Infertility isn’t an issue until one gets married. It becomes a concern when a newly married couple has completed a year of a child-less journey together. Usually, Indian parents coerce the newlyweds into having a child within the first year of their marriage if possible. If they haven’t managed, then they’re bound to have questions raised on their fertility. It is often women who are caught at the blaming end of this spotlight.
Around 10% to 15% of married couples seek infertility treatment in India; so out of the 30 million infertile couples, 3 million are actively seeking treatment. The rate being higher in urban populations with one out of six couples suffering from infertility and desperate for solutions.
Being no less than an epidemic, infertility has been a problem and concern for humans. But it is only recently being accepted that male infertility can play a role in this issue as well. Nonetheless, with the advancements in science and technology, people have found several options available to them. In-vitro fertilization (IVF), assisted reproductive technology (ART), Embryo Transfer (ET) are some such methods that help the struggling couple.
Surrogacy is another option that is available to Indians through the Surrogacy Regulation Bill of 2019. It is defined as the practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
The Bill prohibits commercial surrogacy but allows altruistic surrogacy where no monetary compensation is given to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy. However, the release of movies that deals with this issue, tell a different tale.
‘Mimi’ was recently released on Netflix that talks of a young woman who wanted to be an actress but rushes into becoming a surrogate for an American couple to make quick money. She doesn’t understand pregnancy or its changes and hastily jumps to the opportunity.
How many women have succumbed to becoming surrogates because it was an easy way to earn a quick buck?
Furthermore, they are at risk for developing pregnancy-related complications like high blood pressure, gestational diabetes, iron deficiencies, etc.
Islam acknowledges infertility as two of the great Prophets themselves have suffered from it and were blessed with children in their old age. Prophet Ibrahim (AS), the forefather of all the prophets, because his children Ishaq (AS) and Ismail (AS) went on to carry forward that lineage all the way to the last Prophet Muhammad (S).
“And his wife was standing by, so she laughed,1 then We gave her good news of ˹the birth of˺ Isaac, and, after him, Jacob. She wondered, “Oh, my! How can I have a child in this old age, and my husband here is an old man? This is truly an astonishing thing!”” (Qur’an 11: 71-72)
Prophet Zakariyya (AS) was blessed with Yahya (AS) and he had to face trauma and taunting from his people for his infertility.
So the angels called out to him while he stood praying in the sanctuary, “Allah gives you good news of ˹the birth of˺ Yahya (John) who will confirm the Word of Allah and will be a great leader, chaste, and a prophet among the righteous.” (Qur’an 3:39)
Islam teaches that the creation of life lies exclusively in Allah’s hands; no matter what method and means one employs, if Allah does not wish to grant children then one will never have children. As a result, a Muslim should always first resort to supplicating to Allah for if He wills to grant him, children, none can prevent Him.
One can also choose to adopt children but even that aspect has strict rules. Alternatively, those couples resorting to medical treatment must remember that the means themselves do not have an effect. It is only through Allah’s mercy that one will be granted, children.
However, treatments that involve a third person or a donor egg or sperm are strictly prohibited in Islam. Thus surrogate mothers also come under this ruling and it is effectively haram to opt for surrogacy as Muslims, even amongst co-wives!
One must keep this in mind, they can turn to medical treatment and methods as long as they are the “only” ones involved. It is completely unlawful to involve a third person as the child’s lineage and identity will not be preserved and safeguarded and will result in much confusion.
Not to mention the third party involvement might bring the couple into the folds of adultery and everything that leads to it which is strictly forbidden. Many contemporary scholars have declared the introduction of other than the husband’s sperm into the wife akin to zina (adultery), hence a major sin. They state that artificial insemination of other than the husband’s sperm and adultery are both similar in effect; that is, in both cases the tillage is inseminated by a stranger. It is also a more severe crime than “legal” adoption, which is also completely prohibited in Shariah.
The question of “to whom will the child be attributed” also arises in such cases. There is a famous Hadith recorded by Imam Muslim, and others in which the Prophet (S) said “The child will be attributed to the husband and the adulterer will receive the stone”. The interpretation of this Hadith is that right of paternity will always be for the person who is married to the child’s mother.
Therefore, if a donor’s sperm or the husband’s sperm mixed with that of a donor was used the child will be attributed to the husband. If the husband refuses to accept the child as his own, it will only be attributed to the mother.
If an unmarried woman was artificially inseminated with the sperm of another man, the child will only be attributed to herself. The man whose sperm was used will have nothing to do with the child.
In the case of a surrogate mother, the problem becomes even more complex as to who will be considered as the child’s real mother? Is it the woman who provided eggs from which the child is born or is it the one whose womb serves as a carrier for the child and then gives birth?
Many contemporary scholars have stated that based on the Quranic verse which states: “Their mothers are only those who gave them birth” (Quran, 58:2), the woman who carries the child to its full term and then gives birth to it will be considered the real mother.
Hence, the woman whose eggs were used will not even be regarded as the real mother of the child. When the surrogate mother is considered to be the real mother, her husband (in light of the above mentioned Hadith) will be the father of the child unless he rejects the child in which case the child will only be attributed to the surrogate mother.
One must also remember that it will be unlawful for a woman to use her ex-husband’s frozen sperm after his death or divorce, for her marriage is terminated and her ex-husband is considered to be a stranger.
As far as artificial insemination between a legally married husband and wife is concerned, the majority of contemporary scholars are of the view that this is permissible. It is allowed whether the sperm of the husband is artificially inseminated and injected into the uterus of the wife, or whether the sperm of the husband and the eggs of the wife are artificially fertilized in a test tube and then inserted into the womb of the wife.
References
https://islamqa.org/hanafi/daruliftaa/7822/islamic-position-on-ivf-surrogate-motherhood/
https://islamqa.info/en/answers/22126/renting-wombs-is-haraam
https://prsindia.org/billtrack/the-surrogacy-regulation-bill-2019
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