Marriage of the mentally retarded
Some families of individuals with a mild form of retardation want them to get married. These individuals can be self dependent in their private affairs such as personal hygiene, eating, and performing some simple tasks. It is also possible to train them to perform simple handiwork and crafts which do not require mental effort as their mental age is always lower than their actual age. Their families have the following concerns:
- They fear that their sons will reproduce mentally retarded offspring due to genetic factors.
- Some guardians refuse to marry their daughters to mentally retarded individuals. For this reason, wealthy families with mentally retarded sons turn to poor families who, in some instances, consent to the marriage.
The questions are:
- Does a mentally retarded person –whose handicap is mild—have the right to marry if his family can financially support him and his wife or if he has an inheritance?
- If genetic testing and family history prove that it is possible that retardation can be passed from a parent to his offspring, should a retarded person be prevented from marrying out of fear of propagating mental retardation within the community? Will society or his family be blameworthy if they prevent him from marrying?
- In the presence of assisted care and in the absence of any legal or medical objections, is a mentally retarded person permitted to marry?
Scope of the Shari'ah
A mildly mentally retarded person of the type mentioned above is entitled to marry provided the pillars of marriage are met. If the Shari‘ah permits marriage of the insane, then it is more reasonable to permit the marriage of a person who is only mildly mentally retarded; there is no harm in this as long he has someone to look after his interests and attend to his care. Books on jurisprudence of all legal schools devoted a lot of attention to the marriage of the insane and the guardianship of those who have the authority to compel them to marry. They disagree on whether this authority is restricted to the father and grandfather, extends to others who can act as guardians or even to the ruler (the judge) – all of which are for the benefit of this person in whom sexual needs and emotions are inherent qualities and who needs a home, financial support, and care. A mentally retarded person is like all others of the members of his gender, though he has certain extra needs that stem from his special circumstances.
From Hanafi jurisprudence in Kashshaf al-Qina’, we read:
"As for an insane woman: all of those who can act as her guardians have the authority to marry her to someone if she shows signs of desiring men. This is because she has a need to marry to avert the harm of her sexual needs, to protect her from lewdness, obtain her bridal gift and marital expenses, secure her chastity, and preserve her honor. Because of all of the above, she is allowed to marry […]. Her desire in men is known from what she says, the attention she gives them, and from similar indicative behavior. Similarly, if one trustworthy medical expert – when two cannot be found then one – determines that her illness will be cured by marriage, then her guardian has the authority to give her away in marriage because, like treatment, this is in her best interest. If an insane woman who has sexual needs does not have a guardian, then the judge undertakes the responsibility of her marriage."
While there is a difference between someone who is insane and someone who is mentally retarded, they still share common ground that is significant to the issue of marriage: a person who is capable of having sexual intercourse is naturally disposed to having a social life and needs care, support, and financial provisions.
It is obvious that the control exercised by the guardian must be solely in the best interest of his charge; the matter must not turn into human trafficking by using these mentally retarded persons for inhumane and immoral purposes.
Based on this, there is nothing to prevent a mentally retarded person from marrying because marriage is one thing and reproduction is another. Marriage involves companionship, kindness, love, co-operation, support, affiliation, and other lofty goals in addition to reproduction. If reproduction were necessarily inseparable from marriage, then the marriage of the elderly who cannot reproduce, infertile couples, or the young would be invalid. Marriage does not necessarily entail reproduction; reproduction can be controlled in one way or another and medical experts can determine the means to prevent, delay, or limit reproduction that are suitable for the interests of each individual case.
The principle is that guardians and parents must act in the best interests of mentally retarded individuals. It is not permissible to prevent them from marrying if this is in their best interest in regard to their health, psychological state and financial situation. Rather, it is possible to unite people with similar or quasi similar problems in marriage through the institutions and organizations that cater to the needs of the mentally retarded. A delay on the guardian’s part to meet the best interests his mentally retarded charge – in the existence of their preliminaries – constitutes negligence and a sin proportionate to his failure to actualize the good that his charge is most likely to benefit from.
Allah the Almighty knows best.