A Jurisprudential Analysis of Modern Fertility Issues from the Perspective of Sunni Islamic Law
Introduction
The rapid growth of Assisted Reproductive Technologies (ART) and biomedical sciences in the last 30–40 years has changed the ways that we understand human reproduction from a biological, social and legal point of view. The advances in ART and biomedical sciences can provide hope to the millions of individuals who have the physical, emotional and social challenges of infertility; yet, the new technologies in ART and biomedicine also have created complex ethical, ontological and legal dilemmas and have challenged the established definitions of family; parenthood; and biological identity. In Islam, the developments in ART and biomedicine fall under the category of Nawazil, or emerging contemporary issues in Islamic jurisprudence; therefore, contemporary scholars must formulate new legal rulings (fatwas) through independent reasoning (ijtihad). In Islam, infertility is not considered a punishment from Allah; nor does Islam require that individuals accept and not seek treatment for an affliction. Rather, treatment is encouraged and based upon a foundation in Islamic theology. The Prophet Muhammad (PBUH) clearly stated that one of the purposes for which physicians were sent is to seek medical cures: "For every disease there is a cure." Each method of treatment must be evaluated according to whether it is compatible with the goals of shariah, also known as the Maqasid al-Shariah, when determining whether it is permissible to use the treatment. According to the Maqasid al-Shariah, or the goals of Islamic law, there are five basic needs that are protected by God in Islam: Din (faith), Nafs (life), Aql (intellect), Nasab (descent), and Mal (property). The rights to marry and have children (Nasab) and the sanctity of the marriage contract (marital relationship) are key aspects of marriage under the law of Islam. The right to know one's parentage (Nasab) is one of the major elements of family law in Islam because it creates the relationship between mother and child, provides the basis for legal guardianship and the right to receive child support (maintenance), establishes the right to inherit (Mawarith), and determines the boundaries for prohibited marriages (Mahramiyyah). All four Sunni schools of law (Hanafi, Maliki, Shafi'i, Hanbali) and the International Islamic Fiqh Academy (IIFA) have reached a consensus on the principle that the family unit must be protected from any technology that creates biological confusion. Each of the four schools of jurisprudence uses its own rules of jurisprudential methodology (Usul al-Fiqh) to create separate and independent barriers to prevent the use of any technology that will cause a person to lose his or her biological identity (for example, the Maliki school forbids the use of assisted reproduction through the use of Sadd al-Dhara'i, or to prevent use of technology that may cause harm, while the Shafi'i and Hanbali schools prohibit the use of assisted reproduction methods because they closely follow the Qur'an and Sunnah). The goal of this report is to analyze four of the major modern reproductive technology issues related to fertility—IVF, gamete donation, surrogacy, and cryopreservation—from the perspective of Sunni Islamic jurisprudence.
In Vitro Fertilization (IVF)
Medical Explanation
The most basic and commonly available assisted reproductive technology (ART) procedure is in vitro fertilisation (IVF), which is used to bypass natural fertility methods of internal conception within a woman. This is usually the case for women who have blocked fallopian tubes, severe endometriosis or have significant male-related infertility. There are a number of complex steps involved with IVF:
1.Ovaries & Ovulation:
In Controlled Ovarian Hyperstimulation, medications are given to stimulate the ovaries to cause them to create many mature eggs at once.
2.Egg Retrieval:
A surgical procedure will be performed where the mature eggs are retrieved in one of several minimally invasive techniques.
3.Sperm Donation:
A sample of sperm will be collected from the male donor.
4.Egg & Sperm Fertilization:
The fertilization process will occur either by In Vitro Fertilization (IVF) by combining the sperm and egg in a laboratory dish or Intracytoplasmic Sperm Injection (ICSI) where a single sperm is inserted directly into each egg.
5.Embryo Culture:
Fertilized eggs (embryos) will be cultured in special incubators for at least three to five days.
6.Embryo Transfer:
One or more healthy embryos will be placed into the female's uterus using a specially designed catheter in hopes of leading to implantation and a successful clinical pregnancy.
