Home 
Contact 
Profile 
Videos 
Paper presented at the 6th International Nursing Conference held in Brunei 10-13 October 2004 by Professor Dr Omar Hasan Kasule, Sr. MB ChB (MUK), MPH and DrPH (Harvard) Deputy Dean for Research Faculty of Medicine UIA Kuantan Malaysia
ABSTRACT
Infertility: Infertility 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 that is a security threat. Causes of infertility may be natural, may be related to lifestyle, or may be complications of medical or surgical procedures. Traditional methods of treating male and female infertility may be medical or surgical. Treatment of infertility fulfils the purpose of hifdh al nasl
In vivo insemination, al talqiih al istinaa’e al daakhilii: Artificial intra-uterine insemination with husband’s sperm, talqiih sina’i dhaati is permitted by the Law provided safeguards are taken to ensure that spermatozoa do not get mixed up in the laboratory or the clinic. The Law prohibits artificial in vivo insemination of a wife with donated sperm from a strange man or in vivo insemination of a strange woman with the husband’s sperm, talqiih sinna’i ajnabi.
In vitro fertilization, al talqiih al istinaa’e al khaariji: The Law permits in vitro fertilization if the sperm and ovum are from legally wedded husband and wife and the zygote is implanted in the same wife. 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. A married woman cannot have a zygote implanted into her uterus if a sperm from a donor who is not her husband fertilized it. Sperm banks are a form of adultery, zina, and are not allowed. 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
Alternatives to IVF: Legal rulings are being formulated on other forms of assisted reproduction such as gamete intra-fallopian transfer, intra-cytoplasmic sperm injection, and futuristic technologies such as animal uterus, artificial uterus, male pregnancy, and embryo transfer. In general shari’at rulings are not promulgated for hypothetical situations that have not yet become widespread. The following alternatives to assisted reproduction can be considered: foster care, polygamy, open adoption, patience and ‘ibadat.
ETHICAL AND LEGAL ISSUES
Several ethical issues arise in assisted reproduction: disclosure of infertility before marriage, artificial insemination after death of the husband, legality of masturbation for obtaining sperms, paternity and maternity of children born of illegal procedures, disposal and use of unused fertilized ova, sex selection and selective fetal reduction, embryo splitting, developing embryos for purposes other than their use in assisted reproduction, using embryos to produce a clone, using fetal gametes for fertilization, trans-species fertilization (mixing human and animal gametes), mixing of gametes or embryos of different parentage to confuse biological parentage, implanting the embryo in a non-human species uterus, replacing the nucleus of the embryo, embryo flushing, commercial trading in sperms, gametes, or embryos, and use of gametes from cadavers.
1.0 INFERTILITY
1.1 DEFINITION
Impaired fertility, infertility, and sub-fertility are terms used interchangeably. Infertility is defined as relative or absolute inability to conceive. It is also defined as repeated pregnancy wastage. Infertility is defined pragmatically as failure to get pregnant after 1 year of regular intercourse without any contraception. Involuntary infertility can be primary or secondary. Sub-fertility is both partners may manifest as infertility. Both male and female infertility exist. In situations of sub-fertility in both, complete infertility may ensue. Infertility 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 that is a security threat. We have to distinguish between infertility and sterility. Infertility is curable whereas sterility is permanent and cannot be treated.
Modern techniques of reproductive technology have given rise to new entries into the medical dictionary, mfradaat jaddidat fi al qaamuus al tibbi: biological father, social father, donor mother, surrogate mother, and biological adultery. Each of these is associated with complicated legal issues. Some Muslims will, despite the prohibition, still undertake the prohibited insemination or in vitro fertilization either due to ignorance or disobedience. Children will be born and legal issues will arise that cannot be brushed aside.
1.2 HISTORY
Infertility was mentioned in the Qur’an as ‘uqm[1]. Desire of parents for children is natural. The prophets Ibrahim and Zakariyyah made supplication, dua, to Allah to give them offspring. The Prophet Muhammad encouraged marrying for the glory of the ummah[2]. Marriage was considered a source of good[3].
