Federal Shariat Court of Pakistan on Surrogacy: From Judicial Islamization of Laws to Judicial Legislation
In Farooq Siddiqui v Mst. Farzana Naheed (Sh. Petition No.2/I of 2015), decided on 16 February 2017, the Federal Shariat Court (FSC) determined the legality of surrogacy under Islamic law. A bench of three judges unanimously held that a baby produced through medical intervention by the sperm and egg of duly wedded couples (without involving a third party) is permissible under Islamic law. They, however, declared that surrogacy is unlawful under Islamic law, and recommended that the government should declare surrogacy agreements unenforceable and amend the Penal Code to provide punishments for all the parties involved in a surrogacy arrangement.
This is an important judgment, not simply because of its subject matter, but also because it signifies transformation in the role of the FSC in the legal system of Pakistan. In this judgment, the FSC has moved beyond its mandate of Islamization of laws and has required the legislature to criminalize surrogacy. I describe this move as the transformation from judicial Islamization of laws to judicial legislation.
In 1980, President Zia ul Haq established the FSC for the Islamization of laws in Pakistan. Under Article 203D of the Constitution of Islamic Republic of Pakistan 1973, the FSC has the power to “examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet …”. Under this Article, the FSC is empowered to strike down any “law or provision of law”, except the Constitution, Muslim Personal Law, or any law relating to the procedure of any court or tribunal, if it is found repugnant to the Injunctions of Islam. Following the declaration of repugnancy of any law by the FSC, the legislature is required to amend that particular law “so as to bring such law or provision into conformity with the Injunctions of Islam”. The earlier judges of the FSC cautiously exercised their powers. After the death of President Zia ul Haq, however, the FSC not only freely exercised its powers, but it also extended its jurisdiction through innovative interpretations of the relevant legal provisions. In its recent judgment on surrogacy, the FSC further extended its powers and directed the Government to create new offences against surrogacy under the Pakistan Penal Code.
Facts of the Case and Judgment
According to the facts of this case, Mr. Farooq Siddiqui, the petitioner, was a Pakistani born American citizen. He was a medical doctor who dealt in surrogacy cases. Since his wife was unable to give birth, he published an advertisement in a newspaper for a surrogate mother. The respondent, Ms. Farzana Naheed, responded to the advertisement and agreed to be a surrogate mother for monetary compensation. According to the petitioner, the agreement was oral, and to cover up the whole episode of surrogacy, he entered into a fake marriage contract with Ms. Naheed. After giving birth to a baby girl, Ms. Naheed did not adhere to her contractual obligation and refused to hand over the baby to Mr. Siddiqui. She contended that the claim of surrogacy was false because she was the legally wedded wife of Mr. Siddiqui. The Guardian Judge dismissed Mr. Siddiqui’s petition for the custody of the baby. The Lahore High Court and the Supreme Court dismissed his appeals. As a matter of last resort, Mr. Siddiqui brought his case before the FSC. Since the case involved an important legal question regarding surrogacy, the FSC admitted the petition for hearing.
Chief Justice, Riaz Ahmad Khan, authored the main judgment. He observed that surrogacy involves social and ethical dilemmas as it is exploitative of the poor women who bear the physical and emotional pain of pregnancy. Such surrogate mothers develop emotional attachment with the baby they nurture in their wombs. He pointed out that a child needs the natural love and affection of a family, which may not be available through a party which pays for the birth of the child to a surrogate mother. In this way, according to him, surrogacy is a threat to the institution of family which is a basic unit of the society. He contended that hiring women and giving them monetary compensation for acting as surrogate mothers reduces their status to emotion-less machines. The exploitation becomes worst when wealthy people from the developed countries come to the third world countries to arrange for cheap surrogate mothers who are not provided sufficient medical facilities and medical insurance. Justice Khan argued that marriage is the only means through which children could be produced under Islamic law. He observed that surrogacy is likely to give rise to innumerable legal problems regarding paternity and maternity of the surrogate children; the relationship between actual children and surrogate children; and inheritance rights.
In this judgment, the FSC expanded its jurisdiction by making a policy decision about an important issue that has not been regulated by the State. In fact, the FSC went further; it declared surrogacy not only unenforceable, but also illegal. Justice Khan held:
Pakistan Penal Code be also amended and suitable section of law be added regarding definition of surrogacy. The same be declared as an offence punishable with imprisonment as well as fine. Further amendment be made in the Pakistan Penal Code that the couple who arranges a surrogate mother would be liable to punishment alongwith surrogate and the doctor who carries on the surrogacy procedure. Another amendment be made in Pakistan Penal Code to provide punishment for the doctor who maintains the sperm bank or egg bank for using in future, which should include imprisonment and fine. It must also be provided that any doctor involved in the procedure of surrogacy shall lose his license.
