SURROGATE MOTHERHOOD IN ISLAM

                                   Topic of the assignment:  surrogate motherhood under       

                                                                        Islamic law.

                                                Table of contents

                           

1.     Introduction.

2.     Objects.

3.     Definition of surrogacy.

  4. Short history of surrogate motherhood.
5. types of surrogacy.

5. Surrogate motherhood in different countries.

6. Surrogate motherhood in different religion.

7. Islamic rules on surrogate motherhood.

9. Our views about surrogacy.

10. Conclusion.

11. Bibliography.

                                     Introduction

The problem of infertility is a very old problem and has always been a matter of concern for human beings. From the very early times, people have tried to treat this problem with all kinds of treatments and therapies. Surrogacy is one types of method to solve this infertility problem. Surrogate mother a woman who carries and gives birth to the child of another woman, who is usually infertile, by way of a pre-arranged legal contract. Surrogacy arrangements have a variety of accompanying legal issues and are not legally permitted or recognized in all states and religion. What is the Islamic position on surrogate motherhood? So we will try to discuss about following above question in our assignment.
                 
Traditional surrogacy (TS)
Traditional surrogacy & donor sperm (TS/DS)
[]Gestational surrogacy (GS)
Gestational surrogacy & egg donation (GS/ED)
Gestational surrogacy & donor sperm (GS/DS)
Gestational surrogacy & donor embryo (GS/DE)
Canada
France
Hong Kong
India
Israel
Pakistan
Russian Federation
Saudi Arabia
South Africa
Sweden
Ukraine
United Kingdom
United States
Arkansas
California
Michigan
New York
Lawsuits
United States
 
Judaism
Catholicism

                                       Objects of the assignment:

As we know that The problem of infertility is a very old problem and has always been a matter of concern for human beings. From the very early times, people have tried to treat this problem with all kinds of treatments and therapies.  Surrogacy is a new scientific invention to solve this infertility problem. But the question is that does Islam support it or not, for this reason the object of our assignment to find out answer this question as well as to find out the problems and prospects of surrogacy in different counties and different religion  in the world.

                               Definition of surrogacy:

 According to Blacks law dictionary:- the surrogacy means the act of performing some in the place of someone else. The process of carrying and delivering a child for another person.

                                                          [Blacks law dictionary:P.1582]

According to Oxford learner’s dictionary:-the practice of giving birth to a baby for another woman who is unable to have babies herself.

                                                            [Oxford learner’s dictionary p.1310]

Surrogacy is an arrangement in which a woman carries and delivers a child for another couple or person. The surrogate may be the child's genetic mother, or she may be genetically unrelated to the child. In a traditional surrogacy, the child may be conceived via home artificial insemination using fresh or frozen sperm or impregnated via IUi(intrauterine insemination), or ICI s(intracervical insemination) performed at a health clinic. A gestational surrogacy requires the transfer of a previously created embryo, and for this reason the process always takes place in a clinical setting.

There are two definitions of surrogacy, traditional and gestational, each of which can carry various legal specifications depending on the laws on surrogacy your state or country.

Traditional surrogacy involves the surrogate mother being artificially inseminated with the sperm of the intended father or a sperm donor. Since the surrogate mother's own egg is used in the process, she retains legal parental rights to the child and the intended parents will usually have to undergo a step-parent adoption to establish legal parenthood according to some states definition of surrogacy.

Gestational surrogacy is when eggs from the intended mother or an egg donor are inseminated with sperm from the intended father or again a sperm donor. The resulting embryo is then implanted in the surrogate mother's womb. In this process, extra embryos can be frozen for future implantation if the first try does not take. Since the birth mother's own egg is not used, she will have no legal or biologic connection to the child. Therefore, the new parents names can be entered directly on the birth certificate. There are no laws on banning or against surrogacy here in California A 1993 gestational surrogacy court case, Johnson v. Calvert, awarded the new parents full rights to the child. This stance continues today with several other cases substantiating the courts acceptance of surrogate pregnancy.

                            

                      Types of surrogacy:

This involves artificially inseminating a surrogate mother with the intended father's sperm via IUI, IVF or home insemination. With this method, the child is genetically related to its father and the surrogate mother.

A surrogate mother is artificially inseminated with donor sperm via IUI, IVF or home insemination. The child born is genetically related to the sperm donor and the surrogate mother.

When the intended mother is not able to carry a baby to term due to hysterectomy, diabetes, cancer, etc., her egg and the intended father's sperm are used to create an embryo (via IVF) that is transferred into and carried by the surrogate mother. The resulting child is genetically related to its parents while the surrogate mother has no genetic relation.

If there is no intended mother or the intended mother is unable to produce eggs, the surrogate mother carries the embryo developed from a donor egg that has been fertilized by sperm from the intended father. With this method, the child born is genetically related to the intended father and the surrogate mother has no genetic relation.