1.3 CAUSES
Natural causes of infertility: Natural causes of infertility may be male or female factors. The male factors are: sperm anomalies, reduced sperm mobility, reduced sperm numbers, and impotence. Female factors are: anovulatory dysfunction, hormonal imbalance, tubo-peritoneal disease, and cervical disease. Some factors operate in both males and females such as congenital malformations, infections, neoplasms, immunological anomalies, and advanced age.
Causes of infertility related to life-style: infertility can be due to sexually transmitted disease, long-term use of contraceptives, age, infrequent coitus, and unnatural coitus.
Infertility due to medical or surgical complications: infertility can be due to irradiation, surgery, sterilization.
1.4 TREATMENT
TRADITIONAL METHODS OF INFERTILITY TREATMENT
Traditional methods of treatment of male infertility can be medical or surgical. Medical methods include treating infections, and treating impotence. Surgical methods include repairing varicoceles, vaso-epidydimostomy, vasostomy, repairing ejaculatory duct obstruction., and treating ejaculatory disorders such as retrograde ejaculation.
Traditional methods of treatment of female infertility can be medical or surgical. The medical methods include treating infections, correction of hormonal imbalances, stimulation of ovulation, and immune suppression for sperm antibody. Surgical methods can be used for congenital malformations, neoplasms, and blocked fallopian tubes.
Infertility treatment should also include treatment of side effects of infertility:that may be psychological, medical, legal, or ethical.
LEGAL BASIS FOR SEEKING TREATMENT OF INFERTILITY: a maqasidi analysis
The prophet encouraged fertility when he encouraged marrying fertile spouses, tazawwaju al waduudat al waluudat. Procreation for a married Muslim couple is considered among legal obligations, dharuraat. It fulfils the purpose of the Law about preservation of progeny, hifdh al nasl. In the same way seeking to have a baby is considered a legal obligation, dharuurat. Parental rights are asserted under the purpose of the Law about protecting the lineage, hifdh al nasab. A child is produced only through marriage, majiu al walad bi al zawaaj[4]. Some people may look at attempts to procreate as opposing Allah’s pre-determination, qadar. This is wrong. Both infertility and its treatment are under Allah’s qadar.
2.0 IN VIVO INSEMINATION, al talqiih al istinaa’e al daakhilii
2.1 DESCRIPTION
In vivo insemination involves artificial insertion of a man’s semen into the woman’s uterus at the approximate time of her ovulation so that the ovum may be fertilized. It may take three forms. The first form is when the husband’s semen is put in the uterus of his wife. The second form is when the husband’s semen is put in the uterus of a strange woman. The third form is when the semen of a strange man is put in the uterus of the wife.
2.2 INDICATIONS
In vivo insemination is carried out under the following situations. Some wives may have antibodies in their cervix that destroy the husband’s spermatozoa making fertilization by natural coitus impossible. The couple may be incapable of successful coitus due to disease in either of them. The disease may be physical or psychic. The man’s spermatozoa may be defective requiring separation of the healthy from the unhealthy in the laboratory and then using the healthy ones for insemination. In vivo insemination may also be carried out in cases of male impotence.
2.3 IN VIVO FERTILIZATION vs NATURAL FERTILIZATION
In vivo fertilization is like coitus, al istidkhaal ka al watau. There is no difference in Law between in vivo fertilization and natural fertilization. Therefore any procedures carried out illegally are considered a form of adultery, zina. The parents of resulting children are the respective owners of the ovum and the semen.
2.4 PERMISSIBLE PROCEDURES
Artificial intra-uterine insemination with husband’s sperm, al talqiih al istina’e al dhaati is permitted by the Law provided certain safeguards are observed. Care must be taken to ensure that spermatozoa do not get mixed up in the laboratory or the clinic. The physician carrying out the operation must be a trusted person who will not mix up the spermatozoa either deliberately or by mistake. Both the wife and the husband must be present during the procedure. If both husband and wife are medically trained persons it is preferable that they carry out the procedure privately by themselves without a third party being involved.
