Artificial Insemination from the Perspective of Jurisprudence (book)

abstract

Artificial Insemination from the Perspective of Jurisprudence (in persian: تلقیح مصنوعی در آینه فقه)by Seyyed Mohsen Mortazavi explores the evidence and religious aspects of artificial insemination. The author acknowledges that this method is one of the common treatments for infertility. The book aims to present the jurisprudential opinions on artificial insemination based on evidence and narrations. After explaining the subject, the book presents selected conclusions and also refers to inquiries from religious authorities. Some of the jurisprudential topics covered in artificial insemination include various types of insemination in terms of relation to religion, in-vitro fertilization, kinship rulings in artificial insemination, the issue of Iddah (waiting period), pregnant spouse’s maintenance, abortion and the establishment of blood money, transactions related to artificial insemination and the man’s right to demand offspring. The book is divided into a preface, two sections, and a conclusion. In the conclusion, the book addresses topics not directly related to artificial insemination.

Introduction and Structure

Artificial Insemination from the Perspective of Jurisprudence by Seyyed Mohsen Mortazavi discusses the issue of a modern and common method of pregnancy. In this book, the author attempts to examine the evidence for the permissibility of this issue. The author claims to have presented the discussions in detail in an argumentative and jurisprudential manner using primary narrative and jurisprudential sources. This work is organized into two sections and a conclusion. The first section presents general discussions and thematic analysis, examining the definitive ruling on different forms of intrauterine and alternative womb insemination. In the second section, the book begins with the rulings related to artificial insemination, such as lineage, proof of the Iddah, the ruling on the pregnant spouse’s maintenance, the ruling on abortion, and transactions related to insemination. In the conclusion, the author attempts to address topics such as reproductive organ transplantation, permission for medical examination in matters involving prohibited acts, and the right of husbands to demand an offspring through unconventional means.

Issues

The book "Artificial Insemination" aims to reflect the opinions of jurists. Therefore, each section examines and presents conclusions based on rational and traditional evidence and the fatwas of religious authorities in this regard.

Types of Insemination

The author considers several scenarios regarding the religious ruling on artificial insemination:

Permission for inseminating husband's sperm with the wife's egg, provided that prohibited acts such as masturbation, touching, and seeing the private parts of a non-mahram are avoided, which become permissible in cases of necessity and urgency (p. 37-38).
Inseminating husband's sperm and the wife's egg after the husband's death:

If the marital bond is dissolved: The wife is not permitted to perform the ritual bath (ghusl) for the deceased husband, and vice versa (p. 39). The wife cannot be impregnated by the deceased husband (p. 42)
If the marital bond continues until the end of the Iddah (waiting period) after death, insemination is permissible.

Prohibition of injecting or donating a stranger's sperm into another woman's womb.
Donating ovum in three scenarios:

Absolute permission.
Detailed discussion on cases where the ovum donor is the other wife of the man or a stranger.
Absolute prohibition based on three

reasons:

a. Based on the prohibition of having relations with an unrelated person (p.117).
b. Contradiction with the interpretation of verses 5 to 7 of Surah Al-Mu'minun concerning the preservation of chastity (p. 118).
c. Reliance on the declaratory rulings and the issue of attribution, which considers the ovum donor as the child's mother, not the womb owner. In this case, the child resulting from artificial insemination would have two strangers as parents who are not connected by marital relations, which is considered reprehensible and condemned in Islamic law, and is unacceptable in religious principles (p. 119).

Prohibition of sperm insemination into an animal's womb in four scenarios:

Annulment of the exclusivity of the prohibition regarding ejaculation into an unrelated woman's womb. The evidence for this includes the prohibition of sperm insemination into an animal's womb because it is commonly understood that what is permissible for a man regarding demanding an offspring is placing his sperm into a womb with which intimacy and intercourse is permissible (p. 120).
The narration of Ishaq ibn 'Ammar stating the necessity of placing sperm in the designated place according to Islamic law, and the womb of an animal is not the designated place.
Adherence to the Quranic verses regarding preserving chastity and the prohibition for a Muslim man to engage in intercourse with someone other than his wife, which also includes an animal's womb.
It is considered reprehensible and condemned in Islamic law for a Muslim man to impregnate an animal (p. 121).

