We continue from Part 1 presenting the various types of Assisted Reproductive Technology and here discuss the rulings of Islamic Law.
Surrogacy or Surrogate Motherhood
In recent years a new approach to infertility has developed that has sparked debates regarding its acceptability, legality and ethicality. Surrogate motherhood or surrogate parenting involves making use of another woman’s womb to bear a child for a couple who is having difficulty conceiving. The surrogate mother volunteers or is paid to carry the child to term. This is most commonly used when a woman is unable to bear children due to blocked fallopian tubes or to an absent or defective uterus. The woman may have had a hysterectomy, or pelvic disease, or other medical problems (e.g., heart or kidney disease), in which pregnancy may seriously threaten her life or health.
In one form, “partial surrogacy,” the surrogate mother is impregnated with the husband’s semen through artificial insemination or in vitro fertilization.
In another form, “full surrogacy,” fertilization is completed in vitro between the sperm and egg of the couple, and then the embryo is placed in the uterus of the surrogate mother. In this case, the child would have the full genetic material of the couple.
A less common form, is referred to as “donate embryo surrogacy” in which the embryo is donated by anonymous donors, resulting in no genetic link to either the surrogate or the couple. Upon birth of the child in each case, he or she would be surrendered to the contracting couple.
Islamic Rulings on Assisted Reproductive Technology
While there are many dynamics involved in relation to infertility, as Muslims we must also consider the religious and spiritual aspects as well. As we have discussed, there are many treatment options available for couples who struggle with infertility. Unfortunately, many of these options are ethically, morally, and religiously unacceptable. Muslims need to be aware of those procedures that are allowed in Islam and those that are not. The following section details the fiqh rulings on Assisted Reproductive Technology.
In general, artificial insemination and in vitro fertilization are acceptable as long as they involve reproductive material exclusively from both the husband and wife, and them alone, and if the procedure is performed within a valid marriage contract. Procreation is only legitimate within the marriage contract.
All scholars have agreed that any procedure that makes use of ovum, sperm, or an embryo that do not belong to the husband or wife is completely unacceptable in Islam. This would entail making use of what is commonly termed donor eggs, donor sperm, or donor embryos. The obvious reasons for their prohibition are that they involve mixing of lineages, confusion as to who the real parents are and, in essence, an illegitimate child. The virtue of preserving genealogy and lineage is evident in the Qur’an:
And it is He who has created from water a human being and made him [a relative by] lineage and marriage. And ever is your Lord competent. [Sûrat Al-Furqân, 25:54]
It is for this same reason that Islam prohibits zina (unlawful sexual intercourse) and the official process of adoption which disguises or ‘transfers’ lineage. While it is commendable to take on the responsibility of raising an orphan or other child in need, his/ her actual bio-genetic heritage is not to be lost or covered up.
If a third party, other than the spouses, is involved in their reproduction process, fertilization is unlawful and it is considered analogous to zina or adultery. Punishment would be distributed as appropriate. The child who is born as a result of this unlawful practice would be attributed to the mother who bore him, and not to the man who produced the sperm –following the ruling in the case of zina.
These types of assisted reproductive procedures are permitted only within the marriage contract. Consequently, it would be prohibited to introduce sperm or an embryo into an unmarried woman. Furthermore, the marriage contract is broken by death or divorce. If the husband dies, for example, the woman is not allowed to make use of stored embryos or sperm since there is no longer a marital bond. She is, in fact, able to marry another man after the waiting period is completed. A child conceived in this unmarried situation would be denied its right to legitimacy.
The Islamic Organization for Medical Sciences (1983) has also stipulated that sufficient and meticulous care must be taken in the handling of reproductive material to avoid confusion of lineage. Other scholars have stated that “artificial insemination should be conducted under meticulous as well as safe laboratory conditions.” The owners and employees of these labs should be trustworthy and reliable people. There must be an assurance that there will not be confusion or mix-up of genetic material with those of a third party. It is not allowed to carry out the processes in the absence of these securing conditions.
In relation to surrogate motherhood, the majority of scholars have stated that it is forbidden since it involves the introduction of a third party into the process. It involves a pregnancy outside the legitimacy of a marriage contract. The womb is exclusively for the husband who is validly married to the woman. Most also state that it is also forbidden even if it involves another wife of the husband since this entails introducing a foreign egg, which is outside the marriage contract binding the husband and his second wife. (Islamic Fiqh Council).
This surrogacy procedure causes confusion of lineage which can lead to disputes as to who is the real mother. It results in the dichotomy of motherhood into genetic and biologic, while these should be one and the same. It also reduces motherhood and children to commodities that can be bought and sold, thus dehumanizing their natural value. Many ethical, legal, social, and psychological problems arise as a result of this procedure. The end result is the undermining of the institution of marriage and family life and tampering with the Sunan of Allah in the normal process of procreation.
