Ghali Fairuzy Windiansyah

1406640291
Annisa Lintang J.
14066402663
KKI 2014
TOPIC 3
The Care of Orphans Adoption
A The care of Orphans
The care of orphans are related to the events after one of the childs
parents died or even unfound-missing, which the child are left as a minor, in
this topic we would doubt that Who will take care of the children when one
of the parents died or both of the parents died?, Which it is known that If
one of the parents died then the mother or father of the child that still lives is
the one who is burdened the obligation to take care of that child.
As I said the types of adat communities is really important in the law of
relationship, thus the care of orphans in Bilateral, Patrilineal and Matrilineal
will all have different touch to it.
In Bilateral system, when both parents died, the care of orphans will
be done to the nearest relatives / closest that is fully capable to take care of
the child until he/she grows to an adult / considered kuat gawe.
In Patrilineal system, if the father of the child (minor) dies, the
mother will obviously be burdened the obligation to take care of him but
because the male line heavily influenced in the patrilineal system, thus the
relatives of the childs father is also burdened the obligation to take care of
the child which also even though the mother can still take care of the child,
the child must not go anywhere from the environment of the family of the
fathers child. When the mother wants to marry someone else (to find the
replacement of husband) she may leaves the deceased husbands clan but
the child born out of it still being held by the deceased husbands clan, but if
she wants to continue having a relationship with the deceaseds husband
clan (because the prospect of having the relationship with that clan is good),
she may marry the younger brother which it is the act of levirate (the
purpose of this is because the widow can not stand alone which they rely on
men to provide protection for them and to ensure the survival of the clan). If
the deceased is the mother, the child will automatically fall under the childs
father and the fathers clan until the child is considered kuat gawe.
In Matrilineal, this is the opposite of the the patrilineal system, where
in this system, when the mother is deceased the children will be held by the

mothers clan but the father still may participate in taking care of the child
(the childs interest or livelihood), while if the fathers deceased, the child will
automatically be held by the mother and also the mothers clan until the
child is considered grown up kuat gawe.
In the case where the child is left when he/she is not a minor anymore,
the child may freely choose on which side he/she must be taken care of,
while in case the child can not choose which side they want to be taken care
with, then both of the mothers family / fathers family will choose which one
of them is fully capable to take care of that child.

B. Adoption
Adoption is done in the adat communities, in purpose to ensure the
survival of the clan throughout the future. As I mentioned clan, thus the
Bilateral system, Patrilineal system and Matrilineal system will apply in
respective of them, as how the clan adopts a child is different from each
other (one clan to another). This adoption process is usually takes the event
of making the child out of the clan to become our own clan, in purpose to
proceed with the legacy of the clan.
There are 5 types of adoption in adat communities which are:

Adoption of outsiders into a firmly formed group of

relatives, a sun-clan or lineage

The process of this is that to ensure that the child will be

excommunicated from his/her previous clan and the child will be brought to
the new clan, and fully becomes the member of the new clan. Which the act
of this must be terang infront of the village chief (the legal
functionaries), which considered to be the requirements so that it is
considered to be legal.

Nyentnayang of Bali

This adoption is from within the great traditional clan of relatives called
purusa (purusa means that it is the adoption of a child from the male line /
patriarchal system), another case is that the members of the wifes family
maybe adopted too. The process is that when the main wife has no children,
but the secondary wife does, then the 2nd wifes children of the first wife will
be adopted to the first wife, this is because the status of the child is inferior
(lower) if born from the 2 nd than the child born of the main wife, thus the
child adopted may gain in increase of status and be well known in the clan.
The process also have the same mechanics as the 1 st type (adoption of
outsiders) which we need to separate the child from old clan to the new clan,
then there happens to be an adat payment inform of 1000 kepeng to its

biological mother, the next step is that the man who done this adoption will
announce it publicly and then he process a legal document about it.
As the adopted one is usually a male, incase there are none, the
female will be taken in hope that in future she will produce a male child to
ensure the survival of the clan.

Adoption of nephews and nieces

this adoption is considered to be an internal shift inside the family

group, which contains no payments because the child is taken to the same
clan, thus the family of the child can still see the child (even though their
parental relationship has been broken the tie), it is just a process of removing
a child from his/her original family to the new family of the same clan.
There are several regions like in east java, where if you want to break
the tie of the child from his/her original family, you need to pay rong wang
sagobang (seventeen and one-half cents) to the real parents, while in region
of Minahasan, the payment is called parade. The purpose of this adoption
is to continue the extendeds family line where the causes are possibly
because that family can not obtain a child, or wants to add more helper in
terms of work as in adat the more the members doing a work the faster the
work can be done, or the feeling of empathy to the child. The requirements
of terang happens to occur in this type of adoption, as the process is
witnessed by the chief of the adat.

Childless man adopts a step child (ex: children of a

second wife)

The main requirement of this type of adoption is that the actual father
of the child has been deceased, the child that is adopted is usually a male as
the male is considered to be able to act as the head of the family in the
future and in hope to become the successions of the clan. A girl maybe
adopted too, in purpose so that the adopted male child may marry that girl
(cross-cousin marriage), in case to strengthen the bond of the clan.

Legal act by wish a father obtains the transfer of one or

two of his children from their mothers clan to his own
clan.

The transferred child is usually a fixed payment that is made during

the time of a marriage or the consequences of a later payment, which it is a
cash transaction.

