A study of the Arguments and Jurisprudential Rulings on Artificial Insemination From the Perspectives of Imamiya and Sunni Jurisprudence (Book)
- abstract
A study of the arguments and jurisprudential rulings on artificial insemination from the perspectives of imamiya and Sunni jurisprudence (in persian: بررسی ادله و احکام فقهی تلقیح مصنوعی از منظر امامیه و اهل سنت) is a Persian book which explores the different types of artificial insemination permissible during marriage. Authored by Farzaneh Dadash-Ali, this work discusses various forms of artificial insemination during the period of marriage. It identifies three scenarios for artificial insemination involving couples: insemination using the couple's own eggs and sperm, insemination using eggs and sperm from non-mahram individuals, and insemination utilizing a surrogate womb. In three chapters, the author explores the concepts utilized in the book and the arguments for and against the permissibility of artificial insemination according to both Shia and Sunni scholars. According to the book's report, both Shia and Sunni jurisprudential texts provide evidence supporting both the permissibility and the prohibition of each of the three categories of artificial insemination.
A brief review and structure of the book
"A study of the arguments and jurisprudential rulings on artificial insemination from the perspectives of imamiya and Sunni jurisprudence", written by Farzaneh Dadash-Ali, was released in 2021 by Mirase Mandegar Publications. The book seeks to provide an overview of the views held by Shia and Sunni jurists regarding medically assisted pregnancies. The author focuses exclusively on the obligatory rulings related to various methods of artificial insemination, rather than on their situational rulings. Additionally, the discussion is limited to the context of marital relationships, excluding considerations after divorce or death. The book consists of an introduction followed by three chapters. In the first chapter, the author delves into the concepts utilized throughout the text, exploring terms such as fertilization, artificial insemination and its various forms, as well as embryo and infertility. Additionally, this chapter provides a historical overview of artificial insemination and infertility, detailing the different types of artificial insemination and the causes of infertility in both women and men. The second chapter discusses the justifications and prohibitions of artificial insemination from the Shia perspective, while also referencing the opinions of Shia scholars regarding the three categories of artificial insemination (the use of the couple's egg and sperm, the use of donor egg and sperm, and the use of a surrogate womb) during marriage. The third chapter examines the same three categories from the viewpoint of Sunni scholars. In the conclusion, the author summarizes the key points and offers several recommendations.
Artificial insemination utilizing the eggs and sperm of the couple
Artificial insemination utilizing the eggs and sperm of a couple represents the first category among the three types of artificial insemination applicable during marriage. The author examines the arguments for and against its permissibility from the perspectives of Shia and Sunni jurisprudence, as well as the opinions of scholars from both schools.
Shia jurisprudence
The author of the book presents five arguments in favor of the permissibility of the artificial insemination using the eggs and sperm of a couple from the Shia perspective. He notes that Shia jurists reference 1) the verse 223 of Surah Al-Baqarah, 2) a prophetic narration indicating that the Prophet will boast about the size of his community on the Day of Judgment, 3) the permissibility of medical treatment, 4) the absence of prohibitive factors, and 5) the principles of rational and legal absolution to support this form of artificial insemination. Conversely, some Islamic jurists argue against this practice by emphasizing the necessity of sexual intercourse to establish lineage and the legitimacy of a child's affiliation with the couple (pp. 40-43). According to the author, aside from Mohammad-Hadi Milani and Hossein Tabatabai Borujerdi, who consider this situation to be problematic and worthy of contemplation among the Shiite jurists of the fourteenth century, the majority of other jurists deem this situation permissible (p. 59). In contrast, Islamic jurists such as Abul-Qasim Khoei, Imam Khomeini, Lotfollah Safi Golpaygani, Seyyed Ali Sistani, and Mohammad Momen Qomi have stipulated that for this situation to be considered permissible, the act of insemination must be performed by the husband himself, as it does not involve prohibited actions such as looking at or touching a non-mahram (pp. 59-61). Regarding the lineage of the child, the author only references Imam Khomeini's opinion, who asserts that if the inseminator is not the husband, although the individuals have committed a sin, the child remains theirs (p. 60).
