Legislation on Determining the Parentage of a Born-Out-of-Wedlock Child Based on the Perspectives of the Best Interest of Child and Progressive Fiqh

Abstract

This study aimed to reveal the phenomenon of formal legal law that contrasts with the principles of justice for children, the best interest of child, and progressive Islamic jurisprudence (fiqh). The high number of applications for legitimation and determination of children in the juridical area and the relative competence of the City-Regency Religious Courts indicate the high number of children who have not received recognition, status, and identity from both their parents and biological fathers. This condition causes the civil rights of children to be taken away from both parents and biological fathers. The Religious Courts, which have absolute competence in deciding cases, have not been able to fully grant all applications for the determination of children that have juridical implications for the civil rights of children. A qualitative study, based on a case study model, intellectual anxiety, and the awakening of the authors' sense of humanity, inspired the struggle for the rights of children born out of wedlock in the perspective of the best interest of child and progressive fiqh. This comprehensive study found that the legislative decisions and the juridical implications of determining the status of born-out-of-wedlock children at the Religious Courts of the Mojokerto Regency, the Malang Regency, and Surabaya City, based on the perspectives of the best interest of child and progressive fiqh, gave rise to a model of renewal that religion and the state should be able to provide a rule that implements the best interest of child and progressive fiqh.