Q634 :Does a surrogate mother have any potential
rights to the baby she carries for an infertile couple? The sperm and
the egg are provided by the natural parents. Will she be a third parent
to the child with whom she has no genetic link? How would you analyze
the child’s relationship, inheritance and social status from the
Islamic point of view?
A634 : Islam attaches much importance to the
accuracy of family relationship. It tolerates no deliberate confusion
of parenthood and threatens with severe punishment any person who tries
to confuse such relationship. If you consider the reasons for the
requirement that a divorced woman or a widow observe a waiting period
during which she may not be married to anyone, you will find that the
main reason for that requirement is to ascertain whether the woman is
pregnant or not. Indeed, Islam does not allow a man to divorce his wife
if he has had intercourse with her during her present period of
cleanliness from menstruation. They must wait until she has had her
next period, so that the divorce can take place at the beginning of her
waiting period. If it is discovered later that she is pregnant, her
waiting period extends until she has given birth. This last ruling also
applies to widows, who have to observe a waiting period which extends
normally to four months and ten days. However, if the widow is
pregnant, she must give birth before her waiting period is over. The
reason for that is to leave no room for confusion about the parenthood
of that child and to preserve the child’s right either to be brought up
by the father if he divorces the mother, or to have his share of
inheritance if his father has died. Similarly, Islam has forbidden
adoption whereby a married couple claim that they are the parents of a
child which is not theirs. This again ensures that the rights of
inheritance are preserved. In countries which permit adoption, an
adopted child is given a share of inheritance of the couple adopting
him. He can have no claim to any share of the inheritance of his real
parents or other members of his real family. While this may be to the
benefit of the child in many cases, it is not necessarily so. Moreover,
this situation affects the rights of other heirs of the adopting
parents. In Islam, when a man or a woman dies, leaving behind no child
of their own, their estate goes to other heirs defined by the Islamic
system of inheritance. Some of these would not be heirs at all, if the
deceased person had a child of his or her own. Moreover, this confused
situation affects the rights of the adopting parents. It is well known
that Islam lays down rules for mutual family solidarity. When a person
is guilty of accidental killing, as could happen these days if he
causes a car accident, he is required to pay blood money to the family
of the victim. If he cannot afford that, his heirs must nete to his
help. They are required by Islamic rules to contribute to the blood
money. If he deprives some of his heirs of their share by adopting a
child, he deprives himself of his right to call on them to help him in
such a case. All the foregoing explains some of the reasons for the
importance Islam attaches to preserving accurate family relations.
Surrogate motherhood is a term which defines a process where a woman
carries a child for the benefit of a childless couple. First a process
of artificial insemination is carried out to help. The sperm of a man’s
fertile egg is implanted in the uterus of the other woman who goes
through a natural period of pregnancy for a fee she receives from the
couple. A contract is drawn whereby she forgoes all her claims to the
child. At the end of the pregnancy, she delivers the child under the
supervision of the doctors involved in the process and the child is
given to the couple. There have been cases when the surrogate mother
made claims to the child and courts of the United States have looked
into these claims at one time or another. There is no doubt that this
process creates confusion about the parenthood of the child. We need go
no further than the question put by our reader, asking whether the
surrogate mother can be considered a third parent. His question arises
from what he says about her having no genetic link with the child. It
may be so, but she certainly has a very strong link with a baby whom
she carried inside her for nine months, giving it the same nourishment
as every pregnant woman gives to her fetus. This process is not
acceptable from the Islamic point of view. Muslim scholars who have
considered the new techniques that are utilized to help women get
pregnant have ruled that such techniques may be permissible only when
they involve a married couple. No one else should be involved. That
means that a test-tube baby may be permissible to have if the egg of
the wife is fertilized by the sperm of her husband and then the
fertilized egg is implanted in her, not in any other woman. When a
third party is involved, as in the case of surrogate motherhood, the
process is forbidden. Steering away from all such confusion is much
better for everyone. Every married couple should remember that it is
Allah alone who determines whether to bestow on them the grace of
having children and also determines whether their children shall be
boys only or girls only or a mixture of both. Again, He is the One to
determine whether they remain childless. Acceptance of His decision is
the mark of true faith. As I have already mentioned, it is open to any
couple to bring up any child who is not their own. They, however, must
not adopt that child in the way adoption is done in non-Muslim
countries. The child should continue to be called after his own
parents. Any deviation from this is likely to cause confusion of
parenthood. Hence, it is forbidden.
Our Dialogue ( Source : Arab News – Jeddah )