A legal - Jurisprudential Study of Artificial Insemination (Book)
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| Book Information | |
|---|---|
| Author | Mohammad Javad Fazel Lankarani |
| Language | Persian |
| Pages | 173 |
| Publication Information | |
| Publisher | Fiqhi Center of the Infallible Imams (AS) |
- Abstract
Jurisprudential and Legal Study of Artificial Insemination (Persian: بررسی فقهی - حقوقی تلقیح مصنوعی), based on the advanced jurisprudence (Dars-e Kharij) lectures of Mohammad Javad Fazel Lankarani, examines the absolute (taklīfī) and conditional (waḍʿī) rulings on various forms of artificial insemination.
The book categorizes insemination into five types, including sperm donation, egg donation, and surrogacy. Fazel Lankarani's central argument rests on Qur'an 23:7, which he interprets as prohibiting all forms of artificial insemination except for two: the insemination of a husband's sperm into his wife's womb, and the external fertilization of a couple's gametes followed by transfer to the wife's uterus. The second part of the book addresses the legal status of the child, particularly its lineage (nasab), based on the origin of the sperm and egg.
About the book and structure report
‘‘Jurisprudential and Legal Study of Artificial Insemination’’ is a compilation of Mohammad Javad Fazel Lankarani’s ‘‘Dars-e Kharij’’ lectures delivered in 2005. The transcripts were published in 2008 by the Jurisprudential Center of Aeme Athar (AS).
The book consists of an introduction and two main sections. In the introduction, the author defines artificial insemination and fertility, explains two main methods (complete and incomplete), and outlines the different types of artificial insemination (pp. 12–17). ultimately accepting the '''Principle of Exemption (''aṣl al-barāʾah'')''' and issuing rulings based on it (p. 52). This section also discusses the different types of artificial insemination, along with their rational and textual justifications, and critiques them. The second section discusses the lineage of children conceived through artificial insemination and clarifies their legal relationship to their parents.
Absolute Rulings (''Aḥkām Taklīfī'')
In the first section of the second chapter, the author sets out the absolute rulings on the five types of artificial fertilization and provides arguments for their permissibility or prohibition. A key point in Fazel Lankarani’s view is that it is forbidden for a woman to make her womb available for another’s embryo; she may only receive her husband’s sperm (p. 139).
Husband's Sperm into Wife's Uterus
The first medical method involves placing the husband’s sperm into his wife’s uterus using modern medical techniques. The author argues that neither reason nor textual evidence requires insemination to occur exclusively through marital intercourse. Therefore, where there is doubt about the prohibition of artificial insemination, he applies the Principle of Exemption (‘‘aṣl al-barāʾah’’) and rules this method permissible (p. 56).
According to Fazel Lankarani, if a couple must resort to new medical methods to have children in order to preserve their family, it is permissible to implant the husband’s sperm in the wife’s womb, even if this involves otherwise prohibited preliminaries (pp. 56–57). However, if they are not in a state of necessity and their life together is not threatened, implantation that requires prohibited actions is not permissible (pp. 58–62).
Insemination with a Third Party
Fazel Lankarani defines the second type as insemination involving a woman and a non-mahram man and outlines two possible scenarios. In this classification, he considers the presence of an infertile couple while outlining the two forms of fertilization: 1) the fertilization of the wife’s egg with the sperm of a non-related man due to the husband’s weak sperm (sperm donation); 2) the fertilization of the egg from a non-related woman with the husband’s sperm due to the wife’s infertility (egg donation).
a. sperm donation
Fazel Lankarani considers the second form of artificial insemination to occur when a husband is unable to impregnate his wife due to weak sperm. In such cases, new fertility methods are employed to place another man's sperm in the wife's uterus (p. 63). He notes that some Islamic jurists permit this type of artificial insemination, while others deem it forbidden (p. 64).
