By Soeren Kern
February 20, 2013
To the extent that European lawmakers are willing to graft Islamic legal principles onto Europe's secular legal codes, Islamic Sharia law could easily become a permanent reality in Spain and across the continent.
Spain has acceded to the demands of the Islamist government in Morocco by agreeing that Moroccan children adopted by Spanish families must remain culturally and religiously Muslim.
The agreement obliges the Spanish government to establish a "control mechanism" that would enable Moroccan religious authorities to monitor the children until they reach the age of 18 to ensure they have not converted to Christianity.
The requirement, which will be enshrined in Spain's legal code, represents an unprecedented encroachment of Islamic Sharia law within Spanish jurisprudence. The move also represents a frontal assault on the freedom of religion or belief, which is protected by Article 16 of the Spanish Constitution.
Spanish Justice Minister Alberto Ruiz-Gallardón said on February 17 that he had agreed to the demands of his Moroccan counterpart, the Islamist Mustafa Ramid, so that Spanish families who have been assigned Moroccan orphans can bring the children to Spain.
Adopting children in Morocco has always been problematic. But the procedure became vastly more complicated in 2012, when Morocco's newly elected Islamist government announced measures to prevent non-Muslim foreigners from adopting Moroccan children.
According to the Casablanca-based NGO Feminine Solidarity Association (ASF), Morocco has an alarmingly high rate of child abandonment; an average of 24 children are abandoned every day (or around 8,700 every year) throughout the country. (ASF says many children are abandoned because of Article 490 of the Moroccan Penal Code, which stipulates one year in prison for anyone found guilty of having sexual relations outside of marriage.)
Statistically, the future for Moroccan orphans is bleak. A consortium of six NGOs reports that 80% of the children who grow up in Moroccan orphanages become delinquents, and 10% end up committing suicide. Only 10% become productive members of society.
Because of its geographic proximity, Spain has emerged as a key destination for Moroccan orphans. In 2011, the year before the Islamist government intervened to freeze the adoption process, 254 Moroccan children were assigned to Spanish families.
The Western concept of adoption -- by which an adopted child becomes the true child of the adoptive parents -- has never existed in Morocco (nor in most other Muslim countries).
Instead, Islamic law governs adoption through a system called "Kafala," a legal guardianship which allows a non-Muslim person to assume responsibility for the protection, education and maintenance of an abandoned child, but which prohibits a non-Muslim from formally adopting or assuming custody of that child.
According to Kafala, the "adopted" child must keep the name and surname of his biological parents. Moreover, the child must remain Muslim and must maintain the nationality of his or her birth. In effect, non-Muslim guardians are prohibited from establishing a full parental relationship with the child, as would be the case with adoption.
On September 19, 2012, Moroccan Justice Minister Mustafa Ramid issued a circular prohibiting the transfer of Moroccan children to foreigners "if they are not habitually resident in Morocco." He argued that once children leave the country, it is impossible to verify whether the Kafala is being respected and the children are being raised as Muslims.
The new stipulation affects at least 58 Spanish families who were assigned Moroccan children before the Islamist government took office in November 2011.
In order to comply with the new requirements, some Spaniards have quit their jobs and/or sold their homes and moved to Morocco to obtain residency there. But many have discovered that the mere possession of a Moroccan residence permit does not guarantee that non-Muslim adoptive parents can someday take their children to Spain.
Susana Ramos, for example, an adoptive parent from Madrid, was assigned an abandoned baby more than one year ago by the Moroccan League for Child Welfare, a public institution in charge of orphans. Since then, she has made 23 trips to Morocco, but still has been unable to take the child to Spain.
In at least a dozen other cases, Spaniards have converted to Islam in order to obtain custody over "their" children, especially if they are girls.
Seeking to end the "humanitarian drama," Spanish Justice Minister Alberto Ruiz-Gallardón announced that he would give in to Moroccan demands and amend Spain's Law Concerning International Adoption, dated December 2007, in order to bring Spanish law into conformity with Islamic law.
