What is the Islamic position on surrogate motherhood?

Answered according to Hanafi Fiqh by

Answered by Shaykh Muhammad ibn Adam al-Kawthari

What is the Islamic position on surrogate motherhood, which involves “a woman who becomes pregnant usually by artificial insemination or surgical implantation of a fertilized egg for the purpose of carrying the fetus to term for another woman”?

In the Name of Allah, Most Gracious, Most Merciful

In the name of Allah, Most Compassionate, Most Merciful,

The problem of infertility is a very old problem and has always been a matter of concern for human beings. From the very early times, people have tried to treat this problem with all kinds of treatments and therapies. Infertility is defined as the failure to produce viable pregnancy within one year of regular sexual intercourse, without the use of contraceptives of course.

Islam teaches us that the creation of life is the exclusive function of Allah Most High. No matter what method and means one employs, if Allah Almighty does not wish to grant children, one will never have children.

Allah Most High says:

“To Allah belongs the dominion of the heavens and the earth. He creates what He wills. He bestows female (children) to whomsoever He wills and bestows male (children) to whomsoever He wills, or He bestows both males and females, and He leaves barren whomsoever He wills. He is full of Knowledge and Power.” (Surah al-Shura, V. 49-50)

Sayyiduna Abu Sa’id al-Khudri (may Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) was asked about coitus interruptus (azl) whereupon he said: “The child is not born from all the liquid (sperm) and when Allah intends to create something, nothing can prevent Him.” (Sahih Muslim, no. 1438)

Thus, the granting of children is the exclusive right and function of Allah Most High. Hence a Muslim should always first resort to supplicating Allah Most High, for if He wills to grant and bestow children, none can prevent Him.

The Qur’an mentions two great Prophets of Allah who were also faced with this problem, but supplicated and beseeched Allah Most High, and were granted children in their old age.

Allah Most High says regarding Sayyiduna Zakariyya (peace be upon him):

“There did Zakariyya pray to his Lord, saying: “O my Lord! Grant unto me from You a progeny that is pure: for surely You are the Hearer of prayer. Then, while he was standing in prayer in the chamber, the angels called unto him: “(Allah) gives you glad tidings of Yahya, witnessing the truth of a Word from Allah, a leader and chaste, and a Prophet, from amongst the righteous.” He said: “O my lord! How shall I have a son seeing I am very old and my wife is barren?” Allah said: “So it shall be, Allah does what He wills.” (Surah Al Imran, V. 39-40)

Sayyiduna Zakariyya (peace be upon him), despite being very old did not hesitate for a moment in supplicating and asking Allah Most High to grant him children. It is reported from Sayyiduna Ibn Abbas (Allah be pleased with him) that on the day Sayyiduna Zakariyya (peace be upon him) was given the glad tidings of Sayyiduna Yahya’s birth, he was 120 years of age and his wife was 98. (See: Tafsir al-Kabir of Imam al-Razi, 3/214

In another place of the Qur’an, Allah Most High says regarding Sayyiduna Ibrahim (peace and blessings be upon him):

“And his wife was standing (there), and she laughed: And We gave her glad tidings of Ishaq, and after him, of Ya’qub. She said: “Alas for me! Shall I bear a child, seeing I am an old woman, and my husband here is an old man? That would indeed be a wonderful thing!” (Surah Hud, V. 71-72)

This great Prophet of Allah, Sayyiduna Ibrahim (peace be upon him) was also 120 years of age, whilst his wife Sayyida Sarah (peace be upon her) was 90 or 98 years old. (Tafsir Abi Sa’ud, 4/325). Despite this, they were given the glad tidings of not only a child but also a grandchild.

Therefore, the first step to be taken is to beseech Allah Most High and ask from Him, for if He wills, one will be bestowed with children, and if he does not desire, nothing can bring about children.

One may also resort to adopting children. However, one must remember that there are strict rules with regards to adopting a child. The child cannot be attributed except to his real parents. If the problem is with the wife, the husband may also marry a second time, but here also, there are strict conditions and rules that need to be met.