If there is no intended father or the intended father is unable to produce sperm, the surrogate mother carries an embryo developed from the intended mother's egg (who is unable to carry a pregnancy herself) and donor sperm. With this method, the child born is genetically related to the intended mother and the surrogate mother has no genetic relation.

When the intended parents are unable to produce either sperm, egg, or embryo, the surrogate mother can carry a donated embryo (often from other couples who have completed IVF that have leftover embryos). The child born is genetically related neither to the intended parents nor the surrogate mother.

                         Short history of surrogacy

Having another woman bear a child for a couple to rise, usually with the male half of the couple as the genetic father, is referred to in antiquity. Babylonian law and custom allowed this practice and infertile woman could use the practice to avoid the divorce, which would otherwise be inevitable.

One well-known example is the Biblical story of Sarah and Abraham, a nomadic Hebrew couple unable to conceive. Sarah offered her Egyptian slave Hagar as a surrogate, but later drove her away from the camp when Hagar became impudent during pregnancy. Hagar fleed to Egypt, where an angel told her that her son Ishmael would become a leader amongst the Hebrews; she subsequently returned to Sarah and Abraham. In the Quran, Abraham and Hagar settled the jealousy between the two women by moving with Ishmael to the land of Paran.

Many developments in medicine, social customs, and legal proceedings worldwide paved the way for modern commercial surrogacy:^[

·                    1870s: It became common practice in China for couples to pay for an adopted son. All ties to the natal family would be severed, and the child would become an heir and full member of the adopted family.

·                    1930s: In the US, pharmaceutical companies Schering-Kahlbaum and Parke-Davis started the mass production of estrogen.

·                    1944: Harvard Medical School professor John Rock broke ground by becoming the first person to fertilize human ova outside the uterus.

·                    1953: Researchers successfully performed the first cry of preservation of sperm.

·                    1971: The first commercial sperm bank opened in New York, which spurred the growth of this type of business into a highly profitable venture.

·                    1978: Louise Brown, the first test tube baby, was born in England. She was the product of the first successful in vitro fertilization procedure.

·                    1980: Michigan lawyer Noel Keane wrote the first surrogacy contract. He continued his work with surrogacy through his Infertility Center, through which he created the contract leading to the Baby M case.

·                    1985: A woman carried the first successful gestational surrogate pregnancy.

·                    1986: Melissa Stern, otherwise known as “Baby M,” is born in the US. The surrogate and biological mother, Mary Beth Whitehead, refused to cede custody of Melissa to the couple with whom she made the surrogacy agreement. The courts of New Jersey found that Mary Beth Whitehead was the child's legal mother and declared contracts for surrogate motherhood illegal and invalid. However, the court found it in the best interest of the infant to award custody of Melissa to her biological father William Stern and his wife Elizabeth Stern, rather than to the surrogate mother, Mary Beth Whitehead.

·                    1990: In California, gestational carrier Anna Johnson refused to give up the baby to intended parents Mark and Crispina Calvert. The couple sued her for custody (Calvert v. Johnson), and the court upheld their parental rights. In doing so, it legally defined the true mother as the woman who intends to create and raise a child.

1994 Latin American fertility specialists convened in Chile to discuss assisted reproduction and its ethical and legal status.

·                                The Chinese Ministry of Health banned gestational surrogacy due to the legal complications of defining true parenthood and possible refusal by surrogates to relinquish a baby.

·                    2009: The Chinese government cracked down on enforcement of the gestational surrogacy ban, and Chinese women began coming forth with complaints of forced abortions.

There have been cases of clashes between surrogate mothers and genetic parents. For instance, genetic parents of the fetus may ask for an abortion when unexpected complications arise, and the surrogate mother may oppose the abortion.                                                 

                                        [ http://en.wikipedia.org/wiki/Surrogacy#History]

        Surrogate motherhood in different countries:

In all jurisdictions of Australia, altruistic surrogacy has been the only recently recognized surrogacy that has become legal. However, in all states and the Australian Capital Territory arranging commercial surrogacy is a criminal offense, although the Northern Territory has no legislation governing surrogacy at all and there are no plans to introduce laws on surrogacy into the NT Legislative Assembly in near the future.

In 2006, Australian senator Stephen Conroy and his wife Paula Benson announced that they had arranged for a child to be born through egg donation and gestational surrogacy. Unusually, Conroy was put on the birth certificate as the father of the child. Previously, couples who used to make surrogacy arrangements in Australia had to adopt the child after it was registered as born to the natural mother; rather than being recognized as birth parents, however now that surrogacy is more regular practice for childless parents; most states have switched to such arrangements to give the intended parents proper rights.After the announcement, Victoria changed their legislation since 1 January 2010, under the Assisted Reproductive Treatment Act 2008 to make altruistic surrogacy within the state legal, however commercial surrogacy is illegal.

