Question:
Salam Sheikh,
What is the ruling regarding artificial insemination, and can I be a surrogate mother for my sister’s child?
Answer:
Salam,
In Islamic jurisprudence there are two aspects to infertility treatments.
1): Looking and touching during the operation: All types of artificial insemination are prohibited if they involve looking at or touching the private parts by other than husband or wife. Our jurists are unanimous on this issue. The Almighty Allah states: “Say to the believing men that they shall lower their looks and guard their private parts… and say to the believing women that they shall lower their looks and guard their private parts.” (24:30-31) However, this prohibition may be lifted if a couple are in unbearable physical or mental hardship and there are no any other feasible methods for their parenthood. The Almighty Allah states: “And He (Allah) has not laid upon you any (unbearable) hardship in religion.” (22:78)
Similarly, considering that masturbation is prohibited in Islam, other methods of semen collection should be sought as much as possible.
2: The operation itself: There are different methods of ART (assisted reproductive technology) and depending on the types of surrogacies and artificial insemination our jurists hold different views as follows:
a) IVF for infertile couples: In this method the egg of a woman is fertilized in a laboratory with the sperm of her husband and the embryo is transferred to her own uterus to InshAllah carry her baby. This method is permissible as they are a legitimate couple and there is no third party involved. The child is obviously theirs in all respects.
b) Egg donation for fertility reasons: Sometimes a couple are unable to have a child due to the wife having no eggs (ova), her eggs not being viable, or in order to avoid congenital anomalies in the foetus etc. In this method a fertile woman donates an egg or oocyte to the wife to help her conceive. To make the issue clearer, we can call the couple who cannot conceive a child ‘Husband X’ and ‘Wife X’, and the woman who donates her egg, ‘Woman Y’. The egg of Woman Y may then either be artificially inseminated by the sperm of the Husband X in a laboratory or in the uterus of wife X. In both cases, Wife X carries the baby in her uterus until birth. The egg donor (Woman Y) may in some cases be Mahram[1] to Husband X (e.g., his sister or sister-in-law) or may not be Mahram to him. She may also be single or married.
Depending on the details of the situation, our jurists have the following verdicts in relation to this method:
i. According to Ayatullah Khamenei and Ayatullah Sistani, this is permissible. However, Ayatullah Sistani adds that for obligatory precaution the egg donor should not be Mahram to Husband X (e.g., his sister or sister-in-law).
ii. Others such as Ayatullah Makarem Shirazi hold that it is prohibited if the woman is married or is Mahram to the intended father, and permissible for a single woman if she marries (even temporarily) the intended father.
The biological mother of the child will be the egg donor. However, the child is Mahram to the father’s wife (who carries the child) and his children. Also, the law of inheritance does not apply between the child and the Wife X. However, Ayatullah Sistani, holds an obligatory precaution that they arrange a mutual agreement on inheritance.
c) Traditional (or genetic) surrogacy: A traditional surrogate mother is a woman who is artificially inseminated with the sperm of the intended father. This results in her egg being fertilized and her having a genetic connection to the child. She then carries the baby and delivers it for the parents to raise. The traditional surrogate may be a married woman or Mahram to the intended father (e.g., his sister or sister-in-law) or she is single and non-Mahram.
Our jurists hold slightly different verdicts on this practice based on their professional interpretation of the Islamic evidence. For example, this practice is permissible according to Ayatullah Khamenei and Ayatullah Sistani. However, Ayatullah Sistani adds that this practice should be avoided – as an obligatory precaution – if the surrogate is Mahram to the intended father. Others such as Ayatullah Makarem Shirazi have a third view. He holds that it is prohibited if the woman is married or is Mahram to the intended father, and permissible for a single woman if she marries (even temporarily) the intended father.
The traditional surrogate is the biological mother of the child in all aspects. However, the child is Mahram to the father’s wife (who will raise the child) and his children.
d) Gestational surrogacy: In this technique, the embryo is made via IVF fertilisation using the eggs and the sperm of the intended parents and is then transferred to the surrogate to carry the baby until birth. The gestational surrogate also may be a married woman or Mahram to the intended father (e.g., his sister or sister-in-law), or she may be single and non-Mahram.
This practice is permissible according to majority of our jurists. Ayatullah Sistani, however, takes an obligatory precaution that the gestational surrogate should not be Mahram (e.g., his sister or sister-in-law) to the intended father.
The surrogate in this method has no genetic ties to the child because it wasn’t her egg although the child will be Mahram to her, her husband and her children. Similarly, the laws of inheritance do not apply between the child and the gestational surrogate according to the majority of our jurists. Ayatullah Sistani, however, holds an obligatory precaution that they arrange a mutual agreement on inheritance.
In conclusion:
- According to Ayatullah Khamenei all above-mentioned types of artificial insemination are permissible.
- According to Ayatullah Sistani they are also all permissible, but on obligatory precaution it should be avoided if the egg donor or the surrogate is Mahram to the intended father. His obligatory precaution allows for his followers to follow another ‘most learned jurist’ who allows this practice, like Ayatullah Khamenei.
- According to Ayatullah Makarem Shirazi artificial insemination is permissible only if the egg donor or the surrogate is single and marries (even temporarily) the intended father.
Please note that the above are only the jurisprudential aspects of artificial insemination. There are many moral issues surrounding surrogacy that require further discussions.
Answered by: Sheikh Mansour Leghaei & Dr. Ali Alsamail
[1] Mahram is a member of one’s family with whom marriage is forbidden; such as parents, children, siblings, aunt, parents-in-law and sister-in-law.
