Article Citation: Dauda Muhammad, Ahmed Hammawa Song & Abdulmutalib Muktar (2024). Surrogacy and its Complexity as a Misunderstood Concept: An Islamic Perspective. DEGEL: The Journal of the Faculty of Arts and Islamic Studies, Vol. 21, No. 1. ISSN 0794-9316
SURROGACY
AND ITS COMPLEXITY AS A MISUNDERSTOOD CONCEPT: AN ISLAMIC PERSPECTIVE
By
Dauda Muhammad, Ahmed Hammawa Song &
Abdulmutalib Muktar
Abstract
The aim of this
paper is to examine the concept of surrogacy, identify the legal issues
associated with it, and analyze its legal implications from an Islamic
perspective. The paper discusses the concept of surrogacy and its practice
among Muslims, including the nature of surrogacy, the factors driving its
practice, and how it operates in medical clinics. The research also identifies
the different types of surrogacy and examines its effects on the surrogate
parties and the children born through surrogacy. These effects include legal,
emotional, social, and health risks. Additionally, the paper highlights secular
views on the legal perceptions of surrogacy, including the perspectives of
pro-surrogacy advocates, opponents of surrogacy, liberal views, and feminist
perspectives. The complexities of determining the real parent of a surrogate
child, as well as the child's relationship to their biologically born siblings,
are also discussed. Documentary and survey methods were adopted in writing the
paper. The research finds that surrogacy presents inherent problems related to
the lineage of the surrogate child, and as a result, some aspects of surrogacy
are considered forbidden (Haram), while others are deemed reprehensible
(Makruh). The research also concludes that the biological mother is the real
mother of the surrogate child, and the child is considered illegitimate, except
in the case of a reprehensible (Makruh) surrogacy.
Key
words: Surrogacy, Surrogate mother/Biological Mother, Genetic Mother
Introduction
Family life,
historically, is one of the ways of generating a society that can live and
organize as a common unique disciplined under social values. This gives courage
to individual in the society, the ambition of getting siblings, tracing to a
father, mother and extended family relations. The best way of achieving all
these is through marriage. The function of marriage is not only for sexual
gratification but also procreations. Thus, human procreations in Islam is
essential for the continuance of the human species on earth to worship Allah
(SWT). Islam basically provides two legitimate ways of human procreation, i.e.
through valid marriage and concubinage as the Glorious Qur’an stated in the
following words “And those who guard their chastity (i.e. private parts
from illegal sexual acts). Except with their wives and the (women slaves and
captives) whom their right hands possess, for(them) they are not to be blamed.
But whosoever seeks beyond that and them it is those who are trespassers”.[1] However,
it is within the power of Allah some people are created with means of
procreations while others infertile. In a situation whereby the couple lacks
procreation, they become disturb and start blaming each other, thereafter start
looking for solutions to their condition. With the introduction of ARTs
technology in this modern time, the couples who come to know about the new
development resort to any possible solution of their infertility through it
without considering ethical and religious implication associated to that
alternative.
One of these
alternatives (of Assisted Reproductive Technologies (ARTs) is surrogacy; It is
a situation whereby an infertile couple will solicit the services of the womb
of fertile woman to be artificially inseminated with the husband’s semen and
the wife’s eggs, and the surrogate carries the pregnancy for a time up to nine
months and give birth, then the surrogate mother transfers such a child with
all his parentage status to the soliciting couple and being paid her
remuneration. In this case, the begotten child has one biological father and
two mothers that is genetic mother who provided the ovum for the procreation of
such child and biological birth mother who carried the pregnancy of the child
and gave birth to him.[2] So it is
complicated in the Islamic Law of Inheritance to determine which of the two
mothers is the real mother of the begotten child so as to establish right of
inheritance among them because Islam reserve the portion of inheritance to only
one mother, “…And for one’s parents, to each one of them is a sixth”[3].
It is also difficult to determine whether there is a right of Inheritance
between the father and the begotten child or not. Other legal issues associated
to surrogacy which require legal verdict include permissibility or prohibition
of surrogacy; permissibility or otherwise of marriage between surrogate
children and their normally born brothers and sisters from the two sides of
their two mothers; permissibility or prohibition of hiring the womb (of
surrogate); and permissibility or prohibition of In-vitro fertilization.
Therefore,
looking at the complexity surrounding the practices of surrogacy and the
divergent opinions of Jurists(Fuqaha) as regard to its practice, as
well as other legal issues associated to it, is necessary to conduct a research
on the correct legal opinions of Muslim scholars on it and find out the
accepted view on the permissibility or otherwise of surrogacy and legal status
of the already born children in the law of inheritance, so as to give a focus
to the Judges, Scholars and Muslim Ummah.
