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Transcript of SURROGATE
Refers to one woman carries a child for another with the intention that the child should be handed over after the birth.
Refers to a man who is not the biological, adoptive or step father, who serve as a father figure.
DURING THE TIME OF PROPHET :
THE COMPANIONS SEEK RULING (HUKUM) DIRECTLY TO PROPHET MUHAMMAD S.A.W
DURING THE TIME OF COMPANIONS:
USING THEIR IJTIHAD TO MAKE A CERTAIN RULING (HUKUM)
THEORY OF SURROGACY IS A NEW PROBLEM
NO SPECIFIC RULING (HUKUM)
USING IJTIHAD TO DETERMINE THE HUKUM
Several types of surrogacy(Scientific)
Types of surrogacy (general)
MOTHERHOOD AND FATHERHOOD
Children are gifts from Allah and they are within His power
Unfortunately, there are couples who have been test with infertility
Meaning: "or He gives both male and female [to whomever He wills], and causes to be barren whomever He wills: for, verily He is all-knowing, infinite in His power"
However, since the couple want to have children and that’s the purpose of getting married, they try to find other alternatives to get children
Thus, this is where the scientists and the medical practitioner comes out with the idea of surrogacy.
Thus, the Muslim scholars use the approach of ijtihadiyyah in making the ruling
This new issue must be debated in order to ensure its practicality must be in accordance to Maqasid Syariah
Opinion of the Muslim scholars on surrogacy
The Muslim scholars had agreed that the process of surrogacy is not permissible (
) on these circumstances:
Use other woman’s womb other than the wife
Mixing the seed of the husband and other woman’s (not the wife)
Mixing the seed of other man (not the husband) and the wife’s
Or insert the fertilized seed of the husband and wife after they have died
Exception: where the fertilized sperm of the husband and the ovum of the wife
being put into the womb of other wife of the same husband.
The rulings and fatwas of Muslim scholars on surrogacy
1) “Fertilization of the husband and wife’s seed outside the womb, and later it is being put into the womb of the wife, is a process which is accepted in terms of its principle, but there’s doubt in terms of practicality. Thus, it is not sensible to use this method except under necessity and fulfil these conditions;
a. Fertilization done with the sperm of the husband
b. It is being done during the husband is still alive, not after his death
c. It is being done by reliable Muslim doctor
d. And, it is agreed by both husband and wife
2) “surrogacy is not permissible and prohibited by Syara”
3) “surrogacy is not permissible if there’s third party, either of the sperm, the ovum, the womb or the embryo”.
4) Sheikh Mahmud Shaltut is also on the opinion that:
“The fertilization of the woman’s seed with the man who is not within her kindred and affinity from the Syariah perspective is a crime and it is a big sin like adultery in terms of its principle and its consequence, which is putting the sperm of the man (ajnabi) with the intention to get children, even though both man and woman are not married.”
Reasons on the prohibition of surrogacy
Owns more harms rather than benefit towards the society
It is against the maqasid syariah; create humiliation towards the dignity of the women as a creature which has been honoured by Allah S.W.T. and expose them as a type of bargain for transaction purposes
Contradict to the character of Islam which promotes equality among people
Expose women to harms
Meaning: “And we have certainly honoured the children of Adam and carried them on the land and sea and provided for them of the good things and preferred them over much of what We have created, with [definite] preference”.
Degrading the dignity and honor of the women as it is similar to adultery
There are differences between surrogacy and adultery:
a) adultery involves the consummation of the man and the woman
b) Both the adulterers will try to avoid from getting children
Despite of the differences, it still comes within the prohibition of the Syara’ because it can lead to the mixing of lineage
where the surrogate mother is a woman who is not yet married but she willingly lends her womb for the purpose of surrogacy and later she got pregnant
- It could lead to the destruction of the society
Meaning: “O Mankind! Be conscious of your Sustainer, who has created you out of one living entity, and of it created its mate, and out of the two spread abroad a multitude of men and women. And remain conscious of God, in whose name you demand [your rights] from one another, and of these ties of kinship. Verily, God is ever watchful over you!
