The Yale Journal for Humanities in Medicine

In this paper, attempts are made to study the role of Islamic family law[1] in preserving children’s health and well being by imposing Muslim families to fulfill the major rights of children most notably the rights of rada‘ (suckling), hadanah (custody)  and khitan (circumcision).[2] It is thought that proper maintenance is the right of a child whereby this duty is imposed on the respective father, while suckling and custody are imposed upon the mother. However, in the Muslim society, when parents are married and live together, have joined responsibility for the health and the well-being of their children i.e., the father is responsible to provide the material necessities, while the mother is responsible to take care on the welfare of their children bodily, mentality and moral.

I. Promotion of Child Health Care Through Suckling (Al-Rida‘)

It is obvious to all familiar with the rights of children that shouldering the responsibilities of pregnancy, child-birth and suckling the child for his/her health and well-being are the natural responsibilities of a mother. Since the first feeding of the child upon birth is mother’s milk, thus, according to Islamic family law, suckling is one of the child’s primary rights. To achieve this, Islamic family law urges the mother to feed the child, regardless of whether she is still married to the child’s father or divorced and has completed her ‘iddah. The Qur’an mentions this rule in the following verse:

The divorced mothers shall suckle their children for two whole years, if the fathers desire the suckling to be completed. In that case, the father of the child shall, in the fair known way, be responsible for their food and clothing. But none should be burdened with more than he can bear: neither should the mother be pressed unjustly (to accept unfair terms) just because she is the mother, nor should the father be burdened just because he is the father...and the same responsibility for the maintenance of the mother devolves upon the father of the child and his heir...There is no harm if they wean the child by mutual consent and consultation. Moreover, there is no harm if you choose to give your children suckle by a wet nurse, provided you pay her fairly.[3]

          The above verse clearly recommends that mother should suckle her child for a period of two years, but if there are unavoidable reasons, the child can be weaned even earlier. This command is not only limited to those women who are under fundamental obligation to suckle their children who cannot deny their children’s rights, but also to divorced women. It is the Islamic family law that, if a woman is required to suckle her child for a period of time, the husband, who is divorcing her, is obligated to bear the expenses of the mother of the child without failure through this period.[4] In the view that mother is better equipped to look after the well-being and health of child during childhood, Islam recommends that the child, after birth and during childhood and if the parents separate, should stay with the mother, to be suckled and raised by her during early childhood. The reasoning behind this rule is the provision of healthy and motherly emotional condition towards the child. Naturally, a mother is better equipped to look after the welfare of the child at the early stage because she is more patient than a man in this regard. She suckles and raises the child happily. In this condition, she reacts to the child primarily on the basis of her perception of the child’s needs as a person in his own right, her respect for those needs, and attempted practice to satisfy them to the best of her ability, in line with the command of Islamic teaching. Therefore, Islam asks the child to respect the mother who suckles her child, over the father. Abu Hurayrah (r.a) reported that a man enquired: O Messenger of Allah! Who is the most proper person for my good association? The Prophet replied “Thy mother”. Then he asked who was next? He replied “Thy mother. Then he asked who was the next? Prophet replied “Thy mother”. He enquired: who was next? Thy father.” [5] Again, the Prophet (s.a.w) gave very clear instruction when woman came to him and said: “Allah’s Messenger, my womb was a vessel to this son of mine, my breasts a water-skin for him, and my lap a guard for him, yet his father has divorced me and wants to take him away from me”, Allah’s Messenger replied: “You have more right to him as long as you do not marry.”[6]