Since 1 June 2010 in Queensland, altruistic surrogacy is legal under the Surrogacy Act 2010 No 2. Yet, the commercial surrogacy is still illegal under the legislation.

Similarly, in both New South Wales and the Australian Capital Territory, altruistic surrogacy is legal under the Surrogacy Act 2010 No 102 and the Parentage Act 2004, respectively.

In Western Australia (under the Surrogacy Act 2008) and South Australia (under the Family Relationships Act 1975) altruistic surrogacy is only legal for couples consisting of the opposite sex (single people and same sex couples are banned from altruistic surrogacy).

In 2012, Tasmania passed two pieces of legislation to legally allow altruistic surrogacy. The two laws are called the Surrogacy Act No 34 and the Surrogacy (Consequential Amendments) Act No 31 Proposed altruistic surrogacy legislation was drafted and passed by both houses of the Tasmanian parliament - only after a review of the Surrogacy Contracts Act 1993 No 4and after an ongoing community consultation process. Under the altruistic surrogacy legislation, the surrogate must be at least 25 years old and it cannot be her first pregnancy. The new altruistic surrogacy laws are due to come into effect on January 1, 2013.

The Assisted Human Reproduction Act (AHRC) permits only altruistic surrogacy: surrogate mothers may be reimbursed for approved expenses but payment of any other consideration or fee is illegal. The province of Quebec, however, prohibits all surrogacy.

In France, since 1994, any surrogacy arrangement that is commercial or altruistic, is illegal or unlawful and is not sanctioned by the law (art 16-7 of the Code Civil).The French Courts the Cessation already took this point of view in 1991. It held that if any couple makes an agreement or arranges with another person that she is to bear the husband's child and surrender it on birth to the couple, and that she is choosing that she will not keep the child, the couple making such an agreement or arrangement, is not allowed to adopt the child. In its judgment the court held that such an agreement is illegal on the basis of articles 6 & 1128 of the Code Civil, together with article 353 of the same code.

Commercial surrogacy is criminal under the Human Reproductive Technology Ordinance 2000. The law is phrased in a manner that no one can pay a surrogate, no surrogate can receive money, and no one can arrange a commercial surrogacy (the same applies to the supply of gametes), no matter within or outside Hong Kong. Normally only the gametes of the intended parents can be used.

In October 2010, Peter Lee, the eldest son and one of the presumed heirs of billionnaire Lee Shau Kee obtained three sons through a surrogate mother, reportedly from California. Since the junior Lee is single, the news attracted criticism on both moral and legal grounds. A vicar general of the territory's Roman Catholic diocese was critical. In December the case was reportedly referred to police after questions were asked in Legco.^[

                   [Peter Lee surrogacy case referred to police, SCMP, 2 Dec 2010]

Main article: Commercial surrogacy in India

Commercial surrogacy is legal in India. India is emerging as a leader in international surrogacy and a destination in surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with infertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate's fee, and delivery of the baby at a hospital. Including the costs of flight tickets, medical procedures and hotels, it comes to roughly a third of the price compared with going through the procedure in the UK. The Honorable Supreme Court of India has given the verdict that the citizenship of the child born through this process will have the citizenship of its surrogate mother.

In March 1996, the Israeli government legalized gestational surrogacy under the "Embryo Carrying Agreements Law." This law made Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the state. A state-appointed committee permits surrogacy arrangements to be filed only by Israeli citizens who share the same religion. Surrogates must be single, widowed or divorced and only infertile heterosexual couples are allowed to hire surrogates. The numerous restrictions on surrogacy under Israeli law have prompted some intended parents to turn to surrogates outside of the country.

Surrogacy is illegal in Pakistan.

Gestational surrogacy, even commercial [is legal in Russia],being [available for practically all adults willing to be parents].There has to be a certain medical indication for surrogacy: absence of uterus; uterine cavity or cervix deformity; uterine cavity synechia; somatic diseases contraindicating child bearing; repeatedly failed IVF attempts, when high-quality embryos were repeatedly obtained and their transfer wasn’t followed by pregnancy.

The first surrogacy program in Russia was successfully implemented in 1995 at the IVF centre of the Obstetrics and Gynecology Institute in St. Petersburg. The public opinion is surrogacy-friendly, recent cases of a famous singer and a well-known business-woman, who openly used services of gestational surrogates received very positive news coverage.

A few Russian women such as Ekaterina Zakharova, Natalija Klimova, Lamara Kelesheva became grandmothers through postmortem gestational surrogacy programs, their surrogate grandsons being conceived posthumously after the death of their sons.

