By Nikhil Goyal
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.
Source Summary:
In Farooq Siddiqui v. Mst. Farzana Naheed,[1] the Federal Shariat Court of Pakistan (“the Court”)[2] considers whether surrogacy can be reconciled with Pakistani law and sharī‘a, and whether the law needs to be updated. The underlying case involved a Pakistani doctor living abroad who orally contracted with a Pakistani woman to serve as a surrogate, as his wife was unable to conceive, creating a “false drama of marriage” as a cover.[3] When the child came due, the surrogate refused to give the child to the doctor, and litigation commenced. The lower courts held the contract invalid and ordered the doctor to pay maintenance.[4] The Federal Shariat Court does not address the instant case specifically, but holds that surrogacy contracts, with the exception of “test tube babies,” are un-Islamic and void.[5] The Court reaches this conclusion on a number of grounds. The essential holding is that the only valid Islamic method of conception is between a husband and wife post-nikāḥ (marriage).[6] The Court also considers negative consequences of surrogacy on Islamic inheritance law and a number of non-Islamic law factors through a comparative lens.[7] Although the Court cannot provide personal relief,[8] its analysis is grounded in the facts of the instant case described above.
Source: Farooq Siddiqui v. Mst. Farzana Naheed (2017), 2017 PLD (FSC 78) (Pakistan).
Analysis:
While the Shariat Court’s decision purports to be couched in sharīʿa, or Islamic law, much of its reasoning is based on custom and cultural norms in Pakistan. This case arises at the intersection of contract and family law.
The Court’s fundamental question is whether surrogacy is permitted under Islamic law (sharīʿa). The contractual details are irrelevant if surrogacy is not permitted, as, per Islamic law, a contract to purchase an illegal good or service is void.[9] As such, the Court’s analysis of Islamic law regarding contracts is limited, and it makes its decision presuming that surrogacy would be legal under secular law, although it does suggest briefly that the contract is a contract for hire.[10]
The Court thinks that sharīʿa is clear on the matter – “no other way is provided for reproduction of children” but through a married couple after a valid marriage (nikāḥ).[11] More generally, the Court notes that the Qurʾān does not permit sexual relations outside of marriage.[12]
A transactional conception of marriage undergirds the Court’s holding, to the effect that marriage is essentially about determining maternity and paternity.[13] This conception is not clearly derived from any Islamic sources. In the same line of thinking, the Court conceives of surrogacy’s emergence as a result of the “natural phenomenon that people usually want to have their own children.”[14] This sort of essentialism guides the Court’s thinking.
The Court considers in-vitro fertilization as a distinct form of surrogacy.[15] In addition, it draws out various methods of surrogacy that result in four different cases – first, where the mother’s egg is used but not the father’s sperm, second, where both parents donate but a third party’s womb is used, third, where only the father donates, and fourth where neither parent donates.[16] The first category is not surrogacy on the Court’s conception.[17] It concludes generally that children belong to whomever respectively contributed sperm and eggs, (i.e., in the first situation, where only the mother contributes, the child belongs to the sperm donor and the mother).[18] The Court views all of these four cases as ḥarām (Islamically prohibited). But a test tube baby is legitimate because “the sperm and egg actually belong” to the mother and father who have been married.[19] The Court fails to substantively engage with the question of what constitutes sexual relations outside of marriage, given that several of the surrogacy methods it describes do not obviously involve person-to-person contact or fornication (zinā). The lack of attention paid to Islamic legal analyses on these questions suggests that other considerations drive the decision.
The Court devotes substantial attention to practices of Western countries regarding surrogacy and non-Islamic concerns. For example, the Court considers the dangers of surrogacy-tourism, perhaps made salient by the facts of the instant case, where an American doctor sought an affordable surrogate in his poorer country of origin.[20] In addition, humanitarian arguments concerning the cruelty of taking a child from his birth mother, whom the Court assumes will care for him better than any surrogate come into play.[21] This proposition is not grounded in Islamic law, and it is presumably a customary belief in Pakistan. The Court also makes prudential arguments to the effect that disabled babies will not be accepted by would-be parents and such children will lack support.[22] The Court concludes that surrogacy is “an axe which breaks the basic unit of society.”[23]
The Court ultimately orders that the relevant contract law as well as the criminal law should be updated in order to bar surrogacy except for test-tube babies and apply appropriate punishments for various actors including physicians.[24] On the whole, this case is indicative of a general trend where custom or local circumstances interact with renditions of sharīʿa to produce judicial decisions. The Federal Shariat Court of Pakistan departs from its mission in considering Islamic law, or sharīʿa, in that cultural practices and beliefs which the judges universalize, but may be specific to Pakistan, such as the desire to have a child of one’s own blood, certainly seem to impact the Court’s decision if not determine it.
Notes:
[1] Farooq Siddiqui v. Mst. Farzana Naheed (2017), 2017 PLD (FSC 78) (Pakistan).
[2] As part of his project of Islamification of Pakistan, then-Prime Minister Zia created the Shariat Court with authority to decide whether Pakistani law is consonant with Sharia. Several justices are required to be Islamic law scholars. See Niaz A. Shah, Women the Koran and International Human Rights Law 101 (2006).
[3] Supra note 1.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] See Wael B. Hallaq, Sharī‘a: Theory, Practice, Transformations 243 (2009).
[10] Supra note 1.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] See id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.