Obtaining the egg from animals and placing it in the wife's womb is permissible based on the same premise that allows obtaining eggs from a foreign woman (p. 122).
Obtaining Sperm from Animals and to Inseminate a Woman: Initially, the author suggests permitting this practice due to the absence of specific evidence and practical necessity. Although the narration refers to the ejaculation of a man, it is used concerning the ruling and the subject matter of its use is the Muslim woman, whose pregnancy must result from someone with whom it is permissible to have marital relations. Therefore, pregnancy resulting from animal sperm is impermissible. Furthermore, the verses from Surah Al-Mu'minun regarding preserving chastity implies that a Muslim woman must refrain from acts that harm her chastity with anyone other than her husband. Moreover, a woman's pregnancy from animal sperm is considered reprehensible and condemned in Islamic law (pp. 122-123).
Placing a Woman’s Ovum in an Animal's Womb: There is no evidence prohibiting this action, as none of the forbidden titles apply to it. Therefore, by referring to the principles of abandoned issues permission is established (p. 124).

Placing a Plant’s Egg Cells or Sperm Cells in a Woman's Womb:

From one perspective, it is prohibited due to conflicting with the principle of preserving chastity.
From another perspective it is not prohibited because what harms chastity is the sperm of another man instead of the husband or an animal, whereas a plant does not possess such characteristics.
Injecting sperm cells from a plant, which has the same functionality as sperm, into a woman's womb follows the same reasoning for preserving chastity, unless it is argued that this reasoning does not apply to plant sperm (p. 126).

If the owner of the sperm or ovum is not identifiable, then the issue of mistaken lineage arises, which independently serves as a reason for prohibiting insemination. This is because evidence and texts in jurisprudential matters emphasize that mistaken lineage is condemned by Islamic law (p. 127). Religious principles also regard the preservation of lineage as essential and desirable in Sharia. Therefore, anything that poses a risk to lineage is prohibited by Sharia, let alone matters that invariably lead to the loss of lineage (p. 130).

In-Vitro Fertilization (IVF)

In this section, Mortazavi initially explains the process of fertilization and the combination of sperm and ovum outside the uterus and the transfer of the resulting embryo to the uterus (p. 142). He then discusses various aspects of this issue:

Permission for IVF for both the wife and husband.
In cases where the sperm of a deceased husband is used for fertilization in a laboratory and transferred to the wife's uterus, the permissibility depends on whether the marital bond remains after the husband's death. If so, it is permissible; otherwise, it is not due to the absence of marital ties. (p. 143).

