Legislating for the Benefit of Children Born Out of Wedlock

Abstract

This paper juxtaposes bioethical debates with legal developments concerning children born out of wedlock in Jordan, Egypt, and Tunisia; it seeks to demonstrate the relevance of national contexts for the study of Islamic bioethics. Debates about the import of genetic testing on Islamic notions of lineage and paternity could have an immediate and concrete impact on children whose parents were not married. Following a brief sketch of Islamic lineage rules, this paper traces their entanglement in national contexts through the regulation of citizenship, constitutional references, and laws of personal status, before it lays out the conflicting implications of an equal rights based statutory and international law on the one side, and shariatic lineage rules on the other. A legislative comparison shows that Egypt, Jordan, and Tunisia have used diverging strategies to manage – although not resolve – this inherent friction, which has already resulted in different legal situations for children born out of wedlock. I argue that the little consideration transnational fiqh councils have given to national and statutory differences complicates the transnational and normative aspects of Islamic bioethics. It speaks of the uneasy situation of Islamic jurisprudence in a political and legal context dominated by nation states and, I would argue, will influence the development of a burgeoning field.