Getting children is a noble intent, but if it is being done in a way which clearly contradicts to the Syariah, it is not permissible to be practised
The Muslim scholars relied on the method of fiqh, 'Dar-ul mafasid muqaddam 'ala jalb al-masalih', and it is nearer to the concept of 'sadd ad-dharai'e' and at par with the maqasid syariah; to protect one’s heir from mixing, and to avoid humiliation towards one’s dignity.
There is one group of scholars who used 'qiyas' to permit the practice of surrogacy. They analogically deduced it with the practice of breast-feeding.
This opinion had been rejected, and the 'qiyas' is not acceptable because there are differences between surrogacy and breast-feeding in terms of:
1. The benefit of wages for breast-feeding is allowed by the Syariah as stated in the Quran and Sunnah, as Allah has said:
Meaning: “Lodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth. And if they breastfeed for you, then give them their payment and confer among yourselves in the acceptable way; but if you are in discord, then there may breastfeed for the father another woman”.
2. A breast-feed child has a clear lineage rather than an incomplete embryo in the womb of a surrogate mother.
3. A breast-feed child can be fed with other foods, other than milk in certain circumstances, differs from surrogacy as the food stock for the embryo depends completely to the blood of the mother who carries it.
Type of surrogacy which the Muslim scholars had not reach consensus upon its prohibition:
Situation: where the fertilized sperm of the husband and the ovum of the wife being put into the womb of other wife of the same husband.
They are in the opinion that this method is not permissible to be practised, because it will gives harm to the surrogate mother, and there’s probability that the surrogate mother will get pregnant after she had consummated her husband. This will lead to confusion of the real mother for the baby.
This ruling has been canceled on 1405H as follows;
“This is due to the probability of the surrogate mother to get pregnant before the fertilized seed was being put into the womb, where the consummation with the husband is done within short period of time near to the period where the seed will be put into it. Then, there’ll be problem if there are twins that she’s delivered to and the status of the child is unknown; from the consummation or the fertilized seed. It is the same as if one of the fertilized seeds died or abort, the status of the child will hardly be determined. Thus, there’ll be mixing of lineage in determining the real mother to the delivered baby. Plus, there’ll also doubt in matters related to inheritance, maintenance and other rights.”
1st group: totally prohibit
The obstetricians or gynaecologists admit that there’s probability that the surrogate mother will get pregnant due to her consummation with her husband and there’ll be mixing of lineage from the mother’s side.
They also contended that by using 'qiyas' (analogical deduction), they put the matters of surrogacy in analogical to the matters of Lesbian. Lesbian is strictly prohibited by the religion, thus when a seed of a woman is being transferred to other woman, it just the same like the act of Lesbian
Discussions on the opinion:
The probability of pregnancy on part of the surrogate mother is a theory, but practically, there’s slight probability for this thing to happen. This is due to the process of instilling the fertilized seed needs a lot of check-up and this will forbid the wife from consummating the husband. Indeed, the wife will not go out from the hospital unless after her ovary has been blocked and that seed really got stick to the womb.
Hence, second pregnancy has a very small tendency to happen practically even though theoretically, it is possible. Besides that, by analogically deduced the surrogate mother with Lesbian is not acceptable because the purpose of Lesbian is to have fun and just to treat the lust per se, not to get children. In contrast, surrogacy is for getting children, not to treat the lust. Lesbian also does not involve transferring of the seed from one to the other.
2nd group: Permit this method
They are on the opinion that surrogacy by this way is permissible because both women are the wives of the same husband and the other wife willingly agreed to get pregnant on behalf of the other wife. In this situation, the father of the child is determined and the bond of relationship of the child with the family is certain and existed within good condition. In that case, majority permit this method of surrogacy with perfect surveillance to avoid mixing of seeds because it will lead to bad effects throughout generations. They also contended to not to use this method unless there’s need to do so.
Discussion on opinion:
This practice seems practicable according to this group, but cautious steps need to be taken in the form of guarantee, conditions and complete inspection suits to human’s ability. Besides that, do no strict the relationship until it bans the permissible things, or bans the permitted things in necessity. The second wife need to get her right as the first wife got and she’s not get married just to be divorced and later need to be a surrogate mother willingly.