          Although they have known that mother’s milk is the food of choice for the child during childhood, however, the Muslim jurists differ on whether she should be ordered by the court to suckle the child or not. The Hanafis maintain that the law cannot compel her, unless the child will take no other breast but hers, or unless no other woman can be found to suckle the child, or unless the child and the father are so poor that they cannot pay anyone. In other words, the mother may be compelled by the father to nurse her child if no suitable nurse other than the mother is available, if neither the father nor the child have any property, or if the child refuses any other breast, but the mother’s.[7] On the other hand, the Malikis, who are really emphasis on the right of child for suckling, hold that the mother is under the legal religious obligation to feed her baby, regardless of whether she is still married to child’s father or divorced from him, unless it is not the custom of her class to suckle babies. They make an exception in the latter case if the baby refuses another breast, whereby the mother is entitled to a compensation like that of a divorced mother.[8]

Now, it is appropriate to highlight the medical benefits of breast-feeding. Muslim physicians and modern medical researchers are of the view that the mother’s milk is the best food for the child during the first stage of life. The following passage is a scientific research on the benefits of mother’s milk:

Scholars, researchers and physicians the world over agree that mother’s milk is the best food for infants which keeps them healthy and guards them against various diseases. It is the elixir for their lives. It is seen in the mammals, as well as, in the human beings that their own milk is best suited for their suckling. For instance, cow’s milk is best suited for its calves as they need quick physical growth to use their four legs for their sustenance and survival. Their mental growth is not so important as the physical one. But in human beings the infants do not need that much physical energy which is needed for the mammals as they are not required to walk and look for their own sustenance. On the contrary, human babies require first the speedy development of their mental faculties and the nervous system, so that they can digest, sleep, feel, understand and speak normally. Mother’s milk sufficiently caters to these needs of an infant in an efficient and natural way. That is why the babies who are fed with the cow’s milk usually suffer from constipation or diarrhea. Mother’s milk contains 4% fats, while the milk of a seal (mammal-fish) has 40% more fats as compared to that of a human mother. This is due to the fact that seal, immediately after her birth, requires a layer of fat beneath her skin to resist the ice-cold waters. On the contrary, a very high rate of protein is found in the milk of a female rabbit. It is ten times more than in the human milk. For this reason, their suckling grow faster. Their weight becomes double than the day they were born within six days of their birth, while a human baby normally requires six months to be double of the weight, since the day they were born. Such are the laws of nature. It is surprising to note that nowadays, even infants are suffering from arterial diseases of the heart. But the children who are suckled by their mothers remain safe from such diseases.[9]

          Clearly from the above quotation that mother’s milk has immense benefits compared to cows milk. Its natural content is the most suitable degree of vitamin which aids growth and helps resists external as well as internal infections to which all babies are susceptible. Furthermore, the child is able to receive mother’s milk considerably less calcium than does cow’s milk but it is presumed to be naturally adequate to meet his need in that time. More importantly, the benefits of suckling by mother’s milk, being a perfect and safe diet, is not only limited to bodily benefit, but its psychological effects are also far reaching. The child, who suckles within her warm embrace, does not only receive the best nourishment, it also feels secure and loved. This sense of security makes the child grow into a normal balanced person. It is confirmed by psychologists, psychiatrists and sociologists that the harmful and rapid increase in behavior disorders and psychological diseases are mainly due to lack of love, care and affection for children from their parents. In many countries, the study was found that children become rebellious and begin harboring the feelings of hate and revenge towards their busy parents mainly because they feel that their parents, particularly the mothers who are busy in economical pursuits, do not give enough time to make their children feel secured through their love, care and affection. In this condition, both categories of such mothers and children not only lose the pleasures of their own lives, they also add to the score of socio-psychological problems of their society.[10]  In 1996, Dr. Rozumah Baharudin, a Professor of Family Developmental Studies, Faculty of Human Ecology, University Putra Malaysia, conducted an academic research on the influence of the behavior of Malay mothers upon their children. To do this, she had used 128 Malay mothers with children aged 8 to 9 years as the sample in her study. After collection data and assessing them by using Home Observation for measurement of the Environment (HOME), she found that motherly characteristics, child characteristics and contextual factors are all related to the child behavior and attitude. Mothers with higher level of education, self-esteem and family income showed better quality parenting than other mothers in the study. Furthermore, the mother, who gives enough time to take care her child, is able to know better the personality of a child than other mothers. As a result, such a mother is enabled to decide what is best for her child based on his/her ability and inclination. If a child has the inclination to pursue a specific field of knowledge, then, she strongly encouraged, praised and motivated in order to excel progressively and continuously. Likewise, if not having inclinations in any field of knowledge, she will not persuade him. Otherwise, all labor will be in vain.[11]