Sunni jurisprudence
The author presents four reasons supporting the permissibility of artificial insemination using the eggs and sperm of a married couple, according to the perspective of Sunni scholars: 1) the allowance of uncovering private parts in cases of necessity, 2) the absence of any objection due to the gametes belonging to the couple, 3) the necessity of treating infertility, and 4) fostering affection between the spouses and ensuring the continuity of their life together. These are the arguments cited by Sunni jurists in favor of this form of artificial insemination. Additionally, the author reports that opponents of artificial insemination among Sunni scholars have referenced eight reasons against it. These include verses from the Quran such as 2:223, 5:5-7, 2:187, and 7:189, a hadith from Sahih Bukhari that specifies the manner of intercourse and states that deviation from this manner is not permissible, [1] the principle of "no harm and no harassment," the contradiction with divine will as referenced in verse 50 of Surah Al-Shura, the conflict with the principle of blocking means, and the association with the exposure of private parts. These are the reasons cited by Sunni scholars opposing this type of artificial insemination (pp. 72-78). According to the author, Islamic jurists such as Mahmud Shaltut, Ahmed Mohamed Ahmed Al-Tayyib, Sheikh Mansur, Sheikh Mustafa Zarqa, and several other Sunni jurists consider artificial insemination using the eggs and sperm of a married couple to be permissible. In contrast, some jurists, including Sheikh Rajab Bayoudh Al-Tamimi, Sheikh Muhammad Sharif Ahmed, Sheikh Abdulaziz bin Abdullah bin Baz, and Sheikh Abu Bakr Abu Zaid, deem it to be prohibited (pp. 90-92).
Artificial insemination utilizing eggs or sperm from a non-marital partner
Another form of artificial insemination involves the use of the egg or sperm from a woman and a man who do not share a marital bond. The author indicates that the sensitivity in this instance is particularly significant when the sperm from a non-related male is inserted into the wife’s womb, and the majority of the arguments are directed towards this particular case (p. 44).
Shia jurisprudence
The author has identified three reasons from Shia jurisprudential sources to justify the use of non-mahram eggs or sperm for artificial insemination: 1) The reference to verse 50 of Surah Al-Shura, which employs the term "j'al 'aqim" instead of "khalaq 'aqim," indicating the potential for change and transformation rather than a state of permanence. 2) The narration from Abu Ishaq ibn Ammar [2], which suggests that placing the sperm in a location not explicitly prohibited by the narration does not apply to artificial settings. 3) The principle of permissibility and legality (pp. 44-47). In contrast, he has compiled eight reasons from the perspective of Shia jurisprudence to argue against the permissibility of this practice: 1) Verse 30 of Surah al-Nur. 2) The narration from Ali ibn Salim [3], which warns of severe punishment for depositing semen in the womb of a non-mahram woman. 3) A narration attributed to the Prophet Muhammad stating that after polytheism, there is no greater sin than placing semen in an unlawful womb. 4) The narration from Muhammad ibn Ali ibn al-Husayn [4], which equates the act of depositing semen in a non-mahram woman's womb with the killing of a Prophet and Imam, as well as the destruction of the Kaaba. 5) Narrations concerning the chastity of stomach and private parts. 6) The incompatibility of artificial insemination using non-mahram sperm and eggs with the objectives of Islamic law. 7) The inconsistency of this method with ethical considerations and societal interests. 8) The potential psychological effects (pp. 47-52). According to the author, some Islamic jurists such as Mohammad Fazel Lankarani and Seyyed Ali Khamenei consider the use of a non-mahram woman's egg in artificial insemination permissible, and they regard the resulting child as belonging to the genetic parents. However, there is a divergence of opinion among scholars regarding the use of a non-mahram man's sperm for artificial insemination; scholars like Mohammad Taqi Bahjat and Seyyed Ali Khamenei deem it acceptable, while others, including Imam Khomeini, Lotfollah Safi Golpaygani, Hossein Nuri Hamadani, Naser Makarem Shirazi, Javad Tabrizi, Mohammad Fazel Lankarani, Hossein Tabatabai Borujerdi, and Mohammad Hadi Milani, classify it as forbidden (pp. 62-65).
