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Paper presented at a Conference of Muslim Jurists held at Lucknow 15-17 May 2007 by Professor Dr Omar Hasan Kasule, Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Web: http://omarkasule.tripod.com
ABSTRACT
The paper offers an analysis of legal issues relating to IVF from the maqasidi context. IVF fulfils the purpose of preserving progeny, hifdh al nasl, for infertile couples but could violate the purpose of preserving lineage, hifdh al nasab, if done illegally leading to mixing lineages and biological parenthood outside legal wedlock. Destruction of frozen embryos that are left over after IVF violates the purpose of preserving life, hifdh al nafs. Successful parentage by IVF brings happiness and mental tranquility fulfilling the purpose of protecting the mind, hifdh al ‘aql. However disputes about parentage that arise in illegal IVF negate the same purpose. The expense of IVF procedures in the presence of more pressing needs relating to disease and hunger in the community may violate the purpose of preserving wealth, hifdh al maal.
1.0 MAQASIDI ANALYSIS OF IN VITRO FERTILIZATION (IVF)
1.1 INTRODUCTION
IVF has traditionally been undertaken to treat cases of infertility with failure to achieve fertilization in the fallopian tubes and failure to retain the early zygote.
In vitro fertilization involves fertilizing an ovum with an egg in the laboratory then implanting the resulting embryo into the uterus to grow.
The source of the sperm may be the husband or a strange man. The source of the ovum may also be the wife or a strange woman. The embryo may be implanted in the uterus of the wife, rahm al zawjat dhaataha; or the uterus of a strange woman, rahm imra at ajnabiyyat; that is also called al raham al dhi ir.
Infertility is defined as relative or absolute inability to conceive. It is defined pragmatically as failure to get pregnant after 1 year of regular intercourse without any contraception. Infertility was mentioned in the Qur’an as ‘uqm or ‘uqr[1]. It is considered a serious condition because it could lead to psychological distress, marital problems, and even marital failure. At the ummatic level widespread infertility could spell demographic weakness.
1.2 IVF AND PRESERVATON OF PROGENY. hifdh al nasl
Procreation for a married Muslim couple is considered among the necessities, dharuraat. It fulfils the purpose of the Law about preserving progeny, hifdh al nasl.
The purposes of the human reproductive function can be considered at the individual, family, community, and human levels. Reproduction at an individual level fulfils a deeply felt human desire for self-perpetuation.
Parents are proud of their children, al tafakhur bi al awlaad[2] and naturally desire to have many, al takathur bi al awlaad[3]. Desire of parents for children is natural. The prophet Zakariyyah[4] [5] made du’a to Allah to give him offspring. The prophet encouraged marrying young fertile women for glory of the ummah ‘alaykum bi al abkaar[6]. Marrying women was considered a source of good, inna khayra hadhihi al ummat akthahruhum nisa an[7]. The prophet encouraged fertility when he said: tazawwaju al waduudat al waluudat. Children help cement and strengthen the marital bond. As regards the community level, the prophet encouraged Muslims to have as many offspring as possible to give glory to the ummat so that it may be the largest of communities. When righteous people have many children and bring them up to be righteous they will be spreading light and truth in the next generation in a very effective demographic strategy. At the level of the human species, reproduction is necessary to ensure survival of the human race.
1.3 IVF AND PRESERVATION OF LINEAGE, hifdh al nasab
We have seen above that the Law generally will allow methods of artificial reproduction for purposes of fulfilling the purpose of progeny, nasl. However the purpose of progeny also includes the purpose of lineage, nasab. Thus IVF would be permitted only of it does not violate the purpose of nasab. Permitted forms of IVF preserve both nasl and nasab. Forbidden ones assure nasl but not nasab.
