By Zaynab El Bernoussi
Last year, the Tangiers First Instance Family Court allowed for DNA tests to be admitted into evidence in family law cases. The plaintiff was a mother who wanted to prove the paternity (bunuwwa) and lineage (nasab) of her daughter born out of wedlock. The case illustrates how, as medical science advances, international law and conventions may interact with domestic, Islamic constitutional law.
Last year, the Tangiers First Instance Family Court allowed for DNA tests to be admitted into evidence in family law cases. The plaintiff was a mother who wanted to prove the paternity (bunuwwa) and lineage (nasab) of her daughter born out of wedlock. Paternity, generally, defines the legal relationship between a father and his biological or adopted children. Recognition of paternity can give access to recognition of lineage, inheritance rights, and child custody and support. Lineage, on the other hand, is relevant to the legitimacy of the relationship between a father and his children and would give to the children, as a result, rights to the putative father’s title, names, and surnames. In the plaintiff’s paternity suit, she sought child support in the amount of an estimated 2,000 Moroccan dirhams (MAD), which is the equivalent of 210 USD, to cover the period since the child’s birth on November 27, 2014 until the time of the suit. Ultimately, the Court dismissed the child support claim, given that paternity had not been established.
The common judicial practice in Morocco is to reject recognition of paternity outside of wedlock because classical Islamic law’s recognition of paternity requires courts to give the child the father’s family name and rights to inheritance. However, in a historic move, the Tangiers First Instance Family Court recognized the familial relationship (“kinship” or “lineage”) that connects the biological father to his biological daughter without recognizing his paternity. Kinship is the recognition of a tie between the child and the adult without assigning the parental responsibilities that come with recognizing paternity. Kinship applies, in general, to blood relations between any two people, such as a parent and child or two siblings. In the United States, proof of paternity can determine heirs when there is no written will. In Morocco, however, recognizing paternity outside of wedlock was relatively unheard of due to the common practice of considering kinship in conjunction with lineage and the associated rights to title, names, and surnames. In this case, the Moroccan court did not make a paternity determination, but recognized the lineage between the father and child and required the father to bear some financial responsibility because of this basic relationship. Accordingly, the Court ordered the father to pay 100,000 MAD (10,500 USD) to the child through her mother for the material and moral harms caused, based on Chapter 3, Article 77 of the Code of Obligations and Contracts. The judge relied on Article 32 of the Constitution, which establishes equal juridical protection to all children regardless of their familial status, to support the ruling. The judge stated, however, that even if lineage is proven, the legal relationship between the father and the child cannot be recognized based on Article 148 of the Personal Status Code (the Mudawwana). Article 148 rejects paternity determinations for children conceived out of wedlock in favor of the legal canon stating “the child belongs to the marriage bed,” that is, that paternity goes only to children born from a legal union recognized in Islamic law. In this way the first instance judge drew a distinction between biological kinship and lineage, two concepts that were treated as inseparable in practice. By doing so, the Court demonstrated principles of ijtihād (judicial reasoning), as encouraged by the Mudawwana itself, even if the judge did not refer to this legal tool by name. Although classical Islamic law indeed dictates that in the case of a child born out of wedlock the child has no access to any of the rights bequeathed by a legal relationship to his or her father, this is in violation of the Moroccan constitutional principle of defending the rights of children. The first instance judge’s ijtihād here allowed the Court to defend some of the child’s rights in accordance with the Moroccan constitution without violating Islamic law.
International law played a significant role in this decision. In reaching its conclusion, the Court cited the European Convention on the Exercise of Children’s Rights and the United Nations Convention on the Rights of the Child, both of which have been ratified by Morocco. The Court stressed the primacy of international conventions ratified by Morocco over domestic law, which is key in contexts such as this, where sexual intercourse outside of wedlock is criminalized and thus challenges the legitimacy of the plaintiff’s case.
There is some limitation on placing international conventions above domestic law. The Moroccan constitutional provision that establishes that hierarchy, found in the preamble, must also respect “national identity.” This means that in cases of conflict with so-called national identity, domestic law prevails. Moroccan legislation on Islamic law supports this exception. For example, Morocco recognizes a principle of equality between men and women in both the Constitution and international conventions it has ratified but upholds the Islamic system of inheritance that differentiates between inheritance shares based on gender.
