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SURROGATE MOTHERHOOD. Surrogate motherhood is a contractual agreement whereby a woman agrees to be impregnated by a man, or implanted with a prefertilized embryo, and then surrenders the resulting baby to the man and his wife after its birth. Gestational surrogacy is the term used when the fertilized egg of a legally married couple is implanted in another woman’s uterus. She also bears the child and surrenders it to its biological parents. The surrogate mother may or may not be financially compensated or have grounds to contest custody or visitation of the child. Such arrangements and related issues of in vitro fertilization and fertility treatments have been considered by Muslim medical and religious authorities. Muslim scholars and doctors have treated these issues as a comprehensive ethical, religious, and legal concern, whereas in the West, they make up an area of health ethics regulated thus far by federal or state laws. Various schools of Islamic jurisprudence are producing distinct orientations toward issues of sexuality and fertility.

Since women are not encouraged to enter surgery, obstetrics, and gynecology in the same numbers as men, few Muslim women have participated in the debates on fertility and surrogate motherhood. Muslim states and jurists have accepted or rejected various methods of fertility control, allowing certain forms of contraception while generally rejecting abortion. Many Muslims, however, have challenged the underlying assumption that their nations must limit births to enhance the quality of life, arguing that a redistribution of resources is necessary. Nevertheless, a large number of Muslims consider infertility to be a serious problem and seek medical intervention. Faced by the technological developments in the field, Muslim medical personnel are now confronted with complex ethical questions regarding the validity of courses of treatment.

Three legal and historical barriers confront any argument for legalized contractual surrogate motherhood. The Qur’an distinctly states that children are the gift of God.

To God belongs the dominion of the heavens and the earth. He creates what He wills [and plans]. He bestows [children] male or female according to His Will [and Plan]. Or He bestows both males and females and he leaves barren whom He will. For he is full of knowledge and power.

(surah Shurah 42.49-50)

On this basis scholars have argued that infertility, or female children, should be accepted by parents. A strict interpretation of this verse was altered with the medical and religious acceptance of fertility treatments (usually ineffective) and then in the 1980s with permission for two methods of in vitro fertilization. These were argued to be permissible as they could succeed only with the will of God and do not involve sperm or egg donation. Because men have the alternative of taking another wife who might be fertile, polygamy serves as a second impediment to the pursuit of fertility alternatives.

The third legal problem concerns the Muslim approach to adoption. The Qur’an forbids formal adoption and calls for children to carry their own names (surah Ahzdb, 33.4-5). (After revelation of this verse, the Prophet’s own adopted son, Zayd, retook his own name, Zayd ibn Harith.) Adopted children could not legally inherit. However, informal adoption exists, known as “embracing” a child, and Muslims may bestow monetary gifts upon such a child during their lifetime.

A form of surrogate motherhood in which a child is nurtured, breast-fed, and disciplined by a woman other than its mother has been practiced for centuries in the Middle East. This surrogate mother is termed a “milkmother.” The prophet Muhammad was first raised by his milk-mother, Halimah of the Sa’d bin Bakr tribe. The milk relationship is equivalent to a blood relationship with regard to loyalty and prohibitions of incest. Children who are suckled together may not marry. Muhammad honored this tie by intercession on behalf of his milk-sister, al-Shayma, and the women of the Sa’d bin Bakr. This custom has continued into the twentieth century for the convenience of parents, when a man was widowed or divorced, when a woman could or would not nurse, and to encourage familiarity with tribal life in some regions. The Qur’an sanctions the practice and the monetary compensation given to a milk-mother, or to a nurse (or surrogate) even if a child is older, and could be taken as a precedent for payment of a surrogate contract if formal adoption were not involved. However, a child born of a surrogate mother could not inherit from its genetic father and adoptive mother unless the father had legally married the surrogate mother. In states permitting polygamy he could do so, acknowledged a conservative Sunni authority recently (Zuhur, 1993, p. 16).

Earlier opinions held that as Islam guards legal sexual relations and requires that a child know its origins, donor insemination could not be allowed. Following this argument, surrogate motherhood involved a donated gamete and/or uterus and so represented an adulterous relationship. Some still consider in vitro techniques to be suspect, though not adulterous, as contact between egg and sperm takes place outside its normal environment. Others conceded that even sperm or egg donation involved a medical rather than a sexual act and could not be adulterous, but nonetheless removed parental responsibilities, violated inheritance laws, and increased the risk of unintended incest within the community (Hathout, Islamic Concepts and Bioethics, London, 1991). An opponent of all fertility intervention has argued that a surrogate mother’s separation from parenting responsibilities also invalidates Muslim conceptions of parenthood, dividing realms of motherhood into conception, childbearing, and parenting (Tahmaz, 1987).

