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Presentation to 4th year medical
students Salman University Kharj on May 21, 2013 by Professor Omar Hasan Kasule
Sr.
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.