Concept of
Surrogacy
As highlighted
in the introduction, there are various biomedical methods for addressing
infertility through Assisted Reproductive Technologies (ARTs). One such method
is surrogacy. In technical terms, surrogacy involves the practice of hiring a
woman's womb to be artificially impregnated with the husband's sperm, so that
she carries the embryo for a specified term. Upon birth, she gives the child to
the intended couple. In this arrangement, the child has two mothers: the egg
donor and the biological birth mother, along with one biological father. The
intended couple is referred to as the commissioning parents, and the agreement
is known as a gestational agreement.[4]
Historical
Background of Surrogacy
The first case
of surrogacy can be traced back to 1980 when a traditional Surrogate Mother was
paid Ten Thousand US Dollars for her services. Later in 1984, a couple hired a
woman to be their traditional surrogate. After the successful operation, the
surrogate mother failed to respect the agreement of handing over the child to
the commission parents. The matter was brought before the court of law where it
was declared that the surrogacy arrangement made between the parties has no
legal backing as such, it is illegal. Therefore, the court granted the custody
of the surrogate child to the biological father, while giving visitation rights
to the surrogate mother. The Intended mother was never able to adopt the child.[5]
In Nigeria,
historically the introduction of surrogacy is hardly being traced because of
religious and ethical implications associated to it. Thus, in Nigeria,
surrogacy is neither banned nor legalized, those who engage in its practice may
or may not be liable for conviction as the practice is not a defined offence in
the country’s legal system rather there have been legislative attempts to
legalize the practice.[6]
Surrogate
Mother
The noun surrogate is
derived from the Latin word surrogatus, the past participle
of surrogare or subrogare, meaning a substitute or
a person appointed to act in the place of another. In the Arabic language,
surrogate mothers are referred to by various terms, including Ummu
al-Kazibah (false mother), Ummu al-Badilah (substitute
mother), Ummu al-Musta’jir (rented mother), Ummu
al-Hadanah (foster mother), and Ummu Ar-Rahimu al-Musta’ar (rented
uterus mother), among others. All of these terms describe a woman whose womb is
rented and who is impregnated with the sperm and egg of a couple, assuming the
responsibility of carrying and giving birth to the child.[7]
Types of
Surrogacy
Basically,
there are two types of surrogacy, namely, traditional surrogacy and gestational
surrogacy.[8]
1.
Traditional Surrogacy
It is a process
of procreation whereby the egg of the Surrogate and the sperm of the husband is
used in the procreation. This can be done either through natural sex or involve
‘In-Vitro fertilization’ (IVF). Thus, successful operation of this, requires an
artificial insemination of the sperm of the intended father or sperm donor into
the surrogate. Thus, the surrogate mother in this type is genetically related
to the child she gave birth.[9]
2.
Gestational Surrogacy
This is a type
of surrogacy where embryo is fertilized with the sperm and egg of intending
parents and implanted into the surrogate mother. In this instance, the
resulting child has no genetic relation with the surrogate mother.[10]
The gestational
surrogacy requires more intricate medical interference than traditional one.
Unlike traditional surrogacy which can be carried out even in a natural way
through sexual contact or by simple insemination of the sperm, the process of
gestational surrogacy requires In-Vitro fertilization (IVF) and the embryo
transfer (ET) to the womb of the surrogate mother.
Factors
Causing Surrogacy
There are
certain factors emanating from both the commissioning couple and Surrogate
mother that lead to the involvement and engagement of surrogacy. The
fundamental factors initially rise from the commissioning couple, this is as a
result of certain unavoidable problems i.e. infertility, while for the
surrogate mother mostly is commercial or altruistic reasons. Some of these
reasons for the couple include:
1. When
a wife’s egg is unable to fertilize and give birth.
2. If
the uterus of a wife is not good for the conception.
3. When
the wife has no uterus.
4. When
the wife has uterus and is good for the pregnancy but she desire to maintain
her beauty of the body or she does not want to bear the burden of pregnancy and
the pain of giving birth and breastfeeding after birth.[11]
Mairiga (2023)
opines that most women who engage in surrogacy do so primarily to preserve
their physical appearance and to avoid the physical demands of pregnancy,
rather than as a response to infertility. According to the author, if surrogacy
were genuinely pursued for infertility-related reasons, there are numerous
alternative options available that do not carry legal or religious implications
or potential risks related to genetics. However, it is important to note that
surrogacy does not pose genetic complications, as scientific evidence confirms
that the resulting child maintains a direct genetic connection with the
biological parents.[12]
Legal
Framework of Surrogacy
Surrogacy is
not widely accepted as an alternative means of human procreation due to the
potential for lineage confusion and the complex legal issues associated with
its practice. However, in countries where surrogacy is permitted, specific
rules, terms, and conditions govern the contractual arrangements. In contrast,
countries that prohibit surrogacy impose penalties on those who engage in it
and provide legal provisions that determine the status of the resulting child.
Notably, some
countries permit only traditional surrogacy while prohibiting gestational
surrogacy, whereas others allow both or reject both entirely. For example, in
Indonesia, traditional surrogacy is legal, while gestational surrogacy is
prohibited due to its complex implications, particularly in matters of
inheritance. Furthermore, Indonesian law explicitly prohibits the renting of a
uterus for surrogacy purposes.[13]
In Nigeria,
surrogacy is neither explicitly banned nor legally recognized; therefore,
individuals who engage in the practice are not liable for prosecution, as it is
not classified as an offence under the country's legal system. Nevertheless,
there have been legislative efforts to regulate and legalize surrogacy. In
2016, a bill aimed at establishing a legal framework for surrogacy passed its
second reading in the National Assembly. The bill outlined the rules and
conditions governing surrogacy arrangements. Some of the rules include:
1. The
commissioning parents and Surrogate mothers are to enter into a legal agreement
before making any surrogacy arrangement.
2. Surrogate
commissioning couples, are to take the responsibility for all the liabilities
relating to the pregnancy, insurance and post-natal expenses.
3. The
commissioning parents are to compensate surrogate mother for acting on their
behalf.
4. The
surrogate mother is to surrender all parental rights and status of the
surrogate child to the commissioning couple upon giving birth.
5. The
commissioning parents are the legitimate parents of the surrogate child.
6. The
Surrogate born child is to bear the name of the commissioning parents in
certificate and register.
7. The
commissioning parents are obliged to accept the surrogate child regardless of
any abnormalities.
8. The
commissioning parents must issue a certificate of declaration that the
surrogate mother acted on their behalf.
9. The
bills finally stated penalty for commissioning parents who refuse to accept or
take custody of the surrogate child.
