Embryo Donation and the Legal Aspects (Book)
- abstract
Embryo Donation and the Legal Aspects(in persian: اهداء جنین و قالب حقوقی آن) is a Persian book that explores the legal and jurisprudential aspects of embryo donation. The author, Mohammad Soltaniyeh, begins the discussion with a general overview and then details the arguments against embryo donation, thoroughly critiquing and dismissing each point raised by its opponents. He subsequently addresses the reasons put forth by proponents of the practice, identifying "the principle of innocence" as the most significant justification for permitting this action. As an advocate for the permissibility of embryo donation, the author emphasizes the necessity of consulting the Islamic jurist to address this socially relevant issue. The author then explores the legal aspects of embryo donation. Following an examination of contracts like settlement, sale, agency, and gift, he emphasizes that embryo donation should not be classified within these categories. Rather, it should be established under a distinct contract that enables donors to receive compensation, recognizing their role as part of the treatment process.
Book structure
"Embryo Donation and the Legal Aspects", authored by Mohammad Soltaniyeh, is a Persian book that explores the legal and jurisprudential aspects of embryo donation. It comprises 150 pages and was published in 2017 by Majd Publications. It is divided into an introduction and three chapters. The first chapter addresses general issues and provides a historical overview of the topic. The second chapter focuses on the obligatory rulings related to the issue, providing a critical examination of the arguments for and against the permissibility of embryo donation. In the third chapter, the author discusses the legal framework surrounding embryo donation. The book concludes with the author's findings and recommendations, followed by appendices, references, and sources.
Overview
At the beginning of the first chapter, the author examines four key concepts across four sections: ruling, donation, embryo, and infertility. A significant point raised in the embryo donation is that "donation" should not be interpreted as a "gift," since a gift typically involves property or items of financial worth, while embryo donation is classified as a non-monetary contract (p. 15). The author further details the stages of embryonic development in the third discussion (pp. 18-23). The second part of the first chapter outlines the historical development of infertility treatment and subsequently reviews the medical strategies for treating infertility (pp. 27-43). Among the various fertility techniques, the author points out "embryo donation" as a treatment method for infertility, which serves as the central theme of this book (p. 39).
Religious ruling on embryo donation
The author begins by discussing the differences between embryo donation and sperm donation before presenting the religious ruling on the obligations associated with embryo donation. According to the author, in the embryo donation process, the sperm from the male and the egg from the female are fertilized in a laboratory setting, and after a few days, the resulting embryo is transferred to the uterus of the requesting woman. In contrast, sperm donation involves the direct transfer of the male's sperm to the woman's uterus using medical instruments (p. 46). The author then examines the viewpoints of both opponents and proponents of embryo donation.
Embryo donation prohibited
As reported by the author, notable Islamic jurists such as Seyyed Hossein Tabatabai Borujerdi, Seyyed Abolqasem Khoei, Seyyed Mohammad Reza Golpaygani, Seyyed Mohsen Hakim, Mirza Javad Tabrizi, Lotfollah Safi Golpaygani, and Jafar Subhani have firmly stated that the fertilization of an egg with the sperm of a man other than husband and its subsequent implantation in another woman's womb is not permissible, without differentiating between various situations. In terms of the child's lineage, they have sometimes classified it as illegitimate and, in other cases, as one of uncertainty (pp. 50-51).
The writer has extracted eleven reasons for the prohibition of embryo donation from jurisprudential sources, including references to Quranic verses and the sayings of the Ahl al-Bayt. According to the author, based on verses 30-31 of Surah al-Nur and verses 29-31 of Surah al-Ma'arij, the preservation of one's private parts is obligatory. Since the verses do not specify the object of preservation, they imply a general application, which includes the preserving of one's private parts from embryo donation; as all forms of enjoyment and procreation, except through a spouse or slave-maid, have been rendered impermissible. The author also cites verse 23 of Surah al-Nisa in support of this argument (pp. 52-57).
The author further discusses several narratives that support the prohibition of embryo donation. These narratives equate the act of placing semen in the womb of a non-mahram woman with the destruction of the Kaaba and the killing of the Imam and the Prophet, [1] note that the most severe punishment is for a man who places his seed in the womb of a non-mahram woman, [2] define fornication as placing the sperm in an impermissible and unlawful location [3] which leads to the mixing of lineages, moral corruption, and the disintegration of inheritance system. [4] These narratives also apply to embryo donation, because, like adultery, it involves the placement of a man's seed in the womb of a non-mahram woman (p. 52-65).