By suggesting that a surrogate mother should also be punished along with the couple and the doctor who arrange for surrogacy, Justice Khan ignored the delicate balance between various competing rights because an absolute ban on surrogacy is unlikely to be enforced without infringing the right to privacy and family life.
Justice Khan relied upon the following verses of the Qur’an:
But it is lawful for you to seek out all women except these, offering them your wealth and the protection of wedlock rather than using them for the unfettered satisfaction of lust.
Al-Mūmīnūn: 5 to 7
Who strictly guard their private parts save from their wives, or those whom their right hands possess; for with regard to them they are free from blame – As for those who seek beyond that, they are transgressors – [sic]
Your wives are your tilth; go, then, into your tilth as you wish but take heed of your ultimate future and avoid incurring the wrath of Allah. Know well that one Day you shall face Him. Announce good tidings to the believers.
From these verses, Justice Khan drew the conclusion that children can only be produced within a lawful marriage (Nikāḥ) under Islamic law:
In surrogacy, children are not produced by a couple through the bond of Nikah. The object of producing children through surrogacy is to satisfy the desire of a woman who may not wish to marry a man or go through the pains of delivery or is infertile. This desire may even be of a gay couple. The paternity and maternity of child would become irrelevant. As such the whole concept of surrogacy, as is generally in vogue in many countries, is against the Injunctions of [the] Quran and Sunnah. Innumerable problems, which the society would face, cannot even be imagined. [para 31]
After reading the above paragraph, anyone familiar with Islamic family law is reminded of the concepts of adoption, acknowledgement, and fosterage that could be invoked to deal with surrogacy. Under Islamic law, although an adopted child continues to be associated with the biological parents for legal rights and obligations, Islamic principle of acknowledgement (iqrār) allows the assimilation of a child within the family with complete legal rights and obligations. In an important judgment, the Supreme Court of Pakistan relied upon this principle to protect the rights of an adopted child. Referring to the legal concept of fosterage, it is not difficult to treat a surrogate mother like a foster mother and all the rules applicable to fosterage could apply to surrogacy.
However, the judgment of the FSC is in accordance with the views of the majority of Sunni jurists who reject surrogacy because it: disturbs genealogical lineage; threatens the child’s rights, which include knowing his/her identity/ancestry and his/her right to inherit; involves a third party in the institution of marriage; and leads to other negative effects, which include commodification of motherhood, emotional trauma faced by the surrogate in giving up the child, possibility of incest between half-siblings, and abandonment of children with medical problems. Under Sunni schools, maternity would be assigned to the carrier and deliverer of the child. The judges of the FSC performed an ijtihād based on the views of the majority of Sunni Muslim jurists. Shia jurists, despite internal differences, have adopted a different view on this issue. Ayatollah Ali Hussein Khamanei, the successor of the revolutionary Iranian leader Ayatollah Khomeini, issued a fatwā which permitted the third-party donations including egg donation, sperm donation, and surrogacy. In Iran, surrogacy is regulated under the Embryo Donation to Infertile Couples Act 2005. This Act lays down the conditions and criteria for surrogacy.
In his judgment, Justice Khan did not mention the views of Shia jurists and the Iranian legislation on surrogacy. He did, however, refer to the laws on surrogacy in various countries and observed that generally US law allows surrogacy, though each State has its own law on it. According to him, in the UK, surrogacy agreements are binding and the custody of children is decided according to the best interests of the child. He noted that commercial surrogacy is penalized in France, Georgia, Hong Kong, Hungary, Iceland, Italy, and Japan. Justice Khan appreciated the regulatory approaches in various jurisdictions which included permissibility of surrogacy, prohibition of commercial surrogacy, and the regulation of altruistic surrogacy. He, however, proposed an absolute prohibition on surrogacy (including commercial and altruistic) in Pakistan. Indeed, he went further and recommended penalties for all the parties involved in a surrogacy arrangement: these include the couple who arranges for the surrogacy, the surrogate mother, and the doctor.
I suggest that an emphasis on penalizing the parties involved in surrogacy is misplaced. Rather the focus of surrogacy legislation should be on the protection of the rights of vulnerable parties: the surrogate mother and the surrogate child. The surrogate mother should be protected against financial and emotional exploitation, and the surrogate child must have all the rights related to legitimacy. The absolute criminalization of surrogacy, as suggested by the FSC, prejudices the rights and interests of both: presumably poor and carrying all the evidence of pregnancy, a surrogate mother is more likely to be punished than anyone else involved in a surrogacy arrangement; and being a result of an illegal arrangement, the surrogate child will have no legally protected rights other than against the hapless surrogate mother under the Sunni schools, and no rights even against the surrogate mother under the Shiʿa school.
