Respect a Child’s Right to a Name, an Identity and Family
6 November 2011
Sisters in Islam (SIS) welcomes the Terengganu state government’s proposal to allow children born less than six months after their parents’ marriage to carry their fathers’ name in accordance with Section 13 and 13A of the Births and Deaths Registration Act 1957.
The practice of registering Muslim children’s surnames as “binti/bin Abdullah” when they are born within 6 months of the date of marriage leads to serious and unjust repercussions on the children’s emotional well being and their future.
The Muslim child is being punished and labelled “illegitimate” for what is assumed to be the parents’ sin of conceiving the child before marriage. The biological father is denied the duty to exercise all parental responsibilities and to confer all rights the child is entitled to. This National Registration Department (NRD) ruling supposedly originated from a fatwa which states that a pregnant woman may get married to the father of the child, however “the man cannot be recognized as the father of the unborn baby, the baby cannot inherit from him,cannot be his mahram (unmarriageable kin)and the man cannot be the baby’s guardian.”
The Qur’an states that no one bears the burden of another, nor passes one’s burden to another (Surah Fatir 35:18). This injunction should guide us towards compassionate care and enable us to fulfil our obligation to always provide for the best interest of the child.
Instead, this NRD ruling has punished innocent children, forcing them to bear the burdens of their parents’ actions.
To label a child “illegitimate” and deprive them of their rights and entitlements as a member of a family cannot be justified. Over the years, SIS has received complaints over the rights of children born out of wedlock, children conceived out of wedlock but born within a marriage, and adopted children, not just at the time of registration, but also at the time when they apply for identity cards, begin school, when they get married and upon the deaths of their parents.
The best interest of the child must be the primary concern in making all laws, policies and decisions that affect them. This principle is upheld by Islamic teachings, universal human rights and Malaysia’s law-making process.
For example, the Quran recognises a stepmother or stepfather to be the mahram of their stepchildren (Surah An-Nisa 4:22-23). What more the biological father of a child? Using the principle of the best interest of the child, Muslim jurists allow the custodial mother to maintain custody of the child beyond the age when custody is supposed to be transferred to the father. Malaysia’s Islamic Family Law was amended in 1994 to reflect this.
The Quran in Surah al-Ahzab 33:5 also states “Call them by (the names of) their fathers: that is more just in the eyes of God.” While this is understood to refer to adopted children, is it not possible to extend the spirit of the verse to recognise the biological fathers of children conceived or born out of wedlock?
The dominant opinion in classical fiqh relating to paternity allows a man to admit paternity of a child born out of the wedlock through the procedure of iqrar (i.e. he acknowledges that the child is his).
Some classical jurists were deeply concerned with the need to protect a child against the stigma of illegitimacy. They went as far as setting the possible duration of pregnancy as long as seven years under the Maliki school of law and four years under the Shafie school.
Thus Section 111 of Malaysia’s Islamic Family Law recognises the nasab or paternity of the child is established in the man even if the child is born more than four years after the death of the man or after divorce, if “he or his heirs assert that the child is his issue.”
Given all the social problems disproportionately affecting the Muslim community, the 1971 fatwa, which was only enforced more recently by the NRD, would lead to more emotional and social harm to the children. It will also affect their status in the family and society.
This discriminatory practice towards Muslim children violates a child’s right to a name, an identity and family, thereby constituting a violation of Article 8 of the Convention on the Rights of the Child which Malaysia ratified in 1995.
SIS is disturbed by the continuing discriminatory and unjust rulings governing the personal status of Muslims in this country. There was a time when a couple could just go to a police station or the NRD and register the birth of their child. The couple’s acknowledgement that the child was theirs and the details on their identity cards were sufficient for a birth certificate to be issued with both parents’ particulars included. There was no need to produce a marriage certificate. But now Muslims are required to produce a marriage certificate as a prerequisite for the inclusion of the father’s surname on a birth certificate.
Under the original provision of the Islamic Family Law of 1984, biological fathers of children born out of wedlock could be held responsible for the maintenance of their children. But not anymore. Later amendments made mothers solely responsible for the children.
We urge the Federal Government to take steps to immediately adopt the proposal by the Terengganu state government to enable the NRD to duly recognise the man who claims parentage jointly with the mother, to be the registered father of the child and for the child to be given his surname. This is in accordance with Sections 13 and 13A of the Births and Deaths Registration Act.
Furthermore, SIS believes that there must not be any markings on the birth certificate or identity cards to indicate that the child was conceived or born out of wedlock to prevent further stigmatisation of the child.