Surrogate motherhood and the position of the child

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 come 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 )