The author of the book begins by examining the narrative reasons behind the prohibition of this form of insemination. After critically analyzing the authenticity and implications of five narrations [1], he concludes that they are insufficient to establish the prohibition against transferring the sperm of a non-related man into the womb of a non-related woman. He argues that, in the absence of other evidence, one could consider it permissible based on the principle of the release of a duty (pp. 65-88; p. 109). However, he notes that there are Quranic verses in this context that support the prohibition of this type of insemination. Fazel Lankarani reviews several Quranic verses in this regard, asserting that based on verses 31 of Surah An-Nur, 23 of Surah An-Nisa, and 35 of Surah Al-Ahzab, one cannot claim that sperm donation is prohibited (pp. 89-105). Nevertheless, he cites verse 7 of Surah Al-Mu’minun and the accompanying narrations as evidence for the prohibition of placing a non-related man's sperm in the womb of a wife (p. 109).
After analyzing the Quranic verses, the author presents a narration regarding the prohibition of adultery [2], identifying the reason for this prohibition as "corruption within the family." He argues that transferring a non-related man's sperm into a wife's womb also leads to familial corruption. Based on this narration, he deems the second scenario impermissible (pp. 117-118). Following this, Fazel Lankarani examines the arguments of those who support the permissibility of this practice, asserting that the primary justification for the second scenario lies in the relevant narrations, which ultimately reduce to two specific narrations [3] (pp. 118-121). After critiquing and disputing the authenticity and content of these two narrations, he concludes that they are insufficient to validate the permissibility of artificial insemination involving sperm donation (p. 124).
b. egg donation
Fazell Lankarani considers the third form of artificial insemination to occur when a husband's sperm is transferred to the womb of another woman due to the wife's infertility (p. 125). According to the author, this transfer of the husband's sperm into a non-related woman's womb is based on three assumptions, all of which are prohibited according to verse 7 of Surah Al-Mu'minun:
- Hypothesis One: The egg of a non-related woman is implanted in the womb of the man's wife, and the husband impregnates her through sexual intercourse (p. 127).
- Hypothesis Two: Fertilization occurs between the husband's sperm and the egg of the non-related woman within the same woman's uterus (p. 126).
- Hypothesis Three: The husband's sperm fertilizes the egg of the non-related woman outside the womb, and the resulting embryo is then transferred to the wife’s uterus (p. 130).
The fertilization of the husband's sperm and the wife's egg outside the wife's uterus
The fourth form of artificial pregnancy, as stated by the author, involves the fertilization of the wife's egg with the husband's sperm outside the wife's uterus, resulting in the creation of an embryo. This method also takes on various forms and rulings depending on the location of the embryo:
- In the first and second scenarios, the embryo is either not transferred to any uterus or is placed in the wife’s uterus, both of which are permissible (p. 131).
- In the third scenario, the embryo may be transferred to the uterus of a second wife or a concubine of the sperm owner. According to Fazel Lankarani, while the initial fertilization of the couple's sperm and egg outside the body is allowed, transferring it to the uterus of a second wife or concubine, although permitted by some narrations (p. 134), is considered prohibited based on verse 7 of Surah Al-Mu’minun (p. 136).
- The fourth scenario involves transferring the embryo to the uterus of a non-related woman, which, as stated by the author, is explicitly prohibited by the verses and narrations (p. 136).
Unusual forms of artificial insemination
Fazel Lankarani discusses certain rare forms of artificial insemination, such as the fertilization of a female animal's egg with human sperm and the fertilization involving plants. He interprets these practices as aligned with verse 7 of Surah Al-Mu’minun and the narration stating, "A man who places his sperm in a womb is prohibited." [4] He considers such methods of fertilization to be contrary to the objectives of Sharia (which emphasize that the purpose of marriage is procreation through human means). Consequently, he deems all these practices to be forbidden (pp. 140-143).
Conditional Rulings (''Aḥkām Waḍʿī'') and Lineage
In the second section of the book, titled "Legal Issues of Artificial Insemination," Fazel Lankarani discusses the implications and conditional rulings associated with artificial insemination, particularly concerning the relationship between the embryo and the parents (the sperm and egg donors).
