Addressing The Legal Issues Around Surrogacy
Being a mother and father is not as simple a concept as it seems to be. When a child is born, cared and brought up by a (married) couple, it is simple to call the male and female, the father and mother, respectively. But when any person other than the couple shares any of the basic parenting roles, the concept of parentage becomes complex, attracting an array of issues. The sharing or replacing of these roles may be divided under the names of ‘adoption’, ‘guardianship’, ‘fosterage’, ‘gamete donation’ or ‘surrogacy’.
Adoption means a process whereby you assume the parenting of another person’s child and in so doing permanently transfer all rights and responsibilities, along with affiliation, from the biological parent or legal parents, to the adoptive parents (Adoption, 2016). In Islam the concept of adoption is different and it has a limited scope towards creating a relationship of the parents with the child. The Qur’an specifically reminds adoptive parents that they are not the child’s biological parents, as:-
“…Nor has He made your adopted sons your (biological) sons. Such is (only) your (manner of) speech by your mouths. But Allah tells (you) the truth, and He shows the (right) way. Call them by (the names of) their fathers, that is just, in the sight of Allah. But if you know not their fathers’ (names) call them your brothers in faith, or your trustees. But there is no blame on you if you make a mistake therein. (What counts is) the intention of your hearts. And Allah is Oft-Returning, Most Merciful.”
– (Al-Ahzab 33:4-5)
Fosterage (in Islamic jurisprudence called rizaat or ‘milk kinship’) means an act of taking care or bringing up (including breast feeding) another’s child for another without transferring any rights and responsibilities from the biological parent. In Islamic traditions, fosterage creates lasting relationships and defines the limitations of those relationships.
There are various verses in the Quran about a child suckling milk, from a woman other than the one who gave birth to him/her:
“Prohibited to you (for marriage) are … foster-mothers (who suckle), and foster-sisters.”
– (An-Nisa, 4:23);
“If ye decide on a foster-mother for your offspring, there is no blame on you.”
– (Al-Baqara, 2:233);
“ … If they (women you divorced) suckle your (offspring), give them their recompense: and take mutual counsel together, according to what is just and reasonable. And if ye find yourselves in difficulties, let another woman suckle (the child) on the (father’s) behalf.”
– (At-Talaq, 65:6).
Guardianship on the other hand is “the power or protective authority given by law, and imposed on an individual who is free and in the enjoyment of his or her right, over those whose weakness on account of their age, renders them unable to protect themselves’’ (Guardianship n.d.). The Guardians and Wards Act 1890 permits guardianship and not adoption.
Fosterage is the practice of a family bringing up a child that is not theirs legally. This differs from adoption in such a way that the child’s parents, (not the foster-parents) remain the acknowledged parents. In many modern western societies foster care can be organized by the state to care for children with troubled family backgrounds, usually on a temporary basis. In many pre-modern societies, fosterage was a form of patronage, whereby influential families cemented political relationships by bringing up each other’s children, similar to arranged marriages, and also based on dynastic or alliance calculations (Fosterage, 2013, February 28).
Gamete donation means the act of donating sperm by a man or an egg by a woman to another person for the purpose of procreation.
Technology has changed not only economics but also the socio-legal fabric of the world. Through introduction of different methods of Assisted Reproductive Technology (ART), infertile persons now can have the option to have a baby. Surrogacy is one of such methods. But this technique, when resorted to, also brings various issues; medical, psychological, ethical, economic and legal.
Surrogacy is when another woman carries and gives birth to a baby for a couple who want to have a child. This method has existed since antiquity. In much of the past, surrogacy simply involved another woman – the surrogate – who was impregnated by the prospective father and bore the child for the intended couple. Babylonian couples relied on this practice to produce progeny and avoid divorce. The Bible relates the story of Abraham and his infertile wife Sarah who offered her handmaiden, Hagar, to her husband to bear a child (Chamie & Mirkin 2014).
Critics argue that surrogacy, also known as “baby outsourcing,” constitutes exploitation of women encouraged to provide wombs-for-rent. Many surrogate mothers are destitute. Furthermore, when the only motivation is money, surrogacy may have negative health and social consequences for women. In contrast, supporters consider surrogacy a fundamental human right, consistent with the freedom of personal choice and the right to bear children. Surrogacy empowers women to choose whether to participate and gain financial compensation for their valued service. Surrogacy also permits otherwise childless men and women to have children (Chamie & Mirkin 2014).
In all five cases, different persons perform different roles as to the participation in birth, the caring for or the bringing up of a child. Different legal systems define such roles, rights and duties differently. Similarly different religions have different views upon these variables. Islam has very clear views as to adoption and fosterage, for these concepts were in vogue before the advent of Islam. Islam mutatis mutandis developed these concepts, with respect to its procedures. Traditional surrogacy has been in existence since ancient civilizations, yet surrogacy in its present form is altogether a new concept. Muslim jurists are divided, due to historical Shiite/ Sunni difference, as to the legal position of gestational surrogacy. Shiite scholars – although with a restriction of cohabitation with the surrogate mother – did not consider surrogacy to be un-Islamic (with a very few exceptions). Iran has legalized it (Aramesh K., 2009). On the other hand Sunni scholars overwhelmingly termed gestational surrogacy to be un-Islamic, even if it is managed without such cohabitation with the surrogate mother (The Islamic Fiqh Council, 1985). Pakistan’s position is confusing as to the recognition of surrogacy, evident in the case of Farooq Siddiqui v. Farzana Naheed 2012, and as a matter of fact no law exists in our country to regulate surrogacy arrangements.
In my humble opinion Pakistan is in dire need to address this issue. The Pakistani academics and ideologue should pay heed to this issue and others arising due to it. The Pakistani legislature must have a serious debate on this concept and define the roles, rights and liabilities of biological parents and that of surrogate mothers, before it is too late. It must develop a legal framework to regulate surrogacy arrangements and surrogacy contracts, and address other issues relating to nationality and inheritance, etc. of the child born through this technique.
Adoption. (2016, March 7). In Wikipedia, The Free Encyclopedia. Retrieved 18:47, May 2, 2016, from https://en.wikipedia.org/w/index.php?title=Adoption&oldid=708761098
Aramesh K. 2009: Iran’s experience with surrogate motherhood: an Islamic view and ethical concerns. J Med Ethics; 35(5): 320-2.
Chamie, Joseph & Mirkin, Barry (2014) Surrogacy: Human Right Or Reproductive Exploitation? YaleGlobal Online. Retrieved from http://elibraryusa.state.gov/primo?url=http://go.galegroup.com.vlib.interchange.at/ps/i.do ?id=GALE%7CA387801613&v=2.1&u=wash89460&it=r&p=AONE&sw=w&asid=e0d 093eda67f932d7539b766d92b55dd
Fosterage. (2013, February 28). In Wikipedia, The Free Encyclopedia. Retrieved 18:56, May 2, 2016, from https://en.wikipedia.org/w/index.php?title=Fosterage&oldid=541176568
Farooq Siddiqui v. Farzana Naheed. Cited as PLD 2013 Lahore 254. While the matter is still pending in august Supreme Court of Pakistan.
Guardianship. (n.d.) Burton’s Legal Thesaurus, 4E. (2007). Retrieved May 2 2016 from http://legal-dictionary.thefreedictionary.com/guardianship
Quran (different Sura names and Verse numbers are mentioned in the in text citations).
The Guardian and Wards Act 1890.
The Islamic Fiqh Council 1985; 161-8.
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