STATUS OF SURROGATE MOTHER IN ISLAMIC PROSPECTIVE

STATUS OF SURROGATE MOTHER IN ISLAMIC PROSPECTIVE

Status of surrogacy in Islam is Haram that is, forbidden. Scholars of Islam have pronounced the Islamic verdict (fatwa) regarding surrogacy. The verdicts pronounced are; 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 permissible subject to certain strict conditions.  It will be forbidden to form the embryo by the fusion of a woman’s ovum with the sperm other than her husband. It is also not lawful to implant into a woman an embryo developed in a haram way. Therefore, it will be quite obvious that it is also Haram (forbidden) to introduce sperm or embryo into an unmarried woman.  Although flexibility to change the jurisprudence according to time, place and condition is one of the characteristic of Islam, surrogacy is not something that we, as a Muslim can change. Allah the Almighty says; “And those who guard their chastity (private parts from illegal sexual acts) except from their spouses……….”  Only a husband has exclusive right to the womb of the woman he is married to. This is because fertilizing the ovum of a woman by the sperm of a man other than her husband can be regarded as an adulterous union. Allah the Almighty also has mentioned that, “And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way.”  Thus, surrogacy would be illegal under Islamic jurisprudence.  Islam does permit Muslims to have their children breast-fed by other woman. The child would be the child of the wet-nurse if the child is being breast-fed. This means that any of her own biological children cannot be permitted to marry the child that has been fed by the wet-nurse. 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. 

Surrogate parenting involves a woman bearing the child of another woman who is incapable to bear children. This is because those incapable women suffer from blocked fallopian tubes or lack of ovaries. If the woman has a health condition that makes pregnancy dangerous to her, this can also be the reason why people choose surrogate mother.  This procedure no doubt allows an infertile married 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. Surrogate parenting, sometimes is referred to as ‘contract pregnancy’ as it involve arrangement between infertile couple and the woman who will conceive a child for them and then to relinquish it to them after she gave birth to the baby.  There are other reasons why people choose surrogacy. A man may wish to have a child, but he has no partner or a gay couple that wish to have a child using their own sperm.  The womb is known as ‘Rahim’. This word is also used to describe one of the attributes of Allah that is him being the Most Compassionate. Perhaps the reason behind it is that the manifestation of Allah’s compassion to human kind begins while we, as human are still in the dark recesses of our mother’s womb. 

The history of surrogacy begins in late 1970’s. Maybe years before that but it is not documented. Infertility is not a new problem experienced only by modern women. Women in all times also faced the same thing. Once they notice that they had trouble conceiving, one way in which they were able to add the member of a family was through the assistance of a surrogate mother. Just like modern women do nowadays. The first recognized surrogate mother was made in 1976. It is stated that Louise Brown is the world’s first test-tube baby. These procedures were carried out by Doctors Steptoe and Edwards who had been actively working on this project since 1966. Louise’s mother has become the first woman that successfully passed the first few weeks of pregnancy. After 9 years of trying and suffering the blocked fallopian tube, she and her husband, John Brown decided to try this highly experimental procedure. Dr's Steptoe and Edwards did something different with Lesley; instead of waiting 4-5 days to transfer the embryo, as they had done with previous attempts, they transferred it at just 2.5 days. It worked and the result, Louise Brown has finally has a child by trying this highly experimental procedures.  Since then, in vitro fertilization (IVF) has spread around the globe. 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." Roughly, there are 600 children were born in the United States by surrogate mothers between the year 1976 and 1988. Surrogacy has been more common since the late 1980s. An estimated of 5000 surrogate births has occurred in the United States between 1987 and 1992.  

Types of surrogacy arrangements depend on the condition of the parties and procedures involved.  The ‘natural surrogacy’ types are one that is achieved by way of artificial insemination. It happened when the wife of the commissioning father is infertile as she is unable to provide an ovum or there is a problem to her uterus.   Traditional surrogacy is also employed when a single heterosexual or gay male wishes to have a child and does not have a suitable female partner for carrying the baby.  Under this type, it involve taking the sperm of the commissioning father and artificially inseminating the surrogate mother who will then carry the resulting embryo to term. The biological relation between the surrogate mother and the child can be clearly seen as she is not only conceiving the child but also provides half of her genetic to the child. This process is also known as ‘full surrogacy’. The second type is known as partial surrogacy. But then, most people recognized it or mentioned this type as in vitro fertilization (IVF) surrogacy as the sperm of the commissioning father is taken and used to fertilise the ovum of his own wife through in vitro fertilization. The zygote formed will then implant into the surrogate mother to be brought to term. The child will be the true genetic of the commissioning parents but was born via a living incubator, which is the surrogate mother. The third type of surrogacy is the commissioning parents. The sperm and ova are obtained from donors. After the fertilization is achieved and zygote is formed, it is then implanted into the uterus of a surrogate mother. When the child is born, he or she is expected to be handed over to the commissioning parents for adoption. 