10. The
surrogate mother must be between the ages of 21-45 years.[14]
Agreement in
Gestational Surrogacy
Generally, a
gestational agreement refers to a formal arrangement or mutual commitment
between the intended parents (husband and wife) and the surrogate mother to
facilitate the birth of a child. This agreement establishes the rights and
obligations of each party involved. The intended parents have the right to
receive the child from the surrogate mother upon delivery. Conversely, the
surrogate mother is obligated to relinquish the child to the intended parents
immediately after birth. She also has the right to receive financial support
throughout the pregnancy and during the childbirth process. In return, the
intended parents are obligated to provide financial assistance and cover all
the needs of the surrogate mother until she gives birth to the child.[15]
The contract of
surrogacy can either be altruistic or commercial. Altruistically surrogacy is
an arrangement whereby the surrogate mother entered the surrogacy based on
compassion. Thus, the intended couple would not pay the surrogate mother any
compensation apart from the reasonable expenses like, legal charges, loss of
earnings, medical expenses and insurance coverage related to the pregnancy and
period after childbirth. While commercial surrogacy on the other hand, is a
compensatory arrangement of surrogacy.[16]
Process for
the Operation of Surrogacy in the Medical Clinic
For a
successful operation of surrogacy to be carried out in medical clinic, there
are certain procedures and methods to be followed. It usually operates through
In-Vitro Fertilization (IVF). The first process is that the egg of a woman
would be extracted and then manually combined the egg together with the
retrieved male sample sperm in a laboratory Petri dish, then
transferred the embryo into the uterus of the surrogate mother.
The most
effective method of collecting semen is through masturbation (istimnāʿ). Although semen can sometimes be collected by withdrawal during
intercourse, this method is generally unsuccessful because the initial
drops—which contain the highest concentration of sperm—are often lost,
resulting in a low sperm count. Additionally, condoms cannot be used for semen
collection because they typically contain spermicidal agents that can
compromise the quality of the sample.
For the female,
the process involves four basic steps:
(i) The woman
is first administered reproductive hormones to stimulate the maturation of her
ova. Just before ovulation, a small incision is made in the abdomen, and a
laparoscope is inserted to directly examine the ovaries. Once mature eggs are
located, they are extracted using a vacuum aspirator. (ii) In the second step,
the selected sperm is added to the retrieved egg and placed in a biochemical
solution that mimics the natural environment of the fallopian tubes. Once a
single sperm penetrates the ovum, fertilization occurs.
(iii) In the
third step, the fertilized egg is transferred into a nutrient solution. Within
a day, it begins to undergo cell division. When the embryo reaches the
eight-cell stage, it becomes suitable for transfer. (iv) At this final stage,
the fertilized egg is ready to be implanted into the uterus. The Surrogate
woman is then to be given hormones' injections so as to prepare for the
conception. (iv) The Fourth, the fertilized egg to be transferred to the uterus
of surrogate mother. If the operation is successful then the embryo begins to
develop in the normal procedure as natural.[17]
Some
Secularists Views on Legal Perceptions of Surrogacy
The issues of
surrogacy as a concept are juridically viewed from different perspectives.
These include:
1. The View
of Pro-Surrogacy
This group
bases its opinion on the principle of individual choice. According to them,
surrogacy arrangements are voluntary contracts entered into with informed
consent and a clear understanding of the terms. Therefore, the parties involved
should be allowed to proceed, as neither the surrogate mother nor the
commissioning couple is compelled to act against their will. Moreover, once the
surrogate mother has entered into the surrogacy agreement, she should not be
permitted to revoke the contract upon the birth of the child.[18]
2. The Views
of Those who opposed the Practice Surrogacy
The opinion of
this group is based on ethics. To them, the practice of surrogacy is an
exploitation of the woman and the resulting child as well, since it is an
arrangement made for financial benefits and disvirginity. Therefore, the
practice is tantamount to encouragement of prostitution. Moreover, according to
them, the arrangement could have an unhealthy impact on the woman, because her
uterus is treated as mere incubator just for the happiness of someone. It is
also unhealthy for the resulting child because, once the child is born; he/she
becomes a subject of a legal dispute.[19]
3. The
Liberalists Views
This group
bases its arguments on sympathy and compassion. They maintain that commercial
surrogacy arrangements should be prohibited, while surrogacy carried out for
altruistic reasons should be permitted. Their position is that, since such
arrangements aim to reduce the suffering of childless couples, they ought to be
allowed. This is grounded in the belief that alleviating the suffering of
others promotes humanitarian values.[20]
4. The
Feminists Views:
From a feminist
perspective, this group argues from a human rights standpoint. According to
them, since a woman has autonomy over her body, she should be allowed to make
decisions regarding its use, including engaging in surrogacy. They base their
argument on the principle of bodily autonomy and draw comparisons with men,
noting that if the law permits men to sell certain organs such as kidneys,
semen, or blood, then women should likewise not be prohibited from temporarily
renting their reproductive organs. Furthermore, they contend that the woman, by
acting as a surrogate, is assisting an unfortunate infertile couple without
causing harm to others, and if any harm does occur, it affects only herself.[21]
Islamic
Perspectives on Surrogacy
As far as
Islamic legal system is concerned, all aspects of human lives whether personal,
spiritual, social, political, private or medical are all defined by religious
legal system. Islam has clearly provided natural ways of human procreations,
and it allows it (procreations) to take effect through matrimony and or
concubinage as Almighty Allah says: “And those who guard their chastity
(i.e. private parts, from illegal sexual acts). Except from their wives or (the
captives and slaves) that their right hands possess, for them, they are free
from blame; But whoever seeks beyond that, then those are the transgressors.”[22]As
indicated in the Verse, Islam strictly condemned any third party intervention
in the process of procreations. Surrogacy involves the transfer of an egg from
one woman into the uterus of another or use of Assisted Reproductive Technology
(ARTs). This is clearly a third party intervention in human procreations, and
therefore may be termed as contrary to the provision of Islam.