Registration of children born through surrogacy is regulated by the Family Code of Russia (art. 51-52) and the Law on Acts on Civil Status (art. 16). A surrogate’s consent is needed for that. Apart from that consent, no adoption nor court decision is required. The surrogate’s name is never listed on the birth certificate. There is no requirement for the child to be genetically related to at least one of the commissioning parents.

Children born to heterosexual couples who are not officially married or single intended parents through gestational surrogacy are registered in accordance to analogy of jus (art. 5 of the Family Code). A court decision might be needed for that. On August 5, 2009 a St. Petersburg court definitely resolved a dispute whether single women could apply for surrogacy and obliged the State Registration Authority to register a 35 year old single intended mother Nataliya Gorskaya as the mother of her “surrogate” son.

On 4 August 2010, a Moscow court ruled that a single man who applied for gestational surrogacy (using donor eggs) could be registered as the only parent of his son, becoming the first man in Russia to defend his right to become a father through a court procedure.The surrogate mother’s name was not listed on the birth certificate, the father was listed as the only parent. After that a few more identical decisions concerning single men who became fathers through surrogacy were adopted by different courts in Russia listing men as the only parents of their “surrogate” children and confirming that prospective single parents, regardless of their sex or sexual orientation, can exercise their right to parenthood through surrogacy in Russia.

Liberal legislation makes Russia attractive for “reproductive tourists” looking for techniques not available in their countries. Intended parents come there for oocyte donation, because of advanced age or marital status (single women and single men) and when surrogacy is considered. Foreigners have the same rights as for assisted reproduction as Russian citizens. Within 3 days after the birth the commissioning parents obtain a Russian birth certificate with both their names on it. Genetic relation to the child (in case of donation) just doesn’t matter.

Religious authorities in Saudi Arabia do not allow the use of surrogate mothers, instead suggested medical procedures to restore female fertility and ability to deliver. To this end, Saudi authorities sanctioned the world's first uterus transplant in an infertile woman.

[Grady, Denise (2002-03-07). "Medical First: A Transplant Of a Uterus". New York Times. Retrieved 2010-05-24.]

The South Africa Children's Act of 2005 (which came fully into force in 2010) enabled the "commissioning parents" and the surrogate to have their surrogacy agreement validated by the High Court even before fertilization. This allows the commissioning parents to be recognized as legal parents from the outset of the process and helps prevent uncertainty - although if the surrogate mother is the genetic mother she has until 60 days after the birth of the child to change her mind. The law permits single people and gay couples to be commissioning parents. However, only those domiciled in South Africa benefit from the protection of the law, no non-validated agreements will be enforced, and agreements must be altruistic rather than commercial. If there is only one commissioning parent, s/he must be genetically related to the child. If there are two, they must both be genetically related to the child unless that is physically impossible due to infertility or sex (as in the case of a same sex couple). The commissioning parent or parents must be physically unable to birth a child independently. The surrogate mother must have had at least one pregnancy and viable delivery and have at least one living child. The surrogate mother has the right to unilaterally terminate the pregnancy, but she must consult with and inform the commissioning parents, and if she is terminating for a non-medical reason, may be obliged to refund any medical reimbursements she had received. ·

  [ South Africa Children's Act of 2005, Chapter 19 (ss292-303). Retrieved 1-11-2012]

Surrogacy is not clearly regulated in Swedish law.^[The legal procedure most equivalent to it is making an adoption of the child from the surrogate mother. However, the surrogate mother thereby has the right to keep the child if she changes her mind until the adoption. Yet, the biological father may claim right to the child.

It is illegal for Swedish fertility clinics to make surrogate arrangements.

Since 2002, surrogacy and surrogacy in combination with egg/sperm donation has been absolutely legal in Ukraine. According to the law a donor or a surrogate mother has no parental rights over the child born and the child born is legally the child of the prospective parents.

In Ukraine the start of introduction of methods of supporting reproductive medicine was given in eighties of the preceding century. It was Kharkov where the extracorporeal fertilization method was for the first time successfully applied in Ukraine, and in 1991 a girl named Katy was born. Kharkiv was also the first city in CIS countries to realize surrogacy. Many clinics dealing with surrogacy have been opened in Kiev and Lviv.

Ukrainian surrogacy laws are very favorable and fully support the individual's reproductive rights. Surrogacy is officially regulated by Clause 123 of the Family Code of Ukraine and Order 771 of the Health Ministry of Ukraine. You can choose between Gestational Surrogacy, Egg/sperm Donation, special Embryo adoption programs and their combinations. No specific permission from any regulatory body is required for that. A written informed consent of all parties (intended parents and surrogate) participating in the surrogacy program is mandatory.

Ukrainian legislation allows intended parents to carry on a surrogacy program and their names will be on Birth certificate of the child born as a result of the surrogacy program from the very beginning. The child is considered to be legally "belonging" to the prospective parents from the very moment of conception. The surrogate’s name is never listed on the birth certificate. The surrogate can't keep the child after the birth. Even if a donation program took place and there is no biological relation between the child and intended parents, their names will be on Birth certificate (Clause 3 of article 123 of the Family Code of Ukraine).