 

Side effects and medical risk occur across all methods of assisted reproductive treatment. Surrogacy is not a simple alternative to having a child. The process and surrounding issues is complex. These are the complication that all surrogate mother will have to face once they decide to have that treatment. Post-Partum Depression is one of the side effect surrogate mother has to face. It is the sadness and depression after delivering the child or children. Besides, there is also rick associated with the pregnancy such as exhaustion, nausea,  varicose veins, pre-eclampsia,  placenta previa, gestational diabetes, constipation, indigestion, higher blood pressure, hormonal mood changes, abdominal and vaginal weakness, stretch mark because the skin expand as the baby grow and worse, death. Some of them will also facing with the reaction to fertility medication. They will feel irritable, headaches, hot flushes and restlessness. If she is conceiving multiples babies, she has to take a very good care of her health as multiple births are very risk to the health of the mother and the unborn babies.  She has to get enough sleep and rest to make sure both of the mother and the babies are in a good condition. Although an ultrasound examination has no known risks, the mother only suffers a minimal discomfort or psychological distress. Different person will suffer different kinds of side effects and risk. It is all depends on the stamina and also the age of the surrogate as these risks are increased with the age of the surrogate. Furthermore, there is also the rare risk of transfer of HIV and/or hepatitis. To eliminate this risk, mandatory screening of everyone involved in surrogacy is required.  

Problems will occur in every decision we make. So do decision involving surrogacy as it is a complicated thing.  Islam does not support surrogacy due to the fact that many bad things may arise from this procedure. Unmarried women could be tempted into ‘leasing’ their wombs for monetary benefits, which would undermine the institution of marriage and family life. It  would not only up heave the very notion of family relations, but married woman could be tempted to escape themselves from the agony of childbirth by hiring or using other woman. Islam abominates such action. Few of them who didn’t want to suffer the agony of childbirth regard the pregnancy as a burden.  In this situation, they are wrong. Pregnancy is actually a blessing because Prophet Muhammad S.A.W said, “a woman who passes away whilst in the process of delivering is given the status a martyr.”  The worst case scenario is surrogate mother violates the systematic planning of Allah in the normal process of procreation. There is a consequences if the sperm of a man other than husband’s has been implanted into an unmarried woman or a forbidden formed embryo has been introduce into a woman. There are, the ‘donor’ of the sperm has no right over the child even if prior agreement or contract state that he has the right over the baby. If the woman is still unmarried, the child will be illegitimate. Illegitimate child is a child whose parents were not married to each other at the time of his or her birth. If the woman is married and she is force to implant the zygote or she is willing to conceive the baby, the result is that the child will be the child of her husband even if it is confirmed that the sperm used was not her husband.

 

The issues involved in surrogacy arrangement are the ethical and moral issues. Surrogacy requires exposing and looking at the private parts of the surrogate mother in order to implant the fertilization between the sperm from the husband and the eggs from his wife. This procedure may need to repeat multiple times and just imagine how many times the surrogate mother has to open her private part. This is one of the reasons why Islam abhors the surrogacy.  “And those who guard their chastity (private parts from illegal sexual acts) except from their spouses………….”  Exposing of the ‘Awra’ becomes permissible only in certain situations of need and necessity such as there is no female doctor around when the time for giving birth has arrived. This situation is known as ‘dharura’ and male doctor can represent the female doctor to help the pregnant woman give birth to the baby. Surrogacy is one such instance where, the rights of the surrogate and the resulting child are made subordinate to that of the commissioning parents. If payment is awarded to the surrogacy, it will be nothing more than a transaction of womb hiring and baby selling, whereas, if it was done for altruistic reasons, it violates the fitrah, which Allah has already set and would not be allowed.  How is the distribution for the child if she or he is born through surrogate mother is also one of the issue arise. There are also ethical issue about should a child born through surrogacy have the right to know the identity of any of all the people involved in that child’s delivery? To what point for the society to permit women to make contract about the use of their bodies? To what extent is it a woman's human right to make contracts regarding the use of her body? This is all issue that yet been solved. 

