This article is written by Ibtesam Rahaman and Fakhra Tanaz Akhter, pursuing BBA LLB. (H) from Amity University Kolkata. 

Abstract

Every married couple blesses their sacred relationship with a child. Unfortunately some cannot conceive an infant due to medical disorder and infertility. With the development of science and technology a cure for such cases has arrived. Artificial insemination is one of those technologies that have helped many couples conceive a child. But it also includes a third party involvement. We have done a research regarding it’s applicability in Islam and for the rights of such a child. This article consists of the two most common types of artificial insemination used one by the husband’s spermatozoa and the other through the donor’s seminal fluid. This paper emphasizes on applicability of these methods under the Islamic law and the rights for children born from either of the methods. Islam has two main schools of guidelines followed all around the globe. The applicability of this technique on the basis of both the schools has been elaborated with clearance and simplicity in this article. 

Background

“Marriage is my Sunna and those who do not follow this way of life are not my followers.”

  -The Prophet SAW of Islam

As Islam does not permit monkery thus every person who has the capacity and follows this religion should partake in this devotional act of ibadat and muamalat. Marriage in Islam is conducted solely for the purpose of legalization of carnal conjunction and procreating offspring.

But due to impotency or incapability of proper fusion of the gametes of both the parents, conceiving a child becomes nearly impossible. For such cases, the scientific technique of artificial insemination is a miracle that enables a couple to accomplish their marriage. In this method, the spermatozoa collected from a male are introduced into the uterus of a female. This procedure excludes the natural approach of ejaculating into the birth canal.

The permissibility of Shari’ah sources ensure if, or not Artificial Insemination can be conducted or not in Islam. The concept of inheritance for such a child conceived from this method and the applicability of their rights depend solely on whether or not it is permitted by the Shari’ah law. There exists the belief of ‘obligatory caution’ which depicts that a certain chance of the procedure being not applicable or impermissible by the law suggests that one should rather prevent. It is better to stay away from matters that haven’t been discussed entirely rather than indulging as a self proclaimed chief in it and ending up with unfortunate consequences. The Islamic jurist through various verses of the Quran confirms the impermissibility of AI. Surat al Noor in thirty-first verse affirms that “And say to the believing woman that they cast down their looks and guard their private parts….(24:31)” which means that the Almighty has enjoined females to guard their private parts from those who are haram upon them.

Although this verse explicitly does not mention protecting it from insemination. But, the indication of protecting gametes in its literal sense can be inferred by this verse. The verse is supported by the verse of Surat al- Mu’minun which states “And who guard their private parts. Save from their wives or those whom their right hands own, for then they surely are not blameworthy. But whoever seeks to go beyond that, those are the transgressors. (23:5-7)”

According to the laws of Islam copulation except within the bond of marriage is prohibited.

Many people around the globe believe that the phrase يَحْفَظْنَ فُرُوجَهُنَّ does not prohibit insemination. But when considered from a wide spectrum of the Shari’ah law restricts insemination as the meaning of the verse stated by the law forbids sexual intercourse out of wed lock.

Inheritance Right

In Islam any child born to a woman in any method that is not within the wed lock is an illegitimate child. Islamic guidelines restrict an illegitimate child from inheriting anything from the deceased relative or father. 

Basically in Islam an illegitimate child has no significant recognition of it and strictly denied from inheriting any property. In Islam walad-uz-zina also called an illegitimate offspring cannot inherit anything from either of his parents; such has been made clear in the Shia law. At the same time Hanafi regulation reconsiders for the descendent and allows it to inherit properties of the mother.

The Indian succession Act, 1925 clearly states and affirms that a legitimate child is considered as the only righteous descendant to inherit the property and the one who is born out of pure bond of marriage. Little ones that are conceived through the methods of Artificial insemination are legitimate as long as they are formed from the seminal fluid of the living husband whom the woman is married to. In India personal laws followed over the country do not recognize children born with the help of donated semen to be legitimate. The branch of Hanafi law shows diverse opinions from the Shia school recognizes such a child as the descendant of the mother who gave birth to him or her.

In Islam an infant delivered within the tenure of six months after marriage is considered illegitimate whereas if born after that tenure is surmised as legitimate as long as the husband does not rejects it through li’an.

Islamic view on AIH and AID 

Most married couples are unsuccessful in conceiving a child due to infertility. Ergo they are left with no other option except availing the tactics of artificial insemination. There are mainly two types of artificial insemination namely the AIH and AID approaches. ‘H’ generally refers to ‘homologous’ and ‘D’ indicates ‘heterologous/donor’. AIH practices the use of the husband’s seminal fluid, unlike the AID strategy in which the donor can be any person except the husband.

The believer of Islam follows the divine source Quran and Hadith to guide themselves and others with righteous principle and regulations. And the rules for the subjects that are not covered entirely in these sources are elucidated by the jurist and as they’ve said it the same is followed. In simple sense their views matter as importantly as any other written sources. Since artificial Insemination is a topic of recent origin. Thus it hasn’t been covered entirely in the basic sources of Islam. Thus, we shall focus on considering the views of Islamic jurists for deciding upon the inheritance of such a child born from artificial insemination.

Adultery in Islam is considered as Zinā. AID is a process in which semen from the person other than the husband is used. This method does not completely amount to adultery but destroys the pure line of inheritance and thus it is prohibited in Islam. Other reasons for the restriction of this method include interference of unethical cross relations in the marriage with a half sister or half brother. Marriages with such relationship are illicit in Islam. Other reasons include destruction of trust and honesty between the married couple especially when artificial insemination is done without the prior assent of the husband. If a father is informed later about his child not being his own he might not execute his responsibilities and conduct his homage as a father completely. Islam suggests not to go beyond the boundaries to end up in a wrong path even if for a genuinely righteous reason.