Conditions and rulings on the effect of surrogacy
Dr Yusuf Al-Qardhawi in his book of ‘Fatwa Mu’assarah’ stated that when science has reached its peak and surrogacy is being practiced in reality, we have to put conditions to reduce any harms and to lighten its effect. Among them is;
a) The surrogate mother must be a married woman
b)The woman must get the permission of the husband at the first place because pregnancy will prevent her from accomplishing some needs of the husband
c)It is a must for the woman to get through a period of iddah from her husband, to ensure that her womb free from the seed of the husband which later could lead to the mixing of lineage.
d)The maintenance for the surrogate mother, including her medical expenses and care along the period of pregnancy and after the child has been delivered is upon the responsibility of the seed’s owner husband as the child will be living up from his blood.
e) All rulings regarding to breast-feed mother is analogically deduced to the surrogate mother because the burden carries by the surrogate mother is heavier than the breast-feed mother. However, the husband of the surrogate mother will not have the same status as the husband of the breast-feed mother, because he is regarded as breast-feed father to the child since the milk can only be produced after the wife had delivered a baby through her consummation with the husband.
f) A surrogate mother has the right to breast-feed the baby if she wants to do so because it’ll give harm to the physical body of the mother if the milk does not being consumed.
g) It is fair for the surrogate mother to have more specialties better than the breast-feed mother, like maintenance that need to be given to the mother by her biological child
NUR ADIBAH BINTI ADNAN
NAJLA BINTI PAMNAN@RAMNAN (1222184)
FATHIN NADHIRA BINTI KAMARUDIN (1221868)
The typical case involves a married couple who cannot have their own biological child because the wife is infertile. Therefore, the couple enters into an agreement with a woman (the surrogate) who will carry a child for them; the man (the father) provides the sperm which will be used together with the surrogate’s egg to produce a child. The surrogate will carry this child to term and subsequently relinquish it to the father and his partner (the recipient woman) may also donate her eggs, rendering the arrangement a “full surrogacy”
i)Traditional surrogacy (TS)
ii)Traditional surrogacy & donor sperm (TS/DS)
iii)Gestational surrogacy (GS)
iv)Gestational surrogacy and egg donation (GS/ED)
v)Gestational surrogacy and donor sperm (GS/DS)
v)Gestational surrogacy and donor embryo (GS/DE)
1. Psychological screening
(i) Criterion of women
- finished creating their own family
- had easy, uncomplicated pregnancy
- loved being pregnant
(ii) Fill out 18 page questionnaire
- candidates’ personal support system
- delivery experience
- personal strength and weaknesses
(iii) Surrogate chooses her intended
parent, sit for physical exam
(iv) Sign legal contracts and agreements
with the intended parents
2. Fertility drugs
(i) Hysteroscopy (HCG)
(ii) Undergoes series of
infectious disease testing
(iii) Mock cycle
(iv) Fertilization of retrieved
eggs with sperm
(v) Measurement of
(vi) Ultrasound check
NOT AGREE WITH THE CONCEPT OF SURROGACY
Surah Al-Mujadilah verse 2:
“…their mothers are only those who conceived them and gave
birth to them (waladna hum).”
CONTRADICT WITH THE PRINCIPLE OF SHARI’AH (MAQASID DHARI’AH)
“Protection of lineage” (NASAB)
SOME SCHOLARS ALLOWS THE CONCEPT OF SURROGACY
REASON: FOR THE PURPOSE OF MASLAHAH
By: Fathin Nadhira binti Kamarudin
By: Nur Adibah binti Adnan
Surrogacy is one of the alternatives provided for the couple who experienced infertility to get children from their own flesh and blood
However, for Muslims, it must be in accordance with the Syariah by looking at the rulings pointed out by the Muslim scholars so that it will not go astray from what has been outlined by the religion
This is to maintain the tranquility of the society and to avoid any mischief to happen
it is a form of medical development, successfully merged from the intricate loads of experiments that aimed to ease the problems suffered by the mankind
However, there are some of the disturbing facts about this worldwide modus:
1)the intended parents would normally need to sacrifice a lot of funds and moneys
2)this procedure also triggers severe predicaments regarding the heredity itself
3)Touching the aspect of kindred and affinity, it irrefutably set off major serious problems especially in Islam
Najla binti Ramnan @ Pamnan