For the interest of the health and the well-being of child, some Muslim jurists allow the prevention, and even termination of pregnancy, if the mother is still breast-feeding. They argue that the living child has priority over a fetus still in the womb to receive the mother’s nutritious milk. Other matters concerning the health of a child are contained in the hadith:  “I intend to prohibit ghilah,[12] but I considered the Persians and the Greeks and saw that they suckled their children during pregnancy without any injury being caused to their children as a result.”[13] It clearly seems from this wise counsel that  the Prophet (s.a.w), in a very beginning, intends to prohibit sexual intercourse with a woman in lactation, however, when he learnt from other cultures most notably Persian and Greek, he decided not to prohibit it. This is due to the fact, if sexual intercourse during the breast-feeding period was completely forbidden, it would put a husband to great deal of inconvenience, since the suckling period lasts for two years. Those who can afford to maintain more than one wife justly, as required by Islam, can follow the polygamous way of life. But this is not possible for everyone. Taking all human problems into consideration, Ibn al-Qayyim (d.750/1350), in discussing the lawfulness of sexual intercourse with a nursing mother in order to protect the suckling infant from any possible harm resulting from such intercourse, says:

The Prophet (s.a.w) saw that pregnancy harms the suckling infant in the same way as being thrown off a horse harms a rider: it is injurious, but not to the extent of killing the baby. He advised them to avoid intercourse leading to pregnancy while the woman is nursing an infant but did not prohibit it. He then intended to prohibit it in order to save the health of the suckling child, but realized that the resulting hardship to the husband, especially for young ones, would be much more injurious to the society. Striking a balance between these matters, therefore, he preferred not to prohibit it. Moreover, he saw that (in) the two most powerful and populous nations of that time, (women) suckled their children during pregnancy without its affecting their strength or numbers, and accordingly he refrained from prohibiting it.[14]

          As mentioned that due to unfavorable circumstance and conditions, Islamic family law allows that child may be suckled by wet-nurse who is not child’s mother, with the condition that woman must be free from any mental and physical diseases and she bears a good character. In this case, if a woman can be found who will nurse the child voluntarily, she is more suitable than the mother, if the mother refuses to suckle the child.[15] In relation to this, there is a distinct difference between Islamic family law and other family laws, when it comes to the question concerning the relationship between persons related to each other by suckling.[16] The Islamic rule on this subject as recorded in the authentic hadith, “Allah has forbidden relations between persons related to each other by suckling (al-rida‘), like those who are related by blood.”[17] This indicates that Islamic family law is giving so much important about the suckling of a child by ruling that if a woman, other than the mother suckles a child, she becomes a mother, since her milk becomes the composite of the infant’s flesh and blood. This relationship is not only limited to the woman concerned, but also affects her husband and children who attain the status of a father, a brother and a sister respectively. They are called foster mother, foster brother and foster sister and they cannot marry each other.[18]

          It is important in this issue to know that according to Islamic family law, the prohibition of marriage based on fosterage is effective only if the suckling occurred before the time of weaning; whereby the breast milk is the primary source of food. Another condition is that the child has suckled its fill on five separate occasions, a fill being defined as when the child leaves off suckling of its own accord.[19] Experimentally calculations suggest that such intakes provide reasonable occasions to form the tissues of a child. Thus, Muslim scholars give the reason for the prohibition of marriage between persons related to each other by suckling by saying that breast-feeding is linked to the mother, since she is responsible for the formation of tissues, i.e., the combination of the tissue build-up and skeleton essence. Furthermore, she is responsible for the body development in her womb, since her wet-nurse supplies the baby’s nourishment during the first stage of its growth. Therefore, it is rational to call her, as Islamic family law had ruled, a mother, after the (biological) mother, and her children become brothers or sisters to the biological mother’s offspring.[20]