In vivo insemination of a woman with the husband’s semen during ‘iddat is legal because she is still considered his wife. There are controversies about in vivo insemination using the semen of a dead husband because the marital bond ends with death of the husband.
2.5 PROHIBITED PROCEDURES
There is a consensus among jurists on prohibition of artificial in vivo insemination of a wife with donated sperm from a strange man, al talqiihal istina’e al ajnabi. There is a consensus among jurists on prohibition of artificial in vivo insemination of a strange woman with the husband’s sperm.
3.0 IN VITRO FERTILIZATION, al talqiih al istinaa’e al khaariji
3.1 DESCRIPTION
In vitro fertilization involves fertilizing an ovum with an egg in the laboratory then implanting the resulting embryo into the uterus to grow. This takes many forms most of which are prohibited by the Law. 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; the uterus of a co-wife, raham dhirrat al zawjat; or the uterus of a strange woman, rahm imra at ajnabiyyat; that is also called al raham al dhi ir. The following are all the possible combinations: (a) spermatozoa from the husband fertilize an ovum from the wife and the embryo is implanted into the uterus of the wife. (b) Spermatozoa from the husband fertilize an ovum from the wife and the embryo is implanted into the co-wife. (c) Spermatozoa from the husband fertilize an ovum from the wife and the embryo is implanted into a strange woman. (d) Spermatozoa from a strange man fertilize an ovum from the wife and the embryo is implanted into the wife. (e) Spermatozoa from a strange man fertlizes an ovum from the wife and the embryo is implanted into a strange woman. (f) Spermatozoa from the husband fertilize and ovum from a strange woman and the embryo is implanted into the wife. (g) Spermatozoa from the husband fertilize an ovum from a strange woman and the embryo is implanted into a strange woman. Only situations (a) and (b) are permitted by the Law. All the rest are forbidden because they involve mixing of heredity, iktilaat al ansaab.
3.2 PERMITTED IVF
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. No paternity or maternity issues arise here.
3.3 PROHIBITED IVF
General prohibition: In general any situation in which there is mixing of heredity or in which birth is done outside wedlock is forbidden. Even in situations in which the Law allows IVF, patience is preferred in order to close the door to evils and other complications, tafdhiil al sabr li saddi al dharii’at. 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 jahili custom of istibdhaau 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, awlaad zina. A husband who allows his wife to be fertilized by another man’s sperm is called duyuuth (weak and despised). 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.
There is consensus among jurists on prohibition of a hired surrogate mother, al rahim al musta jar or al rahim al dhi ir:. There is also consensus on prohibition of a relative as a surrogate, al umm al qariibat: The relative mother may be a grandmother of the child to be born or the sister of the child to be born.
Criminal jinnayat, issues: The punishment, hadd, of zina is not imposed in any of the situations of illegal in vivo insemination or in vitro fertilization. Only ta’aziir punishments are imposed and that for purposes of deterrence. All involved are punished: men, women, and physicians.
3.4 ALTERNATIVES TO IVF
Present technologies that can be used as alternatives to IVF include gamete intra-fallopian transfer and intra-cytoplasmic sperm injection. Future alternative technologies include the following: animal uterus, artificial uterus, male pregnancy, and embryo transfer. Legal positions will be formulated and promulgated in due course. In general jurists do not want to formulate legal pronouncements on hypothetical situations. They would rather wait until the technology is used and they see its impact in practice before issuing a legal decree about it.
