Boy caught up in clash of cultures over adoption

IQBAL SHARIF: Wants the Pakistan-born child to live in New Zealand.

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An Auckland judge will decide the fate of a 16-month-old boy in a clash of cultures over international adoption.

Mohammad Huzaifa was born in Karachi in May last year. Two days later his birth parents gave him to their close friends, Pakistan-born New Zealand citizens Iqbal Sharif and Sara Sami, under an arrangement made before the birth.

The Pakistan Family Court has issued a Certificate of Guardianship, formally recognising the donation. But Immigration New Zealand will not give the child a visa.

Pakistan is governed by Islamic Sharia law, which does not recognise the concept of legal adoption – Mohammad has kept his birth father's name despite being given to the New Zealand couple.

The case's outcome hangs on a couple of words – guardianship versus adoption – and highlights the contrast between the laws of Islamic and secular states.

If the boy's adoptive parents are successful, it will be the first adoption between Pakistan and New Zealand.

Justice Christopher Allan heard the case in the High Court at Auckland yesterday and will give his judgment later.

Mr Sharif, through lawyer Evgeny Orlov, claims his Bill of Rights Act rights have been breached and asked Justice Allan for a declaration against the attorney-general.

In his affidavit, Mr Sharif said he and his wife had been married since 1994. Since then she had suffered several miscarriages and failed IVF treatment.

As their hopes of a child faded, a close friend promised them a child. Two days after he was born, the child was given to the couple and Mrs Sami has since been in Karachi with him, unable to come home. "Our family has been separated since this time and this has caused us an enormous amount of stress."

Mr Orlov told the court that the couple had wanted to "adopt a child from their own Muslim culture so they could bring up the child with its own belief systems and cultural values".

The couple's friends had "performed an act of great grace with considerable beneficial religious significance for them in giving up their child as a gift to their childless friends".

Both sides in the court accept the guardianship was honest and open, did not involve child trafficking, and did not come under the Hague Convention. "The real issue is over a word, and the word is adoption," Mr Orlov said.

Immigration NZ had failed to consider the rights and best interests of the child. New Zealand had "a case of tunnel vision" by not recognising Sharia law's view of a child's identity and guardianship, Mr Orlov said.

If Justice Allan rules that Sharia law on guardianship equates with New Zealand law on adoption, Immigration NZ will need to reconsider its refusal to grant a visa.

A Social Development Ministry spokesman said New Zealand did not have an adoption programme with Pakistan and, "as far as we know, Pakistan does not have adoption legislation".

An overseas guardianship order was not enough to allow Internal Affairs to grant a child New Zealand citizenship.

- © Fairfax NZ News