II. Child Health Care Through Hadanah (Custody)

          It is recognized that the rules concerning the protection and prevention of the child from any possible cause of injury and the preparation for its upbringing and safeguarding of interest is one of the objectives of the Islamic family law. Among its goal is to assure the preservation of children’s health and well-being. Besides being suckled by the breast of the mother, a child also needs guardianship, which according to Islamic family law, means the caring for the child and looking after his/her upbringing. The child needs to be taken care of, including feeding, clothing, etc. Accordingly, the parent is under an obligation to support for his or her children. If the parent neglects that duty, any person who supplies items such as food and clothing is deemed to have an implied promise to pay on the part of parent. The reasoning behind this rule is the inability of the child to care for himself because his mind is supposed to be still imperfect. Similarly, Islamic family law considers the child innocent during childhood and therefore, damages caused by him have to be repaired by the guardian. This is supported with a hadith of the Prophet who said: “ The recording pen (responsibility), is lifted in three cases: a boy (a minor) till puberty; a sleeping person till he wakes up; and a mentally sick (mad) person till he recovers.[21]

          Islamic family law is concerned to prevent any mental and physical abuse to the child. Thus, according to the Sunni school of fiqh, the mother has the right to custody of the child during infancy unless the court decides otherwise. Furthermore, it is the general rule in Islamic family law that during immature stage, the custody of a child belongs to the female relations of the child over the father’s side. The female’s relatives in order of precedence in this connection are: mother’s mother (umm al-umm); mother’s mother’ mother; father’s mother; father’s father’s mother; sister; sister’s daughter; mother’s sister; and father’s sister and so on.[22] However, a father’s relation who is not awarded custody still has the right of reasonable visitation with such child. This rule, according to Abu Zahrah, has strong rational reasons as enumerate below:

The first phase of the first guardianship, which is called that of dependence (hadanah), is overseen by women and not by men. This is because at this stage of its life the child needs to be cared for by women and cannot do without them; it is therefore up to the mother to care for the child during the period of dependence. If the child has no mother or if it has one who is unfit to carry out this duty, the duty shall devolve upon those female relatives of the child whom it is forbidden to the child to marry. The relative of mother’s side has priority over those on the father’s side; the mother’s mother is preferable to the father’s mother, the mother’s sister is preferable to the father’s sister, and the maternal aunt has priority over the paternal aunt. The condition is made that the woman who takes care of the child during the period of dependence shall be of sound mind, trustworthy, capable of looking after the child, that she shall not be distracted by other activity from caring the child and looking after its upbringing; and that she should not take the child to live with one who is of a different religion (ajnabi) from the child.[23]

          In regards to the duration of the mother’s custodial right over the child, the Qur’an is silent about this. Thus, various schools of law have various opinions concerning this matter as a result of their difficulties to identify the age periods of childhood. Consequently, the four Sunni schools differ on the time when such rights come to an end. In general, they agree that such a right terminates when the child reaches a certain age, however they differ on what should be the ideal age. According to the Sunni Islamic law, the period of minority of a male child is divided into two stages, each of which is characterized by certain features of growth and development. The first stage is from the birth of the child till he reaches its seventh year.[24] The second stage is from completion of seven years till the termination of minority. Based on this division, the Hanbalis, who do not distinguish between boys and girls, rules that the duration of custody for a child shall run from birth till the seventh year, upon which, the child shall be given the choice of preference of parent and the choice shall be respected.[25] In other words, according to Hanbalis, during the first stage the right to custody of the child belongs to the mother and after child has attained its seventh year, the right of custody belongs to the father, subject of course to the consideration of the welfare of the child, hence at that age the children have to be educated and require such protection. They argue that there is some evidence that at seven years of age, the child has the ability to discriminate, and is able to choose either parent as the ideal person to grow up with.[26]