The objectives
of Islamic Law (Maqāṣid al-Sharī‘ah) relevant to the issue of surrogacy include Ḥifẓ al-Nasab (protection of
lineage) and Ḥifẓ al-Māl (protection of wealth). Under Ḥifẓ al-Nasab, the focus is on
determining whether the lineage and chastity of the parties involved are
preserved. Ḥifẓ al-Māl, on the other hand,
pertains to evaluating the permissibility of the commercial dimension of
surrogacy, particularly the hiring of the surrogate mother's womb as a
reproductive organ.[23]
It is important
to note that there is no explicit Qur'anic verse or prophetic tradition that
directly justifies or forbids surrogacy as a solution to infertility. As such,
Islamic jurists engage in Ijtihād (independent legal
reasoning) and refer to the relevant principles of Shariah to
address the issue. There is a juristic disagreement concerning the legality of
surrogacy agreements. Muslim jurists are unanimous in declaring the traditional
type of surrogacy as forbidden, as it is regarded as an arrangement akin
to Zina (illegal sexual intercourse). However, they differ on
the gestational type. Some scholars have justified its permissibility, others
have prohibited it, and some have deemed it Makruh (reprehensible).
The arguments of both sides are outlined below:
Mallam Bala
Sa’id:[24] when he
was asked about the permissibility of surrogacy in Islam has this to say: “we
the followers of Ahl al Baitir Rasool otherwise known as Shiites do
not have our independent opinions on a matter concerning religion, we refer all
our religious matters to our superior scholar who is responsible to give
verdict on every matters, he was popularly known as Ali al Kamena'i and
therefore his opinion is our stand on this issue. According to him
both traditional and gestational surrogacy is permissible. Thus, an infertile
couple is allowed to hire a woman who will be impregnated with their
spouse Nutfa (egg) and upon birth take the
resulting child as their biological and legally born child. Likewise, the
legally married fertile husband is also permitted to seek a donation of an egg
to his infertile wife from a fertile woman to use his (husband’s) semen in the
fertilization and to impregnate his legally married wife, with the following
conditions:
(i) The
reason of doing so is infertility but not for the maintenance of the beauty
(ii) The
wife’s womb is incapable to conceive and
(iii) No
any prohibited act is done in the process.
According to
the proponents among Muslim jurists, the surrogate mother must be legally
married to the intended husband, and there must be a clear agreement between
the egg donor and the surrogate mother. Additionally, the surrogacy arrangement
should be driven by sympathy or compassion for the barren wife, rather than for
commercial purposes. Mallam Bala Sa'id further clarified that the status of a
surrogate mother is similar to that of a nursing or foster mother in Islam. It
is important to note that in 1984, the Islamic Fiqh Council of Makkah issued a
verdict allowing surrogacy, specifically by implanting embryos into the uterus
of the second wife of the same husband who donated the semen. However, in 1985,
the Council withdrew its approval of surrogacy.[25]
Majority of the
proponents of surrogacy are members of the Shiite sects. According to them, it
is allowed for a surrogate to carry another woman's fertilized egg, as long as
the fertilized egg came from a married couple. Likewise, they permitted
traditional type of surrogacy with the condition that the husband and the
surrogate enter into a Mutu'a (temporary marriage).[26] Their reasons
are:
1. Since a woman is allowed
to be a mother of a child through fosterage relationship and thus she should be
permitted to be a mother for hereditary in a need (Daruriyya) situation.
2. Islam permits anything
forbidden during the emergency situations and for that being an infertile is a
state of emergency the woman should be allowed to be a mother of surrogate
child.
To
support Shiite assertion, in the late 1990s, Ayatullah Ali Kamenai, the then
leader of the Islamic Republic of Iran, gave verdict which permits the
third-party donations including egg donation, sperm donation and surrogacy.
From then henceforth, Shiite scholars issue a fatwa (juristic
verdict) legitimized by religious authorities and passed decrees that
allow the arrangements of surrogacy as a solution for infertility only for a
legally married couples. Following the Kamenai's verdict, all issues of eggs,
sperm, and embryo donation, as well as surrogacy, continue to operate.
Opponents of
Surrogacy
The jurists who
oppose the practice of surrogacy argue that any act of placing semen into a
woman who is not married to the man, even if the woman is carrying a fertilized
egg from the married couple, constitutes adultery (Zina). They base
their position on the Hadith narrated from al-Husyaimi ibn Malik Ath-thai, in
which the Prophet Muhammad (SAW) said, “There is no sin in the eyes of Allah
after shirk greater than a man putting his body (sperm) into
the womb of a woman who is not lawful for him." This Hadith underscores
the belief that introducing sperm into the womb of a woman who is not legally
married to the man is a grave sin, second only to shirk (associating
partners with Allah), and is considered tantamount to Zina (fornication
or adultery).
This argument
emphasizes the sanctity of marriage and the prohibition of any form of sexual
relations outside the lawful bounds of marriage. For these scholars, surrogacy
represents a violation of Islamic principles, as it involves a man’s sperm
entering the womb of a woman who is not his wife, even if the woman is carrying
the fertilized egg of the couple. Therefore, they see the practice as both
morally and legally impermissible in Islam.[27]
According to
the group it is clear that transferring the Nutfah of a man
into the womb of a woman who is not legally married is a great sin after shirk.
In his opinion,
Sheikh Sheriff Ibrahim Saleh al-Hussain stated that both traditional and
gestational surrogacy are forbidden in Islam due to the complex legal issues
surrounding the mixture of the Nasab (genealogy) of two
mothers. He argued that the status of the resulting child, particularly in
relation to inheritance law, is uncertain. Despite the fact that the biological
father and the biological birth mother may not necessarily be married prior to
conception, the attribution of parentage remains unclear. Specifically, it is
uncertain which of the two mothers, either the genetic mother who contributed
the egg or the biological birth mother, should be regarded as the child's true
mother. Similarly, the father's status is also uncertain, as he may not be
legally married to the mother of the resulting child. As a result, Sheikh Saleh
al-Hussain asserts that surrogacy is forbidden in Islam, with its prohibition
extending to all related arrangements. This includes gestational agreements,
hiring the services of a surrogate mother’s womb, and in-vitro fertilization
(IVF) for surrogacy purposes. According to him, children born through such
methods are considered illegitimate and, therefore, have no right to inherit
from their father.
