By Mohd Shaikh Farid, Dhaka University
DHAKA, July 18 – Having a child is one of life’s great joys. But in many parts of the world — especially in the Muslim world — options for infertile couples to have children are limited.
Surrogacy is forbidden in much of the Middle East, although it is allowed in Iran, provided that the surrogate mother is married and the parents-to-be are too.
As a result, Iran has become a go-to nation for surrogacy. And at a time when many Islamic countries’ fertility rates are falling, surrogacy is one of the alternatives to continue a family’s lineage.
Surrogacy has been a contentious subject in Islam since its introduction in the mid-1980s. The Sunni and the Shia, two major branches of Islam, have quite different perspectives on the subject.
The Sunni school of thinking primarily adheres to Sharia law and forbids the use of surrogacy and third-party gamete (egg or sperm) donation based on maintaining family ties and upholding the integrity of religion and marriage.
The Sunni compare surrogacy to adultery and continue to have doubts about the legitimacy of the surrogate child as a result. In their eyes, the act of implanting an embryo into a surrogate mother’s womb annihilates familial ties and is therefore equivalent to adultery.
Surrogacy, according to Sunni scholars, confuses the very nature of family, descent and lineage. Lineage confusion is regarded as going against God’s will, and is therefore illegal and ethically unacceptable.
As a result, a child’s origin should be traced back to his or her original father and mother. The Islamic rule of inheritance is founded on biological fatherhood and motherhood, and inheritance proportions are explicitly specified in the Quran.
Shia Islam, on the other hand, accepts surrogacy through the application of ijtihad (individual intellect).
Ayatollah Khomeini, the Islamic Republic of Iran’s Supreme Leader, issued a fatwa (a religious decree) in 1999 that authorised the use of donor technology, particularly in surrogacy, if the egg and sperm are taken from a lawfully married couple.
When compared to adultery, the act of surrogacy was distinguished by the absence of the physical act of sexual intercourse in the latter.
Shia clerics employ the idea of maslaha (public interest) to better grasp the moral dilemmas associated with medically assisted conception under Islamic law.
Shia academics have stressed the avoidance of divorce and psychological conflicts by legalising surrogacy procedures through the application of both scripture and ijtihad.
Although most Sunni scholars forbid all surrogacy agreements, some have been disputing whether gestational surrogacy, a type of surrogacy in which a woman only carries a pregnancy for the intended parents and is not genetically connected to the child she carries, is acceptable.
Their arguments are based on Islamic laws, specifically Islam’s main goal of preserving humanity.
Surrogate motherhood is also interpreted differently by Sunni and Shia scholars.
Sunni scholars claim that an embryo implanted in the surrogate mother is the same as implanting the sperm of another man, to whom she is not legally married, to bear his child.
Shia scholars, employing ijtihad, regard the concept of an embryo as distinct from the concept of sperm. They do not consider the introduction of an embryo into the uterus of a surrogate mother to be analogous to the sperm of a man to whom she is not lawfully married.
Many academics also contend that the doctrines of justice, public welfare, and necessity (maslahah) can be applied in this situation.
Even some forbidden behaviours are permitted in Islam when necessary, such as eating pork (banned in Islam), if it is the only source of available food to survive.
Islam therefore permits banned behaviours that usually contravene the fundamental foundations of Islamic law in the interest of the greater benefit of society and need. Such a requirement for infertile couples fosters the preservation of the couple’s right to marriage, family formation, and reproduction.
The main goal of Islamic law is the preservation of the human species. As a result, if infertility is considered a sickness, surrogacy could be used to treat it.
Infertile married couples can therefore be permitted to use surrogacy due to necessity, social and psychological considerations, and to keep their marriage together, and the yearning to have a child of one’s own lineage.
Surrogacy can be viewed in the context of a progressive interpretation of Islamic law rather than being outright prohibited.
Sunni scholars could approach surrogacy using ijtihad in addition to these sources. They could read the textual sources of Sharia law considering the maqasid (objectives) of Islam rather than reading them literally.
While Islamic scholars continue to debate surrogacy in Islam from many angles and with various interpretations, it’s helpful to tackle this difficult topic sensitively, obtaining advice from scholars and placing the welfare of all people involved as a top priority.
Mohd Shaikh Farid is a professor in the Department of World Religions and Culture at Dhaka University, Bangladesh.
Article courtesy of 360info.