There are several non-technological alternatives to IVF such as foster care of the spouse’s children from a previous marriage or bringing up abandoned outside children. The infertile couple can adopt a child provided information about its biological parents is not hidden and the name of the biological father is not suppressed. Polygamy can be an alternative to IVF for the man but not the women. The infertile couple can also accept their fate and be patient
4.0 ETHICAL and LEGAL ISSUES in ASSISTED REPRODUCTION
4.1 MATERNITY
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 motherhood in relation to breast feeding, al umuumat bi ma’ana al ridhaa’at[5]. It also describes motherhood on the basis if carrying pregnancy and delivery, al umuumat bi ma’ana al wilaadat[6].
The issue of maternity is settled on the basis of biological inheritance. The position of the Law is that 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. In the same way the source of the sperm is the biological and also legal father. The owner of the ovum is the biological as well as the legal mother.
4.2 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. This hadith was in the special context of adultery by a married woman who gives 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. Even with this ruling the legal husband still has recourse to li’aan by which he can legally deny paternity if he has sufficient personal presumption, not subject to legal proof, that the child is not his.
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 and maternity. 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.
4.3 POST MORTEM PATERNITY
In vivo fertilization or in vitro fertilization after the death of the husband is considered legally offensive, makruuh, 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.
4.4 ISSUES OF CIVIL TRANSACTIONS, MU’AMALAAT
MARITAL RELATIONS, MUNAKAHAAT
Two controversial issues arise in the field of marriage, munakahaat, for which jurists have yet to formulate unanimous legal rulings. Should the couple disclose to one another any medical history relating to infertility before they get married? Is infertility a disease for which marriage can be dissolved?
SALES, BUYUU’U
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. If illegal IVF is carried out, nafaqat for the surrogate mother is an obligation on the biological father for the sake of fetal wellbeing
.
INHERITANCE, MAWARIITH
In both in vivo insemination and in vitro fertilization, relationship is determined by DNA analysis for purposes of establishing inheritance.
4.5 FROZEN SPERMS, OVA, and EMBRYOS
Sperm banks: Sperm banks lead to three evils: children born without fathers, a cover for illegitimate births by zina, and weakening of family binds. In view of potential problems sperm banks should not be started at all according to the doctrine of closing the door to evil, sadd al dharii’at. The same ruling applies to ova banks and embryo banks.
Fate of frozen ova, al baydh al mujammadat, and frozen semen, al maniu al mujammad: These raise controversial issues about ownership and use. Jurists are still discussing these issues.
Fate of extra frozen zygotes, al ajinnat al mujammadat: As regards unused fertilized ova, zygotes, there are four alternatives. There is consensus among jurists that they can legally 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. There is consensus among jurists that donating them to a childless couple so that they can be implanted in the wife, as a surrogate mother, is prohibited. There is no consensus yet among jurists on the remaining 2 alternatives: destroying them or using them for scientific research or disease treatment.
The criteria for deciding on using fertilized ova in research are: (a) existence of life at fertilization (b) presence of the notochord (c) ensoulment.. Alternatives (b) and (c) are irrelevant. The distinction between pre-embryo stage and embryo stage is immaterial. The main consideration is the potential of life which is the same before and after 14 days and also before and after 120 days.
4.5 MASTURBATION, istimnaau or istinzaal: The legality of masturbation has also been questioned; if it is deemed illegal artificial insemination is not possible without it. Scholars have varying opinions on this. Some oppose it on the basis that it is not natural. It may lead to neglect of natural sexual relations. It violates marital privacy. Some jurists allow it if done by the wife.
4.6 OTHER ISSUES
The following are additional controversial issues: sex selection and selective fetal reduction, embryo splitting with the intention of increasing the number of embryos to be transferred, developing embryos for purposes other than their use in assisted reproduction, using embryos to produce clones, using fetal gametes for fertilization, trans-species fertilization (mixing human and animal gametes), Mixing of gametes or embryos of different parentage to confuse biological parentage, implanting the embryo in a non-human species uterus, replacing the nucleus of the embryo, embryo flushing, commercial trading in sperms, gametes, or embryos, and use of gametes from cadavers