A legal - Jurisprudential Study of Artificial Insemination (Book)

Author: Mahmud Sadeqi

• Abstract

A legal - jurisprudential examination of artificial insemination (in persian: بررسی فقهی - حقوقی تلقیح مصنوعی) is a book on the absolute and conditional rulings concerning various methods of artificial insemination. It is based on the lectures of Mohammad Javad Fazel Lankarani in his seminary courses (Dars-e Kharij) and has been released in Persian. In the first section of the book, the author categorizes artificial insemination into five types: the insemination of a husband's sperm into his wife's uterus, sperm donation, egg donation, the fertilization of the couple's sperm and egg outside the womb followed by transfer to the wife or another individual (surrogacy), and rare insemination methods (using sperm and eggs from animals or plants). The author aims to examine the obligatory and situational rulings related to these categories, supported by Quranic verses and traditions. Verse seven of Surah Al-Mu’minun serves as the primary basis for Fazel Lankarani's stance that all forms of artificial insemination are prohibited, with the exception of two specific cases: the insemination of a husband's sperm into his wife's womb and the extracorporeal fertilization of the couple's sperm and egg, followed by the transfer of the developed embryo into the wife's uterus. These two instances are deemed permissible as they fall outside the prohibitions outlined in the verse. In the second section of the book, the author examines the issue of the lineage of a fertilized embryo. He argues that if a man's sperm is inseminated into his wife's uterus, the child belongs to the couple. Conversely, if the sperm of a non-mahram man fertilizes the woman's egg outside the womb and is then transferred to another uterus or device, the child is considered to belong to the sperm donor. According to Fazel Lankarani, if the sperm and egg of the couple are fertilized outside the womb and subsequently implanted in another uterus, the child will belong to the couple, and the woman carrying the child will be regarded as the surrogate mother.

About the book and structure report

"A legal - jurisprudential examination of artificial insemination", is the compilation of the lectures of Mohammad Javad Fazel Lankarani delivered in his seminary courses (Dars-e Kharij) in 2005 and the transcripts of these lectures 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 explores the concepts of artificial insemination and fertility, detailing two methods (complete and incomplete) as well as various types of artificial insemination (pp. 12-17). In the first section, the author examines the practical principles of caution and release of a duty in cases of artificial insemination, ultimately accepting the principle of release of a duty 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 addresses issues related to the lineage of children conceived through artificial insemination and their relationship with their parents.

Absolute rulings on artificial insemination

In the first section of the second chapter of the book, the author examines the absolute rulings regarding the five types of artificial fertilization, providing justifications for their permissibility or prohibition. A significant point in the views of Fazel Lankarani is his assertion that it is forbidden for a woman to allow others to use her womb for gestation; she should only accept the sperm of her own husband (p. 139).

The fertilization of the husband's sperm within the wife's uterus

The first method of medical insemination involves the placement of the husband's sperm into the wife's uterus using advanced medical instruments. According to the author, there is no rational or textual evidence to suggest that insemination must exclusively occur through marital intercourse. Therefore, in cases where there is uncertainty regarding the permissibility of artificial insemination, the principle of release of a duty is applied, leading to a ruling that permits this method (p. 56).

According to Fazel Lankarani, if a couple feels compelled to resort to new medical methods for having children in order to preserve their family, then it is permissible for the husband's sperm to be implanted in the wife's womb, even if it involves prohibited actions (pp.56-57). However, if they are not in a state of necessity and their lives are not adversely affected, then such implantation, which requires prohibited actions, is not permissible for them (pp. 58-62).

Insemination in a woman and a non-related man

Fazel Lankarani defines the second type of fertilization as the interaction between a woman and a non-related man, proposing 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 , 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 , 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 (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." 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 on the artificial insemination

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 , 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 from the Ahl al-Bayt (AS) and one narration 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 . 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).