Concerning the
status of already born surrogate children despite the prohibition of surrogacy,
majority of Scholars gave legal preferences to the surrogate mother over the
egg’s donor mother, because, many verses of the Qur’an describe mother as the
one who beard the suffering during pregnancy and had difficulties during the
child’s birth. Allah says: “And we have enjoined upon man, to his
parents, good treatment. His mother carried him with hardship and gave birth to
him with hardship, and his gestation and weaning [period] is thirty months”[28]
If we consider
the description of the mother in the above Qur’anic verses we would conclude
that the mother is none but the one who gave birth. Concerning a question
whether or not it is permissible to perform surrogacy between the husband and
his two wives, where one of the wives is infertile and the other one is
fertile, Prof. Muhammad Alhaji Abubakar[29] said
there are differences of opinions of scholars on the issue, some opined as
permissible while others prohibited it, but to him it is reprehensible to do
so. Although, the resulting child’s progeny with his father is difficult to be
determined in this situation, complexity also arises in determining who among
the wives have genetic relation with the resulting child.
Muhammad Ali
Goni Gabciya[30]: observes
that in Islam, he said in Islam unity of man and woman to satisfy their desire
and begets children is only allowed through matrimony and concubinage, thus any
unity of a spouse shorten of these two ways is tantamount to going beyond the
limits of Sharia, Allah says "But whoever seeks beyond
that, then they are the transgressors” (Al-Ma'aarij 70: Verse 31). An exception to this rule where
satisfaction of one’s sexual desire and human procreation may be permissible
based on Darura (necessity/need), for instance, in
a situation where a couple have problem of infertility and then seek modern
medical intervention and beget a child through biotechnical methods, this may
be said that such a couple satisfied their sexual desire and begot a child
through Darura. In this regard, Imam Gabciya classified
surrogacy and its related cases into five categories and each has its different
ruling in Islamic Law, this includes the following:
In the opinion
presented, all the scenarios of artificial insemination and surrogacy outlined
in (i) to (v) are considered in terms of their permissibility under Islamic
law. The jurist acknowledges the potential for such practices to be
deemed Haram (forbidden) for several reasons, primarily due to
the involvement of a third party, which disrupts the sanctity and unity of the
marriage relationship in Islam.
i. Scenario (i): The situation where the
husband's sperm and wife's egg are used to create a fetus in a laboratory, and
the fetus is transferred to the wife's womb is generally permissible in Islam,
as long as no third party is involved in the process. This method falls within
the bounds of the marital union, maintaining the sanctity of the husband and
wife relationship.
ii. Scenario (ii): The practice where the
fertilized egg is implanted in another wife of the same husband, with the egg
of a donor woman, is problematic. It introduces a third party (the donor
woman), and since marriage in Islam is considered a union between one husband and
one wife, the involvement of another woman is viewed as a violation of the
marital integrity and unity. This could be considered Haram.
iii. Scenario (iii): This situation, where
the fertilized egg (from a husband and wife) is transferred into the womb of
another woman (who is not the wife) for pregnancy, is also seen as forbidden.
This is because it involves a third party and changes the legal and social status
of the child, which could lead to confusion regarding lineage, inheritance
rights, and parental responsibilities.
iv. Scenario (iv): In cases where sperm
from a man other than the husband is used to fertilize the egg of a legally
married wife, this is considered Haram due to the involvement
of a third party. The practice could lead to confusion about the child’s
biological father and disrupt the purity of marital lineage, making it
incompatible with Islamic principles.
v. Scenario (v): In this case, where
sperm from a man other than the husband and egg from a woman other than the
wife are used to fertilize the egg in a laboratory and the fetus is then
implanted in the wife’s womb, the practice is also viewed as Haram.
The involvement of two external individuals (the sperm donor and the egg donor)
breaks the unity of the marital contract and could result in issues related to
parentage and inheritance.
Regarding
the third ruling mentioned, where a couple hires a woman (who
is not the wife) to carry a child for them, the situation is unequivocally
prohibited in Islam. This practice introduces a third party into the marriage,
violates the principles of familial integrity, and creates confusion about the
lineage and inheritance rights of the child. Islam places great emphasis on the
purity of lineage and the legitimacy of children, which would be undermined in
such a surrogacy arrangement.
Therefore,
based on these views, surrogacy, both traditional and gestational,
is forbidden in Islam for the reasons outlined. The involvement of third
parties, whether it is a sperm or egg donor or a surrogate mother, complicates
the natural marital bond and poses significant issues related to lineage,
inheritance, and parental responsibility. Surrogacy contracts are considered
contrary to Islamic principles, and all such arrangements are regarded as Haram.
The scholars
mentioned, both from Nigeria and internationally, who forbid surrogacy,
emphasize the Islamic legal and ethical perspectives on the sanctity of
marriage, the integrity of lineage, and the prohibition of third-party
involvement in the procreation process. Their stance is based on the idea that
surrogacy, in its various forms, disrupts the purity of familial ties and
creates complications regarding parentage and inheritance. Here is a brief
overview of some of these scholars:
Nigerian Scholars:
1. Sheikh
Sherriff Ibrahim Saleh Al Hussain – A notable Islamic scholar who strongly opposes surrogacy
due to concerns about its impact on lineage and the potential for confusion
regarding the identity and inheritance rights of children.