Permission for IVF and transferring the embryo into a surrogate’s uterus after the husband's sperm fertilizes with the wife’s ovum (p. 144-145).
Permission for IVF using the husband's sperm and an ovum from a foreign woman outside the uterus and transferring it to the wife's uterus unless the criterion for motherhood is based on the ovum provider, in which case attribution becomes problematic.
Permission for fertilization of human sperm with an animal egg outside the uterus and transferring it to the wife's uterus (p. 149).
Prohibition of IVF using human sperm with an animal ovum and transferring it to an unrelated woman's uterus due to conflict with evidence on preserving the chastity of Muslim women.
Prohibition of IVF using human sperm with an animal ovum and placing it in an animal's uterus due to reprehensibility.
Prohibition of IVF using animal sperm in a human ovum and placing it in a woman's uterus who is the egg donor due to conflict with the principle of preserving the chastity of Muslim women (p. 150).
Prohibition of fertilizing and placing a fertilized egg into the uterus of another woman who is not the owner of the egg.
Permission to place a fertilized egg into an animal's uterus which is subject to restrictions.
Prohibition of fertilizing an animal egg with human sperm and placing it into the uterus of a Muslim woman due to contradiction with the principle of preserving chastity (p. 151).
Permission for the combination of human sperm with a plant egg and placing it into the wife's uterus.
Prohibition of placing a plant egg fertilized with human sperm, into an unrelated woman's uterus.
Prohibition of fertilizing a human egg with animal sperm and placing it into an animal's uterus due to the necessity for men to obtain their offspring in the correct way and the contradiction with preserving a Muslim man's chastity (p.152).
Prohibition of placing a fertilized egg resulting from the combination of sperm and a plant egg into a woman's uterus due to contradiction with the basis of preserving chastity, although the verse on preserving chastity might exempt this case, encompassing only human or animal sperm.
Prohibition of placing fertilized ovum resulting from animal sperm and a plant egg into a woman's uterus due to it not being her husband’s sperm and due to the failure to preserve chastity.
Permission to place sperm resulting from fertilizing a plant egg with animal sperm into a woman's uterus (pp. 153-154).

Fertilization in Artificial Womb

The book "Artificial Insemination from the Perspective of Jurisprudence " also considers various aspects of this issue:

Permission for fertilization of the husband's sperm with the wife's egg in an artificial uterus without considering the prohibitions and prerequisites of its haram (forbidden) aspects.
Permission for fertilization of a man's sperm with an unrelated woman's egg in an artificial uterus (p. 159).

The author then examines the evidence presented by proponents of the prohibition of this practice, stating that the prohibition of placing a foreign man's semen in a woman's uterus is not materialized here, as growth and development occur in the artificial uterus. The author mentions another aspect of prohibition in this matter, which is acting against the preservation of the chastity of the believing man and woman. However, since no action against the preservation of chastity occurs, the author does not consider this aspect to be correct (p. 160). In the final argument, the author attributes the prohibition of the birth of a child from the fertilization of sperm and ovum of two strangers outside the uterus to the societal abhorrence of it, which is the basis for its non-acceptance by the religious principles. However, he claims that this aspect does not apply universally and according to all-inclusive criteria. This lack of universality is contingent upon whether the criterion for motherhood is the egg owner; in which case, it may be subject to the prohibition arguments, but if the criterion for motherhood is the owner of the uterus, the child born in the artificial uterus has no mother. Furthermore, religious abhorrence is not applicable in all cases; it is only in cases where, based on the criterion of motherhood, the woman providing the egg is considered the mother and is a blood-relative of the man and causes multiple relative titles, otherwise, the abhorrence is not established (p. 161).

Examination of Kinship Rulings and Its Appendices

The author has addressed the issue of paternal attribution in artificial uterus insemination in several scenarios while explaining the rulings of kinship relations in artificial insemination:

Attribution from paternal lineage is a matter of customary understanding, where the development [of the embryo] is considered from the man's semen and sperm, but whether this development occurs through sexual intercourse is not a criterion in the concept of fatherhood (p.184).
A scenario in which a child conceived from the semen of an unrelated man or through insemination into an artificial uterus and then transferred to a woman's uterus may be permissible in terms of the defining law, such as cases of mistake or uncertainty, or may be prohibited. However, in both cases, the child is considered to be attributed to the man to whom the sperm belongs according to custom, and there is no religious barrier to attribution. In the case of permissible insemination, religious barriers are removed, and the child is attributed to the sperm owner, while in the case of prohibited insemination, it is not considered adultery and does not result in the denial of inheritance (p. 192).
Artificial insemination with non-human sperm, whether animal or plant, whether inside or outside the uterus, results in a child whose paternity is not identifiable because there is no father.
If a non-sexual human cell is extracted and combined with a woman's egg through simulation processes and a child is born, attribution is negated because the concept of fatherhood, both customarily and legally, is derived from the formation from sexual cells and sperm (p. 193).

