianship might lead to the charges being deprived at an early age of the care that is their legal right. From this perspective, adoption is a more effective way to satisfy the charges' right to a family environment and to enjoy the rights of biological children without any discrimination. Additionally, legal entities, such as charitable organizations, can act as guardians, which might deprive the children of a family relationship based on family care. As a result, adoption seems, from a certain perspective, to provide psychological stability and a family environment that guarantees the various parties the right to a family in a way that does not occur with guardianship, which is confined to providing care regardless of the family structure.

It is worth noting that the system for assigning family names, as established by Tunisian lawmakers, falls short of ensuring the rights of those children (Law No. 75 dated October 28, 1998, deals with assigning family names to abandoned children or children of unknown paternity). Under this law, the identity supposedly conferred by the family name does not satisfy the child's right to a definite family.[7] The law regulating family names is in fact based on the idea of proving parenthood through DNA testing when one of the parents denies it, which makes it a legal instrument that aims to prove identity; however, it does not provide the child with family warmth through normal family relationships.[8]

It follows that adoption as a legal institution guarantees that children who find themselves in tenuous situations enjoy the right to a family, which is the basic unit of society according to Article 7 of the Tunisian Constitution. Adoption also ensures that adopted children enjoy the right to dignity and protects the child from discrimination, in line with the rights of the child guaranteed in Article 47 of the Tunisian Constitution. For these reasons, the fact that the provisions of adoption are in conformity with the basic rights protected by the Constitution raises the question of whether the rules for adoption can be abolished, given that Article 49 of the Constitution, as mentioned earlier, prohibits lawmakers from infringing on the rights and freedoms that the Constitution protects. This question may require an answer from the constitutional court, if those opposed to adoption succeed in abolishing it on the basis of Sharia principles.

There is one recorded case of a judicial ruling that rejected adoption, which raises another question about the extent to which such a ruling is compatible with the ethics of judicial practice, and about the legitimacy of a judge imposing his beliefs and personal attitudes on the parties to a suit and on the law.[9]

This article is an edited translation from Arabic.

 

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[1] Sheikh Othman Battikh, former Grand Mufti of Tunisia, in a statement to Essabah newspaper published on January 3, 2012.

[2] Religious Affairs Minister Muneer al-Tlili in a statement to Radio Mosaique FM, published on Attounissia website on March 5, 2014.

[3] Statement by Rashid al-Ghannushi to Express FM on October 27, 2011.

[4] The UN General Assembly adopted the Convention on the Rights of the Child on November 20, 1989. Tunisia joined the Convention through Law No. 92 of 1991 on November 29, 1991.

[5] (no text here)

[6] For a formal comparison of the two institutions, see the CAWTAR paper on the system of women's rights in Tunisian legislation. (Original provides a link but the link doesn't work)

[7] Chapters 1, 2 and 3 of the adoption law establish a system that ensures that children whose parentage is unknown have the right to a hypothetical identity that fills the gaps in their identity data; Mothers with custody over their children who are minors and whose paternity is unknown should give them first names and their own family names, or ask permission to do so in accordance with the provisions of the law regulating civil status. Within six months of the date they give birth, they should ask the president of the relevant Court of First Instance or his deputy to assign to the children a father's name, a grandfather's name and a family name, which of necessity would be the mother's family name. The request should be submitted to the president of the Court of First Instance that lies in the district where the birth certificate was issued. If the birth took place abroad, the request should be made to the president of the Court of First Instance in the city of Tunis, provided that the mother is of Tunisian nationality. At the end of the period specified in Article 22 of the law regulating civil status, the civil status officer must inform the relevant public prosecutor that there are no entries for a father's name, grandfather's name, family name and father's nationality. When the period specified in the first paragraph of this article expires, the public prosecutor should ask the president of the Court of First Instance for permission to fill in the entries by assigning to a child of unknown paternity a father's name, a grandfather's name and a family name, which will necessarily be the family name of the mother; Article 2: If no member of the family of an abandoned child or a child of unknown paternity asks to register the child's 'identity elements' within six months of the child being accepted by the relevant authorities, the public custodian, as defined by the law on public custody, guardianship and adoption, must register a name for those of unknown paternity according to the provisions of the law on civil status. He must also ask the president of the relevant Court of First Instance to register for each abandoned child or child of unknown paternity a father's name, a grandfather's name, a family name, a mother's name, a name for the mother's father and a mother's family name. The family name of the child will necessarily be the family name registered for the theoretical father; Article 3: Everyone over 21 years of age has the right to ask the president of the relevant Court of First Instance to register for him a first name, a family name, a father's name, a grandfather's name, a mother's name, a mother's father's name and a mother's family name, or some of these elements, if they are missing. The family name of the applicant will necessarily be the family name of the father unless the mother has registered the child with her family name.

[8] Besides the rules for proving parentage as regulated by Article 68 of the Code of Personal Status, the law that deals with the registration of family names for children of unknown parentage established a parallel system that does not end with establishing a complete lineage for the child, and that determines the consequences of proving paternity under the system explained by Article 3(b). Article 3(b) states: The party concerned, the father, the mother or the public prosecutor can raise the matter in the relevant Court of First Instance to request that the father's family name be assigned to someone of unknown parentage who proves by certificate, or the testimony of witnesses or by DNA analysis, that the party concerned is of unknown parentage. If there is no response to the permit it issued for a DNA test, the court will rule on the suit, relying on all the multiple, corroborative, powerful and established evidence that is available. A child whose paternity is proven is awarded the right to maintenance and support in the form of guardianship and custody until he or she reaches the age of majority or later in cases specified by law. The father and the mother remain responsible towards the child and to others throughout the legal period in matters related to the responsibility provisions, in accordance with the requirements of the law.
[9] The writer has refrained from giving the date of the ruling, in line with his obligation of discretion in his capacity as a judge.

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