This post is part of the Digital Islamic Law Lab (DILL) series, in which a Harvard student analyzes a primary source of Islamic law, previously workshopped in the DIL Lab.
In 1983 at its Third Islamic Summit Conference, the Organization of Islamic Cooperation founded the International Islamic Fiqh Academy (“IIFA”).[1] Based in Jeddah, Saudi Arabia, the IIFA is tasked with the advancement of knowledge in the fields of culture, science, and economics.[2] The IIFA engages in ijtihād—Islamic legal interpretation—to evaluate technological and social developments and publish its recommendations and resolutions.[3] In 1986 and the IIFA’s Third Session, the IIFA produced a resolution entitled Concerning Test-Tube Babies (Artificial Insemination).[4] A summary of Resolution 16 (4-3) and its analysis and conclusions are addressed below.
Source:
Resolution 16 (4-3) Concerning Test-Tube Babies, in International Islamic fiqh academy, resolutions and recommendations of the council of the islamic fiqh academy 1985-2000, 28–29 (Islamic Research and Training Institute ed., 2000).
Summary:
Resolution 16 (4-3) (“Resolution”) cites primarily to a compendium of “studies on the subject of [a]rtificial insemination” and the testimonies of “experts and physicians.”[5] The Resolution enumerates seven known methods of artificial insemination.[6] The first five of those seven methods are “absolutely prohibited … due to ensuing consequences manifested in confusion about parenthood and loss of motherhood and other Shari‘a prohibited matters.”[7] The sixth and seventh methods of artificial insemination are permissible in cases of necessity.[8]
Analysis:
The Resolution divides the seven available methods of artificial insemination into two categories: (1) the five of the seven methods that the IIFA has determined are prohibited according to Sharī‘a and (2) the two of the seven methods that the IIFA has determined are permissible according to Sharī‘a.[9] Because the Resolution does not expressly state why each method is either prohibited or permitted, the following discussion will contemplate and evaluate possible explanations for each.
The first of the five methods included in the prohibited category occurs when fertilization takes place “in vitro between the semen taken from the husband and the ovum taken from a woman who is not his wife and the fertilized ovum is then planted in the womb of his wife.”[10] Of the general reasons listed for prohibiting the first five methods of artificial insemination—“confusion about parenthood, loss of motherhood, and other Sharī‘a prohibited matters”[11]—this first method is presumably prohibited for both confusions about parenthood and loss of motherhood both for the biological mother and the mother who will raise the child. Additionally, the first method depends upon a union and combination of the genetic materials of non-married persons.
The second of the five prohibited methods occurs when fertilization takes place “in vitro between the semen taken from a man who is not the husband and the ovum taken from the wife of another man, and the fertilized ovum is then planted in the womb of his woman.”[12] It is assumed that this second method is prohibited for the same reasons as the first: confusion about parenthood, loss of motherhood for both women involved in the procedure, and the requirement of an extramarital union of genetic materials.
The third of the five prohibited methods of artificial insemination occurs when fertilization takes place “in vitro between the semen and the ovum taken from spouses, and the fertilized ovum is then planted in the womb of a volunteer woman.”[13] Although this method involves the combination of the genetic materials of married persons, it is nonetheless prohibited presumably because of the loss of motherhood for the biological mother and possibilities of confusions about parenthood since the woman carrying the fetus will not be involved in parenting the child.
The fourth of the five prohibited methods occurs when fertilization takes place “in vitro between male semen and female ovum taken from two strangers and the fertilized ovum is then planted in the womb of another man’s wife.”[14] Like the first and second prohibited methods, the fourth method requires the combination of genetic materials of non-married persons. Additionally, like the first three prohibited methods, the fourth could potentially result in confusions about parenthood since neither of the biological parents would be involved in raising the child.
The fifth and final prohibited method occurs when fertilization takes place “in vitro between the semen and the ovum taken from spouses, and the fertilized ovum is then planted in the womb of the husband’s other spouse.”[15] This is the most fascinating of the prohibited methods because it does not involve the combination of the genetic material of non-married persons. Presumably, the fifth method is prohibited because of potential confusions about parenthood—particularly motherhood— and loss of motherhood since one of the husband’s wives will carry the child while the other wife will provide half of the child’s genetic material. This conclusion inspires questions as to the relationship and intimacy dictated by Islam and Sharī‘a of multiple wives married to the same husband.
The first of the two methods included in the permissible category of artificial insemination methods occurs by “[f]ertilization in vitro of a woman’s ovum by her husband’s semen and implantation of the fertilized ovum in the womb of this same woman.”[16] As the Resolution makes clear, even the two permissible methods of artificial insemination are only permissible as last resort options after having taken all of the required precautions.[17] This implies that, while two methods of artificial insemination are permissible, they are not preferable over the natural means of reproduction through sexual intercourse for married couples. Contrasted against the five prohibited methods, this sixth (and first permissible) method does not involve the combination of the genetic materials of non-married persons and, if conducted properly, should not result in complications or confusions about parenthood or motherhood.
The second of the two permissible methods of artificial insemination occurs by “[e]xternal insemination, by taking the semen of a husband and injecting it in the appropriate place in the womb or uterus of his wife, for in vitro fertilization.”[18] Similar to the sixth method, the seventh (and second permissible) method does not involve the extramarital union of genetic materials or confusions about parenthood or motherhood. It involves only the genetic materials and bodies of a single man and a single woman who are both married.
Conclusions:
The Resolution identifies seven possible methods of artificial insemination and proscribes the first five of those seven because they involve either the combination of genetic material of non-married persons or surrogacy—each of which may result in confusion about parenthood and/or loss of motherhood and are prohibited under Sharī‘a law according to the IIFA. The sixth and seventh methods of artificial insemination are permissible only in cases of absolute necessity because they do not involve the combination of genetic material of non-married persons or surrogacy.
Notes:
[1] International Islamic Fiqh Academy, http://www.iifa-aifi.org (last visited Oct. 4, 2019).
[2] Id.
[3] See, e.g., International Islamic fiqh academy, resolutions and recommendations of the council of the islamic fiqh academy 1985-2000 (Islamic Research and Training Institute ed., 2000).
[4] Id. at 28–29 (Res. 16 (4-3) “Concerning Test-Tube Babies”).
[5] Id. at 28.
[6] Id.
[7] Id.
[8] Id. at 29.
[9] Id. at 28–29.
[10] Id. at 28.
[11] Id.
[12] Id.
[13] Id.
[14] Id. at 29.
[15] Id.
[16] Id.
[17] Id.
[18] Id.