The author has identified nine other reasons supporting the prohibition of embryo donation, which include: 1) the established consensus among the religious scholars regarding the moral repugnance of placing an embryo, derived from a man's sperm, in the womb of a non-mahram woman, as recognized by all Muslims; 2) the alteration of God's creation by changing the natural conception process to embryo donation; 3) the mixing of lineages due to third-party involvement in the pregnancy process; 4) the denial of human dignity, as embryo donation resembles the buying and selling of embryos as commodities; 5) unnatural reproduction, as the method of embryo donation does not align with the divine order of natural procreation; 6) the infringement of a child's rights due to the lack of recognition of their biological parents; 7) the necessity of engaging in prohibited actions such as masturbation, exposure of private parts, and physical contact; 8) opposition to divine will; and 9) the prohibition of adultery, as the corruption of the sperm, mixing of lineage, and disruption of inheritance system present in adultery also occur in embryo donation (pp. 65-72).
After extracting the arguments presented against the permissibility of embryo donation, the author proceeds to evaluate them. For example, in discussing the references to the verses of Surah al-Nur, he points that the absence of the subject is attributed to its evident nature to the audience, which consequently does not provide a general implication. Additionally, during the period of the Quran's revelation, the transfer of semen to the womb was only possible through sexual intercourse, and even today, due to frequent usage, it is primarily understood in the context of sexual intercourse, making it difficult to interpret in a more subtle sense, such as referring to a sperm donor." Another critique of the argument based on this verse is the narration from Imam Sadiq (A.S.), who states that the preservation mentioned in all Quranic verses pertains to safeguarding against adultery, with the exception of the verse in Surah al-Nur, where it refers to the preservation of one's gaze. [5] Finally, a notable issue with the arguments presented by opponents of embryo donation regarding these verses is the presence of a form of misappropriation of the intended meaning (pp. 73-79).
The author asserts that the narratives presented to justify the prohibition of embryo donation are largely weak in terms of their authenticity (pp. 81-85). In critiquing the argument based on societal norms, he attributes the source of this disapproval to social biases, similar to those observed in the context of temporary marriage (p. 85). Furthermore, the author challenges the argument regarding alteration in creation by citing the views of interpreters, indicating that the intended change in the verse pertains to a transformation of divine religion and is unrelated to the issue of embryo donation. Additionally, practices such as grafting trees and treating illnesses, which are argued by proponents of the prohibition to constitute a form of alteration in creation, should also be deemed impermissible under this perspective; however, no one considers these actions to be prohibited due to the potential for hardship (pp. 86-89). The writer has also critiqued and examined the remaining arguments, identifying various flaws within them (pp. 89-96).
Embryo donation permissible
As reported by the author, Seyyed Ali Khamenei and Mohammad Yazdi advocate for the absolute permissibility of embryo donation. Youssef Sanei, on the other hand, considers the introduction of foreign male sperm into the womb of a Muslim woman to be prohibited; however, he believes that this prohibition is lifted with the consent of the husband, as it creates hardship for both the wife and husband, and hardship alleviates such prohibitions (p. 99). It is noteworthy that all Islamic jurists who have ruled in favor of the permissibility of donation emphasize the necessity of the consent of the donating couple (p. 100). The primary arguments supporting the permissibility of donation, as reported by the author, are based on the principles of permissibility and the exemption from duty, asserting that none of the arguments against permissibility are not sufficient or convincing.
The author believes that in case of embryo donation, two principles may be applicable: 1) the principle of the exemption from duty, as it applies in all cases of doubt concerning obligations, and 2) the principle of caution, due to the emphasis of religious teachings on the necessity of caution in matters of procreation, where caution is relevant in both reproduction and lineage issues (pp. 103-104).