Sunni Jurisprudential Ruling
According to Sunni Islamic jurisprudence, all four schools have established a consensus that IVF can be considered halal. All schools have found IVF to be a valid option when considering infertility and have supported its use; however, it cannot be viewed as allowing for unlimited and unrestricted usage of this procedure. The consensus allows for certain restrictions to be placed on the use of IVF.
1. Only a husband's sperm (who is legally married) and only the wife's egg (who is legally married) can be used to create an embryo.
2. The act of fertilizing the sperm and egg must be in the time frame of a valid marriage license.
3. The only person who is legally able to carry the resulting embryo is the wife of the biological father.
Any time one of these rules are not followed, for example bringing in third party DNA, then that thing is totally prohibited (haram) (meaning that it is against the law according to Islam). This idea was set forth in the early 1980's by the Islamic Fiqh Council of Makkah and the International Islamic Fiqh Academy worldwide.
Reasoning and Philosophy
The philosophical foundation for permitting homologous IVF (homologous) with a married couple’s respective gametes and creating a child through this process stems from the idea that it is a technical facilitation of a birthright, rather than an alteration of God’s will to create a child naturally.
Given Islam’s emphasis placed upon creating a family and having children, any medical procedure(s) performed to support the existence of the family and the children born into that family would be supported.
The permissibility of IVF is further limited by the principle of Hifz al-Nasab (preservation of lineage) when limited to the use of only the biological material of each spouse within a marriage. This ensures for Sunni Muslim jurists that any child conceived by an IVF procedure utilizing each spouse’s respective gametes is both biologically, legally and spiritually identical with a child conceived naturally through the marital relationship.
Laboratory interventions by the physicians performing the IVF procedure are seen as only a medical bridge for the couple to achieve their desired outcome based on an anatomical defect in the female spouse. Also related to jurisprudential issues concerning the permissibility of sperm procurement from males via masturbation.
While classical fiqh generally prohibits masturbation, some scholars cite the legal maxim of Al-Dharurat tubih al-Mahzurat (the necessity justifies the prohibited) as a valid reason to absolve men from the prohibition of masturbation for the purpose of male sperm procurement to successfully treat infertility by creating a child through the use of the sperm obtained through masturbation, provided that the use of sperm obtained via masturbation is done only in connection with the lawful treatment of infertility and within the relationship of marriage.
Sperm and Egg Donation
Medical Explanation
Gamete donation (sperm, egg and embryo) is when you choose to add a person other than you and your partner into the reproductive process by using donated gametes. This method of reproduction will be used when there is a problem with one or both of the partners producing healthy and viable gametes. For example, sperm donation would involve using the sperm from a male donor to fertilise the egg from a female wife. Egg donation would see a female donor provide an egg that has been fertilised by the husband’s sperm, which the wife will gestate. Embryo donation is using someone else’s embryo that has been created from another couple. Sunni Jurisprudential Ruling In direct opposition from an acceptance basis for homologous IVF on a conditional basis, the position of Sunni Islam on all forms of heterologous assisted reproductive technology (i.e., with third parties) is absolutely and unequivocally prohibited (Haram). This position continues to be re-confirmed by all major Sunni religious and scientific organizations around the world. The Casablanca Bioethics Statement (1997) was an extremely important document that clearly prohibits any number of scenarios in which third parties would have been brought into a sacred marital relationship through the donation of reproductive material. As such, any establishment and/or use of sperm or egg banks for third-party donation are severely prohibited within the Sunni Muslim community.
Sunni Jurisprudential Ruling
In direct opposition from an acceptance basis for homologous IVF on a conditional basis, the position of Sunni Islam on all forms of heterologous assisted reproductive technology (i.e., with third parties) is absolutely and unequivocally prohibited (Haram). This position continues to be re-confirmed by all major Sunni religious and scientific organizations around the world. The Casablanca Bioethics Statement (1997) was an extremely important document that clearly prohibits any number of scenarios in which third parties would have been brought into a sacred marital relationship through the donation of reproductive material. As such, any establishment and/or use of sperm or egg banks for third-party donation are severely prohibited within the Sunni Muslim community.
Reasoning and Philosophy
Sunni Muslims believe that the reasons why gamete donation is absolutely prohibited:
1. The marital contract is an exclusive agreement between a man and a woman that grants the husband and wife rights to have children together. Having a child who is not from your husband or wife, but from another person, is a direct violation of that exclusive agreement.