This leaves us with the question whether the Legislature in Pakistan is bound to add a new provision in the Pakistan Penal Code by 15 August 2017 as required by the FSC? Under the relevant constitutional provisions, the Legislature is not bound to follow the directions of the FSC on surrogacy as the judges did not declare any law or “any custom or usage having the force of law” as repugnant to the Injunctions of Islam. Does this mean that if the Legislature opts to legislate on surrogacy, the FSC will have the power to review the new law? In my view, the FSC does not have the jurisdiction to review the new legislation because surrogacy falls within the purview of Muslim Personal Law. In Dr Mahmood-ur-Rehman Faisal v Govt of Pakistan, the Shariat Appellate Bench of the Supreme Court defined Muslim Personal Law as “the personal law of each sect of Muslims based on the interpretation of the Qur’an and Sunnah by that sect.” It means that if a law applies to Muslims based on their sectarian affiliations, it falls under the definition of Muslim Personal Law, which is outside the jurisdiction of the FSC. The rationale for this exclusion is that Muslim Personal Law is based on various interpretations of the Qur’an and Sunnah by the jurists of each sect. The FSC is a non-sectarian judicial body which does not rely upon a particular sectarian interpretation of the Qur’an and Sunnah.
It is not without interest that in his petition before the Lahore High Court, the petitioner Mr. Siddiqui, had stated that he professed Shiʿa school. The FSC did not provide him any relief because it does not have the mandate to provide personal relief under the Constitution.
In this case note, I have analyzed the judgment of the FSC on surrogacy. Based on this analysis, I argue that this judgment signifies a historical transformation in the approach of the judges of the FSC towards legislation. During its early years since its establishment in 1980, the judges cautiously exercised their powers of Islamic judicial review to declare any law as repugnant to the Injunctions of Islam. From 1988 onwards, they extended their powers and declared a large number of laws as repugnant to the Injunctions of Islam. The judgment on surrogacy signals a third phase in the historical transformation of the role of the FSC in the legal system of Pakistan. In this judgment, the FSC required the Legislature to criminalize surrogacy by adding a new provision to the Pakistan Penal Code. The judges supported their opinion based on the views of a majority of Sunni scholars. I suggest that the Legislature is not bound to follow the directions of the FSC under the current constitutional provisions. Even if the law-makers choose to legislate on surrogacy, as is done in many jurisdictions, they should make sure that the new law protects the rights and interests of surrogate mothers and surrogate children—the vulnerable parties in surrogacy. Once the new law is promulgated even then the FSC will not have the power to review it because surrogacy relates to the institution of marriage, which falls under the personal laws of various sects. The constitutional provision specifically excludes Muslim Personal Law from the jurisdiction of the FSC. This means that despite the move of the FSC towards judicial legislation, Parliament remains the proper forum for law-making on surrogacy.
 The FSC comprises of eight Muslim judges, including the Chief Justice. They are to be appointed by the President. Four of the judges must be qualified to be High Court judges, while three are the ʿUlemaʾ, who are well-versed in Islamic law. The decisions of the FSC are appealable to the Shariat Appellate Bench of the Supreme Court, which consists of three regular Supreme Court judges and two ad hoc judges drawn either from the FSC or from among the ʿUlemaʾ.
 Until 1990, “any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure” were also excluded from the jurisdiction of the FSC. Article 203B(c), the Constitution of Islamic Republic of Pakistan 1973.
 Article 203D (3)(a), the Constitution of Islamic Republic of Pakistan 1973.
 Daniel P. Collins, ‘Islamization of Pakistani Law: A Historical Perspective’ (1987-88) 24 Stanford Journal of International Law 511 (based on the analysis of the FSC cases from 1980 to 1988, the author argues that the FSC avoided deciding controversial issues using its jurisdictional limits, and when it chose to decide, it adopted a flexible approach to Islamic law that was in line with the practice of secular common law courts rather than with classical Islamic legal theory.)
 Between 1980 and 1988, only in five reported judgments the FSC declared a law as repugnant to the Injunctions of Islam. Interestingly, following the death of President Zia ul Haq in August 1988, the FSC declared several laws repugnant in ten reported judgments delivered during the course of just one year in 1989. See PLD 1989 FSC 1, FSC 3, FSC 8, FSC 15, FSC 31, FSC 35, FSC 39, FSC 60, FSC 80, FSC 84. Five judgments were based on the exercise of suo motto power of the FSC.