The legal changes, which are set to take effect in 2013, would "constrain" the rights of Spanish adoptive parents by obligating them to fully comply with the Kafala until the children reach adulthood.
In practical terms, this means that Spaniards who adopt Moroccan children would forfeit their right to use the Spanish court system to try to obtain "full adoption" of the child under Spanish law. In the past, some Spanish families have successfully used this legal route "to ensure the well-being" of their adopted Moroccan children, by gaining for them the same rights as Spanish children.
It remains unclear whether Ruiz-Gallardón's "appeasement strategy" will placate the Islamists in Morocco, who are insisting that the legal measures be retroactive and apply to all Moroccan children who have ever been adopted by Spanish parents.
Moroccan authorities are also demanding that Spanish parents travel to Morocco once a year so that Islamic religious authorities there can verify full compliance with the Kafala.
In December 2012, a group of 40 families (mostly Spanish, but also American, Canadian, French and Swiss) sent an emotional letter to Moroccan King Mohamed VI, requesting that he intercede with the Islamists who are running the country.
But the letter seems to have backfired by infuriating many of those who sympathize with the Islamists.
This would include the Barcelona-based Friends of Morocco Association (ITRAN), which has helped Spanish families with the adoption process in Morocco. In a tersely worded statement dated January 25, 2013, ITRAN said the decision to circumvent the status quo by contacting the Moroccan King directly was "undeniably a grave and intolerable lack of respect" for the Kafala.
Members of ITRAN said they were angry that some Moroccan children in Spain had been "baptized into the Christian faith," and that from now on the group would help only those who sign a statement promising "a sincere and unequivocal commitment to meet each and every one of the obligations that the law of Kafala imposes."
The Islamists in Morocco have also remained uncompromising. In a recent interview with the online newspaper Europa Press, Moroccan Foreign Minister Saaedín el Otmani advised the families in question to resolve their cases directly through Morocco's notoriously inefficient court system. He said they should provide "proof" that they can "guarantee" full compliance with the Kafala.
This will not be easy. In the Moroccan city of Agadir, for instance, an Islamist judge recently suspended the adoption proceedings of several Spanish families. He ordered the future guardians first to pass a theological exam to demonstrate that they have sufficient knowledge of Islam in order to be able to educate the children as Muslims.
As for Ruiz-Gallardón, he may be looking to neighbouring France for guidance on how to deal with the Kafala issue. The French Civil Code explicitly recognizes the Kafala as having precedence over French law in all cases involving children born to Muslim parents outside of France, in the interests of "cultural pluralism."
The law was recently challenged in court by a French citizen living in Villeurbanne (Lyon), after French authorities prohibited the woman from adopting a child who was abandoned at birth in Algeria.
In October 2012, the European Court of Human Rights (ECHR) unanimously upheld the French decision. It ruled that the refusal to let the applicant adopt was based on the French Civil Code, but also, to a large extent, on compliance with international treaties, particularly the United Nations Convention on the Rights of the Child, dated November 1989, which explicitly refers to the Islamic Kafala as "alternative care" on a par with adoption.
The ECHR considered that the fact that the Kafala was acknowledged in international law was a decisive factor when assessing how European countries accommodated it in their domestic law and dealt with any conflicts that arose.
Back in Spain, Ruiz-Gallardón's decision to make Spanish law comply with Islamic Sharia law has generated controversy. But it remains to be seen if any lawsuits emerge to challenge what some are calling the "Islamisation" of Spanish jurisprudence.
Either way, to the extent that European lawmakers are willing to graft Islamic legal principles onto Europe's secular legal codes, Islamic Sharia law could easily become a permanent reality in Spain and across the continent.
Soeren Kern is a Senior Fellow at the New York-based Gatestone Institute. He is also Senior Fellow for European Politics at the Madrid-based Grupo de Estudios Estratégicos / Strategic Studies Group.