Embryo research is also allowed, gamete and embryo donation permitted on a commercial level. Single women can be treated by known or anonymous donor insemination. Gestational surrogacy is an option for officially married couples and single women. There is no such concept as gay/lesbian marriage in Ukraine, meanwhile such patients can be treated as single women/men.

Commercial surrogacy arrangements are not legal in the United Kingdom. Such arrangements were prohibited by the Surrogacy Arrangements Act 1985. Whilst it is illegal in the UK to pay more than expenses for a surrogacy, the relationship is recognized under section 30 of the Human Fertilisation and Embryology Act 1990. Regardless of contractual or financial consideration for expenses, surrogacy arrangements are not legally enforceable within the United Kingdom. A surrogate mother still maintains the legal right of determination for the child, even if they are genetically unrelated. Unless a parental order or adoption order is made the surrogate mother remains the legal mother of the child.

Surrogacy and its attendant legal issues fall under state jurisdiction and the legal situation for surrogacy varies greatly from state to state. Some states have written legislation, while others have developed common law regimes for dealing with surrogacy issues. Some states facilitate surrogacy and surrogacy contracts, others simply refuse to enforce them, and some penalize commercial surrogacy. Surrogacy friendly states tend to enforce both commercial and altruistic surrogacy contracts and facilitate straightforward ways for the intended parents to be recognized as the child's legal parents. Some relatively surrogacy friendly states only offer support for married heterosexual couples. Generally, only gestational surrogacy is supported and traditional surrogacy finds little to no legal support.

States generally considered to be surrogacy friendly include California, Illinois Arkansas, and Maryland, among others.

For legal purposes, what matters is where the contract is completed, where the surrogate mother resides, and where the birth takes place. Therefore, individuals living in a non-friendly state can still benefit from the polices of surrogacy friendly states by working with a surrogate who lives and will give birth in a friendly state.

Arkansas was one of the first states to enact surrogacy friendly laws. In 1989, under then Governor Bill Clinton, it passed Act 647, which states that in a surrogacy arrangement, the biological father and his wife will be recognized as the child's legal parents from birth, even if his wife is not genetically related to the child (i.e., in a traditional surrogacy arrangement). If he is unmarried, he alone will be recognized as the legal parent. A woman may also be recognized as the legal mother of the surrogate birth mother's genetic child as long as that child was conceived with anonymous donor sperm.On the other hand, it is unclear how or whether same sex couples could benefit these laws, since the 2008 ballot measure that made it illegal for unmarried, cohabiting individuals to adopt or provide foster care to minors.

California is known to be a surrogacy friendly state. It permits commercial surrogacy, regularly enforces gestational surrogacy contracts, and makes it possible for all intended parents, regardless of marital status or sexual orientation, to establish their legal parentage prior to the birth and without adoption proceedings (pre-birth orders).

             [^ "Buying babies, bit by bit". The Economist. 19 December 2006.]

Michigan forbids absolutely all surrogacy agreements. It is a felony to enter into such an agreement, punishable by a fine of up to $50,000 and up to five years in prison. The law makes them unenforceable.

New York law holds that commercial surrogacy contracts contravene public policy and provides for civil penalties for those who participate in or facilitate a commercial surrogacy contract in New York. Altruistic surrogacy contracts are not penalized, but neither are they enforced. New York does recognize pre-birth orders from other states, and has provided a post-birth adoption alternative for altruistic surrogate parents via orders of maternal and paternal filiations.

                        [Bognar, Tara, "Birth Orders in New York", 11/29/2011]

Baby M: New Jersey 1988. The surrogate mother in a traditional surrogacy arrangement decided to keep the resulting child. The intended parents sued to have themselves recognized as the legal parents. The court found in favor of the surrogate mother. However, the original couple was given custody of the child because the courts thought they would provide a better home for the baby than the surrogate mother would, who was instead given visitation rights.

                        Surrogate motherhood in different religion:

Different religions take different approaches to surrogacy, which are given below……..

Jewish law states that the parents of the child are the man who gives sperm and the woman who gives birth. More recently, Jewish religious establishments have accepted surrogacy only if it is full gestational surrogacy with both intended parents' gametes included and fertilization done via in-vitro fertilization.  Schenker, J. G. (2008). Assisted reproductive technology: perspectives in Halakha (Jewish religious law). Reproductive Biomedicine Online (Reproductive Healthcare Limited), 17(S3), 17-24.

