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It is true that in order to help a couple overcome infertility and become parents, biomedical science has laid down certain ways and means-surrogating is one of them. Although this raises a number of ethical and legal questions and thus cannot be given blind approval. As our Prophet (s.A.w.) warned:"Fear Allah in respect of women" (Ibn Majah-al Manasik 2/1025)
In Time Magazine, January 19, 1987 the Bishop of New Jersey commented, "Surrogacy exploits a child as a commodity and exploits a woman as a baby-maker." There is a well written article on the subject written by Abu Fadl Muhsin Ibrahim from Islamic Studies at the University of Dunbar South Africa. Please refer to Abortion, Birth Control & Surrogate Parenting-An Islamic Perspective (ATP).
Surrogate parenting involves a woman bearing the child of another woman who is not in a position to bear children as a result of blocked fallopian tubes or lack of a uterus. To be a surrogate mother is, so to say, "leasing her womb", for the child that one gives birth to does not "legally" become one's own but is the child of the couple who pays the surrogate mother for that particular purpose. In some of the states in America it is a legal venture. But in the United Kingdom it has not as yet been legalised. This procedure no doubt allows an infertile couple to have a child who would have the genetic complement of the husband, if the husband's sperm is used to fertilise the ovum of the surrogate woman. But, the problem arises in fertilising the ovum of another woman by the sperm of a man not her husband. Is this to be regarded as an adulterous union? Clearly it would be illegal under Islamic law.
The sperm and ovum of the married couple may also be fertilised in vitro and placed in the womb of a surrogate mother, who would be paid for giving birth to their child. The child would bear the full genetic complement of the contracting couple. It is relevant here that when Muslims have their children breast-fed by a foster mother, the children would be like the child of the wet-nurse.
This means that if the wet-nurse has her own biological children, the children she breast-fed would not legally be permitted to marry any of her own biological children. But, it is to be emphasised that this prerogative of surrogate breast feeding can in no way serve as justification for the surrogate mother to carry to term the fertilised egg of the married couple. No parallel can be drawn between the wet-nurse and the surrogate mother. The wet-nurse provides the basic essential nourishment to the already born child, while the surrogate mother carries the "unformed" child to term and literally gives birth to it!
This poses two immediate problems -
The Legality of the Contract:
The contract which the surrogate mother and the married couple enters into can in no way be justified legally under the Shari'ah. It would be considered a batil (invalid) contract. This stand may be clarified by pointing out that a sale contract would be legal only if it involves such transactions as are permissible under the Shari'ah . For example, no transaction involving the sale of or purchase of alcohol (intoxicating drinks) would be legally valid. In the same manner, the contract between the married and the surrogate mother is invalid in the sense that1st. it is a contract stipulating the "sale" of a free person; and
2nd. it involves an element of adulterous implantation (the fertilised egg being implanted not in the wife but in the womb of the surrogate mother).
The Question of Parentage (Nasab):
The Prophet Muhammad (s.A.w.) is reported to have said, "The child is for the bed." From this statement a general principle is laid down. A child, legitimate or illegitimate, always has a mother. The mother is the one who gives birth to it. Therefore, the surrogate mother will naturally, truly, and legally be the mother of the child. A child born under the surrogate contract would be illegitimate in the Shari’ah since the contracting husband had not entered into matrimonial contract with the surrogate mother who gave birth to the child.
There is no place for surrogate motherhood within the Islamic system, for the evils that would accrue from it will far outweigh any good. Some of its evils may be enumerated as follows. Acceptance of surrogate motherhood would;1. tamper with the Sunan ("Ways") of Allah in the normal process of procreation;
2. entice unmarried women to "lease" their wombs for monetary' benefits; this would in effect undermine the institution of marriage and family life;
3. tempt married women to resort to this technique in order to relieve themselves of the agony of going through the pangs of pregnancy and childbirth. Islam does not consider pregnancy as a burden but as a blessing. If a mother dies during pregnancy or childbirth she is given the status of shahidah ("martyr")
4. encourage the surrogate mother to claim legal rights to the couple's child she bore, as has already occurred in the United States
5. if not checked, create confusion in blood ties
It cannot be denied that biomedical science has made positive contributions towards assisting infertile couples in becoming parents. The technological methods used are sometimes ethically questionable. In the Islamic system ethics is not divorced from law. Thus, the question we have addressed is whether such techniques are valid under Islamic law. The author have attempted to analyse all of the biotechnical possibilities and have come to the conclusion that only artificial insemination with the sperm of the husband (AIH) can be regarded as lawful.
The other functionally similar technique that could be looked upon as permissible would be in vitro fertilisation where the ovum of the wife is fertilised by the sperm of the husband.
All other techniques cannot be legally sanctioned, for they involve an element of adulterous union and/or could destroy the institution of marriage.
The Qur'anic verse (42:50) stating that it is within the power of Allah (SWT) to leave barren whom He wills enables Muslims to resign themselves to the will of Allah (SWT) in the event that both the process of artificial insemination and in vitro fertilisation fail and leave them without offspring.
If these two techniques fail, they have two further options. If the cause of infertility is the woman the husband may resort to polygamy and try to have children from his second wife. But, if they are so intimately attached to one another and would not like to be disturbed by the presence of another woman, even one legally married to the husband, then they have the option to adopt a child, preferably an orphan. Besides enjoying the spiritual benefits of this responsibility, they will also have the pleasure of rearing a child who may not legally be adopted by them but yet be psychologically satisfying to care for as if he or she were their own.
When the Shari’ah objects to specific biotechnical methods, this does not mean that Islam is against technological advancement or progress nor does it imply that Muslims are fatalists. Surrogate parenting does not encompass with it the true spirit of Shari'ah—it is an unnatural concept of sexual freedom which results in unnatural problems.
And the last of our prayer:
"Glory to your Lord, the Lord of Honour & Power! He is better from what they ascribe to Him! Peace be upon the Messengers! Praise be to Allah, the Lord of the worlds." (37:180-182)