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Lecture by Professor Omar Hasan Kasule on January 10, 2006
OUTLINE
1.0 INTRODUCTION
1.1 Definition of infertility
1.2 Social consequences of infertility
1.3 Treatment of infertility
1.4 Ethical and legal controversies
2.0 IN VIVO INSEMINATION
2.1 Definition of in vivo insemination
2.2 Indications for in vivo insemination
2.3 Permissibility of in vivo insemination
2.4 Prohibited in vivo insemination
3.0 IN VITRO FERTILIZATION
3.1 Definition of IVF
3.2 Indications for IVF
3.3 Permissible IVF
3.4 Prohibited IVF
4.0 DISPUTES ABOUT PARENTHOOD
4.1 Disputes about maternity
4.2 Disputes about paternity
4.3 Post-mortem parenthood
5.0 CIVIL TRANSACTIONS RELATING TO IVF
5.1 Costs associated with IVF
5.2 Inheritance
6.0 FROZEN SPERMS, OVA, and EMBRYOS
6.1 Storage
6.2 Frozen embryos
7.0 OTHER CONTROVERSIAL ISSUES
7.1 Masturbation
7.2 Pre-implantation genetic diagnosis
7.3 Selective fetal reduction
7.4 Embryo splitting
7.5 Developing embryos for non-IVF purposes
7.6 Using embryos for cloning
7.7 Mixing of gametes or embryos
7.8 Commercial trading in sperms, gametes, or embryos
7.9 Use of gametes from cadavers or post-mortem insemination or IVF
1.0 INTRODUCTION
1.1 Definition of infertility: Impaired fertility, infertility, and sub-fertility are terms used interchangeably. 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.
1.2 Social consequences of infertility: Infertility is considered a serious condition because it could lead to psychological distress, marital problems, and even marital failure. At the community level widespread infertility could lead to demographic, economic, and military weakness.
1.3 Treatment of infertility: Infertility is like any other medical condition for which treatment should be sought. Seeking treatment for infertility does not contradict pre-determination, qadar. Both the cause and the cure are subsumed under pre-determination. Procreation for a married couple is considered among the necessities, dharuraat. It fulfils the purpose of the Law about preserving progeny. Having a baby is assertion of the natural right to parentage and fulfils the purpose of protecting family lineage.
1.4 Ethical and legal controversies: Modern medical technology has offered infertile couples methods of assisted reproduction that were not imaginable a few decades ago. These methods have however given rise to many controversial legal and ethical issues.
2.0 IN VIVO INSEMINATION
2.1 Definition of in vivo insemination: 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. Fresh semen is obtained from the husband by masturbation and is introduced using a syringe into the cervix at the estimated time of ovulation.
2.2 Indications for in vivo insemination: In vivo insemination is carried out under the following 4 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 (physical or psychological) in either of them. 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 Permissibility of in vivo insemination: In vivo fertilization is like coitus. There is no difference in Law between in vivo fertilization and natural fertilization if both are carried out for a married couple. Artificial intra-uterine insemination with husband’s sperm 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.
2.4 Prohibited in vivo insemination:There are controversies about in vivo insemination using the semen of a dead husband because the marital bond ends with death of the husband. Insemination of a wife using sperm from a strange man is prohibited. Also prohibited is insemination of a strange woman with the husband’s sperm. In both cases there will be mixing up of family lineages that is prohibited.
3.0 IN VITRO FERTILIZATION
3.1 Definition of IVF: In vitro fertilization involves fertilizing an ovum with an egg in the laboratory then implanting the resulting embryo into the uterus to grow. The ovum is obtained by needle aspiration and is incubated in a culture medium. Sperms are collected by masturbation and are added to the medium. Fertilization occurs in 12-48 hours. The resulting embryo is put in a medium where it is observed as it divided repeatedly until it becomes a blastocyst. The embryo is then introduced into the uterus through the cervix. The uterus had meanwhile been prepared for implantation by treating the mother with progesterone injections.
3.2 Indications for IVF: IVF is undertaken for the following reasons: absent or blocked Fallopian tubes, low sperm counts, and fertility with unknown causes.
3.3 Permissible IVF: 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 such a situation there are no problems about maternity and paternity. Even in situations in which the Law allows IVF, patience is preferred in order to close the door to evils and other complications such as multiple pregnancy requiring fetal reduction and highly risky post-menopausal motherhood.