          At seven years of age, according to Shafi‘i law, is not the age of puberty and to divide childhood into two periods as mentioned above may lead readers to adopt the notion that a child suddenly becomes a different individual on completion of seven years. In fact, according to Shafi`i school, the characteristics of one period to another is different from one childe to another. Therefore, for the well-being of child, Shaf`i school rules that the right of custody of child during the whole period of minority belongs to the mother continuing until the infant reaches the age of discretion and is assumed capable of choosing, which parent to live with. If the boy chooses his mother, he shall stay with her for the night and spend the day-time with his father, who undertakes his education. The girl who opts for her mother shall live with her day and night. To be fair, lots shall be drawn between the parents if the child opts for both. If the child remains silent, the child shall stay with the mother.[27]

III. Khitan (Circumcision):

A Helpful Practice Against AIDS and Other STDs

          As far as the health and the well-being of child are concerned, we found that one of the religious and commonly practiced among Muslim families, after the birth of the child, which is considered as the important means to preserve man’s health, is circumcision (khitan); the removal of the foreskin or loose sleeve of skin covering the end of the penis so as to permanently expose the glans (or knob).[28] Besides, khitan is described in the hadith as being “according to nature (al-fitrah)”, Islam considers this practice as one of the great traditions inherited from our honorable Prophet Ibrahim, peace be upon him, who circumcised himself.[29] Emphasis on this practice, we were reported in many traditions that during the time of Prophet Muhammad (s.a.w), khitan was performed on boys simultaneously with their ‘aqiqah.[30] Of course, if necessary, circumcision may be delayed, however, it should be done before puberty for the purpose of health measurement as well as taharah (cleanliness). In relation to taharah, which is considered an important factor for human health,[31] Islamic law (shari‘ah) rules that Muslims have to wash with water to remove what is impure (najas); otherwise wudu’ and salah are not acceptable. In this regard, circumcision is considered as important means for bodily cleanliness. It has been proved that when the foreskin is not removed or being only partially removed, urine and other ejections can accumulate under the folken skin. This area can be infected due to accumulation of germs or bacteria. Thus, the minor operation of circumcision greatly simplifies basic hygiene for children.

In regards to female circumcision, the hadith does not clarify clearly whether female circumcision is obligatory or not. However, according to Shafi‘i’s school of law, khitan is compulsory for both males and females.[32] They supported their views from the hadith: “Fitrah (that is, the pure, correct human nature) are five: circumcision, shaving the pubic hair, trimming the moustache, clipping the nails, and removing the underarm hair.”[33] Imam al-Nawawi, the follower of Madhhab Shafi`i, while mentioning this hadith in his Sahih Muslim bi Sharh al-Nawawi, comments that circumcision is obligatory (wajib) according to al-Shafi`i and many of the Muslim scholars. On the other hand, it is sunnah (recommendable) according to Malik and the majority of them. It is further, according to al-Shafi`i, equally obligatory for males and females. As regards males, it is obligatory to cut off the whole skin which covers the glans, so that this latter is wholly denudated (al-hashfah). As regard females, it is obligatory to cut off a small part of the skin in the highest part of the genitals. The sound (sahih) view, according to our madhhab, which is shared by the large majority of our scholars, is that circumcision is permissible (ja’z), but not obligatory in a youthful age (hal al-sighar), and one of special views is that wali is obliged to have the child circumcised before it reaches the adult age. Another special view is, that it is prohibited to circumcise a child before its tenth year. The sound view according to us, is that circumcision on seventh day after birth is mustahabb.[34]