2. Sheikh
Goni Gabciya – From the University of Maiduguri, he is also among those
who forbid surrogacy, citing its negative impact on marital unity and societal
integrity.
3. Professor
Muhammad Alhaji Abubakar – From the Department of Sharia at the University of
Maiduguri, he holds a position against surrogacy, emphasizing the importance of
keeping the natural biological relationship between husband and wife intact.
4. Sheikh
Gambo Kyari – National Secretary of JIBWIS Nigeria, known for his
conservative stance on Islamic matters, including surrogacy.
5. Dr.
Muhammad Abubakar Muhammad Talha – From the Department of Islamic Studies at the University
of Maiduguri, he condemns surrogacy due to its contradiction with Islamic
principles regarding family structure and lineage.
6. Sheikh
Sani Umar Fage – Based in Kano State, he is among those who oppose
surrogacy for similar reasons related to lineage and parental identity.
7. Sheikh
Khalifa Al’Amin Abba Banki – A scholar based in Al’ansar Masjid in Maiduguri, known for
his stance on protecting the integrity of the marital bond and family
relationships in Islam.
International
Scholars:
1. Dr.
Yusuf Al-Qaradawi – A prominent Islamic scholar and professor at Qatar
University, Dr. Qaradawi is known for his views on various contemporary issues,
including surrogacy. He has argued that surrogacy, particularly when it
involves third-party donors, violates the Islamic principles of family
integrity and lineage.
2. Dr. Jad
Al-Haq Ali Jad Al-Haq – Former Mufti and Grand Sheikh of Al-Azhar, he has
expressed opposition to surrogacy, citing the uncertainty it creates regarding
the child’s lineage and the ethical concerns surrounding the practice.
3. Dr.
Sayyid Wafa Al Amin Al-Am – A researcher at the Al-Azhar Research Institute, who has
highlighted the legal and moral complications of surrogacy under Islamic law.
4. Dr. Ali
Jum'ah –
Former Mufti of Egypt, who has voiced his opinion against surrogacy, stating
that it disrupts the natural order and poses challenges to the clarity of
parentage.
5. Dr.
Muhammad Sayyid Thanthawi – The former Grand Sheikh of Al-Azhar, who strongly opposed
surrogacy, believing that it conflicts with the Islamic understanding of family
and lineage.
6. Dr.
Mustafa Zarqa – A member of the Islamic Research Institute in Cairo, who
views surrogacy as problematic due to the uncertainties it creates about
parentage and inheritance rights.
7. Dr.
Muhammad Ra'fat Usman – Dean of the Faculty of Sharia at Al-Azhar University, who
has criticized surrogacy for the potential harm it causes to the social and
familial structures in Islam.
These scholars
argue that surrogacy undermines the integrity of the marital relationship and
poses legal and moral issues concerning the identity, parentage, and rights of
children born through such arrangements. Their collective stance reflects a
commitment to preserving traditional Islamic views on family structure,
lineage, and the natural procreation process.[31]
Some of their
reasons for prohibition include the citation of the following Qur’anic verse: “And
those who guard their chastity (i.e. private parts, from illegal sexual acts).
Except from their wives or (the captives and slaves) that their right hands
possess, for them, they are free from blame; But whoever seeks beyond that,
then those are the transgressors”[32]
Effects of
Surrogacy on Surrogate Parties and their Children
There are four
effects so far identified (Ilal) of surrogacy on surrogate mothers and
their children. They are:
1. Legal
effects of Surrogacy
There is
difficulty in determining the nature and status of the child, born through
surrogacy, so also that of the parents as there are possible mix ups of
the Nasab which requires proving the legality of the child’s
status.
2. Emotional
Effects of Surrogacy
Despite all the
sufferings, hope, compassion and overwhelming joy, the feeling of motherhood is
being killed at the end of the agreement. Thus, during and or after the
pregnancy there is a feeling and suffering which is expected to cease at the
end of the agreement. The surrogate mother will be happy of having a child for
the intended couple, but experience difficult feelings for the loss of the
child following the termination of the agreement (child birth). That is why in
some cases (as mentioned above earlier) some surrogate mothers refused to hand
over the child’s custody and parenthood to their biological parents. Moreover,
sometimes there is a tension with one's spouse and or children and challenging
the forming of a relationship with the intended parents through quasi-natural
way.
According to
M., Sa’id[33] even
though there are rare cases of surrogacy in Nigeria and there are challenges
encountered with its practice in countries allowing the surrogacy arrangements.
For example, recently in India many surrogate mothers had demonstrations,
demanding for the return to their surrogate children, because they present
themselves as the real mothers of the children.
3. Social
Effects of Surrogacy
In a society
where surrogacy is a relatively new issue, surrogate children are often
stigmatized due to their birth through a method considered quasi-natural. Some
Islamic scholars argue that a surrogate child should be regarded as
illegitimate, and as such, would not inherit from the biological father, even
if the father consents to the inheritance. Furthermore, surrogacy can damage
the reputation of the surrogate mother, as some individuals may make defamatory
statements about her due to her pregnancy outside of marriage. Surrogate
children are similarly viewed as different by society, particularly by those
who are aware of the circumstances of their birth. As a result, they often face
stigmatization and may sometimes be labeled as illegitimate.
4. Health
Risk of Surrogacy
The primary
health risk associated with surrogacy affects the surrogate mother. However,
the egg donor (mother) faces a minimal risk during the egg extraction process,
as her reproductive organs are vulnerable when an incision is made during the
procedure. Similarly, the sperm donor (father) faces health risks during semen
retrieval. This process typically involves masturbation (Istimna’i) or direct
extraction, both of which are considered unhealthy from both a religious and
medical perspective.[34]
Nasab of
Already born Surrogate Children in Islam
Nasab in Arabic terminology
means paternity or blood relationship which gives the heirs right to inherit.
