Surrogate Parenting: Ethical or Unethical
It is true that in order to help a couple overcome infertility and become parents, biomedical science has laid down certain ways and means – surrogate parenting is one of them. Although this raises a number of ethical and legal questions and thus cannot be given blind approval, as our Prophet (pbuh.) 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.”
Surrogate parenting involves a woman bearing the child of another woman (either through direct sexual contact with another woman’s husband or by artificial insemination method) who is not in a position to bear children as a result of blocked fallopian tubes, or lack of a uterus, or may be due to infertility, or some other reason like making career. 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. According to sociologist Nandini Sardesai who says “Many girls might not want to jeopardize their careers by getting pregnant, slowing down for nine months at work and taking maternity leave.” 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 who is 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 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 that
1st. 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
This is something that has come up recently, within the last few years, where the idea of renting wombs been made attractive (by the Shaytaan) to some people and they say there is nothing wrong with it and so on. Undoubtedly this is haraam, primarily because Allah has commanded us to guard our chastity, as He saysin the Quran: “And those who guard their chastity (i.e. private parts, from illegal sexual acts) Except from their wives or (the slaves) that their right hands possess, for then, they are free from blame” [al-Mu’minoon (23):5-6]
So Allah has forbidden men to engage in sexual activity with anyone except their wives and female slaves, i.e., having intercourse with them (female slaves) on the basis of possession.
Secondly, Allah tells us that man is enjoined to protect his lineage and his children. Undoubtedly this womb-renting will lead to confusion of lineage and not knowing who the father or mother is. This confusion of lineage will lead to disputes between the original wife and the woman whose womb is rented, and it will not be known to whom the child belongs. Even if we say that he belongs to one of them, the matter still will not be certain. Hence we advise women to keep away from such things. Moreover, this undoubtedly requires looking at ‘awrahs’ and at the private parts which it is forbidden to see, and it also requires collecting sperm and extracting the eggs and placing them in other wombs. All of that is not allowed in sharee’ah, indeed it comes under prohibition mentioned in the aayah (interpretation of the meaning): “Tell the believing men to lower their gaze (from looking at forbidden things), and protect their private parts (from illegal sexual acts)” [al-Noor (24):30]
What is meant is to protect them by covering them so that no one will see the ‘awrah’ of another. This is the way of Islam and we pay no attention to those who deviate and go against that, and permit this borrowing and this renting of wombs, the consequences of which will undoubtedly be disastrous.
Renting wombs is one of the innovations of western civilization, which is a purely materialistic civilization which does not give any weight to moral values and principles. The womb is exclusively for the husband who is married to that woman according to a valid marriage contract, and no one else has any right to use it for an alien pregnancy. If the woman who rents out her womb is not married to that husband, then she is permitting her private parts and her womb to a man who is a stranger to her; she is not permissible for him and he is not permissible for her. Even if this is not full-scale zinaa (adultery), it is still definitely haraam because it is enabling a man who is a stranger to her (i.e., not married to her) to put his semen in her womb. – Dr. ‘Abd al-‘Azeem al-Mat’ani, al-Azhaar University
The foetus is nourished and is influenced by the womb and the environment that surrounds him. Bad habits on the part of the surrogate mother may lead to deformity of the foetus, such as smoking, drinking alcohol, etc. Then what if the doctors discover some physical deformity in the foetus before birth and try to treat that by means of surgical intervention? Will the surrogate mother allow that? Will she put her life at risk for the sake of a child who does not belong to her? Moreover, there are some women who become sick as a result of pregnancy, suffering such diseases as a sudden rise in the level of blood sugar, or a rise in blood pressure, or toxaemia, some of which may take the life of the pregnant woman and which require medical intervention to sacrifice the foetus in order to save the life of the pregnant woman. How would the surrogate mother and the original mother work this out? How are we to deal with the ethical, legal, social and psychological problems that result from that? Therefore we can reach only one conclusion, which is that the mother who carries the pregnancy can only be the original mother, the child should be attributed to the marriage bed, and that she should conceive, nourish her foetus and give birth to it. Saying that renting wombs is like hiring wet-nurses has no basis in truth, for a wet-nurse breastfeeds a child whose lineage is known, and she can stop breastfeeding him when she wants or when the original mother wants, if she feels that there is any danger. Moreover, in the relationship between a husband and wife there is no room for any third party, no matter who he or she is, not for renting a womb or for donating sperm or donating eggs. Because of such things innumerable problems have arisen in western societies. In Britain an original mother gave twenty thousand pounds to a surrogate mother in return for renting her womb for nine months. When that time was over, the surrogate mother demanded many times that amount from the original mother in exchange for giving up possession of the child. So if this door is opened it will bring us innumerable legal and social problems. – Prof. Jamaal Abu’l-Suroor – Dean of Medicine, al-Azhaar
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)