₦airaland Forum

Answered by Shaykh Mohammed Amin Kholwadia


Question:


We are asking specifically about a second method: In gestational surrogacy (aka the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is unrelated to the child (e. g. because the child was conceived using egg donation, sperm donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.

Answer:


In the Name of Allah, the Most Gracious and the Most Merciful


The question of the permissibility of gestational surrogacy (as described above) in Islam is being posed frequently in this day and age. Most Muslim scholars and thinkers seem to view the question as one of fiqh and base their findings on legal analogies and considerations.

One group says that surrogate motherhood of this kind is not allowed because it is akin to zina (adultery) since the surrogate is carrying the fertilized egg of someone who is not her legal husband. The child produced therefore has no lineage through legal marriage and will have to be considered as illegitimate. Therefore, if the product is haram, the means of acquiring the product (the surrogate’s renting of her womb) is also haram.

Furthermore, this group argues, since the biological mother has a genuine stake in the product, there is an overwhelmingly high probability for emotional and legal confrontation between the two “mothers”. Law, by definition, aims to remove potential disputes among human beings. Law is not legislated to increase the possibility of dispute.

As it is quite apparent from certain cases of legal dispute between biological and surrogate mothers, no law has been able to quash the probability of dispute.

Perhaps, the most compelling evidence supporting this group of scholars is the ayah (verse) in Surah al-Mujadalah (58: 2) where the Quran says:

“…their mothers are only those who conceived them and gave birth to them (waladna hum).”


The Arabic verb “walada” is used for the whole process of begetting (wiladah) – from conception to delivery. It does not only refer to the act of carrying (haml in Arabic) and giving birth (wad’). Thus, this ayah categorically denies any rights of motherhood to the surrogate ‘mother’. Furthermore, this group can argue that the harms of confusion and dispute far outweigh the benefit of offering someone a child. The child will be a source of perpetual stress for all parties involved which will invariably cause harm to the child also. “Harm is to be avoided before benefit is derived” is a well established maxim in Islamic law.

Another group of scholars favor the permissibility of this kind of surrogacy. They base their claim on secondary considerations and not on any primary principle. This group claims Islamic law recognizes the preservation of the human species as one of its primary objectives (maqasid). It follows that allowing married couples to pursue conceiving children is also part of this primary objective. Therefore, if a married couple is not able to conceive children themselves, they should be allowed to use means that override their inability to do so. If surrogacy is one method, it should also be allowed on the principle of maslaha (public interest). The fact that the surrogate mother is not carrying her own child can be overridden by saying that she is merely renting her womb as an incubator and she is not actually engaged in any act of zina. Besides, there is no fear of confusing the lineage of the child as the biological parents are already confirmed. This could be made analogous – some say – to hiring a woman to breast feed someone else’s child which is an acceptable practice.

^^^ Second View. Wallahu A'alam.

MrOlai:
^^^ Second View. Wallahu A'alam.

Why if I may ask?

enieme:
Why if I may ask?

For the following reasons:

1. The child is a biological child of the mother, even though, she is not the one that carries the pregnancy.

2. It is an avenue for those wives who could not carry pregnancies to have their own biological children. It is probably a mercy from Allah(SWT). For a woman, who loses her womb for one reason or the other, or a woman on whose womb fertilised ovum cannot be implanted for one reason or the other, we should not deprive them of the opportunity of surrogate pregnancy.For as long as the women are still ovulating and the sperm cells used belong to their husbands, with their ova, they should not be deprived of having their own biological children through surrogacy. I strongly believe it's a safety net from Allah(SWT) for women with uterus problems.

Wallahu Ta'ala A'alam.

MrOlai:
For the following reasons:

1. The child is a biological child of the mother, even though, she is not the one that carries the pregnancy.

2. It is an avenue for those wives who could not carry pregnancies to have their own biological children. It is probably a mercy from Allah(SWT). For a woman, who loses her womb for one reason or the other, or a woman on whose womb fertilised ovum cannot be implanted for one reason or the other, we should not deprive them of the opportunity of surrogate pregnancy.For as long as the women are still ovulating and the sperm cells used belong to their husbands, with their ova, they should not be deprived of having their own biological children through surrogacy. I strongly believe is a safety net from Allah(SWT) for women with uterus problems.

Wallahu Ta'ala A'alam.

but how about this?
" Surah al-Mujadalah which defines who is a mother and who is not. The ayah is a primary source of Islamic law and provides conclusive evidence regarding the definition of motherhood as one who both conceives and gives birth. Since neither the biological mother nor the surrogate has comprehensively fulfilled the definition of motherhood, as defined in the ayah, Islamic law will not be able to determine who the mother is."

enieme:
but how about this?
" Surah al-Mujadalah which defines who is a mother and who is not. The ayah is a primary source of Islamic law and provides conclusive evidence regarding the definition of motherhood as one who both conceives and gives birth. Since neither the biological mother nor the surrogate has comprehensively fulfilled the definition of motherhood, as defined in the ayah, Islamic law will not be able to determine who the mother is."

The Scholars of Islam can come in here. However, I still strongly believe that many new computer age medical techniques are safety nets from Allah(SWT) for married couples. For examples. Ceesarian Section (CS), IVF, Surrogacy, etc.One woman lost her two fallopian tubes to ectopic pregnancies! She had not given birth to any child by then! Alhamdulillah today, she is a proud mother courtesy of IVF!

Allah(SWT) knows best.