Religion and the Law

Canada Apparently Banned Adoptions from Muslim Countries, Based on Its Own Interpretation of Sharia

And this included adoptions that the relevant Muslim country's courts had specifically authorized.

|The Volokh Conspiracy |

So reports the Canadian Broadcasting Corporation (Shanifa Nasser):

Adopting from Pakistan isn't straightforward. Like Canada, the country's laws are based on the British system. But they also draw from Islamic tradition, which generally holds that a child's biological ties must never be severed….

Pakistan has no official adoption law. But to provide a chance at a new life for the tens of thousands of orphaned or abandoned children there, the courts can grant permission to a guardian to take a child abroad for adoption — as they did for Imran [the child discussed in the CBC story].

It was the same for Canadian parents until 2013, when the federal government abruptly closed the door, leaving the lives of more than 50 families on hold.

According to the federal government at the time, continuing with adoptions from Pakistan violated Canada's commitment to the Hague Convention on international adoption. Under the convention, it argued, it could only process adoptions where a parent-child relationship was created in the child's home country — something it argued was impossible under Shariah law.

That's a view not shared by the United States and United Kingdom, which are also Hague Convention members. Both countries allow citizens who have been approved for adoptions to bring their child home through a Pakistan court order. Back at home, the adoption process is finalized under domestic laws….

Pakistan's [embassy] in Ottawa … said Canada's claim that Pakistan doesn't allow for adoptions is simply false.

"We believe that the ban from the Canadian government is unjustified," commission press minister Nadeem Kiani said in an interview. "Citizens of Canada should be allowed to adopt children from Pakistan."

If you're interested, read the whole story, which offers many more details, including that "Canada quietly extended the same restriction to virtually all Muslim countries." My tentative sense (recognizing of course that I'm an American who specializes in American law, not a Canadian who specializes in Canadian law): It seems quite reasonable for a country to insist that international adoptions are consistent with both its own law and the other country's law. But the story describes a situation where the Canadian government relied on its own understanding of Sharia, rather than on what the Pakistani legal system actually provides; that strikes me as hard to justify. (Thanks to InstaPundit for the pointer.)

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  1. And this is from a very progressive liberal government. Why has not the US democrats/liberal/progressive not said anything about this.

    1. It apparently started in 2013 under a Conservative government (though I’m not sure how conservative it was by American standards), though it has continued under the Liberals. And I’m not sure that Americans on either side of the line are obligated to speak out about this — I think it’s bad, but it’s not the sort of atrocity that demands outraged foreign response — though I obviously think it’s good to do so.

      1. Good to speak out about this stray Canadian Muslim angle, but not so much when an American president prominently contends that ‘Democrats let in’ an immigrant turned obnoxious killer, then it turns out the killer entered the United States during the Bush administration and the killer had been released from custody by Sheriff Joe.

        Carry on, Conspirators.

  2. In this narrow case it would seem reasonable for Canada to defer to Pakistan’s more liberal interpretation of what’s allowable under Sharia law but there’s the more general issue of how to determine what’s in the best interests of a child and how to do so in accordance – or for that matter, in defiance – of international agreements and societal customs/norms.

  3. After acquiring some expertise by consulting the relevant Wikipedia article, I’ve concluded that the Hague Convention on Adoption is supposed to prevent children from being sold on Craigslist or whatever, and having a central authority in each country to make sure that an proposed adoption of that country’s kids is legal.

    I’m not exactly in love with the term “central authority,” but I guess the relevance here is that if Pakistan signs off on an adoption, the only remaining question is whether Canadian domestic law permits it, with regard presumably to the child’s interests and not sharia or whatever.

  4. The idea that a perceived violation of the Hague Convention is at the root of this may be a misunderstanding on the part of the reporter. The Convention controls adoptions when both countries are convention members, but has no effect on adoptions to or from non-members. Pakistan is not a member, so the only reason to bring up the Convention in this scenario would be to observe that it doesn’t apply.

    1. It seems the misunderstanding I attributed to the reporter was actually made by the government of Canada.:

      Pakistani law allows for guardianship of children, but does not recognize our concept of adoption. Proceeding with further such placements would violate Canada’s obligations under The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.

      It does help clarify a bit, in that

      1. The issue isn’t whether Pakistan permits foreign adoptions, but whether it recognizes them.
      2. Article 23 of the Convention does require that a conforming adoption “shall be recognised by operation of law in the other Contracting States”, and in article 26 specifies that this “includes recognition of a) the legal parent-child relationship between the child and his or her adoptive parents; ”
      3. That provision avoids ambiguity about the status of the child and the rights of the parents, and I see no problem with Canada thinking it’s a good idea and choosing to demand the same treatment by non-member States, but
      4. Their claim that “the Hague Convention made me do it” is not supportable.

    2. Whether Pakistan is a member of the Hague Convention is irrelevant. Canada is. Therefore, Canada is bound by the constraints of that treaty. The wording of that treaty talks about validity of an adoption under the home country’s rules. There is nothing in that wording that restricts the home countries to other Hague Convention members.

      In other words, it’s a unliateral clause, not a bilateral clause.

      1. Rossami, I can find Article 2 which says

        (1) The Convention shall apply where a child habitually resident in one Contracting State (“the State of origin”) has been, is being, or is to be moved to another Contracting State (“the receiving State”) either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.

        and the article 23 text I quoted earlier that is limited to “other Contracting States”, but I can’t find the unilateral clause you refer to, can you point me to it particularly?

        1. I stand corrected. I misread the Convention’s definition of “Contracting State”.

          1. That said, it appears that Pakistan is a member of the Hague Convention, at least for some of the conventions. That might have been enough for the Canadian court to determine that they counted as a “Contracting State” for the adoption convention as well.

  5. Canada’s interpretation of Shari’a law is correct. Strictly speaking, there is no such thing as adoption in Islamic law. What Shari’a provides for is very close to, if not identical to, guardianship in Anglo-American law. For example, an “adopted” child does not inherit as a son or daughter in Shari’a law. I don’t know whether Pakistani law follows Shari’a in this respect, but even if it does, I don’t see that Canada would be violating an adoptive child’s rights by making that child a full, legal child rather than merely a ward since the principal effect would be to give the child a potential inheritance that he or she would not be eligible for under Shari’a. Moreover, the same situation arises with adults. The Canadian children of an adult Muslim who immigrates to Canada will inherit under Canadian law, not under Shari’a law.

  6. Pakistan has one of the worst governments in the world, based on Canadian values. Just because some corrupt Third World country is willing to go along with a stupid baby selling scam, that does not mean that Canada has to go along with it.

    Canada is wise to reject these foolish adoptions.

    Saying that Canada has to accept the Pakistan government’s opinion is an extreme anti-Canada view. Canada is a sovreign nation, with its own legal system, and does not have to accept what Pakistan says.

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