Sunni jurisprudence
The author of the book has explored the topic of artificial insemination using non-mahram eggs and sperm within the framework of Sunni jurisprudence, arriving at several reasons to support its permissibility. These include: 1) Verses 233 of Surah Al-Baqarah and 5 to 7 of Surah Al-Mu’minun, 2) the invalidity of citing the principle of "no harm and no harassment," and 3) the allowance of sperm entry without penetration. Additionally, he has identified several arguments against its permissibility based on Sunni legal texts, which include: 1) Verses 233 of Surah Al-Baqarah, 5 to 7 of Surah Al-Takwir, 187 of Surah Al-Baqarah, and 189 of Surah Al-A'raf, 2) the inherent similarity of this method to adultery, 3) the association of artificial insemination with non-mahram eggs and sperm with masturbation, exposure of private parts, and touching the genitals, 4) the principle of blocking means to harm and the priority of preventing harm over seeking benefits, 5) its contradiction with religion and human nature, and 6) the flaw of the fundamental elements of fertilization (pp. 79-86). As reported in the book, Sunni scholars such as Mahmoud Shaltut, Sheikh Ibn Uthaymeen, Sheikh Abu Bakr Al-Jazairi, Sheikh Yusuf Al-Qaradawi, Sheikh Abdulaziz bin Baz, and Sheikh Mansur do not consider artificial insemination using non-mahram eggs and sperm to be permissible (pp. 92-93).
Artificial insemination utilizing a surrogate womb
The third method of medical pregnancy involves the use of a surrogate womb, which can take two forms: sometimes the surrogate is the second wife or concubine of the couple, and other times it is a womb from an unrelated individual. The author of the book examines artificial insemination through surrogacy in the context of both Shia and Sunni jurisprudence, similar to the previous two forms.
Shia jurisprudence
The author of the book presents two reasons for permitting the use of a second wife's or a concubine's womb for artificial insemination from the perspective of Shia jurisprudence: 1) the narration of Ali ibn Salim [5], and 2) the application of the principle of absolution. Additionally, the author references verse 7 of Surah Al-Mu'minun to argue against this practice. For artificial insemination using a surrogate womb, the author cites one justification for its permissibility, which is the principle of permissibility and rational and religious absolution. Conversely, five arguments are provided against its permissibility: 1) the narration of Abu Ishaq ibn Ammar [6], 2) the narration of Ali ibn Salim, 3) the precaution of preserving private parts, 4) the incomplete nature of maternal elements and the mixing of lineage, and 5) the inhuman and degrading nature of this act (pp. 52-58). According to the author, Shia jurists hold varying opinions regarding artificial insemination through surrogacy. Some jurists, such as Mohammad Fazel Lankarani and Javad Tabrizi, categorically deem this practice impermissible. Conversely, others, including Imam Khomeini and Naser Makarem Shirazi, permit the use of a surrogate womb for artificial insemination only if the embryo is transferred to a second wife or a concubine. In this context, Mohammad Mo'men Qomi considers both scenarios permissible (pp. 65-67).
Sunni jurisprudence
As reported by the author, Sunni jurisprudence offers two reasons for permitting the use of a second wife’s or a concubine’s womb for artificial insemination: 1) the comparison to a wet nurse, and 2) the importance of sustaining the family structure. In contrast, there are two arguments against this practice: 1) the potential for confusion in lineage and legal judgments, and 2) the prohibition of same-sex relations. The author claims that there is no justification in Sunni jurisprudence for artificial insemination using a surrogate womb, while two arguments for its prohibition are presented: 1) the absence of a marital bond between the husband and the womb provider, and 2) the prohibition against exposing one’s private parts (pp. 86-89).
refrences
- Bukhari, Muhammad ibn Ismail, Sahih Bukhari, Beirut, Dar Taq al-Najat, 2001.
- Ihsaei, Ibn Abi Jumhur, Awālī al-la'āli' al-'azīzīyah fī al-aḥādīth al-dīnīyah, Qom, Sayyid al-Shuhada, 1982.
- Hurr Amili, Muhammad ibn Hasan, Wasail al-Shi'a, Beirut, Dar Ihya al-Turath al-Arabi, n.d.