Paragraph 2376 of the Catechism of the Catholic Church states that: "Techniques that entail the dissociation of husband and wife, by the intrusion of a person other than the couple (donation of sperm or ovum, surrogate uterus), are gravely immoral."  "Paragraph 2376", Catechism of the Catholic Church

                         Islamic rules on surrogate motherhood:

In the name of Allah, Most Compassionate, Most Merciful,

The problem of infertility is a very old problem and has always been a matter of concern for human beings. From the very early times, people have tried to treat this problem with all kinds of treatments and therapies. Infertility is defined as the failure to produce viable pregnancy within one year of regular sexual intercourse, without the use of contraceptives of course.

Islam teaches us that the creation of life is the exclusive function of Allah Most High. No matter what method and means one employs, if Allah Almighty does not wish to grant children, one will never have children.

Allah Most High says:

�To Allah belongs the dominion of the heavens and the earth. He creates what He wills. He bestows female (children) to whomsoever He wills and bestows male (children) to whomsoever He wills, or He bestows both males and females, and He leaves barren whomsoever He wills. He is full of Knowledge and Power.� (Surah al-Shura, V. 49-50)

Sayyiduna Abu Sa�id al-Khudri (may Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) was asked about coitus interruptus (azl) whereupon he said: �The child is not born from all the liquid (sperm) and when Allah intends to create something, nothing can prevent Him.� (Sahih Muslim, no. 1438)

Thus, the granting of children is the exclusive right and function of Allah Most High. Hence a Muslim should always first resort to supplicating Allah Most High, for if He wills to grant and bestow children, none can prevent Him.

The Qur�an mentions two great Prophets of Allah who were also faced with this problem, but supplicated and beseeched Allah Most High, and were granted children in their old age.

Allah Most High says regarding Sayyiduna Zakariyya (peace be upon him):

�There did Zakariyya pray to his Lord, saying: �O my Lord! Grant unto me from You a progeny that is pure: for surely You are the Hearer of prayer. Then, while he was standing in prayer in the chamber, the angels called unto him: �(Allah) gives you glad tidings of Yahya, witnessing the truth of a Word from Allah, a leader and chaste, and a Prophet, from amongst the righteous.� He said: �O my lord! How shall I have a son seeing I am very old and my wife is barren?� Allah said: �So it shall be, Allah does what He wills.� (Surah Al Imran, V. 39-40)

Sayyiduna Zakariyya (peace be upon him), despite being very old did not hesitate for a moment in supplicating and asking Allah Most High to grant him children. It is reported from Sayyiduna Ibn Abbas (Allah be pleased with him) that on the day Sayyiduna Zakariyya (peace be upon him) was given the glad tidings of Sayyiduna Yahya�s birth, he was 120 years of age and his wife was 98. (See: Tafsir al-Kabir of Imam al-Razi, 3/214

In another place of the Qur�an, Allah Most High says regarding Sayyiduna Ibrahim (peace and blessings be upon him):

�And his wife was standing (there), and she laughed: And We gave her glad tidings of Ishaq, and after him, of Ya�qub. She said: �Alas for me! Shall I bear a child, seeing I am an old woman, and my husband here is an old man? That would indeed be a wonderful thing!� (Surah Hud, V. 71-72)

This great Prophet of Allah, Sayyiduna Ibrahim (peace be upon him) was also 120 years of age, whilst his wife Sayyida Sarah (peace be upon her) was 90 or 98 years old. (Tafsir Abi Sa�ud, 4/325). Despite this, they were given the glad tidings of not only a child but also a grandchild.

Therefore, the first step to be taken is to beseech Allah Most High and ask from Him, for if He wills, one will be bestowed with children, and if he does not desire, nothing can bring about children.

One may also resort to adopting children. However, one must remember that there are strict rules with regards to adopting a child. The child cannot be attributed except to his real parents. If the problem is with the wife, the husband may also marry a second time, but here also, there are strict conditions and rules that need to be met.

Alternatively, the couple may resort to medical treatment. When undertaking medical treatment, one must remember that means themselves do not have an effect. It is only through the mercy of Allah that one will be granted children.

Modern advancement in medical science has come forth with many methods in treating infertility. At times, the husband�s sperm is artificially inseminated into the wife�s uterus (AIH). Sometimes a third person�s (donor) sperm is introduced into the wife�s uterus (AID), or it is mixed with the husband�s sperm and then artificially inseminated (AIM).

Another method is of fertilizing the woman�s eggs in a laboratory test tube with the husband�s or a donor�s sperm and then returning the resulting ovum into the woman�s uterus. This method is known as In-vitro fertilization (IVF).

Surrogate motherhood is also a method in treating infertility. It involves using the service of another woman to serve as a carrier for the ovum of the couple. The woman makes her self available to inject the fertilized ovum into her own womb and then carries the child to its full term on behalf of the other couple.

People resort to this procedure either because a married woman who desires to have a child has a problem in carrying the child to its full term, or because of her desire to simply forgo the �trouble� of conception and labour.