Alternatively, the couple may resort to medical treatment. When undertaking medical treatment, one must remember that means themselves do not have an effect. It is only through the mercy of Allah that one will be granted children.

Modern advancement in medical science has come forth with many methods in treating infertility. At times, the husband’s sperm is artificially inseminated into the wife’s uterus (AIH). Sometimes a third person’s (donor) sperm is introduced into the wife’s uterus (AID), or it is mixed with the husband’s sperm and then artificially inseminated (AIM).

Another method is of fertilizing the woman’s eggs in a laboratory test tube with the husband’s or a donor’s sperm and then returning the resulting ovum into the woman’s uterus. This method is known as In-vitro fertilization (IVF).

Surrogate motherhood is also a method in treating infertility. It involves using the service of another woman to serve as a carrier for the ovum of the couple. The woman makes her self available to inject the fertilized ovum into her own womb and then carries the child to its full term on behalf of the other couple.

People resort to this procedure either because a married woman who desires to have a child has a problem in carrying the child to its full term, or because of her desire to simply forgo the “trouble” of conception and labour.

As far as the Islamic ruling on these various forms and methods of treatment is concerned, one must keep in mind a very important principle, for that answers all the questions. The principle is that resorting to these methods of medical treatment is permissible as long as “only” the husband and wife are involved. It is completely unlawful to use a third party’s (donor) sperm or eggs.

The reason being is that Islam has completely prohibited adultery (zina) and everything that leads to it. Islam lays allot of importance on the preservation of lineage. The preservation of lineage (hifz al-nasl) is one of the five universals and objectives of Shariah. As such, introducing a third party into the family equation would confuse the lineage, hence it will not be allowed. Using the sperm or eggs of a third person would create doubt and confusion with regards to the child’s identity. The child’s lineage and identity will not be preserved and safeguarded.

Many contemporary scholars have declared the introduction of other than the husband’s sperm into the wife akin to adultery (zina), 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.

Allah Most High says:

“And those who guard their private parts. Except with those joined to them in the marriage bond, or (the captives) whom their right hands possess, for (in their case) they are free from blame. But those whose desires exceed those limits are transgressors.” (Surah al-Mu’minun, V. 5-7)

Ruwayfi’ ibn Thabit al-Ansari (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said on the day of Hunayn: “It is unlawful for a man who believes in Allah and the last day that he waters the plant of another.” (Sunan Abu Dawud, no. 2151 & Sunan Tirmidhi) The meaning of watering the plant of another is to introduce one’s sperm into the womb of another person’s wife.

Therefore, all forms of treatment in which a third party is involved are completely unlawful. Hence, AID, AIM and surrogate motherhood is out of the question.

Moreover, the question of “to whom will the child be attributed” also arises in such cases. Scholars mention that despite the prohibition of resorting to such methods, if one did employ them, the child will always be attributed to the mother’s husband.

There is a famous Hadith recorded by Imam Muslim and others in which the Messenger of Allah (Allah bless him and give him peace) said: “The child will be attributed to the husband and the adulterer will receive the stone”. The meaning of this Hadith is that the right of paternity will always be for the person who is married to the child’s mother.

Thus, if a donor’s sperm or the husband’s sperm mixed with that of a donor was introduced into the wife, the child will still be attributed to the husband. However, 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 surrogate motherhood, the problem becomes even more perplexing as to who will be considered 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 Qur’anic verse which states: “Their mothers are only those who gave them birth” (Surah al-Mujadalah, V. 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.

Artificial insemination between the husband and wife

As far as artificial insemination between legally married husband and wife is concerned, majority of the 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.

Some scholars have raised certain objections to the permissibility of artificial insemination, even if it be between married couples. They state that there are two problems Islamically in carrying out such methods.

Firstly, the sperm of the husband is normally acquired by masturbation, which is prohibited except in certain dire situations. Hence, in order to treat infertility, one will have to undergo something which is unlawful. They state that infertility is not an extreme medical problem to the extent that it would make unlawful medication lawful.