 The Presidential Order which established the FSC excluded from its jurisdiction the Constitution, Muslim Personal Law, or any law relating to the procedure of any court or tribunal. After the death of President Haq, the FSC extended its jurisdiction over these areas. In Muhammad Salah-ud-Din v Govt of Pakistan PLD 1990 FSC 1, the FSC invalidated the various provisions of the Representative of People Act 1976, stating that it was not related to the Constitution and reversed its earlier decision in B.Z Kaikaus v President of Pakistan PLD 1981 FSC 1 where the FSC held that the Act was beyond its jurisdiction because it was related to the Constitution; and in Allah Rakha v Federation of Pakistan PLD 2000 FSC 1, the FSC held that the Muslim Family Laws Ordinance, 1961 did not fall under the definition of Muslim Personal Law provided under the Constitution and declared its various sections repugnant to the Injunctions of Islam.
 Farooq Siddiqui v Mst. Farzana Naheed (Sh. Petition No.2/I of 2015), .
 For details see, Judith Areen, ‘Baby M Reconsidered’ (1987) 76 Georgetown Law Journal 1741, 1752 (arguing that the enforcement of the legal prohibition of surrogacy will involve intrusion in privacy and family life).
 The English translation of these verses is taken from Maulana Maududi’s Tafhim al-Qur’an. Zafar Ishaq Ansari (tr and ed) Towards Understanding the Qur’an: Abridged version of Tafhim al-Qur’an (The Islamic Foundation, 2008) 111, 509, 48.
[email protected] f Management Sciences (LUMS)’ e strict rules regarding awa issued by muftis. The Fatawa Alamgiri was an encyc
 Asma Naz v Muhammad Younas Qureshi 2005 SCMR 401 (An adopted child of unknown parentage is given the right of paternity under the principle of acknowledgment.)
 Justice Fida Muhammad Khan, in his short note, referred to the resolution of Islamic Fiqh Academy Jedda, which is established by the Organization of the Islamic Conference. This resolution declared surrogacy prohibited. Many Sunni scholars support this view, including Jad al-Haq, Ex-Grand Mufti of Al-Azhar, Dr Ali Juma, Mufti of Egypt, and Dr Yusuf al-Qardawi.
 Ruaim M. Muaygil, ‘Reexamining the Prohibition of Gestational Surrogacy in Sunni Islam’ (2016) Developing World Bioethics (online) <https://www.ncbi.nlm.nih.gov/pubmed/27762091> accessed 13 April 2017; Hassan Chamsi-Pasha and Mohammed Ali Albar, ‘Assisted Reproductive Technology: Islamic Sunni Perspective’ (2015) 18(2) Human Fertility 107; Hossem E. Fadel, ‘The Islamic Viewpoint on New Assisted Reproductive Technologies’ (2002) 30(1) Fordham Urban Law Journal 147; Morgan Clarke, ‘New Kinship, Islam, and the Liberal Tradition: Sexual Morality and New Reproductive Technology in Lebanon’ (2008) 14(1) Journal of the Royal Anthropological Institute 153; Marcia C. Inhorn, ‘“He Won’t Be My Son”: Middle Eastern Muslim Men’s Discourses of Adoption and Gamete Donation’ (2006) 20(1) Medical Anthropology Quarterly 94.
 Zohra Behjati-Ardakani et al, ‘Embryo Donation in Iranian Legal System: A Critical Review’ (2015) 16(3) Journal of Reproduction & Infertility 130; Cathy Harrison, ‘Who is your Mother? Who is your Father? Assisted Reproductive Technologies in the Light of Sunni and Shi‘a Law’ (2014) 17(1) Journal of Shi‘a Islamic Studies 23; Marcia C. Inhorn, ‘Making Muslim Babies: IVF and Gamete Donation in Sunni v Shi’a Islam’ (2006) 30(4) Culture, Medicine and Psychiatry 427.
 (n 7), .
 This is a general principle under the Shiʿa school. DF Mulla, Principles of Mahomedan Law (20th edn, LexisNexis 2013) 131.
 Article 203B(c), the Constitution of Islamic Republic of Pakistan 1973.
 PLD 1994 SC 607.
 Ibid, 621.
 In Khawar Iqbal v Federation of Pakistan 2013 MLD 1711, the FSC refused to declare section 8 of the Muslim Family Laws Ordinance 1961 as repugnant because this section fell under the definition of Muslim Personal Law. This section relates to the delegation of divorce. Unlike Sunni schools, the Shiʿa Jafariyya school does not allow such delegation.
 Farooq Siddiqui v Farzana Naheed PLD 2013 Lah 254.
This case note is originally published at Harvard Law School database ShariaSource https://beta.shariasource.com/documents/2937
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.