KEPASTIAN HUKUM PENGANGKATAN ANAK TANPA PUTUSAN PENGADILAN DALAM PERSPEKTIF MAQĀṢID ASY-SYARĪ'AH DAN HUKUM POSITIF INDONESIA

Abstract

This study examines the legal certainty of child adoption without a court decision in Kenjeran District, Surabaya, from the perspectives of Maqāṣid Asy-Syarī'ah and Indonesian positive law. Employing an empirical juridical method with a qualitative approach, data were obtained through field observation and interviews with three adoptive couples. Findings reveal that the primary obstacles to formal adoption include bureaucratic complexity, low legal literacy, urgent child welfare situations, and economic limitations—with only 35% of respondents aware of the legal obligation for court-based adoption. From the perspective of positive law, informal adoption violates UU No. 35 Tahun 2014 and PP No. 54 Tahun 2007. From the Maqāṣid Asy-Syarī'ah perspective, the practice potentially infringes upon ḥifẓ al-nasl (protection of lineage), ḥifẓ al-māl (protection of property), and ḥifẓ al-nafs (protection of life). This study concludes that adoption without a court decision creates legal uncertainty that jeopardizes children's long-term rights and welfare, and recommends enhanced legal education and procedural reform.