As far as the Islamic ruling on these various forms and methods of treatment is concerned, one must keep in mind a very important principle, for that answers all the questions. The principle is that resorting to these methods of medical treatment is permissible as long as �only� the husband and wife are involved. It is completely unlawful to use a third party�s (donor) sperm or eggs.

The reason being is that Islam has completely prohibited adultery (zina) and everything that leads to it. Islam lays allot of importance on the preservation of lineage. The preservation of lineage (hifz al-nasl) is one of the five universals and objectives of Shariah. As such, introducing a third party into the family equation would confuse the lineage, hence it will not be allowed. Using the sperm or eggs of a third person would create doubt and confusion with regards to the child�s identity. The child�s lineage and identity will not be preserved and safeguarded.

Many contemporary scholars have declared the introduction of other than the husband�s sperm into the wife akin to adultery (zina), hence a major sin. They state that artificial insemination of other than the husband�s sperm and adultery are both similar in effect; that is, in both cases the tillage is inseminated by a stranger. It is also a more severe crime than �legal� adoption, which is also completely prohibited in Shariah.

Allah Most High says:

�And those who guard their private parts. Except with those joined to them in the marriage bond, or (the captives) whom their right hands possess, for (in their case) they are free from blame. But those whose desires exceed those limits are transgressors.� (Surah al-Mu�minun, V. 5-7)

Ruwayfi� ibn Thabit al-Ansari (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said on the day of Hunayn: �It is unlawful for a man who believes in Allah and the last day that he waters the plant of another.� (Sunan Abu Dawud, no. 2151 & Sunan Tirmidhi) The meaning of watering the plant of another is to introduce one�s sperm into the womb of another person�s wife.

Therefore, all forms of treatment in which a third party is involved are completely unlawful. Hence, AID, AIM and surrogate motherhood is out of the question.

Moreover, the question of �to whom will the child be attributed� also arises in such cases. Scholars mention that despite the prohibition of resorting to such methods, if one did employ them, the child will always be attributed to the mother�s husband.

There is a famous Hadith recorded by Imam Muslim and others in which the Messenger of Allah (Allah bless him and give him peace) said: �The child will be attributed to the husband and the adulterer will receive the stone�. The meaning of this Hadith is that the right of paternity will always be for the person who is married to the child�s mother.

Thus, if a donor�s sperm or the husband�s sperm mixed with that of a donor was introduced into the wife, the child will still be attributed to the husband. However, if the husband refuses to accept the child as his own, it will only be attributed to the mother.

If an unmarried woman was artificially inseminated with the sperm of another man, the child will only be attributed to herself. The man whose sperm was used will have nothing to do with the child.

In the case of surrogate motherhood, the problem becomes even more perplexing as to who will be considered the child�s real mother? Is it the woman who provided eggs from which the child is born, or is it the one whose womb serves as a carrier for the child and then gives birth?

Many contemporary scholars have stated that based on the Qur�anic verse which states: �Their mothers are only those who gave them birth� (Surah al-Mujadalah, V. 2), the woman who carries the child to its full term and then gives birth to it will be considered the real mother. Hence, the woman whose eggs were used will not even be regarded as the real mother of the child. When the surrogate mother is considered to be the real mother, her husband (in light of the above mentioned Hadith) will be the father of the child unless he rejects the child, in which case the child will only be attributed to the surrogate mother.

one must also remember that it will be unlawful for a woman to use her ex-husband�s frozen sperm after his death or divorce, for her marriage is terminated and her ex-husband is considered to be a stranger.

Artificial insemination between the husband and wife

As far as artificial insemination between legally married husband and wife is concerned, majority of the contemporary scholars are of the view that this is permissible. It is allowed whether the sperm of the husband is artificially inseminated and injected into the uterus of the wife, or whether the sperm of the husband and the eggs of the wife are artificially fertilized in a test tube and then inserted into the womb of the wife.

Some scholars have raised certain objections to the permissibility of artificial insemination, even if it be between married couples. They state that there are two problems Islamically in carrying out such methods.

Firstly, the sperm of the husband is normally acquired by masturbation, which is prohibited except in certain dire situations. Hence, in order to treat infertility, one will have to undergo something which is unlawful. They state that infertility is not an extreme medical problem to the extent that it would make unlawful medication lawful.

Secondly, the husband and wife both will have to expose their nakedness (awra) in order to receive treatment, and again, this is not allowed merely in order to have children, they say. Exposing of the Awra becomes permissible only in certain situations of need and necessity.

The answer to both these objections is that the desire of having children is very serious indeed. Those who are unable to bear children at times undergo depression and emotional trauma. At times, it may even lead one to infidelity and adultery. Hence, this is a case of need (dharura) wherein the rules become somewhat relaxed. Therefore, masturbation in order to obtain the sperm of the husband and exposing of the nakedness (awra) would become permissible in treating infertility.

