Book of Foundlings

1. Picking up an abandoned infant is a communal duty (fard kifaya). On the sound view one must call witnesses to the act. Legal guardianship is established only for a person who is legally competent, free, Muslim, upright, and of sound judgment.

2. If a slave takes the child without his master’s permission, the infant is removed from him. Should the master learn of it and approve while the child is still with the slave, or if the slave picked him up with prior permission, the master is deemed the finder.

3. If the finder is a minor, an openly sinful person, someone under legal interdiction, or a non-Muslim who picks up a Muslim child, the infant is taken from him.

4. When two people converge upon the child, the judge entrusts him to whichever of them—or even to someone else—he considers more suitable. If one reaches him first and actually lifts him, the second has no right to dispute his claim. If they pick him up at the same moment and both are qualified, the sound position prefers a wealthy person over a poor one and an upright person over one who is merely outwardly respectable; if they are equal, lots are drawn.

5. A townsman who finds a foundling in a town may not carry him off to the desert. The sounder opinion, however, allows him to move the child to another town, and a stranger who finds him in a town may take him back to his own town. If the child is found in the desert, the finder may transfer him to a town. If a bedouin finds him in a town, he is treated like a townsman; if he finds him in the desert, the child is left in his care—though another view states that if the tribe is constantly on the move seeking pasture, the child is not left with them.

6. The child’s maintenance is met out of his own property: first, from any general estate such as an endowment set aside for foundlings, and second, from property that belongs exclusively to him, including the clothes wrapped around him, the bedding beneath him, whatever coins are in his pocket, his cradle, and any gold dinars scattered above or below him. If those dinars are found inside a house, they belong to him. He has no claim to money buried beneath him, nor—according to the sound view—to clothes or other goods merely placed nearby.

7. If no property of his is known, the preferred view is that his upkeep comes from the public treasury (bayt al-mal). If that is unavailable, the Muslim community provides for him as a loan; another opinion holds that they do so outright as maintenance.

8. On the sound view, the finder alone is entrusted with safeguarding the child’s property, but he may not spend any of it on the child without the judge’s express permission.