C. Comparing to Islamic Law

The guardian child-relationship has particular tenets under Islamic law,

which render the relationship a bit diverse than what is normal
adoption practice today. The Islamic expression for what is ordinarily called
selection is kafala, which originates from a word that signifies "to feed."
fundamentally, it portrays a greater amount of a foster-guardian relationship.
Then again, the Qur'an gives particular standards about the legal relationship
between a youngster and his/her assenting gang. The tyke's natural family is
never shrouded; their binds to the youngster are never separated.
The Qur'an specifically reminds receptive parents that they are not the
kid's biological parents: Al-Ahzab (Quran 33:4 and 33:5)
(Qs 33:4) states that:
Allah has not made for a man two hearts in his interior. And He has not
made your wives whom you declare unlawful your mothers. And he has not
made your adopted sons your [true] sons. That is [merely] your saying by
your mouths, but Allah says the truth, and He guides to the [right] way.
(Qs 33:5) states that:
Call them by [the names of] their fathers; it is more just in the sight of Allah
. But if you do not know their fathers - then they are [still] your brothers in
religion and those entrusted to you. And there is no blame upon you for that
in which you have erred but [only for] what your hearts intended. And ever is
Allah Forgiving and Merciful.
Which the surah explains that:

An adoptive child holds his or her own particular organic family

name (surname) and does not change his or her name to
coordinate that of the new family.

An adoptive child acquires inheritance from his or her original

parents, not naturally from the new parents.

When the child has grown to be adult, individuals from the

assenting family are not considered blood relatives, and are in
this manner not muhrim (a particular legitimate relationship
that manages marriage and different parts of life to him or her).

If the child is given property/wealth from the original family, new

parents are obliged to take care of the wealth and can not

intermingle with that property/wealth with their own, They only

acts as trustees of the wealth of the adopted child.
We can conclude these Islamic standards are a limitation to the new
family that they are not taking the spot of the original family - they are
trustees and overseers of another person's child. Their part is obviously
characterized, but nevertheless extremely value-able and important.

D. Comparing to National Law

There are regulations about take care of orphans and adoption in
Indonesia which are: Law No. 23 of 2002 on Child Protection, is
supported by Government Regulation No. 54 of 2007, then the following
is furthermore regulated in Regulation of Minister of Social Affairs No.
110 of 2009 on Adoption Requirements.
The regulation says that appropriation must be based on the
benefits of the child, and ought not be cut off blood relationship
between the adopted child and his/her original family.
The
prerequisites for an imminent new parent is must be no less than 30 years
old and a greatest of 55 years of age by a substantial verification of
personality. The couple that whom will receive the child more likely to have
been married for a minimum of 5 years and proved by their marriage
endorsement/certificate. Whenever embracing, expected adopters has not
yet have offspring of their own or as of now have received another kids
furthermore with motivations to have offspring of they're own however can't
manage the cost of one for organic reasons.
Regulation of Minister of Social Affairs No.110 / 2009 on adoption
requirements
Are:
Marriage certificate of husband-wife who has been
legalized in Department of Religious affairs or the
Department of Civil Registration
A copy of birth certificate of husband-wife
Letter of good conduct from the police
Health certificate of husband-wife
Once all of this requirements fulfilled, then the family can adopt a child for
childcare.

MINUTES

Virginia (Group 2)
In Islamic law if the adoptive parent is not taking place in the biological
family, they will act as what in the family?
Qur'an gives specific rules about the legal relationship between a child and
his/her adoptive family. The child's biological family is never hidden; their
ties to the child are never severed.
The Qur'an specifically reminds adoptive parents that they are not the child's
biological parents:
"...Nor has He made your adopted sons your (biological) sons. Such is (only)
your (manner of) speech by your mouths. But Allah tells (you) the Truth, and
He shows the (right) Way. Call them by (the names of) their fathers; that is
juster in the sight of Allah. But if you know not their father's (names, call
them) your brothers in faith, or your trustees. But there is no blame on you if
you make a mistake therein. (What counts is) the intention of your hearts.
And Allah is Oft-Returning, Most Merciful." (Qur'an 33:4-5). In Islamic law,
adoptive parents is not taking the place of the biological family,
they are merely as a trustees and caretakers of the adoptive child.
Adoptive parents are commanded to take care and not interfere the interest
of the adoptive child like their property/wealth. They serve merely as
trustees.
Raymond (Group 1)
Theres family with unilateral system if parents die who will take care of the
children and inherit?
Gianna (Group 6)
In Nyedanayang, if the head wife has no children and the second wife has
children, why the first wife should adopt child of the second wife?
In Bali when the head wife of the man is infertile, then he marry a second
wife, then he and second wife has children. But the head wife is from the
respectable family, not only has good relation but also has old alliance
between the clans. Thats why the husband is not divorce the head wife, the
head wife should be retain.
So the solution is to adopt the second wifes child, it is to make the head wife
has successor, so that the husbands and wifes line remain in the big family.
Deniza (Group 5)

In the case that there is childless man want to marry a widow with her child,
it needs a ceremony, why it should be like that?
Ceremony has to be made because it should be fulfill the religion
magus element. The ceremony is to announce that the man has the
responsibility towards the child and the wife, it also increase the social status
of the husband. Other than that ceremony should be occur because taking
someone from other class is a big thing, so it is need ceremony to declare
that those child is now belong to new clan and become the responsibility of
the husband.