The Law permits invitro fertilization if the sperm and ovum are from legally wedded husband and wife and the zygote is implanted in the same wife. In general any situation in which there is mixing of lineage, ikhtilaat al ansaab, or in which birth is done outside wedlock is forbidden because a child must be produced only through marriage, majiu al walad bi al zawaaj[8]
There is consensus among jurists that in vitro fertilization is prohibited if the sperm is from the husband and the ovum is from the wife and the zygote is implanted in a surrogate mother, shatl al rahim. There is consensus among jurists that a married woman cannot have a zygote implanted into her uterus if a sperm from a donor who is not her husband fertilized it. This type of child-bearing is similar to the pre-Islamic Arabian jahili custom of istibdhaa’u that the Law forbade. Sperm banks are a form of zina with only one difference that the male partner in the crime is not identifiable. The offspring of this procedure is illegitimate, walad al zina. A husband who allows his wife to be fertilized by another man’s sperm is called duyuuth (weak and despised)[9]. There is consensus among jurists that the Law prohibits implantation of a fertilized zygote in a wife if another woman donated the ovum and the sperm is from her husband or a strange man. In the same way the Law prohibits using a hired surrogate mother, al rahim al musta jar or al rahim al dhi ir, in IVF. It also prohibits using a relative as a surrogate mother, al umm al qariibat.
The ultimate penalty for fornication, hadd al zina, is not imposed in any of the situations of illegal in vitro fertilization. Only disciplinary, ta’aziir, punishments are imposed and that for purposes of deterrence. The punishment covers all those involved in illegal IVF: the husband, the wife, and the physician.
Trans-species fertilization which may involve mixing human and animal gametes is prohibited by the Law because it violates the purpose of preserving human lineage.
Mixing of gametes or embryos of different parentage to confuse biological parentage is also forbidden by the Law because it violates the principle of preserving lineage.
Implanting the embryo in a non-human species uterus may become possible in the future. We would like to venture to give an opinion about this because the practice of jurists is not to issue a legal ruling on hypothetical issues. They wait until a problem arises to study its practical consequences before making any judgments.
1.4 IVF and PROTECTION OF LIFE, hifdh al nafs
It is inevitable in IVF operations that ova, sperms, or zygotes may remain unused in hospital refrigerators. The Law has to provide guidelines on the fate of frozen ova, al baydh al mujammadat, frozen semen, al maniu al mujammad, and frozen zygotes, al ajinnat al mujammadat.
IVF procedures of necessity require that more embryos than will be used are cryopreserved. This is because the first attempt may not succeed and the frozen embryos are used instead of the asking the husband and wife to undergo the procedures of sperm and ovum harvesting again. Frozen embryos assure fairly high pregnancy rates[10].
As regards unused fertilized zygotes, there are four alternatives. (a) There is consensus among jurists that they can legally be implanted at a later stage in the wife who was the source of the ovum so that she can have a second pregnancy; this implantation must be carried out during the life of the husband to prevent him from having children after his death and during the survival of the marriage contract to make sure that children are not born out of wedlock. (b) There is consensus among jurists that donating zygotes to a childless couple so that they can be implanted in the wife as a surrogate mother is prohibited because of mixing up of lineage, ikhtilaat al ansaab. There is no consensus yet among jurists on the remaining 2 alternatives: (c) destroying the zygotes or (d) using them for scientific research.
Destroying the zygotes raises the issue of destroying life. The opinion of the present author is that the zygotes have life and have the right of protection under the purpose of protecting life. They therefore cannot be destroyed. The present author’s opinion is that life exists from conception and that the attempt to distinguish between the pre-embryo and the embryo stage is irrelevant.
It has been known since 1998 that stem cells can be sourced from extra left-over embryos from IVF procedures[11] [12]. Use of these embryos or zygotes as sources of stem cells creates an dilemma because it involves destruction of the life of the zygote in pursuit of beneficial therapeutic benefits of stem cell technology. A suggestion that ethical norms of organ donation should be applied to this situation[13] is not valid because it in organ donation the donor’s life is not destroyed or the organ is from a cadaver that has no life.
The opinion of the present author is that use of the zygotes for medical research could be allowed under the principle of the Law that states that necessities permit the prohibited, al dharuuraat tubiihu al mahdhuuraat.