Related Issues: The Womb Relationship
In relation to surrogacy, the questions that arise are “Who is the real mother of this child?” “Is the mother the one who contributed the genes or the one who bore and gave birth to the child?” This separation of the womb relation from the ovary relationship is a new phenomenon and lies at the center of the debate regarding surrogacy. Various conclusions have been reached, but what is the Islamic perspective on this?
Throughout the Quran, there are many references to the concept of motherhood. We find the following as examples:
Their mothers are none but those who gave birth to them. [Sûrat Al-Mujâdilah, 58:2]
And We have enjoined upon man, to his parents, good treatment. His mother carried him with hardship and gave birth to him with hardship, and his gestation and weaning (period) is thirty months… [Sûrat Al-Aḥqâf, 46:15]
And we have enjoined upon man [care] for his parents (walidayn). His mother carried him, [increasing her] in weakness upon weakness, and his weaning is in two years. Be grateful to Me and to your parents; to Me is the [final] destination. [Sûrat Luqmân, 31:14]
In the Arabic language the term that is used for parents is derived from the verb “walada” which means to give birth to. “Wâlid” is the father and “wâlida” is the mother. The two parents are “wâlidayn.” We are related to both the ovary and the womb of our mother, but the references in the Qur’an clearly emphasize the womb relation by stating that our mothers are those who gave birth to us. The womb or uterus is “raḥim” (“arḥâm” is the plural) in Arabic and refers to a “value” based on relatives and the tie of compassion that binds them. “Raḥma” is another derivative, which means ‘compassion.’
O mankind, fear your Lord, who created you from one soul and created from it its mate and dispersed from the two of them many men and women. And fear Allah, through whom you ask [consideration of] one another, and the wombs (al-arham). Indeed, Allah is ever, over you, an Observer. [Sûrat Al-Nisâ’, 4:1]
So would you perhaps, if you turned away, cause corruption on earth and sever your [ties of] relationship (arhamakum)? [Sûrat Al-Muhammad, 47:22]
So, we see the significance of the womb relationship and the understanding that the one who gives birth is the mother of the child. The “raḥim” womb is a value and link to be respected. Surrogacy confuses this clear bond and, for this reason, a child born under a surrogate contract would not have the right to a family inheritance under Islamic law which belongs to biological, genetically-produced children. It is illegitimate to contract such a surrogacy.
An important issue to consider with IVF is that there a strong likelihood that not all of the fertilized eggs will be placed into the uterus. The goal of an IVF cycle is to harvest 15-20 eggs. Not all of these will fertilize successfully, but usually more than two or three will (which is the standard number implanted into the woman). That gives a couple two choices: 1) discard the remaining eggs, or 2) freeze these embryos for their future use. (It would not be allowed to donate these for use by other couples.) This issue would lead to several questions: “Does a fertilized egg constitute a child, thereby making the act of discarding it haram? Is this a form of abortion?
To answer this question, most scholars have used the following definition of abortion:
To abort means to terminate the life of the fetus deliberately, by any means, while it is still in the womb of the mother.
The public debate regarding abortion centers around the definition of fetus and not the womb, and so it would not apply to the IVF process since the fertilized egg is not in the womb.
Another debatable issue is the use of multi-fetal reduction (terminating one or more of the embryos after implantation), which may arise when a woman becomes fertilized with more than one or two embryos. As the number of fetuses increases, so does the likelihood of harm to the mother and the fetuses themselves. The risks include miscarriage, congenital anomalies, anemia, hypertension, preterm labor and delivery. For the fetuses, there could be possible abnormalities in lung, heart, and kidney development, low birth weight, hemorrhage, neurological disorders, and fetal distress.
Multi-fetal reduction is generally employed when four or more fetuses are present, and done at any time between nine and twelve weeks’ gestation. The reduction most often eliminates fetuses in excess of two –or three on occasion. Research has found that this practice results in longer gestations, higher birth rates and health benefits for mother and babies.
Scholars disagree on this particular point. Some allow it due to the medical risk for the mother and fetus, and to the view that abortion is permissible before the soul is placed in the fetus (meaning within 40 to 120 days). There are other scholars who do not allow it since their perspective is that abortion is prohibited at any point in gestation. For all, there would be an exception if there is a clear threat to the mother’s life –since an existing life takes precedence over a developing one.
It is important to point out that attempting to cure infertility is not only permissible, but may be a duty for the couple since procreation and preservation of the human race are principal goals in marriage. The treatment itself, however, should never go beyond the boundaries of what is permissible by Allah. The ends do not necessarily justify the means, and in the case of infertility, this principle should be readily apparent. Scholars are in agreement that it is acceptable to use artificial reproductive techniques within a family structure of husband and wife, during the span of their marriage, and without the intrusion of another party –in terms of foreign sperm, ovum, embryo, or uterus.
The Prophet said,
Surely I know a verse (from the Quran) which, if people would have followed it, it would have sufficed for them concerning everything [in life]: ‘For those who fear Allah, He provides a way out for them [for everything, and] He also provides them provisions from [sources] that they could never have imagined.’ [Sûrat Al-Ṭalâq, 65:2-3 ](Ahmad and Ibn Majah)