Adoption is another aspect that the author has examined assuming the negation of the legal attribution of the father and mother in the context of artificial insemination. He considers three scenarios:

A married woman becomes pregnant through the injection of sperm belonging to someone other than her husband.
A child is born from the sperm of the husband and in the uterus of his wife, but the method of fertilization was artificial insemination and not intimacy.
Choosing a child for adoption where there is no legal or customary attribution to a father, such as a child born through simulation or extraction of non-sexual cells, in an artificial uterus in a laboratory, or born from animal or plant sperm. In all three cases, legal and customary attribution of the child to a father is not possible; however, is adoption possible in all three cases, or not? Although adoption is generally prohibited in Islam, regarding the three mentioned situations (p.213), in the first case, where the sperm belongs to another person, adoption is forbidden, and it is a definite prohibition against adoption. In the second and third cases, since the verse refers to a child who has a real father and legal lineage, and in these two cases, there is no real and legal father at all, therefore, the evidence of the prohibition of adoption and attribution to someone other than the father does not apply (p. 216).

Inheritance of a child born through artificial insemination is another issue that the author has addressed under the topics related to kinship laws. He argues that even if the legal attribution of the father and mother is accepted, and the legal effects and consequences thereof apply, in cases of artificial insemination that are done through illegitimate methods, inheritance is negated (page 217). In the case of using frozen sperm from a deceased husband for insemination of the wife, the child born from this process is not entitled to the inheritance because one of the conditions for inheritance is that the heir must be born before the death of the deceased (p. 219).

Examination of Iddah (Waiting Period)

The author initially emphasizes that the ruling for each case should be examined separately, considering various scenarios such as unmarried women, married women, those in the waiting period, etc. In the first scenario, artificial insemination implies a waiting period in the case of a married woman, where various possibilities can be considered: if she becomes pregnant through artificial insemination with her husband's sperm and then seeks divorce from him, in this case, according to the evidence, a waiting period is established for the pregnant woman (p 222). In the second scenario, if the husband's sperm is placed in the wife's womb through artificial insemination but conception does not occur, two possibilities are assumed: first, a waiting period is not necessary since the evidence for it in divorce is conditional on penetration and intimacy, which have not been realized in this case (p. 222). In the second possibility, a waiting period is necessary for the woman because other narrations emphasize that the presence of semen leads to a waiting period, regardless of whether it occurs through penetration or otherwise (p. 224). After presenting these two possibilities, the author concludes by stating that the reconciliation of these two narrations represents the duality of the multiplicity of conditions and unity of punishment, and each of these conditions is a non-exclusive cause, meaning that whether through intimacy or discharge of semen, the waiting period is established (p. 225). The third scenario concerns the insemination of a woman's womb with sperm from a man other than her husband through artificial insemination. In this case, it is questioned whether the waiting period with respect to her husband is required or not (p. 226). After examining the opinions of jurists, the author concludes that this case could be considered as falling under the category of having intercourse with someone other than one’s spouse accidentally or unknowingly, as the discharge of semen itself is considered independently to establish the waiting period. Hence, whether the insemination of a woman with a foreign man's sperm occurs mistakenly and is permissible, or it is done unlawfully and intentionally, it does not revoke the waiting period of the woman towards her husband (p. 231). The fourth scenario presented by the author involves placing a man's sperm in the womb of his sister-in-law, mother-in-law, or stepdaughter. In this case, it is questioned whether the wife should maintain a waiting period towards her husband after artificial insemination. After examining the opinions of jurists, it is concluded that according to the requirement of the narration that states that the waiting period is due to ejaculation, the sister-in-law and mother-in-law, who have been inseminated, should maintain the waiting period, and consequently, the wife should also maintain a waiting period (p 236).