1.5 IVF and PROTECTION OF THE MIND, hifdh al ‘aql
IVF may relieve the mental anguish of couples who cannot enjoy parenthood. Even in situations in which the Law allows IVF, patience is preferred in order to close the door to evil and other complications, tafdhiil al sabr li saddi al dharii’at.
The processes of IVF involve a lot of tension and mental stress and usually several attempts have to be made before achieving a successful pregnancy. The result of IVF also lead to more mental tensions especially if carried out illegally especially disputes about paternity and maternity. For these reasons we may have to consider alternatives to IVF.
The alternatives may be technological. Some of the mental anguish associated with legal and ethical complications of IVF may be relieved in the future by use of new technologies such as the animal uterus or the artificial uterus.
The alternatives may also be social such as foster care of the husband’s children from a co-wife or from a previous marriage or foster care of abandoned outside children. Closed adoption in which the child does not know the biological parents is prohibited by Islam.
Polygamy can be an alternative to IVF for the man but not the women. The infertile couple can accept their fate and be patient while engaging themselves in acts of ‘ibadat.
1.6 IVF and PROTECTION OF WEALTH
IVF is very expensive. It imposes a big financial burden on poor families and poor communities. It would be considered offensive, makruuh, to undertake IVF in a situation where are more demanding priorities such as physical health and famine.
2.0 LEGAL ISSUES IN IVF
2.1 LEGAL CONSEQUENCES OF ILLEGAL IVF
Some Muslims will, despite the prohibition, still undertake the prohibited in vitro fertilization either due to ignorance or disobedience. Children will be born and legal issues will arise that cannot be brushed aside. The still has to address legal and practical consequences of illegal IVF. One of the commonest are maternity and paternity disputes.
2.2 IVF and DISPUTES ABOUT MATERNITY
Disputes about motherhood arise between the biological and the surrogate mother. The Law recognizes two types of mothers: the biological mother, al umm al nasabiyyat, and the foster mother, al umm min al ridhaa’at. The role of the foster mother is nutritional only, dawr al umm min al ridhaa’at al tafghdhiyat. The Qur’an describes both types of motherhood. It describes motherhood in relation to breast feeding, al umuumat bi ma’ana al ridhaa’at[14]. It also describes motherhood on the basis of carrying pregnancy and delivery, al umuumat bi ma’ana al wilaadat[15]. There is still controversy on the thesis that the surrogate mother, al umm al dhi ir, is the same as the foster mother, al umm min al ridhaa’at, on the basis of -analogy, qiyaas.
In the opinion of the present author, the issue of maternity is settled on the basis of biological inheritance. The source of the ovum is the biological as well as the legal mother; the surrogate mother has rights as a foster mother and these are well explained in the Law.
Both mothers have some biological relations. From modern genetics we know that permanent characteristics of a person are in the chromosomes. The source of the ovum contributed half of the chromosomes. The surrogate mother contributed as a conduit for nutrients and left no permanent mark on the child. The source the ovum has a stronger legal and biological relation to the child.
2.3 IVF and DISPUTES ABOUT PATERNITY
The traditional position of the Law is that the legal husband of the surrogate mother is legal father on the basis of the hadith of the prophet, al walad li al firaash wa li al ‘aahir al hajar[16]. This hadith was in the special context of adultery by a married woman who gave birth to a child. Since it was impossible at that time to be certain who the biological father was (it could be the legal husband or the adulterer), the prophet ordained that the child should belong to the legal husband. This is understandable for the protection of the interests and welfare of the child. It is also in conformity with the principle of the Law, qa’idat al sharia, that certainty cannot be voided by doubt. In this case the legal husband is the certainty and the possibility of the adulterer being the biological father is the doubt that could not be proved at that time to become a certainty. Thus this hadith cannot be generalized to allow paternity for a wife who becomes pregnant using a sperm donated by a strange man.
The traditions of the prophet indicate that biological relation, if proven, is the basis for paternity. Sa’ad bin Abi Waqqaas and Abd bin Zumu’ah took a dispute to the prophet about a child born of a slave girl. The prophet judged that the child belonged to Abd bin Zumu’ah because he saw physical resemblance with ‘Utbat the brother of Sa’ad?[17].