It has been clearly stated in Islam that if there is an illness then there exists a treatment as well. He the creator has never forbidden anyone from using a proper method to cure themselves from any type of diseases. But it is ethically immoral and against the principles of Islam to opt for a wrong method to seek healing. As far as artificial insemination is considered it is a cure for those who can’t fulfill one of the basic elements of marriage under the Islamic law which is procreation of an offspring. According to Islam and especially with the permissibility of regulations of Shari’ah AIH is permitted on condition that the seminal fluid belong only to the husband. There are restrictions even to that. Such as onanism is not permitted but it is allowed only in exceptional cases for the purpose of AIH. As self-stimulation is the only existing process to collect the spermatozoa.

The views for artificial insemination originated from the early ‘Roman Catholics and liberal Western secular Philosophers’. The former restricted it completely whereas the later provided total acceptability without the restrictions of wed ties. Later when Islam had to decide upon it, an in-between path was selected. Thus artificial insemination can be used as long as the semen of the husband, whom the woman is married to, is used. AIH is not applicable if tried later to divorce or even if after the death of the husband. The idea of using frozen seminal fluid is absolutely proscribed. Artificial insemination is approved as long as the husband is alive and they both live together like a married couple. Not only that the event should be carried out with proper measures and under the strict surveillance of trustworthy professionals.

Sunni view

Around 90% of the Muslim population in the world follows the guidelines of the Sunni School. Prior to 1985 even surrogacy was permitted among the Sunnis for the purpose of the married couple to obtain a child. But using some other women’s uterus to grow the husband’s and wife’s embryo indirectly resulted in a type of polygamy hence forth it was outlawed by the Fiqh Council. From then on the Sunni School AI only with the husband’s spermatozoa with each of the spouses consent and permission. IVF is still permitted as long as the couples uses only each other’s gametes and inject it back into the wife’s own uterus. Any form of assisted reproduction technologies (ART) shall be permitted as long as there is no involvement of any donor other than the husband or wife. Children delivered out of unauthorized illicit procedure would belong only to the mother although they would still be considered as illegitimate children. Sperm banking is prohibited as frozen sperm and eggs are the properties of the married couple only and cannot be used after their marriage comes to an end by divorce or death of either of the spouses.

The Sunni Scholars strictly believes and follows the pure line of inheritance as confirmed in the Divine source the Quran. Thus, when a third person’s gametes are used then the entire process of procreation of another life happens with the help of that third person’s donation. Such fertilization is invalid as it is outside the relationship of the married couple, indirectly resulting in adultery. Adultery is a forbidden sin in Islam and is prohibited in all circumstances. Ethically, it is immoral to use a donor for the holy purpose of conceiving a child as forbidden paths under any circumstances is never acceptable in Islam. Not only the pure line of inheritance is ruined but the relationship among the family members results in cross confusion when a third party is involved for giving birth to a child. This may also give rise to incest relationship which is a sin in Islam and breach in the contract of marriage. The entire concept of inheritance in Islam comes into question when a third party is involved as the rule of inheritance under Mohammedean law is derived on the basis of owning the property from the actual birth parents and due to this sole reason it also prohibits adoption.

Shia view

The Shia school comprises of 10% of the entire Muslim population. There are diverse opinions regarding sperm donation under the Shia population. By applying the principle of ijtehad, the Ayatollahs Ali Hussain Khamenei who was leader from Iran permitted sperm donation with certain restrictions and his view was supported with the concept of muta marriage. Although many Shia Scholars including Ayatollah Sistani of Iraq supported the Sunni Scholar’s view on AI by not using any donor other than the husband.

According to Khamenei’s declaration he allowed the donation from a third person for the purpose of having a child but the offspring can inherit only from his biological father. The child born from such procedure shall take the name of his infertile father who shall also be considered as the one who adopted him. The Scholar’s fatwa distinguishes the actual father from the social parent prioritizing nature upon the nurture. The fatwa given by Khamenei is precise and less complex but other religious scholars argue on it regarding various issues of the sperm donation. According to fatwa mere donation of sperm would not amount to adulterous relation as the requisite of sexual intercourse is not performed which is a necessity for committing adultery, although most of the Scholar’s in Shia law disapprove it for it still does not come within the ambit of marriage. This fatwa was significantly brought for the purpose of donation of both types of gametes. Similarly, if one donated her eggs it has to be done following the religious rules of Parenthood and the child created from a donated egg will inherit from the donor and not from the adoptive mother. Following his fatwa the Iranian cabinet passed an Act called the Infertile Spouse Act which permits Artificial Insemination in the year 2003. 

Conclusion

From the above study we can conclude that Islam permits artificial insemination and it’s application with respect to the rights of the child born from this technique. However Islam permits it with certain restrictions. The gametes used should belong only from the husband and should be used only to fertilize his wife. According to recent developments in this technique, in Iran those who follow the fatwa are permitted to conduct gamete donation but with certain strict rules. As Shia’s have divergent principles not all agree to it and follow it. Most Shia’s has some similar views like that of the Sunni’s in this subject. Therefore they do not permit involving any third party but use artificial insemination only for the married living couple with the surveillance of professionals. As far as the child born from this procedure is considered, he or she receives the same rights if created from the gametes of the biological partners who are in a marital contract. It is prohibited to create a newborn with the help of donated sperms, however if still such a child is formed it is illegitimate and inherits nothing from either of the parents in Shia law. The Sunni law allows such a child to inherit from the birth mother after her death but such a child does not receive any social or legal status in Islam. 

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