It is clear from the above discussion that Islam strongly recommends Muslims to perform circumcision. Nevertheless, performing circumcision among Muslim families is not only as a result of following the practice of Prophet Muhammad (s.w.s), believing him to be, as the Qur’an says, sent as a healing and a mercy to mankind, but also as a result of their belief that it is the most easiest method to prevent HIV infection as well as other sexually transmitted diseases (STDs). At the time when governments, national and international institutions spend huge sums of money on research with the aim of finding cures, they are advised to encourage people to perform circumcision to prevent HIV infection as well as other sexually transmitted diseases.[35] In one of the important studies conducted by the Islamic Medical Association of South Africa, was found that AIDS is less spread among African tribes, which observe male circumcision in comparison to tribes in which circumcision is not performed. This fact is not only applied to the Muslims in Africa who strictly observe male circumcision, but there is evidence of the fact that even among non-Muslim African tribes, circumcision proves its value with respect to HIV infection. For example, it was found that the African Xhosa tribe, in which male circumcision is an observed practice, has less spread of AIDS than that of the Zulus, who do not circumcise. Both tribes are not Muslim, and they live in similar environmental conditions.[36]

          Again, the study had been conducted in Uganda upon the couples living in similar environmental conditions. The study found that in many cases the woman was HIV positive and her male partner was not. Surprisingly enough, no new infections occurred among any of the 50 circumcised men over 30 months, whereas 40 of 137 uncircumcised men became infected during this time. Both groups had been given free access to HIV testing, intensive instruction about preventing infection, and free condoms but 89% of the men never used condoms and condom use did not seem to influence the rate of transmission of HIV. This leads the researchers to conclude that male circumcision has contributed effectively towards the prevention of HIV infection.[37] Furthermore, in an interesting scientific study entitled “Circumcision lowers Risk of cervical cancer” which was published in The New England Journal of medicine, proves beyond any doubt the role of performing circumcision to prevent from the risk of cervical cancer. As the title suggested, women whom sexual partners are circumcised are less to develop cervical cancer than the partners of uncircumcised men. In this article, the researcher had studied 1,913 couples in five countries and they were married and had in a stable relationship. After carefully counting the number of sexual intercourse between the partners, the researcher found that circumcision minimizes the area of the penis vulnerable to Human Papilloma Virus (HPV) infection that helps to reduce the risk of cervical cancer. The finding also shows that partners of circumcised men were about 25% less likely to have cervical cancer than partners of uncircumcised men, while among women in relationship with circumcised men were 80% less likely to have cervical cancer. [38]

Conclusion

The above study reveals to us that Islamic family law (al-Qanun al-Ahwal al-Shaksiyyah) plays an important role in imposing the parent to fulfill the rights of the children most notably the rights of rada‘ (suckling), hadanah (custody) and khitan (circumcision), which play an important role in preserving the health and the well-being of children. In regard to male circumcision, which is, no doubt, an important means to prevent people from sexually transmitted diseases (STDs) in general and AIDS in particular, Islamic family law takes reasonable and preventive measure by suggesting that male circumcision should be performed as early as possible, as commanded by Prophet Muhammad (s.a.w) that khitan should be performed simultaneously with the ‘aqiqah of child. This command can be considered as preventive measure because the performance of circumcision before puberty would be the most suitable and effective measure for reducing HIV transmission since after puberty many young men are likely to become sexually active. Next, findings from this study show that suckling the child by his/her mother, both when the marriage between parents continues and when such marriage ends in divorce, is not only crucial for bodily health, it is also vital for child’s psychological and spiritual health and well-being. Finally, while Islamic family law imposes that providing material necessities is the right of child upon the father, it seriously takes a necessary measure to make sure that this right can be fulfilled. Therefore, according to Islamic family law, when the child is a shapeless fetus in mother’s womb, after 120 days, it regards the fetus, in this condition, as a human being, so that it grants a share and the right of inheritance for the fetus, which will be enforced upon the child’s delivery.