The alternative way that infertile married couple can choose aside from surrogacy is too many to choose from. One of them is to remain together permanently without children. Research has stated that this option has proven to be the most common in Egypt and Lebanon. Infertile husband and ‘forty-something’ wives who are deeply head over heal in love with each other remain together in long-term marriages without children. Thus, this action reduces the rate of divorces couple. Islam does allow man to married to four wives but in condition that he can afford to be fair among his entire wife. (And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those right hand possesses. That is more suitable that you may not incline [to injustice.])  The woman can ask her husband to marry another woman so that they can have a child that has the father’s genetic link so that the child can continue his father’s generation. This option is rarely viewed as an acceptable option by woman themselves as they do not like to share her husband with another woman. Besides, they can also legally adopt an orphan child if they really want one. An orphan child need parents for him or her to feel loved and the infertile couple need a child to give their loved to. Indeed, they suit each other. Other way is to try harder and be patient. There is ‘hikmah’ and reason behind it why Allah didn’t grant them kids. Maybe they are not ready for it in terms of physical and mentally or maybe Allah will grant them child, but not now. Allah does know better than his creation as he is The Omniscient. (Oh you, who have believed, seek help through patience and prayer. Indeed, Allah is with the patient.) 

Surrogacy has been banned in France where in 1991 its highest court ruled that ‘the human body is not lent out, is not rented out and is not sold’. It has also been rejected by voters in Sweden, Spain, France, and Germany. In all of the Muslim countries surveyed including the Middle Eastern countries of Egypt, Iran, Kuwait, Jordan, Lebanon, Morocco, Qatar, and Turkey,  as well as a number of non-Middle Eastern Muslim countries including Indonesia, Malaysia, and Pakistan — sperm donation in IVF and all other forms of gamete donation were strictly prohibited. There are also certain countries that allow people to do it including South Africa, United Kingdom and Argentina but an independent ethics committees are employed to evaluate surrogacy requests on a case-by-case basis. In the United Kingdom and some states in the United States of America, commercial surrogacy has been declared illegal but such arrangement are subjected to certain rules and regulations. It literally means that surrogacy is still allowed to help alleviate the sufferings of childlessness for some couples, not for commercial purpose.  India is also allowing this surrogacy since 2002 until very recently, there has been no law concerning surrogacy in India. According to Dr. Deepa Kharb, a lecturer in law at the Institute of Law and Management Studies in Gorgon, India, the Indian surrogate mother bears much more risk than surrogate mothers in more-regulated countries. Indian medical guidelines allow doctor to implant five embryos into a surrogate and after deliver the baby, she has no rights over the child. She can cancel the contract only when it is proved that it was not a valid contract according to section 23 of Indian Contract Act.  In February 2008, the Indian Ministry of Women and Child Development considered recommending legislation to govern surrogacy, but so far it is still impending. Due to the absence of regulatory policies, there remains little legal recourse for rural Indian women if the pregnancy develops complications.  

In conclusion, surrogacy is not only prohibited under Islamic family law, it is also not allowed under Islamic law of contract. Al-Quran and Sunnah is guidance for those who seek the correct path. Everything is in the Al-Quran for us to read and study. Al-Quran is the most comprehensive book that Allah gives through Prophet Muhammad S.A.W, for us, his creation aside from Taurat which Allah gave through the Prophet Musa, Zabur through Prophet Daud and Injil from the Prophet Isa.  (And this [Qur'an] is a Book We have revealed [which is] blessed, so follow it and fear Allah that you may receive mercy.)  If the infertile couple really desire to have a child, they can do it with the right way. Intention doesn’t make things legal or ‘halal’. Allah has created every being in its own fitrah and he has appointed that no change should there be in that fitrah. Although Islam allows its believers to try their best to find cures for disease, there must be a limit to every act because act which tend to prejudice the rights of others are strictly prohibited in Islam. As a Muslim, we must abide all the rules and regulation that Allah has laid for us. (That is because they opposed Allah and His Messenger. And whoever opposes Allah and His Messenger - indeed, Allah is severe in penalty).