The author presents two narratives and, upon examining them, concludes that in the matter of embryo donation, the principle of exemption from duty should be applied, and caution is not necessary. This conclusion arises from the rejection of all arguments against the permissibility of the act, as there are no relevant texts or Quranic verses addressing this issue. Therefore, the only recourse is to refer to the practical principle of exemption from duty and to rule in favor of its permissibility. However, it is worth noting that traditionalists advocate for caution in this matter. According to the author, there are two important things about sperm donation (namely, the mixing of fluids and the direct contact of sperm with a non-mahram uterus) that are absent in the case of embryo donation. Consequently, the original ruling should not be applied to the latter situation (pp. 104-111). Ultimately, the author believes that in matters of social importance, individuals should refer to the fatwa of the Wali Faqih, which, in this case, Ayatollah Khamenei permits embryo donation (p. 115).
The author has also explored the jurisprudential sources of Sunni scholars to extract their opinions, revealing that their views are largely inclined towards prohibition. Among the practices deemed impermissible by these scholars are the following: 1) the fertilization of the husband's sperm and the egg of a non-mahram woman placed in the womb of the wife; 2) the fertilization of the sperm of a non-mahram man and the egg of the wife placed in her womb; 3) external fertilization involving the sperm and egg of the couple placed in a surrogate womb; 4) external fertilization involving the sperm of a non-mahram man and the egg of a non-mahram woman placed in the wife's womb; and 5) external fertilization involving the sperm and egg of the couple placed in the womb of a second wife (pp. 112-113).
Legal aspect of embryo donation
In order to establish a legal framework applicable to the donation of embryos, the author explores five contractual agreements— settlement, sale, gift, agency, and private contracts—alongside two non-contractual elements, namely waiver and consent.
According to him, if we consider the donation of embryos as a form of settlement, the donor would not have the right to retract their decision, as a settlement is a binding contract. However, the issue with this settlement is that it cannot be applied to an unlawful matter, such as the transfer of parental rights from the donors to the recipients. The rights and obligations that are both religiously and legally binding cannot be waived or transferred, thus making it impossible to categorize embryo donation under the framework of a settlement (pp. 120-121).
The author discusses the issue of the sale nature of embryo donation, asserting that according to the opinions of Islamic jurists such as Seyyed Abdolkarim Musavi Ardebili, Seyyed Ali Khamenei, Yousef Sanei, and Seyyed Ali Sistani, receiving payment is permissible. However, two of these jurists (Musavi Ardebili and Khamenei) have added the stipulation that receiving payment is acceptable for the purpose of consent, rather than as a transaction, thus it cannot be classified as a sale (pp. 122-124). The author of the book argues, citing various reasons, that embryo donation cannot be categorized under the frameworks of agency or gift either (pp. 125-127).
When embryo donation is conducted as a private agreement, it encompasses several phases. The first stage allows the owners of sperm and eggs to sell their gametes to infertility treatment centers under a sales contract, based on the premise that infertility is a medical condition and that embryo donation serves as a therapeutic solution. The second stage involves the implantation of the embryo into the uterus. The author argues that this stage should not be subject to any contractual obligations, as it contradicts the principle of human dignity; nonetheless, donors deserve compensation for their involvement in the treatment process (pp. 127-129). The author acknowledges this possibility in the conclusion of the discussion (p. 133).
The author does not consider the donation of embryos as a waiver, as waiver does not sever the genetic relationship between the donor and the child resulting from the embryo (p. 131). Furthermore, the donation of embryos cannot be classified as consent, since consent is a unilateral act, whereas donation is a bilateral action involving both the donor and the receiving institution or individual (p. 131).
In conclusion, the author provides his perspective on the legal aspects of embryo donation and suggests several topics for further research, primarily focusing on the legal and civil implications of embryo donation. Additionally, in the final section of the book, under the title of appendices, the author includes legal provisions related to the topic of embryo donation (pp. 133-140).
refrences
- Hurr Amili, Muhammad ibn Hasan, "Wasail al-Shi'a," Beirut, Al al-Bayt le Ihya' at-Turath Institute, 2003.
- Saduq, Muhammad ibn Ali, "Man La Yahduruhu al-Faqih," Tehran, Saduq Publishing, 1989.
- Tusi, Muhammad ibn Hasan, "Tahdhib al-Ahkam," Tehran, Maktabat al-Saduq, 1997.
- Kulayni, Muhammad ibn Ya'qub, "Al-Kafi," Tehran, Dar al-Kotob al-Islamiyah, 1989.