Most countries in the Islamic world prohibit adoption by determining that the legal link of affiliation can have only a biological origin. Therefore, the figure of “kafala” was established, which implies a commitment to take charge of the protection, education and maintenance of an abandoned child, but does not confer the right to affiliation or succession.
Until seven years ago, the regime of adoptions of Moroccan children by Spanish families has worked fluently: Spanish families with children adopted in Morocco welcomed this legal structure, kafala, and once in Spain, they asked judges for final adoption, which was granted to them in the best interests of the child.
In 2011 an Islamist government came to power in Morocco and in Spain, a government of the popular party. These political coincidences hindered the situation of Spanish families who were at the time in the process of undertaking adoptions in Morocco. The Moroccan authorities increased their demands on Muslim religion and affiliation, and some judges have come to impose examinations of Muslim theology on adoptive parents. The adoption process was thus more or less paralyzed. These changes have surprised dozens of Spanish families with completed adoption processes, but with children still on Moroccan territory.
Former Spanish Minister of Justice Alberto Ruiz-Gallardón informed his Moroccan counterpart, Mustafá Ramid, of Spain’s willingness to adapt its 2007 International Adoption Law to kafala. That in practice it would mean that children will be tutored in Islam until they turn 18; Morocco would exercise its right to supervise the education of children and parents will have to travel at least once a year to Morocco to be accountable to the Moroccan authorities for the upbringing of their children, and children would remain Moroccan nationals until they turn 18.
The adaptation of the law that Mr Gallardón offers to the Moroccan minister violates the fundamental right to religious freedom recognized by article 16 of the Constitution and the fundamental right of families to educate their children according to their moral and religious convictions, recognized by article 27.3 of the same Constitution.
This reform, undertaken in silence and haste, is likely to harm the interests of abandoned minors who have been placed in “kafala” since these minors have lost any link of affiliation in their country of origin with their biological parents, will remain in Spain as second-class children, and will never be legally integrated into the family of those who are effectively their parents.