The Use of Deceased's Germ Cells (Book)
The Use of Deceased's Germ Cells (استفاده از سلولهای جنسی متوفی) is a book in the field of medical jurisprudence, written by Farzaneh Ali-Madadi. The author has organized the book's discussions into three sections, examining newly emergent issues related to artificial insemination, lineage (Nasab), human cloning, and related subjects.
| The Use of Deceased's Germ Cells (Book) | |
|---|---|
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| Book Information | |
| Author | Farzaneh Ali-Madadi |
| Subject | Medical Jurisprudence |
| Style | Analytical |
| Language | Persian |
| Publication Information | |
| Publisher | Narin Rasaneh |
- Abstract
The author considers a laboratory-conceived child to be a legitimate child from a jurisprudential and legal perspective, and views the sperm donor as the father and the egg donor as the mother of the human created through artificial insemination. Ali-Madadi critiques the jurisprudential arguments opposing lineage in cases such as fornication (Zina) and believes that lineage in these cases is not negated, and only inheritance (Tawaruth) is rejected.
Ali-Madadi considers human cloning permissible as a primary ruling (Hukm Awwali), but believes that currently, given its negative consequences and its contradiction with public order, it is not permissible as a secondary ruling (Hukm Thanawi). In her belief, this prohibition might be lifted with the advancement of science, but to preserve the family system, cloning should only be performed in cases of infertility necessity.
Brief and Critical Overview of the Book
The Use of Deceased's Germ Cells is a book in the field of medical jurisprudence, authored by Farzaneh Ali-Madadi, which has been written on the subject of artificial insemination. Narin Rasaneh Publications published this work for the first time in 2017 (1396 SH) in 151 pages.
Structure of the Book
The author has organized the book's discussions into three main sections. In the first section, spanning two chapters, she defines concepts such as rights, lineage (Nasab), child, and certain scientific terms like gamete and cell (pp. 10-23), dividing the child legally into two categories: legitimate and born of fornication (Walad al-Zina). In her opinion, a laboratory-conceived child is a legitimate and lawful child, not born of fornication (pp. 26-29). Ali-Madadi further explains various methods of artificial insemination (pp. 32-36). The second section of the book is dedicated to the legal and jurisprudential discussions of using germ cells, and the third chapter to the legal effects of cloning.
Neglect of the Book's Main Subject
The book has not undergone literary editing. The non-observance of standard Persian grammar has made reading sentences and even understanding some phrases difficult. Although the main subject of the book is examining the use of deceased's germ cells, the third section of the book examines the use of somatic cells (human cloning), and the main subject of the book (deceased's germ cells) is not discussed in any of the book's sections. The book lacks a proper and coherent structure; for instance, although the second section is dedicated to the legal and jurisprudential discussions of germ cells, and the third section to the discussions of cloning, the author has examined issues related to cloning in parts of the second section (see: pp. 70-87).
Application of Lineage in Artificial Insemination
In the second section of the book, the author examines the lineage (Nasab) of a human created from artificial insemination. The author considers lineage to lack a designated religious meaning (Haqiqah Shar'iyyah), and views its customary ('Urfi) meaning as accepted by the Lawgiver. According to her, from a customary perspective, the origin of attributing a child to a father is the sperm, and the sperm donor is the child's father (p. 40). Regarding the mother of the human created from artificial insemination, she has examined four viewpoints and selected the first one: 1. The egg donor being the mother, 2. The surrogate (womb owner) being the mother, 3. Both the egg donor and the surrogate being mothers, 4. Neither the surrogate nor the egg donor being the mother (the child being motherless) (pp. 41-43).
According to Ali-Madadi, the famous opinion (Mashhur) of jurists considers the criterion for the legitimacy of lineage to be that very customary criterion—meaning the origination of the child from the sperm and egg of a man and woman—and they have only excepted fornication (Zina). In their view, a valid marriage (Nikah Sahih) and intercourse by mistake (Waty bi al-Shubhah) are the two main instances of the legitimacy of lineage, but the legitimacy of lineage is not limited to these two cases. In contrast to the famous viewpoint, jurists such as Ibn Idris, the author of *Jawahir al-Kalam*, and Sayyid Muhsin al-Hakim consider legitimate lineage to be exclusively related to a valid marriage and intercourse by mistake. Based on the non-famous viewpoint, delivering the sperm of a strange man to the womb of a strange woman is a forbidden and illegitimate act and prevents the realization of lineage. For this viewpoint, the famous Hadith "The child belongs to the bed [the legal husband] and the adulterer gets the stone" (Al-Walad li-l-Firash wa li-l-'Ahir al-Hajar) has been used as an argument, which, relying on the restriction (Hasr) present in the narration, dictates that lineage gains legitimacy only in cases where a legal bed (Firash Shar'i) exists. Rejecting this argument, the author believes that the indicator of the bed (Amarat al-Firash) is only relevant to cases where its conditions are met, but in cases where there is certainly no bed (artificial reproduction), the indicator of the bed does not signify the negation or proof of lineage (pp. 43-51).
