A CRITICAL ANALYSIS A CRITICAL ANALYSIS OF CHILD RIGHTS PROTECTION FOR CHILDREN BORN OF INCEST: A STUDY OF THE MALANG RELIGIOUS COURT DECISION

ANALISIS KRITIS PERLINDUNGAN HAK ANAK HASIL INCEST: STUDI PUTUSAN PENGADILAN AGAMA MALANG

Abstract

This study examines the protection of children's rights in the Decision of the Religious Court of Malang Regency Number 849/Pdt.P/2024/Kab.Mlg, which rejected a petition for the legal establishment of a child’s lineage resulting from an incestuous relationship. The main issue addressed in this research concerns how the judges’ considerations align with Islamic law and positive law regarding the prohibition of lineage determination from incest, and the extent to which the decision accommodates children’s protection principles. The study aims to analyze the legal reasoning of the judges, identify fulfilled and neglected aspects of child protection, and assess the implications for the child’s right to identity. This research employs a normative juridical method using statutory, case, and maqāṣid al-sharī‘ah approaches, supported by comparative analysis with national regulations and international standards such as the Convention on the Rights of the Child. The findings indicate that the judges’ considerations are normatively consistent with the principle of hifẓ al-nasl and positive legal norms, yet they fall short of fully realizing the best interests of the child, particularly concerning the use of biological evidence and ensuring the child’s identity rights. The study concludes that child protection must not be confined to lineage determinations alone, but must also encompass the state’s obligation to provide legal, administrative, and social recognition to safeguard the child’s dignity and fundamental rights.