2. While the act of donating sperm or eggs does not have the same physical effects as adultery (Zina), the consequences for lineage are the same (mixing lineages [Ikhtilat al-Nasab]). The purpose of prohibiting adultery is to avoid mixing of lineages, which happens directly as a result of donating gametes.
3. An Islamic bioethic mandates that every child has a divine and inalienable right to identify their true biological parents. Creating a child where the child will be created hidden from their true biological parents is a question of systemic injustice.
4. Creating a child whose lineage has been falsified creates problems when it comes to inheritance (Mawarith) and makes it difficult to determine whom a person can marry (Mahramiyyah [prohibited marriages]), which will, at some point, lead to incestuous marriages within the grandchildren of the original set of children created with donated gametes. If a married couple break the no-donor sperm rule, the child that results will not legally belong to the dad (the mother's spouse), nor will the dad and the child have any rights to inherit from each other.
Surrogacy
Medical Explanation
Surrogacy is one of the most complicated forms of assisted reproductive technology (ART). A surrogate (gestational carrier) agrees to carry a pregnancy for another couple. There are two primary types of surrogacy:
1. Traditional Surrogacy:
The surrogate mother becomes pregnant using sperm from the intended father; thus, she is a genetic parent of the baby.
2. Gestational Surrogacy:
An embryo created from the sperm and egg of the intended parents (or from the gametes of a donor) is placed in the uterus of the gestational carrier. As a result, the surrogate mother has no genetic relationship with the child.
Sunni Jurisprudential Ruling
Surrogacy of any kind is almost universally condemned. All forms of surrogacy are forbidden according to Islamic law (Haram), whether traditional or gestational; commercial or altruistic. The Islamic Fiqh Council first provisionally accepted one sort of surrogacy — the use of one wife’s embryo by her husband’s other wife in a polygamous marriage — in 1984; but it withdrew that acceptance and prohibited it altogether in 1985 due to the many difficult issues regarding the true mother. All four of the Sunni schools continue to adhere to this prohibition today. (Unlike the Sunnis, some of the Shia groups will permit gestational surrogacy.)
Reasoning and Philosophy
In Sunni Islamic jurisprudence, Surrogacy is Underpinned by Strict Interpretations of Sacred Writings and Ethical Values.
1. Qur'anic Definition of Motherhood:
The Main Barrier Is The Definition of Motherhood As Conferred By The Qur'an. In Surah Al-Mujadilah (58:2) Allah States in His Book, "There is no one else who can be your mother except the one who Gave You Birth (And, Rightly So)." This Ayah Contains a Final Definition of Who Is a "Mother" - Both Genetically and Physically. Because Surrogate Motherhood Separates These Two Aspects From Each Other, Neither Of The Two Women Could Be Called a Mother According To This Final Definition.
2. Controversy Over Comparison to Rada'ah:
To Date, Many Jurists Have Tried To Compare The Concept Of Surrogate Motherhood To Wet Nursing (i.e., Rada'ah); Jurists Have Concluded That This Is A False Comparison Because Wet Nursing Occurs After Someone Has Been Born (And, At Which Time You Know Who The Biological Parent is As That Parent Exists); Whereas Surrogate Motherhood Creates A Confusion About The Child Because Of Where The Birth Occurs.
3. The Commodification of The Womb:
The The Hanafi & Maliki Schools Of Thought Emphasize The Ethicality Of Renting Out Wombs And The Impact That This Action Has On Womankind (hijab). By Renting Out Wombs, Particularly From Women Who Are Economically Deprived, The Woman Is Turned Into An Instrument of Childbirth And A Commercial Commodity. This Acts Against The Meaning of Humanity (karamat) And The Ethics Associated With It.
4. The Child's Legal Status:
If this act were to take place in violation of Sharia law, it is the general agreement among Sunni Faqih that the legal mother of the child is the woman who gives birth to the child (the surrogate mother) and therefore the genetic parents have no legal rights to the child and will not inherit from the child.
