Surrogacy in Islam
Surrogacy involves a woman (the surrogate) agreeing to bear a child, and subsequently to surrender that child to be brought up by a person or persons other than herself.
The most common form of surrogacy is where a couple arrange for a surrogate to undertake artificial insemination using the semen of the partner. This is called “partial surrogacy”.
Alternatively, a surrogate may have a biological link with the child she bears by virtue of the fact that fertilization was achieved by means of IVF followed by embryo replacement.
A surrogate-born child may have no genetic link with the surrogate at all. In other words, the surrogate is merely offering her gestation function to an embryo. This is referred to as “fall surrogacy”.
A more unlikely possibility, where the surrogate has no genetic link with the child, is where the commissioning parties also have no genetic link with the child – for instance, where an embryo is donated by anonymous gamete donors. This is referred to as “donate embryo surrogacy”.
Surrogacy can also be classified according to whether or not money is a concern. Where payment is involved, depending on the sort of payment, and to whom it is made, one can envisage at least three different possibilities. The first possible situation arises where a woman agrees to be a surrogate, providing that the commissioning parties will compensate her for all expenses for the conception and birth of the child and any loss of earnings by the surrogate during the period of confinement. This is “surrogacy with reasonable compensation”.
The second possibility is where a surrogate may receive payment besides that which represents a reasonable compensation. This is called “surrogacy for a fee”.
The third possibility is where payment may be made to a party other than the surrogate. An agency may operate on a commercial basis, arranging surrogacy and charging both surrogates and commissioning parties to bring them together and for provision of counselling services. This is called “commercial surrogacies”. (This is one of the reasons why the media often calls surrogacy “baby selling”).
However, money is not necessarily an important part of surrogacy. For instance, a sister may bear a child for her infertile sister, and the whole transaction may involve no payment of money or other rewards. This is called “surrogacy in principle”.
The above-mentioned techniques no doubt allows an infertile couple to have a child who would have the genetic compliment of the husband, if the husband’s sperm is used to fertilize the ovum of the surrogate woman. But, this is where the problem arises – fertilizing the ovum of a woman by the sperm of a man other than her husband can be regarded as an adulterous union. Thus it would be illegal under Islamic Law. Now it may also happen that the sperm and the ovum of the married couple is fertilized in vitro and placed in the womb of the surrogate mother who would be paid for giving birth to the child who would, in that respect, bear the genetic compliment of the contracting couple. Here, it may be pointed out that Islam does permit Muslims to have their children breast-fed by other women. If that is done, then the child would be like the child of the wet-nurse. This means that if the wet-nurse has her own biological children then the child she breast-fed would not legally be permitted to marry any of her own biological children. But, it must be emphasised that this privilege can in no way serve as justification for the surrogate mother. No parallel can be drawn between the wet-nurse and the surrogate mother. The wet-nurse provides the basic nourishment to the already born child, while the surrogate mother carries the “unformed” child to term and literally gives birth to it.
Scholars of Islam have pronounced the following fatwa (Islamic verdict) regarding surrogacy:
It is illegal and immoral to introduce into a woman the sperm of any man other than her husband. The formation of the embryo outside the human body will only be permissible subject to certain strict conditions. It will be Haram (forbidden) to form the embryo by the fusion of a woman’s ovum with the sperm of a man other than her husband. It is also not lawful to implant into a woman an embryo developed in a haram way. Consequently, it will be quite obvious that it is Haram to introduce sperm or embryo into an unmarried woman. If, in violation of Allah’s Law, either the sperm of a man other than the husband’s has been introduced into an unmarried woman or a Haram formed embryo has been introduced into a woman, the rulings will be as follows:
If the woman is married, the resultant child will legally be that of her husband even if it is confirmed that the sperm used was not that of her husband. The same ruling will apply if the child results from a haram embryo. Even if the embryo was formed by the fusion of the woman’s ovum with the sperm of another man, the child will legally be that of her husband. The ‘donor’ of the sperm has no right whatsoever over the child even if prior agreement or contract was entered into to give him the right over the child. If the woman is unmarried, the resultant child will be illegitimate and would be regarded to be that of the surrogate mother. Surrogate motherhood is definitely not allowed in Islam due to the fact that many evils may arise from this procedure, which can be listed as follows:
Unmarried women could be tempted into ‘leasing’ their wombs for monetary benefits, which would, in turn, undermine the very institution of marriage and family life.
In order to relieve themselves of the agony of childbirth, married women could be tempted to resort to this technique. Islam abhors such action.
Since pregnancy cannot be regarded as a burden, but in fact it is a blessing, a woman who passes away whilst in the process of delivering, is given the status of a martyr.
A Transvaal (Tzaneen) surrogate grandmother gave birth to her daughter’s IVF triplets on October 1987, which was a result of the South African Government not clamping down on such practices. Can Pat Anthony’s (surrogate mother) action in carrying the children of her biological daughter, Karen, be morally justified? In doing so, she has implanted the sperm of her son-in-law into her womb. Biologically, the surrogate children she gave birth to, would become her daughter, Karen’s, brothers and sisters, and at the same time, would be legally regarded as Karen’s children. Karen in turn would thus be sharing two types of relationship with the same children.
Finally, surrogate motherhood violates the systematic planning of Allah in the normal process of procreation.