The nature and concept of lineage
In the first chapter of the second section, the author examines the concept of "lineage." He presents two perspectives on the nature of lineage: one viewpoint asserts that lineage does not have a specific meaning in religious law and we should instead refer to common understanding, which recognizes the sperm and egg donors as the parents of the fetus (p. 148). Conversely, another perspective claims that lineage is a legal concept with a specific definition (p. 149). Fazel Lankarani cites some supporting evidence for the second viewpoint, such as the principle of "denial of lineage from a child born of adultery" (p. 149) and «الولد للفراش» (p. 153). He critiques the claim of consensus by the author of "Jawahir" regarding the absence of a relationship between a child born of adultery and the man and woman involved [5], arguing that this is based on the lack of inheritance rights (pp. 149-150). He believes that one cannot deny the relationship of the fetus with the parents solely based on the "lack of inheritance for the child born of adultery," as the legislator intended only to establish the "non-inheritance of the fetus", not to negate all implications such as "mahram relationship" and "lineage" (pp. 150-152). The author further presents five narrations [6] from the Ahl al-Bayt (AS) and one narration [7] from Sunni sources regarding the principle «الولد للفراش» (pp. 153-158), asserting that this principle applies specifically in cases of adultery where the paternity of the fetus is uncertain; however, if the sperm donor is known, the principle does not apply (pp. 159-160).
The lineage of children resulting from different forms of artificial insemination
After examining the jurisprudential aspects of artificial insemination, the author discusses its legal implications and clarifies the status of the child's lineage.
- The insemination of a husband's sperm into his wife's uterus: This would result in a child that belongs to the couple, as the sperm originates from them (p. 161).
- The insemination of a non-related man's sperm into the uterus of a non-mahram woman: In this scenario, if the fertilization occurs outside the womb, leading to the embryo developing in an external environment or being transferred to the uterus of an unmarried woman, or if the sperm of a non-related man is transferred to the uterus of an unmarried woman, the embryo will belong to the sperm donor in all these cases (p. 161). However, if the husband engages in intercourse with his wife after the sperm of a non-related man has been introduced into her wife's uterus, and a child is born, there is a possibility that the child may have been conceived from the husband's sperm. In such a case, according to the principle (الولد للفراش), the child is considered to belong to the couple (pp. 161-162).
- The fertilization of the sperm and egg of a couple outside the body and transferring it to the uterus of another woman (surrogate womb): In this case, the sperm doner will be the biological father and the societal norms recognize the woman providing the egg as the true mother, rather than the woman carrying the embryo (p. 162). As reported in the book, Ayatollah Khoei interprets verse 2 of Surah Al-Mujadila to assert that the mother of the embryo is the woman who gives birth, as the verse refers to the woman from whom the child is born as the mother [8]. Fazel Lankarani critiques Khoei's perspective, arguing that the verse primarily addresses the prohibition of zihar and does not aim to define motherhood (pp. 163-165). Ultimately, the author suggests the possibility of the embryo having two mothers: the egg donor as the biological mother and the woman who gives birth as the nursing mother (p. 165).
footnotes
- ↑ Kulayni, Kafi, Vol. 5, p. 540, Hadith 3; p. 541, Hadith 1; Vol. 7, p. 262, Hadith 12; Saduq, Man La Yahduruhu al-Faqih, Vol. 3, p. 559; Ahwazi, Al-Zuhd, p. 8.
- ↑ Saduq, ‘Ilal al-sharayi', Vol. 2, p. 479, Chapter on the Reason for the Prohibition of Adultery, Hadith 1.
- ↑ Tusi, Tahdhib, Vol. 10, p. 48, Chapter on the Punishments for Adultery, Hadith 179; Kulayni, Kafi, Vol. 7, p. 202, Another Chapter on the Same Topic, Hadith 1.
- ↑ Kulayni, Kafi, Vol. 5, p. 541, Chapter on Adultery, Hadith 1.
- ↑ Najafi, Jawahir al-Kalam, Vol. 29, p. 256.
- ↑ Saduq, Khisal, Vol. 1, p. 213; Kulayni, Kafi, Vol. 5, p. 491, Hadiths 2 and 3, and Vol. 7, p. 163; Tusi, Tahdhib Al-Ahkam, Vol. 8, p. 169, Hadith 12.
- ↑ Bukhari, Sahih al-Bukhari, Vol. 4, p. 8.
- ↑ Sirat al-Najat, Vol. 1, p. 362.