3.4 Prohibited IVF: All forms of IVF not between a husband and wife are prohibited by the Law because they involve mixing up of lineage and reproduction outside the marital bond. Surrogacy whether voluntary or paid is forbidden. Prohibited forms of IVF are associated with disputes about maternity and paternity and may put the welfare of the infant at risk because of not being born in a natural family. Although these forms of IVF are illegal, the Law provides remedies to resolve disputes. Because of the strict and narrow limitations on IVF, patients can be advised to consider the following alternative ways of fulfilling their desire for parenthood: foster care, open adoption, or the infertile couple can accept their fate and be patient
4.0 DISPUTES ABOUT PARENTHOOD
4.1 Disputes about maternity: The Law recognizes two types of mothers: the biological mother (who owns both the ovum and the uterus) and the foster mother (who breastfeeds and raises the child). There is still controversy on the thesis that the surrogate mother is the same as the foster mother on the basis of analogy since both provide nutrition and care. 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.
4.2 Disputes about paternity: The owner of the sperm used is the biological and legal father. Paternity is established even if conception was carried out illegally. Modern DNA technology removes any doubts about paternity and maternity. It should be mandatory that in all cases of in vivo insemination and IVF, whether legal or not, DNA analysis be carried out to confirm maternity or paternity. This should apply equally well to 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 parenthood: In vivo insemination or in vitro fertilization after the death of the husband is considered offensive, makruuh, because it involves birth outside wedlock. The child legally belongs to the owners of the sperm or the ovum even after their death.
5.0 CIVIL TRANSACTIONS, mu’amalat, RELATING TO IVF
5.1 Costs associated with IVF: 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 involving payments is illegal, haram, and is not enforceable. It is forbidden, haram, to make payment or receive payment under such a contract. Any physician who takes part in such a haram procedure cannot claim payment. Financial support, nafaqat, for the surrogate mother is an obligation on the biological father whether the IVF procedure was legal or was illegal.
5.2 Inheritance: In both in vivo insemination and invitro fertilization, relationship is determined by DNA analysis for purposes of establishing inheritance.
6.0 FROZEN SPERMS, OVA, and EMBRYOS
6.1 Storage: Sperm and ova banks are discouraged because they can lead to children born one or both biological parents and weakening of family bonds. All these stored materials can give rise to disputes regarding ownership and use.
6.2 Frozen embryos: As regards unused fertilized ova, zygotes, there are four alternatives; some are allowed and some are prohibited. (a) 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. (b) They cannot be donated or sold to a childless couple so that they can be implanted in the wife, as a surrogate mother. (c) They can be kept until they die on their own or can be disposed of. This however creates a controversy because of loss of human life (d) They can be used for scientific research or disease treatment in a situation of dharrurat ie the research is scientific and has potential benefits for patients.
7.0 OTHER CONTROVERSIAL ISSUES
7.1 Masturbation: The legality of masturbation has also been questioned; if it is deemed illegal artificial insemination and IVF are not possible without it. Some jurists allow it while others do not.
7.2 Pre-implantation genetic diagnosis is a form of pre-natal diagnosis. It involves removing one or two cells from the embryo for testing. It can be used to identify unhealthy embryos to avoid implanting them but it leads to discarding human life. It can be used for selecting embryos on the basis of tissue compatibility with a sick sibling in order to obtain tissues for later transplantation. Its use for sex selection for social reasons is prohibited. However sex selection before IVF by mechanically separating X and Y containing sperms is not illegal since it involves no destruction of life.
7.3 Selective fetal reduction is abortion of some fetuses in cases of IVF where multiple pregnancy occurs. The reason is that if reduction is not carried out none of the fetuses will survive. With reduction some of the fetuses can survive. The ethical problem here is destroying the life of the fetuses who are aborted. There is also a psychological dilemma of choosing which fetus to abort and which one to spare.
7.4 Embryo splitting with the intention of increasing the number of embryos to be transferred. This however creates an ethical dilemma that the extra embryos will have to be disposed of.
7.5 Developing embryos for non-IVF purposes such as research or stem cell production introduced an ethical problem of manipulating human life and destroying it for no apparent benefit to the embryo or the parents.
7.6 Using embryos for cloning: Extra embryos in IVF procedures may be used in reproductive cloning to produce tissues or to attempt to produce an organism. Ethical controversies on this are still continuing. Cloning for producing tissues to be used in treatment of disease is not a major problem. The major problem is with reproductive cloning of a human being.
7.7 Mixing of gametes or embryos of different parentage to confuse biological parentage and make sure that biological relations will never be known. This is a very illegal procedure. It violates a basic human right that each child must have biological as well as social parents
7.8 Commercial trading in sperms, gametes, or embryos is likely to become a major problem as IVF procedures become more easily available and more easily performed.
7.9 Use of gametes from cadavers or post-mortem insemination or IVF using frozen sperms or ova are illegal procedures because the resulting infant will have been born outside a family bond.