Freezing Eggs and Sperm (Cryopreservation)
Medical Explanation
Cryopreservation, or cryostorage, is a cutting-edge procedure to freeze (or cryopreserve) reproductive cells, such as sperm, oocytes (eggs), and embryos, at extremely low temperatures for future use. The usual temperature for this process is -196 degrees C (-321 degrees F), which is achieved by using liquid nitrogen to stop all biological processes in the reproductive cells so that they can be stored indefinitely. There are many uses for cryopreservation: one of the most common uses is to store surplus embryos created from a couple's in vitro fertilization (IVF) cycles; store and transport sperm or eggs for cancer patients who will undergo chemotherapy and will lose their ability to have children; and to store eggs for women who want to delay childbirth for social or career reasons (i.e., social egg freezing).
Sunni Jurisprudential Ruling
Sunni Islamic law has a much more tolerant attitude towards the cryopreservation of embryos/gametes than previous rulings, which were completely against it. There is a lot of room for this type of activity under very specific circumstances. The Egyptian Fatwa Council (Dar al-Ifta al-Misriyyah) states that it is halal and has encouraged its use in the instance of medical need, since patients with cancer may wish to store eggs before having treatment. On the other hand, there is some disagreement among fatwa councils about the use of egg freezing for women who want to store eggs without having a husband or partner, though Dar al-Ifta permits this, while others, such as in Malaysia, do not, due to fears that it may lead to misuse.
Reasoning and Philosophy
Cryogenic storage has unique legal considerations mandating its exclusive use for procreation related to ongoing marital relationships and ensuring the prudent separation of genetic resource samples from being mixed together. (Hifz al-Nasab)
1. Required use of frozen genetic resources exclusively by married individuals:
There is one definitive and absolute characteristic of any frozen genetic resource: it can only be utilized by individuals who have an ongoing (active) marital relationship. As a result, if spouses become divorced or one of the spouses dies, then no additional uses of any frozen embryos or gametes would be lawful because any use can only take place under the purview of the original (legal) contract of marriage. To utilize any frozen genetic resource after the death of a spouse is equivalent to having a child out of wedlock, thereby severing the kinship relationship of the child to its (deceased) father.
2. Comprehensive protection against the mixing of genetic resource samples:
Since Hifz al-Nasab (preservation of individual lines of descent) is one of the main purposes of Shari'ah and must be upheld at all times, cryogenic fertility clinics must have absolutely fail-safe administrative and technological safeguards in place to ensure that the samples are never accidentally mixed. If a cryogenic fertility clinic cannot demonstrate that it has processes in place that will absolutely ensure sample integrity, it is unlawful to freeze any genetic resource for reproduction because of the irreparable harm that may occur to an individual's line of descent.
3. Strict Prohibition of Donation or Sale:
There is a strict prohibition on the donation and/or sale of frozen genetic material or any other third parties. This aims to stop the commodification of human reproductive materials, as well as the illegal introduction of a third party's genetics, which would compromise the purity of lineage.
4. Proven Medical Safety:
Based on the principle of La Darar wa la Dirar (no harm shall be done or reciprocated), the processes for freezing and thawing must be medically safe and will not unduly increase the likelihood of a future fetus suffering from congenital anomalies.
Conclusion
The fusion of contemporary reproductive technology with sunni Islamic jurisprudence highlights a responsive, intricate legal system that allows for both compassion for human suffering and strict adherence to divine law. Thus, the view of Sunni fiqh towards medical advances is not a blanket rejection; rather, it incorporates considerations about these advances into a critical analysis based upon maqasid al-sharia.
Currently, there is a very defined and selective legal framework. If a couple utilizes reproductive technology as a way to bring forth children (homologous IVF, cryopreservation under specified conditions, etc.) within the confines of being legally married to each other, sharia allows for their use and encourages the couple to use this form of technology to assist them in building a family within their marriage. However, other types of reproductive technology that utilize third-party gametes or gestational carriers are strictly prohibited under sharia due to their direct impact upon the clarity of lineage (nasab), exclusivity of marriage, and dignity of humans. In the sunni view, science and technology must be consistent with the long-term stability of the human being (spiritually, psychologically, and socially) by ensuring that human dignity is maintained, lineages are clear, and the sanctity of the marital bond is protected.