The heirs include Qur’anic, Agnatic and Cognatic who are related to the
propositus by blood both near and remote relations.[35]In the
perspective of biomedical Nasab, especially in the
surrogacy contract can be created through genetic connections between the egg
donor mothers, biological, sperm donor father and surrogate child but not vice
versa.[36]
However, in the
Islamic legal system, attribution of the Nasab of a child to
his parents as well as paternity can only be established through birth, thus,
if the child is born, his/her Nasab would be attributed to his
biological father and biological birth mother as the Prophet (SAW) said in the
following Hadith:“The child is attributed to the owner of the bed (in which
it was born)…”[37]
In the Hadith,
the owner of the bed is the husband and wife and when the child is born
the Nasab would be attributed to the couple. However, if the
child is born out of wedlock, the owner of the bed is the woman herself, and
therefore the Nasab of a child is attributed to the mother and
the family of the mother alone.[38]
However,
regarding the Nasab of surrogate children, there are
differences of opinions among the Nigerian Muslim Scholars. In Alfasil Bainal
Haqq wal Batil, Sheikh Sheriff Ibrahim Saleh was quoted to have said that, the
transaction carried out or money given for the sale of semen or hiring the womb
is forbidden and the resulting child would be considered as the child came
through prohibited means (Zina).[39]
According to
Imam Goni Gabciya[40] the
children born in a traditional type of surrogacy have the same status with
those born out of wedlock as such, their Nasab is to be
attributed to the surrogate mother only not the egg donor mother. Thus, in
Islamic ruling, the biological father and mother have no legal lineage
connections with the children even if they so wish. In Islam, the Nasab which
creates right of inheritance and establishes prohibited degree of marriage
between persons can only be found through valid marriage, and if we observe the
case of traditional surrogacy there is no valid marriage between the husband
and the surrogate woman. Similarly, in the case of gestational surrogacy,
the Nasab of the resulting children is to be attributed to
only biological birth mother. The egg donor mother’s Nasab to
the child remained like fosterage mother to the surrogate children and in
Islam fosterage relationship creates only prohibited degree of marriage between
the persons involve not a right of inheritance. However, there is an exception
to this ruling. If the surrogacy arrangements took place between the husband
and his two wives as explained above, the Nasab is to be
attributed to both father and the surrogate mother, because both the wife and
the husband were legally married. The other mother remains as fosterage mother
to the children, although such an arrangement (gestational surrogacy) is
reprehensible in Islam.
According to
Sheikh Arabi Ahmad Abulfathi[41] Nasab of
the surrogate children to their parents where surrogacy has already taken
place, he has this to say:“ under normal circumstances, the Nasab of
a child should be attributed to none but the birth mother and the father,
because the Prophet (SAW) said that, the child is for the Bed owner (Alwaladu
lilfirash). However, as in the case of surrogacy the resulting
child’s Nasab is still to be attributed to the birth mother
not the genetic mother; this is because Islam describes the motherhood in terms
of various sufferings during pregnancy and difficulties during birth but not by
mere donation of an egg. Allah Almighty says:“And We have enjoined on man
(to be dutiful and good) to his parents. His mother bore him in weakness and
hardship upon weakness and hardship and his weaning is in two years gives
thanks to Me and to your parents, unto to Me is the final destination”
(Q31:14). Although surrogacy is Haram, however, if the parties know
its prohibition and still went ahead and perform the act, the children’s Nasab is
to be attributed to the mother who gives birth alone and not vice versa.
However, for the arrangements of surrogacy made in a state of ignorance of
ruling, the scholar said:“in Islam ignorance of the ruling is not an excuse
that exonerate a person from responsibility”, as stated in Ahalari (a
Maliki school book on jurisprudence) that “a believer is urged not
to perform any act unless he knows the Islamic ruling on it”. Though the Nasab of
children in this situation is to be attributed to the intended couple, i.e.
woman that owns the egg’s and surrogate father because the arrangements is not
a direct adultery but Zina gaira mubashir (indirect adultery).
Therefore, in this situation the status of their act is not different from the
status of a woman who married in another State and being disputably divorced or
widowed and went to another State and remarried to a person who is ignorant
with her marriage disputable condition. Here in this situation the marriage is
invalid (fasid) and consequently would be revoked but the resulting
children’s Nasab (with the second husband) is to be attributed
to father and mother without any doubt. Therefore, the same ruling applies and
the Nasab should be attributed to the intended couple in order
to avoid the complications of the lineage.
In their views,
Mal. Bala Sa’id and Mal. Muhammad Alhaji gana Albakir[42] opined
that since surrogacy contract is permissible (in their view), the Nasab is
to be ascribed to the biological father and owner of the egg mother but not the
surrogate mother, this is because, it was biomedically proved that the
surrogate child is genetically connected to the surrogate intended parents not
to a surrogate mother, thus, the relationship between the surrogate mother and
her surrogate children is only womb fosterage relation, not a genetic one, her
womb is used for the same purpose as keeping a fetus in the glass womb
(ectogenesis). Therefore, since the glass womb cannot be considered as the
mother of its resulting child the surrogate mother too cannot, because the
development of their growing and birth are the same.
Conclusion
This research
examines the concept of surrogacy and the legitimate status (Nasab) of
surrogate children, based on Islamic perspectives as interpreted by some
Nigerian Muslim scholars. The paper discusses the concept of surrogacy and
Islam's position on its practice, including an overview of the nature of
surrogacy, its causes, and the medical procedures involved in clinics. The
research also identifies two main types of surrogacy: traditional and
gestational. Traditional surrogacy involves the intended father providing only
his semen (without his wife’s ovum), which is then combined with another
woman’s egg and implanted in a woman’s womb other than his wife’s. In contrast,
gestational surrogacy requires both the husband’s sperm and the wife’s egg,
which are inseminated into another woman’s womb for fetal development. The
study highlights the effects of surrogacy on the surrogate parties and the
resulting children. It also includes the views of some secularists on the legal
implications of surrogacy. Additionally, the research presents the different
opinions of selected Nigerian Muslim scholars regarding Islam's stance on
surrogacy and the legitimate status (Nasab) of already-born surrogate children.