On October 9, 2017, the Court of Appeals in Tangiers reversed the First Instance decision. The appeals court denied the merits (sawāb) of the case and declared it void (fasād) due to the bad faith actions of both the plaintiff and the defendant (by virtue of their relations), concluding that liability could not be attached to one party. Because the case had been brought by the mother, the Court instructed her to pay all court fees. While conceding that Morocco had signed international conventions on children’s rights, the Court stressed that Morocco had not signed the European Convention on the Legal Status of Children Born out of Wedlock, which could have presented a stronger case of an international convention in support of the lower court opinion. Instead, the appeals court cited sunna (prophetic tradition) in support of its finding. Anchoring the discussion in Islamic law as the primary source of the Moroccan Family Code, the Court cited the reported saying from the Prophet Muhammad (a ḥadīth and legal canon) that “the child belongs to the marriage bed and the adulterer receives the stone” (al-Bukhārī, 6818, and Muslim, 1458). The Court also used a quote from the eleventh-century Andalusian jurist Ibn Hazm that discussed denying any rights to a child born from zinā (extramarital sex): “The child born from extramarital sex cannot be linked to his father. He does not inherit from his father and the father does not inherit from the child. The child had no rights on the father, no claims on pension, no claims on prohibitions or any other right. He is a stranger to him.” Further citing Ibn Ḥazm, the Court added that the child is legally so foreign to her father that their marriage is not prohibited. Finally, the Court cited Article 148 of the Mudawwana, as had the lower court, to stress that the illegal coupling had no legal effect that would result in granting rights to the child.
So why is this case worth following? First, the lower court ruling of January 30, 2017 accepted DNA tests to prove kinship, and ordered the biological father to pay a fine; this was a historic first in Morocco. Judges in Islamic courts are tasked with adapting state laws within Islamic contexts, which often complicates the application of laws in judicial systems in Muslim majority states. Such courts usually avoid using DNA tests to prove paternity because they can contradict the primacy of marriage as the source of marital and inheritance rights. Second, the appeals court’s analysis and its strict reading of pre-modern authorities is symptomatic of gender issues in Muslim majority countries, where such strict readings disproportionately punish women. For example, in Morocco, no law prohibits women from becoming elected leaders. Therefore, the possibility of a female prime minister is not to be ruled out. However, if courts relied solely on the traditional sunna tradition, it would potentially be possible to sue a future Moroccan female prime minister on the basis of a quotation from the first caliph Abu Bakr against female leaders. In this theoretical scenario, a case could be brought in court to challenge the permissibility of a female leader based on a report in which women are presented as incapable of successful leadership. If this happens, such a ruling would violate the Constitution and international conventions on human rights signed by Morocco.
The Court of Appeals ruling was appealed to the Tangiers Court of Cassation. Insaf, a local NGO founded in 1999 that fights for the rights of women and children, launched a petition in support of the plaintiff. The petition will be submitted to the head of the government, members of the two legislative chambers, and to political parties. Additionally, many people are discussing the case online. When the historic ruling in favor of the mother came out, some Moroccan magistrates expressed skepticism about the ruling and expected it to be overruled; others thought it was audacious and applauded it. There was a similar divide among people in online social networks.
The hope among those concerned with the protection of women and children is that this case will stir a historic debate over paternal accountability, gender parity, and children’s rights. Insaf estimates that every year in Morocco 30,000 children are born out of wedlock and most of them are not recognized by their biological fathers. Aïcha Chenna, a famous social activist in Morocco, has fought for over three decades for the social integration of single mothers despite much public shaming that such actions support fornication (zinā) and other bad acts (fasād). But even if sexual intercourse out of wedlock has been criminalized in classical Islamic law, it is not criminalized in Moroccan law and is a regular enough practice to give rise to cases like this one. Sex is practiced privately, so whether the state may intervene to determine the legality of relationships remains in question. Under Article 3 of the Constitution, Islam is designated as the state religion but it is unclear to what extent the state should become an instrument of normalizing and enforcing Islamic law.
Another problem arising from prosecuting zinā relates to children born out of wedlock who suffer marginalization in society. These children are not given full constitutional rights or state protection, which creates inconsistencies in the law whenever the state is seen as their protector. The Tangiers Court of Appeals should have further pondered the best interests of the child, in which case it might have concluded that recognition of kinship would (at least) limit some of the social marginalization and ensure some of her rights. Article 32 of the Constitution promises equal judicial protection and equal social and moral consideration to all children. That standard has been violated by the Tangiers Court of Appeals.