It is analogous to circumcising an adult who accepts Islam. Carrying out a circumcision is a Sunnah, yet it is permitted (according to the majority of the scholars) for an adult man who accepts Islam to expose his nakedness (awra).

Moreover, in the case of masturbation, the idea is not to waste the sperm, rather the opposite. The sperm is used in order to impregnate the woman, whereas normally in masturbation the sperm is wasted. Also, mutual masturbation between the husband and wife is allowed, hence the wife may obtain the sperm of her husband.

One should remember here that some scholars have stipulated a condition, which is that one should be treated by someone of the same gender. Hence, the female should be treated by a female doctor at the time of obtaining her eggs and also when inserting the fertilized ovum into her womb. The husband should also be treated by a male doctor in acquiring his sperm.

In conclusion, there are three conditions for the permissibility of resorting to the various forms of treating infertility:

1) It must take place only between the husband and wife. There should be no third party involvement in any shape or form.

2) The husband and wife should be treated by someone of their own gender.

3) One must be extremely cautious in that there is no ambiguity in the sperm being only of the husband.

The international Islamic Fiqh academy based in Jeddah (Majma� al-Fiqh al-Islami) which consists of a number of major scholars from around the globe researched this issue in October 1986, and after extensive research issued the following verdicts: Below is the translation of the Arabic text published in the academy�s resolutions:

Resolution No. 16(4-3)

Concerning Test Tube Babies

The Council of the Islamic Fiqh Academy holding its third session, in Amman, Hashemite Kingdom of Jordan, From 8 to 13 Safar 1407 H (11 to 16 October 1986), after having reviewed the studies on the subject of �Artificial insemination� and having listened to the experts and physicians, and after investigation, It became evident to the Council that there are seven (7) known methods, used nowadays, for artificial insemination:

Hence, the council decided on the following:

Firstly, the following five (5) methods are all Islamically forbidden and absolutely prohibited for its own sake or due to the consequences manifested in employing them of the lineage being confused and loss of motherhood and other Shariah prohibited matters. These methods are:

1) The fertilization taking place between the sperm taken from the husband and the eggs taken from a woman who is not his wife, and then the fertilized ovum being implanted into the womb of his wife.

2) The fertilization taking place between the sperm taken from a man who is not the husband and the eggs taken from the wife, and then the fertilized ovum being implanted into the womb of the wife.

3) The fertilization taking place in-vitro between the sperm and the eggs taken from the spouses, and then the fertilized ovum being implanted into the womb of a volunteer woman (i.e. surrogate motherhood).

4) The fertilization taking place in-vitro between the sperm of a man and eggs of a woman who are both strangers to one another, and then the fertilized ovum being implanted into the womb of another man�s wife.

5) The fertilization taking place in-vitro between the sperm and the eggs taken from the spouses, and then the fertilized ovum is implanted into the womb of the husband�s other wife.

Secondly, there is no problem in resorting to the sixth or seventh method, in case of necessity, provided all required precautions are taken. These two methods are:

7) The sperm of the husband and the eggs of the wife are taken and fertilized in-vitro, and then the fertilized ovum is implanted into the womb of the wife.

8) Artificial insemination, by taking the sperm of the husband and inserting it in the appropriate place of his wife�s womb, for fertilization. (See: Qararat wa tawsiyyat Majma� al-Fiqh al-Islami, P. 34-35)




our views about surrogacy:
we have said before that surrogacy is the new invention to solve the problem of infertility of women. but the question is that does the surrogate motherhood legal in Islam or not. the answer of this question the Muslim scholars are divided into two group.  One group says that surrogate motherhood of this  is not allowed because it is akin to zina (adultery) since the surrogate is carrying the fertilized egg of someone who is not her legal husband. The child produced therefore has no lineage through legal marriage and will have to be considered as illegitimate. Therefore, if the product is haram, the means of acquiring the product (the surrogate’s renting of her womb) is also haram.

Another group of scholars favor the permissibility of this  surrogacy. They base their claim on secondary considerations and not on any primary principle. This group claims Islamic law recognizes the preservation of the human species as one of its primary objectives (maqasid). It follows that allowing married couples to pursue conceiving children is also part of this primary objective. Therefore, if a married couple is not able to conceive children themselves, they should be allowed to use means that override their inability to do so. If surrogacy is one method, it should also be allowed on the principle ofmaslaha (public interest). The fact that the surrogate mother is not carrying her own child can be overridden by saying that she is merely renting her womb as an incubator and she is not actually engaged in any act of zina. Besides, there is no fear of confusing the lineage of the child as the biological parents are already confirmed. This could be made analogous – some say – to hiring a woman to breast feed someone else’s child which is an acceptable practice.