The majority of the scholars interviewed concluded that both traditional and
gestational surrogacy are forbidden, while a few argued that surrogacy is
permissible. The study concludes that Islam does not oppose modern solutions to
infertility or attempts to cure various illnesses, provided the methods do not
conflict with Islamic principles.
[1]M.T Hilal and M. M.
Khan , “Interpretation of the Meanings of the Noble
Quran: A translation into modern English, Quran 70:29-31
[2]Al-Bar MA, Chamsi-Pasha H.
“Contemporary Bioethics: Islamic Perspective” Chapter 11, Assisted
Reproductive Technology: Islamic Perspective. 2015 May 28. published online
on https://www.ncbi.nlm.nih.gov/books/NBK500175/ accessed on
28/07/2021 8:10
[3] Qur’an 4:11.
[4]Al Bar, M.A Chamsi; Pasha, Contemporary
Bioethics: Islamic Perspective, op cit, p.177
[5]An Internet Material, Published online
on https://www.worldwidesurrogacy.org/blog/the-history-of-surrogacy accessed on 25 September, 2022
[6]Dr. Alhaji Sanda, 46 years old, A medical
Doctor of IRCC on March 2023
[7] Khairina G. U. et al, Surrogate
Mother according to the Science and Opinions of Contemporary Islamic Scholars,
International Journal of Academic Research , Vol. 7 N0. 8, p. 87
[8] Rozee. V, et al, Gestational
Surrogacy in India, available at https://www.researchgate.net/publication/309769094_gestational_surrogacy_in_india accessed on 12th March, 2020
[9] Ibid
[10] Ibid
[11] Khairina G. U. et al op cit p. 87
[12]Interview with Prof. A.G. Mairiga,
Obstetrician in the Department of Gynecology, UMTH, in his office on 24th April,
2023 around 11:00 AM
[13]Yasanta op cit p.425
[14]Enobong M. et al, Legal Position on
Surrogacy Arrangement in Nigeria and some Selected Jurisdiction,
International Journal of Research in Humanities and Social Science Vol. 3 PP
ISSN 23941 839 2020 p. 21
[15]Honandar, S. et al, Inheritance
Right of a Child born from a Surrogate Mother according to Indonesian Law,
Social Science Research, 2019, p. 428
[16] Available on internet https://www.sciencedirect.com/topics/medicine-and-dentistry/surrogacy accessed on 17th April, 2024
[17]Ibid p. 59
[18]Nasirudeen M. A
Critical Analysis of Artificial Human Reproduction: An Islamic Perspective
, Department of Islami Law, A.B.U Zaria, 2016 p. 21
[19]Ibid p. 21
[20]Ibid p. 22
[21]Ibid p. 22
[22]Ibid Qur’an 23:05
[23] Sharmi Islam, Ethics of
Surrogacy: A Comparative Study of Western Secular and Islamic Bioethics,
Islamic Medical Association of the North America, published online 2013 https://ncbi.nlm.nih.gov/pmc/articles/PMC3708631
[24]Interview with Mallam Bala
Sa’id, 51 years old, Borno State Representative of Shiite sect of at his
Resident Bulunkutu Yan Nono on 22nd May, 2022
[25]Al-Bar MA and Chamsi-Pasha
H. Contemporary Bioethics: Islamic Perspective, Published
online: https://ncbi.nih.gov/books/NBK500175 p. 178
[26]An Internet Material, Published
online: https://classroom.synonym.com/islam-surrogacy-12087837.html accessed on 11/03 /2022
[27]Al-Bar MA and Chamsi-Pasha
H. op cit
[28] Qur’an, Quran 46:15
[29]Interview with Prof Sheikh
Muhammad Alhaji Abubakar, 53 years old, Chief Imam of Indimi Masjid Maiduguri,
at his office in Indimi Masjid on 28th May, 2022
[30]Interview with Dr. Imam Muhammad Goni
Gabciya, 64 years old, Chief Imam of University of Maiduguri, in his office at
University of Maiduguri, Borno State on 9th May, 2022 1
[31]Khairina G. U. et al, op cit Pp. 90-91
[32]Ibid Qur’an 23:05
[33]Muhammad Sa’id, 45 years
old, A Medical Doctor at UMTH Maiduguri on 22nd April 2023
[34]Internet Material,
Published on the web https://surrogate.com/surrogates/pregnancy-and-health/emotional-and-medical-risks-of-surrogacy/ accessed on
01/03/2023
[35]An article titled Blood
Relationship as s Basis of Inheritance under Islamic Law: A Case
Study of the Inner and Outer Circles of Family published online onhttps://eduproject.com.ng/law/blood-relationship-as-a-basis-of-inheritance-under-islamic-law-a-case-study-of-the-inner-and-outer-circles-of-family/index.html 10/07/2022 02:00 PM
[36]Prof A.G Mairiga, an Obstetrician at UMTH
Maiduguri
[37]Sahih Al-Bukhāri Hadith no. 2053
[38] Interview with Sheikh Arabi Ahmad
Abulfathi on 12th June, 2022
[39]Sheikh Sheriff Ibrahim
Saleh Al-Hussain, Alfasil Bainal Haqq wal Batil, Abuja
Publication, Nigeria, p.255
[40]Interview with Dr. Imam
Goni Gabciya on 9th May, 2022
[41]Interview with Sheikh Arabi Ahmad Abulfathi
on 12th June, 2022
[42]An interview with Mallam
Bala Sa’id and Muhammad Alhajigana Albakir op cit
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