It is the opinion of the present author that the owner of the sperm used is the legal father. Paternity is established even if the sperm was illegal, maniyu ghair muhtaram. Thus a child conceived as a result of zina is recognized by the father if scientific evidence proves the heredity. Modern DNA technology removes any doubts about paternity. It should be mandatory that in all cases of in vivo insemination, whether legal or not, DNA analysis should be carried out to confirm maternity or paternity. Even in legal cases of insemination or fertilization, mistakes could occur in the laboratory or clinic leading to mix-up of ova and sperms.
Illegal postmortem paternity could arise in several ways. In one way the sperms of the husband may be obtained while he is alive and are kept frozen to be used in IVF procedures after his death. In another way sperms may be obtained from the husband after death[18]. Postmortem paternity creates special problems. It is an illegal procedure but since some Muslims may contrary to the Law carry it out we have to give some rulings on it. IVF after the death of the husband is forbidden but if carried out the child belongs legally to the dead husband. In the same way if a woman illegally donates an ovum and a child is conceived, the child belongs to her even after her death.
2.4 IVF and ISSUES IN CIVIL TRANSACTIONS, mu’amalaat
Financial transactions, buyuu’u: The Law has guidelines for mu’amalat consequences of IVF even if done illegally. The costs of the IVF procedures are borne by the husband because they are considered part of coitus and child birth. A contract of surrogate motherhood is haram. It is haram to make payment or receive payment under such a contract. Any physician who takes part in such a haram procedure cannot claim payment. Nafaqat for the surrogate mother is an obligation on the biological father.
In the opinion of the present author commercial trading in sperms, gametes, or embryos is forbidden by the Law because it will open the door to more evils. The Law prohibits such acts to close the door to evils, sadd al dhari’at.
Inheritance, miiraath: In IVF relationship is determined by DNA analysis for purposes of establishing inheritance. The conditions for inheritance are the death of the inheritee, maut al mawruuth; life of the inheritor, hayaat al waarith; and establishment of a blood relationship between the two, jihat al irth. Illegal IVF may complicate the problem if disputes arise about maternity and paternity. These however can be resolved by DNA analysis.
* Contents of this paper were presented at the First National Seminar on Science from the Islamic Perspective Organized by the Faculty of Science Universiti Brunei Darussalam June 30 – July 1 2005
[1] (Qur’an 3:40, 19:5, 19:8, 42:50)
[2] (Qur’an 9:55, 9:85)
[3] (Qur’an 9:69, 19:77, 34:35, 57:20)
[4] (Qur’an 3:38)
[5] (Qur’an 19:1-6)
[6] (Ibn Majah Kitaab al Nikaah Baab 7)
[7] (Bukhari Kitaab al Talaaq Baab 4)
[8] (Qur’an 16:72)
[9] Ahmad 2:69
[10] Klock SC Embryo disposition: the forgotten "child" of in vitro fertilization.
Int J Fertil Womens Med. 2004 Jan-Feb;49(1):19-23. [11] Walters L. Human embryonic stem cell research: an intercultural perspective.
Kennedy Inst Ethics J. 2004 Mar;14(1):3-38.
[12] Filip S, English D, Mokry J. Issues in stem cell plasticity. J Cell Mol Med. 2004 Oct-Dec;8(4):572-7.
[13] Landry DW, Zucker HA. Embryonic death and the creation of human embryonic stem cells. : J Clin Invest. 2004 Nov;114(9):1184-6
[14] (Qur’an 4:23, 2:233)
[15] (58: 2, 31:14, 46:15, 16:78, 39:6)
[16] Bukhari Kitaab al Huduud Baab 23
[17] (Bukhari, Kitaab al Ahkaam Hadith No 2053)
[18] Landau R Posthumous sperm retrieval for the purpose of later insemination or IVF in Israel: an ethical and psychosocial critique. Hum Reprod. 2004 Sep;19(9):1952-6. Epub 2004 Jul 8.