In the fifth scenario, the author discusses artificial insemination with a foreign man's sperm into a married woman who has been divorced by her husband (p. 237). In this regard, he argues that the waiting period for a divorced woman is established upon her state of pregnancy, therefore, the application of the rules regarding the waiting period for the divorced woman extends to three menstruation cycles or three months, which includes this case as well (p. 238).

Mortazavi further discusses other instances of artificial insemination, specifically addressing the performance of this procedure in the womb of an unmarried woman. He argues that the waiting period is obligatory for her, and the regulations of marriage apply to her during this period (p. 239). Another scenario that the author mentions is artificial insemination of a woman who is in the waiting period. In this case, two assumptions are made: first, if the husband's sperm is inseminated during the waiting period, and second, if insemination with sperm from a man other than the husband occurs. In the first assumption, the waiting period is established (p. 240). However, t whether a new waiting period should be observed if the woman does not become pregnant during her initial waiting period is a subject of debate. if the woman becomes pregnant, her waiting period will be the duration of her pregnancy. If she does not become pregnant, the waiting period is calculated from the beginning of the insemination process (p. 241).

Pregnant Woman's Maintenance

Mortazavi also examines the ruling regarding the maintenance of a pregnant woman, addressing various scenarios related to artificial insemination:

Cases Where Payment of Maintenance is Obligatory:

If the wife is inseminated with the husband's sperm, maintenance must be provided until the end of the marriage and the birth of the child (p.244).
During the waiting period after a revocable divorce until the end of the pregnancy (p.245).
The husband must provide maintenance to a pregnant woman inseminated from the sperm of another man if she is to not maintain the waiting period towards him, and he has the right to enjoy marital relations (p.253).
If the pregnancy and the child are attributed to him, the man who provided the sperm is obligated to provide maintenance (p.254).
The sperm owner must provide maintenance to a single pregnant woman (p.255).
Cases Not Requiring Maintenance:
If the husband passes away during the pregnancy (p.251).
A pregnant woman who undergoes artificial insemination due to the annulment or dissolution of her marriage from her husband, it is not obligatory to provide maintenance according to the principles and rules of maintenance (p.254).
In cases where the waiting period is proven from the husband, and there is no right to enjoy marital relations, as it is similar to a disobedient wife, and the woman has knowingly and voluntarily consented to the insemination with the sperm of another man (p.255).

Abortion of Embryo and Fetus and Establishment of Diyah

The ruling regarding the abortion and of embryos and fetuses resulting from artificial insemination is considered prohibited in all cases, whether concerning artificial insemination of a wife with the husband’s sperm (p.256), or in the case of attribution to the man who provided the sperm (p.263), or in the case of a woman who has a fetus attributed to her through an egg but not attributed to her husband. This ruling also applies to a woman and a man who have no relationship (p.264).

Transactions Related to Artificial Insemination

The author then refers to three pillars of artificial insemination, which are sperm from a man, egg from a woman, and the uterus of a woman, in terms of transactions in these cases: Permission for buying and selling of male sperm (p.265 and 266). Buying and selling of eggs, which depends on the basis of the definitive ruling:

If the usage of a foreign woman's egg is considered forbidden, its benefit is canceled by the religious prohibition.
If one believes in the permission to use a foreign woman's egg and considers the owner of the uterus as the mother, then the benefit of childbearing exists, and the transaction is permissible (p.270).
If the criterion for motherhood is the owner of the egg, buying it does not benefit the woman because the child is not attributed to her, and the egg has no ownership. However, for obtaining money, it is better for the transaction to be in exchange for relinquishing the right to ownership (p.270).

The uterus is considered as leased, and formal contracts for it are now used (p.271).

Transplantation of Reproductive Organs

Although the author acknowledges that it is not yet widespread, he believes that the dynamic jurisprudence of Shia Islam should define its position on this matter. After presenting four issues and their answers, he concludes that the reason for the permission of transplantation is the same general evidence that allows the absolute permission of organ transplantation (p.318).