With gestational surrogacy, the problem of legitimacy does not exist, but the above argument has resonance, for the separated functions of motherhood could easily be fulfilled by different women. Although many contemporary parenting responsibilities are assumed by nurses, baby-sitters, and teachers, and the role of the traditional milk-mother implied the possible division of the functions of motherhood, many other Muslims would object to a monetary value being assigned to the act of giving birth. It turns the birth experience into a commercial transaction and could, as some feminists propose, reinforce socioeconomic divisions among women, creating one class of breeders and carriers, and another privileged parent class who could afford their services.

On the other hand, infertile Muslim women have been subjected to cultural if not religious discrimination; women often feared replacement, whether through polygamy or via the temporary marriage (mut `ah) permitted to Shi`i men. It is conceivable that women determined to be mothers might support the acceptance of a modified form of surrogate motherhood. Muslim opinion has truly shifted when some of its most conservative jurists recognize the technological achievement of the test-tube baby, albeit “facilitated by God” (Members of the Shari’ah Council of the Muslim World Association; [President of the Council, `Abd al-`Aziz ibn `Abd Allah ibn Baz] “Second Opinion on the Matter of Artificial Insemination and Test-tube Babies,” Mecca, 1989). Therefore, a gestational surrogate arrangement conducted without payment, perhaps granting the birth mother visitation rights on an ongoing basis, may one day be seriously considered as well.

BIBLIOGRAPHY

Qur’an; Al-Baqarah 20.220; Al-Nisd’ 4.2, 4.6. 4.10. 4.24. and 4.27; Banu Isrd’il 17.34; and Ahzdb 33.4-5.

Members of the Shari ah Council of the Muslim World Association. “Second Opinion on the Matter of Artificial Insemination and Testtube Babies.” Mecca, 1989. Fatwa covering the various forms of reproductive intervention, probably representing more conservative opinion in this matter. Signers indicate some dissension on the decisions.

Gindi, A. R. al-, ed. Human Reproduction in Islam. Translated by A. Asbahi. Kuwait, 1989.

Hathout, Hasan. “Islamic Concepts and Bioethics.” In Bioethic Yearbook, edited by the Center for Ethics, Medicine, and Public Issues, vol. 1. London, 1991. Contains medical and scholarly consensus on organ transplants, and sterilization as well as new reproductive technologies. The author has elsewhere represented Muslim opinion as being opposed to abortion and homosexuality.

International Conference on Islamic Medicine. Proceedings of the First International Conference on Islamic Medicine. Edited by Abdul Rahman Abdullah al-Awadi. Kuwait, 1981.

Tahmaz, `Abd al-Hamid Mahmud. al-Ansab wa al-Awlad: Dirdsah limawqif al-shari’ah al-islamiyah min al-talgih al-sina’i wa ma yusama bi atfal al-anabib. Beirut and Damascus, 1987.

Zuhur, Sherifa. “Of Milk-Mothers and Sacred Bonds: Islam, Patriarchy, and New Reproductive Technologies.” Creighton Law Review 25.5 (November, 1992): 1725-1738.

Zuhur, Sherifa. “New Reproductive Technologies: Rulings vs. Meanings.” Paper presented to the Middle East Studies Association. Research Triangle Park, N.C., 1993

If surrogate motherhood is unfamiliar territory, the reader may also wish to glance at some Western sources on surrogacy, law and ethics, including:

Johnson vs. Calvert. 2o May 1993. California Supreme Court. (Panelli, Justice Edward). Twenty-eight-page opinion upholding surrogate mother contracts, and denying legal custody to the gestational surrogate mother of Chris Calvert.

Gimenez, Martha. “The Mode of Reproduction in Transition: A Marxist-Feminist Analysis of Reproductive Technologies.” Gender and Society 5.3 (September 1991): 334-350.

Mor, Menachem, Charles Dougherty, Martha Field, Barbara Katz Rothman, et. al. Creighton Law Review. Symposium Issue: Reproductive Rights. 25.5 (November 1992). Includes perspectives of other religions and communities on the issue of surrogate motherhood.

Stark, Barbara. “Constitutional Analysis of the Baby M Decision.” Harvard Women’s Law Journal I I (Spring): 19-52.

SHERIFA ZUHUR

Azhar Niaz Article's Source: http://islamicus.org/surrogate-motherhood/
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