Secondly, the husband and wife both will have to expose their nakedness (awra) in order to receive treatment, and again, this is not allowed merely in order to have children, they say. Exposing of the Awra becomes permissible only in certain situations of need and necessity.

The answer to both these objections is that the desire of having children is very serious indeed. Those who are unable to bear children at times undergo depression and emotional trauma. At times, it may even lead one to infidelity and adultery. Hence, this is a case of need (dharura) wherein the rules become somewhat relaxed. Therefore, masturbation in order to obtain the sperm of the husband and exposing of the nakedness (awra) would become permissible in treating infertility.

It is analogous to circumcising an adult who accepts Islam. Carrying out a circumcision is a Sunnah, yet it is permitted (according to the majority of the scholars) for an adult man who accepts Islam to expose his nakedness (awra).

Moreover, in the case of masturbation, the idea is not to waste the sperm, rather the opposite. The sperm is used in order to impregnate the woman, whereas normally in masturbation the sperm is wasted. Also, mutual masturbation between the husband and wife is allowed, hence the wife may obtain the sperm of her husband.

One should remember here that some scholars have stipulated a condition, which is that one should be treated by someone of the same gender. Hence, the female should be treated by a female doctor at the time of obtaining her eggs and also when inserting the fertilized ovum into her womb. The husband should also be treated by a male doctor in acquiring his sperm.

In conclusion, there are three conditions for the permissibility of resorting to the various forms of treating infertility:

1) It must take place only between the husband and wife. There should be no third party involvement in any shape or form.

2) The husband and wife should be treated by someone of their own gender.

3) One must be extremely cautious in that there is no ambiguity in the sperm being only of the husband.

The international Islamic Fiqh academy based in Jeddah (Majma’ al-Fiqh al-Islami) which consists of a number of major scholars from around the globe researched this issue in October 1986, and after extensive research issued the following verdicts: Below is the translation of the Arabic text published in the academy’s resolutions:

Resolution No. 16(4-3)

Concerning Test Tube Babies

The Council of the Islamic Fiqh Academy holding its third session, in Amman, Hashemite Kingdom of Jordan, From 8 to 13 Safar 1407 H (11 to 16 October 1986), after having reviewed the studies on the subject of “Artificial insemination” and having listened to the experts and physicians, and after investigation, It became evident to the Council that there are seven (7) known methods, used nowadays, for artificial insemination:

Hence, the council decided on the following:

Firstly, the following five (5) methods are all Islamically forbidden and absolutely prohibited for its own sake or due to the consequences manifested in employing them of the lineage being confused and loss of motherhood and other Shariah prohibited matters. These methods are:

1) The fertilization taking place between the sperm taken from the husband and the eggs taken from a woman who is not his wife, and then the fertilized ovum being implanted into the womb of his wife.

2) The fertilization taking place between the sperm taken from a man who is not the husband and the eggs taken from the wife, and then the fertilized ovum being implanted into the womb of the wife.

3) The fertilization taking place in-vitro between the sperm and the eggs taken from the spouses, and then the fertilized ovum being implanted into the womb of a volunteer woman (i.e. surrogate motherhood).

4) The fertilization taking place in-vitro between the sperm of a man and eggs of a woman who are both strangers to one another, and then the fertilized ovum being implanted into the womb of another man’s wife.

5) The fertilization taking place in-vitro between the sperm and the eggs taken from the spouses, and then the fertilized ovum is implanted into the womb of the husband’s other wife.

Secondly, there is no problem in resorting to the sixth or seventh method, in case of necessity, provided all required precautions are taken. These two methods are:

7) The sperm of the husband and the eggs of the wife are taken and fertilized in-vitro, and then the fertilized ovum is implanted into the womb of the wife.

8) Artificial insemination, by taking the sperm of the husband and inserting it in the appropriate place of his wife’s womb, for fertilization. (See: Qararat wa tawsiyyat Majma’ al-Fiqh al-Islami, P. 34-35)

And Allah knows best

Muhammad ibn Adam al-Kawthari
Darul Iftaa, Leicester, UK

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