In the Islamic legal tradition, family relationships are based on one of three main bonds: blood, marriage, and breastfeeding. One’s formal affiliation is determined primarily on the basis of the agnatic line of descent. Family relationships on the maternal side are important but most lineage-related regulations are based on one’s patrilineal descent. The Islamic definition of paternity is tied to the concept of a licit sexual relationship. Maternity, on the other hand, is tied to the biological connection between a mother and her child. The difference between paternity and maternity is highlighted in the context of paternity denial procedures. Although paternity can be denied through a formal imprecation procedure (liʿān), if a child’s legitimacy is questioned, the maternal connection between a mother and her child cannot be dissolved even in this case.
Assisted reproductive technologies (ARTs) have introduced a host of new challenges to the inherited structure of Islamic lineage regulations. Most importantly, in vitro fertilization (IVF) and surrogacy arrangements defy the classical definition of both paternity and maternity. While IVF has for the first time separated pregnancy and child bearing from coitus, surrogacy arrangements have created new types of maternity claims, subject to the role of the surrogate mother and the scope of her contribution, whether it is gestational only or genetic as well. These new developments in the area of family law pose a set of new questions and challenge legal systems to cope with these important changes. Although in most cases legal systems in the Muslim world have not yet developed comprehensive responses, these questions have been addressed mainly in the fatwā literature, in which the issue of surrogacy is often combined with other ARTs topics. Early juristic articulations on these issues can be traced to the late 1970s and early 1980s, following the successful birth of the first IVF baby (Louise Brown) in 1978. A number of important institutional as well as individual fatwās have been issued during this period in order to accommodate these newly emerging topics within the Islamic legal structure.
Within this body of legal opinions three main questions have often been raised in connection with the issue of surrogacy: (1) the criteria on the basis of which the maternity relationship should be defined; (2) how this new type of maternity can be integrated; and (3) how this procedure can be regulated under Islamic law. With regard to the first question, the scholars disagreed on whether maternity should be defined primarily on the basis of the genetic structure, in which case the contributor of the ovum should be the mother. On the other hand, some scholars argued that maternity should be defined in terms of the relationship emanating from pregnancy and childbirth, especially in light of the Qurʾānic passage that refers to this point “their mothers are those who give birth to them” (58:2). With regard to the second question, some scholars made an analogy between the gestational mother and the breastfeeding mother. While this analogy is invoked frequently, critics find significant differences between these two types of relationships. The third question is not restricted to elucidating whether surrogacy is permitted under Islamic law or not but it has to do also with regulating actual cases if the procedure is implemented, regardless whether it is categorized as permitted or not.
One of the important institutional pronouncements that captures the range of juristic discussions on this topic was issued by the Islamic Fiqh Council of the Muslim World League in its 7th session, held in 1984. Not only does this resolution link surrogacy to the other ART applications, but it also shows the tentativeness of these juristic articulations, because it was revised and amended in the subsequent session, held in the following year, to revisit the scope of allowed scenarios. The 1984 resolution discusses two main types of artificial insemination: internal and external. While the first involves direct injection of sperm into the woman’s uterus, the second involves the merger of the sperm with the ovum in a petri dish (IVF). For the first type, the resolution distinguishes two main scenarios depending on whether the sperm used to fertilize the egg belongs to the woman’s husband or not. For the second type, the resolution lists five main scenarios, depending not only on whether a particular scenario involves the gametes of a married couple but also on whether it involves one or more women. For example, the resolution includes a scenario involving two co-wives, in which one wife donates an egg and the other hosts the fertilized egg and carries the baby to term. The resolution indicates that out of the seven scenarios only three should be categorized as permissible: direct injection of a husband’s sperm into his wife’s uterus, fertilization of a woman’s egg by her husband’s sperm externally (in a petri dish), and fertilization of a woman’s egg by her husband’s sperm and then placing the fertilized egg in the uterus of a second wife of the same man.[1] Following the issuance of this resolution, important reservations were expressed against this last scenario involving two wives of the same man on the grounds that it may lead to confusion about the identity of the real mother.[2] In the subsequent session, held in 1985, the resolution was revised to withdraw this last scenario and to declare all the scenarios involving a third party (even a co-wife) impermissible.[3] This leaves only the two cases involving a married couple, which means total prohibition of surrogacy arrangements. This 1985 resolution has remained one of the most important juristic articulations on this issue and it has been reiterated and confirmed in most of the subsequent institutional as well as individual fatwās on this topic, mainly within the Sunnī context.[4] Within the Shīʿī context, however, many jurists have permitted gestational surrogacy for married infertile couples.[5] This Shīʿī position is usually traced to a fatwā by the Supreme Leader of Iran, Ali Hoseyni Khamenei, which he issued in the late 1990s.[6]
This example of surrogacy, like the previously discussed case of DNA testing for paternity verification, demonstrate how Muslim jurists deal with new and emerging issues, especially those requiring joint deliberations with technical-scientific experts. In these cases, while technical experts provide subject-matter knowledge, the jurists concentrate on ethical-legal assessment, which is not meant only to determine permissibility or impermissibility but also to point out relevant conditions and stipulations that should govern the actual application and implementation of legal rules.
Notes:
[1] Qarārāt al-Majmaʿ al-Fiqhī al-Islāmī bi-Makkah al-Mukarramah (Mecca: al-Majmaʿ al-Fiqhī al-Islāmī, 2004), 148-54.
[2] Dariusch Atighetchi, Islamic Bioethics: Problems and Perspective (Springer, 2009), 135-59.
[3] Qarārāt al-Majmaʿ,161-68.
[4] See Ayman Shabana, “Foundations of the Consensus against Surrogacy Arrangements in Islamic Law,” Islamic Law and Society 22, no. 1-2 (2015): 82-113.
[5] See K. Aramesh, “Iran’s experience with surrogate motherhood: an Islamic view and ethical concerns,” Journal of Medical Ethics 35 (2009): 320-22.
[6] Mohammad Jalal Abbasi-Shavazi, Marcia C. Inhorn, Hajiieh Bibi Razeghi-Nasrabad, and Ghasem Toloo, “The ‘Iranian ART Revolution’: Infertility, Assisted Reproductive Technology, and Third-Party Donation in the Islamic Republic of Iran,” Journal of Middle East Women’s Studies 4, no. 2 (2008): 4. For more on the Sunnī-Shīʿī divide on this issue, see Marcia Inhorn and Soraya Tremayne, eds., Islam and Assisted Reproductive Technologies: Sunni and Shia Perspectives (New York: Berghahn Books, 2012).
Suggested Bluebook citation: Ayman Shabana, Islamic Law, Assisted Reproductive Technologies, and Surrogacy, Islamic Law Blog (June 30, 2021), https://islamiclaw.blog/2021/06/30/islamic-law-assisted-reproductive-technologies-and-surrogacy/)
(Suggested Chicago citation: Ayman Shabana, “Islamic Law, Assisted Reproductive Technologies, and Surrogacy,” Islamic Law Blog, June 30, 2021, https://islamiclaw.blog/2021/06/30/islamic-law-assisted-reproductive-technologies-and-surrogacy/)