There are many policy reasons to support recognition of paternity outside of wedlock. Recognition of kinship and levying of fines paid to the child would discourage careless behavior and hold biological fathers accountable for their actions. As stressed by the appeals court, the couple’s underlying act was deemed consensual, but the outcome is disproportionately borne by mothers if courts refuse to accept DNA tests to prove paternity or kinship. As of now, there is a double illegality that is left in this case: that of the so-called nature of the relationship between the parents, and that of denying a Moroccan child her right to moral and material protection by the state, as guaranteed by Article 32 of the Constitution. A court ruling in favor of the child would solve, at least partially, the latter.
There is also an important gender dimension to this case. Since the adoption of the first Constitution of independent Morocco in 1962 and the most recent one of 2011, women and men are to have the same rights. In this case of so-called zinā, the Court of Appeals claimed that both parents were punishable, even though the woman was ordered to pay all court fees. While courts may want to discourage frivolous claims, the important considerations here are the stakes, and that the mother brought a case to defend the rights of a child. She disproportionately suffers the cost of bearing a child from an illegal union. The biological father, by contrast, can be completely immune from sharing such costs because he can more easily deny fatherhood without DNA testing accepted as part of Islamic legal considerations when proving kinship outside of wedlock.
The Tangiers Court of Appeals used Article 148 of the Mudawwana to strip the child of any rights. It moreover discounted the use of judicial reasoning, as encouraged by the Mudawwana, which might have avoided that outcome in this case. To be sure, both courts in this case recognized the primacy of international conventions over domestic law in the 2011 Constitution—which is a step towards supporting judicial reasoning. But neither court referred to Article 34 of the Constitution, which recognizes the vulnerability of certain groups in society including mothers.
The hope now is that the next judicial examination on this case will not discount these principles. Moreover, with the increasing use of DNA testing worldwide, it becomes only fair to use this technology to identify paternity, whether it is to clearly state the illegality of such relationships (as claimed by the appeals court) or, more importantly, to prove paternity and kinship as well as to protect the rights of children.
 In or about 2014, the plaintiff and the defendant had a sexual relationship. They were not married. The plaintiff became pregnant. In or about 2014, the plaintiff gave birth to a daughter. According to Moroccan law, this daughter is illegitimate as a child of zinā (unlawful sexual relations). Being a child of zinā, the child will not take the lineage and kinship of the father. The child would take the mother’s name and be only entitled to inherit from maternal line.
 Abdelali El Hourri, “Reconnaissance d’une enfant ‘illégitime’: les motifs derrière l’annulation d’un jugement historique,” Medias24, October 18, 2017, https://www.medias24.com/MAROC/DROIT/177405-Reconnaissance-d-une-enfant-illegitime-les-motifs-derriere-l-annulation-d-un-jugement-historique.html.
 Abdelali El Hourri, “A Tanger, un jugement historique en matière de droit de la famille,” Medias24, February 21, 2017, https://www.medias24.com/MAROC/DROIT/171087-A-Tanger-un-jugement-historique-en-matiere-de-droit-de-la-famille.html.
 Baudouin Dupret, ed., La Charia aujourd’hui: Usages de la référence au droit islamique (Paris: La Découverte, 2014).
 Ayman Shabana, “Paternity between Law and Biology: The Reconstruction of the Islamic Law of Paternity in the Wake of DNA Testing,” Zygon: Journal of Religion and Science 47, no. 1 (2012): 214–239; Zaynab El Bernoussi and Baudouin Dupret, “Bioethics in Egypt,” in Oxford Islamic Studies Online, http://www.oxfordislamicstudies.com/article/opr/t343/e0248.
 Fatima Mernissi, Women and Islam: An Historical and Theological Inquiry (Oxford: Blackwell, 1991).
 Special thanks to Abdelali El Hourri from Medias24 for his help in gathering details about the case.
 The Minister of Solidarity, Equality, Family and Social Development, Bassima Hakkaoui, the only woman minister in the current cabinet, has recently supported the use of DNA tests to prove the biological link between a child and the conceiver. This has not led to a legislative move yet, but it could do so, particularly given that Minister Hakkaoui is from the ruling Islamist Justice and Development Party (PJD). She also stated the importance of state protection for all children regardless of their family status.