The author states that based on the famous opinion, the indicator of the bed is only applicable in an apparent ruling (Hukm Zahiri), and its scope is limited to cases where the formation of the child from the husband's sperm is doubtful; in this situation, according to this indicator, the child is attributed to the husband. Therefore, in cases where the attribution of the sperm to the adulterer is certain, the indicator is inapplicable and is ineffective in attributing or not attributing to the adulterer (p. 56). Hence, Ali-Madadi believes that lineage between a child born of fornication and his parents is not negated, and even according to the opinion of some jurists who have appended lineage resulting from artificial insemination to fornication, attribution still exists (pp. 61-62). According to the author, to consider lineage resulting from fornication as negated, narrations, consensus (Ijma'), and the indicator of the bed have been used as arguments. Rejecting these reasons, the author considers the consensus to be an evidence-based consensus (Ijma' Mudraki), its evidence being the Hadith of the indicator of the bed. She believes that the indicator of the bed is only applicable in cases of doubt and cannot be used in cases where there is no doubt. Overall, the author concludes that from a religious perspective, even in fornication, the issue of lineage is not negated, and only the issue of inheritance has been denied (pp. 64-69).
Mahramiyyah (Prohibition of Marriage) of a Cloned Child with the Relatives of the Sperm Donor and Egg Donor
Some jurists have considered the kinship (Qarabah) of a child cloned from a somatic cell as legitimate, or a mistake (Shubhah), or the very same lineage kinship (p. 74). Others, like Naser Makarem Shirazi, consider this child's kinship to be a foster kinship (Qarabah Radha'i) (p. 76), and some others have deemed cloning illegitimate, appending it to fornication (p. 83). According to Ali-Madadi, based on Article 1047 of the Civil Code of the Islamic Republic of Iran, even if the cloned child is considered illegitimate, there is still a relationship of Mahramiyyah between the child and the relatives of the father and mother. The author considers this law to be in accordance with observing precaution and the Lawgiver's concern in matters of honor (Namus) (p. 84). Discussions related to the family name (pp. 84-87) and the nationality of the cloned child (pp. 70-79) are among other issues examined in the second section.
Cloning from the Perspective of Jurisprudence and Law
In the third section of the book, the author has examined the jurisprudential and legal discussions of cloning.
Permissibility of Selling Organs and Renting a Womb
Ali-Madadi introduces the cloning contract as an irrevocable contract (Aqd Lazim) (p. 108). In her belief, although in irrevocable contracts the death of the contracting parties is not effective in invalidating the contracts, in a cloning contract, with the death of one of the parties, the possibility of harvesting a live somatic cell is negated, and the contract is dissolved (Munfasikh) (pp. 108-109).
The legal obligations of the parties to the cloning contract (pp. 120-132), renting a womb, and the sale of body organs are other topics that Ali-Madadi examines in the cloning contract. In the opinion of jurists such as Sayyid Ali Hosseini Khamenei and Mohammad Fazel Lankarani, buying and selling human body organs, provided it does not cause significant harm to the seller, is permissible and in some cases (if preserving a life depends on it) obligatory (pp. 98-99). The author considers renting a womb to be an issue of disagreement among jurists. Some jurists, relying on these reasons, consider renting a womb forbidden:
- Mixing of lineages (Ikhtilat al-Ansab); whatever causes the mixing of lineages is forbidden. This is while, with the change of the womb, determining the mother is faced with ambiguity.
- Unnecessary uncovering of the private parts (Kashf al-'Awrah); transferring the sperm to a surrogate womb, which has no need to become a mother, is unjustifiable.
- The necessity of observing precaution regarding the private parts (Farj); in verses of the Quran (such as Verse 5 and 6 of Surah al-Mu'minun), women are commanded to guard their private parts, and artificial insemination is one of its instances.
- The harmful consequences of cloning in the future.
According to the author, Sayyid Ali al-Sistani, Mohammad Fazel Lankarani, and Sayyid Ruhollah Musavi Khomeini are among the proponents of the prohibition of renting a womb. In contrast, other jurists such as Sayyid Ali Khamenei, Yousef Saanei, Lotfollah Safi Golpaygani, and Naser Makarem Shirazi have considered renting a womb permissible. Relying on the principle of permissibility (Asalah al-Ibahah) and the non-applicability of any forbidden titles to cloning, the author has also considered this act permissible (pp. 100-103).
Impermissibility of Cloning as a Secondary Title
The author believes that cloning as a primary title ('Unwan Awwali) has no prohibition, but if it encompasses a forbidden act, it will be prohibited as a secondary title ('Unwan Thanawi) (pp. 110-111). Since the author considers cloning in the contemporary era to cause defects in born children, she counts it as violating public order and being prohibited. She believes that with the advancement of science, this prohibition will be lifted (p. 113). Furthermore, in Ali-Madadi's opinion, to preserve the family system, cloning should only be utilized in specific cases where there is no possibility of childbearing (p. 133). Ali-Madadi proceeds to examine the ethical and legal objections to cloning (pp. 135-144).