THE Court of Appeal recently announced that a Muslim child conceived out of wedlock can use his biological father’s name as his surname.
Fraught with contentious views over how an illegitimate child should be named according to syariah law and its interpretations, the decision came across as a bold landmark ruling, turning the corner in favour of innocent children, who are often forced to endure the consequences of their parents’ mistakes.
The prevailing practice of birth registration adopted to comply with the fatwa ruling says a child born illegitimately, including one born less than six months after its parents’ marriage, cannot bear the surname of the father, even if the father acknowledges that the child is his.
What would appear in the column for the father’s information is “Tiada maklumat” (No information), and the child is to take “Abdullah” in lieu of his father’s name.
Officially and openly recognised illegitimate and affiliated with “Abdullah” or simply a blank space where one’s father’s name should appear could tantamount to a lifetime rejection, discrimination and condemnation for these children.
Yet, reactions from the comments on the court’s decision by some Muslim scholars conveyed the message that the implications of the rulings on the lives of these children are a non-issue.
One of the responses from the readers that these children should not feel humiliated because they are not to blame simply hides the story of moral and social exclusion and discrimination.
The social stigma attached to being labelled anak luar nikah or anak haram, and its legal recognition through the child’s name could be unbearable for the women and their families.
The rising number of abandoned babies should trigger a reflection over whether our treatment of this issue is contributing towards baby dumping, instead of deterring promiscuity and other misconduct.
Through no fault of their own, these children are deprived of a father’s care and support, and in other cases, are given away for adoption.
While the Islamic hukum or rules on lineage, inheritance and marriage custodianship involving children born out of wedlock are to be observed, we cannot turn a blind eye to the matter.
Preservation of one’s dignity and non-discrimination are basic Islamic tenets that must be preserved and upheld.
Legal technicalities aside, let us not lose sight of the “guardrail” in any decision affecting a child — the child’s best interests must always be the guiding principle.
This embodies the very essence of the concept of justice and fairness that underlies religious and social values, including those of Islam and Muslims.
Regardless of one’s faith or the social norms, it can never be fair or be in the best interests of a child when it is discriminated against.
As Muslims, we have been reminded by our Prophet in one of his sayings to “Fear God and treat your child fairly” (Sahih Bukhari and Muslim). Above all, the Quran provides explicitly that “no bearer of burden will bear the burden of another” (35:18).
During fieldwork in East Malaysia recently, some of my respondents said they would rather that the births of their children were unregistered than be forced to accept the name “Abdullah” as their children’s surname.
Such a preference is due to the stigma associated with illegitimacy that leaves children born out of wedlock with no proof of connection to their parents or country of birth.
The parties involved should not treat this issue as a zero-sum legal battle between syariah and civil courts. Instead, the authorities and other stakeholders should explore effective measures in light of the core Islamic values of justice without sidestepping the applicable Islamic rulings on this subject.
One proposal is for the National Registration Department to create a register of birth records that keeps confidential sensitive information such as the fact that a child was born out of wedlock. This information, for purposes of ensuring that the limits placed by the relevant Islamic rules on lineage, inheritance and marriage are observed, should be shared only with the relevant authorities and agencies.
Dr. Rodziana Mohamed Razali
Universiti Sains Islam Malaysia