Desire for Progeny: Ethics of Infertility Treatments in Islam, Catholicism, and United States Law
Ethical traditions the world round have found reproductive technology and surrogate motherhood a contentious issue worthy of numerous opinions upon their permissibility and execution. The focus of this paper is the treatment of infertility as it is seen through the lens of Sharia, Islamic law. To further define the decisions and interpretations that have been made by Islamic jurists, I shall compare the Sharia interpretations with the Catholic stance and the ethical code inherent in the United States’ legal system and its rulings.
Before jumping into the discussion of the ethics though, I will elaborate on procedures and areas subject to ethical debate in treating infertility. Surrogacy is when a woman, the gestational mother, becomes pregnant with, carries, and delivers a child for a third party. There are two methods of assisted reproductive technology used for impregnation of the surrogate mother. The first is artificial insemination (AI), where sperm are placed within the gestational mother’s reproductive tract so that they can fertilize an egg. The second method is in vitro fertilization (IVF). In IVF, eggs are fertilized outside the womb and then placed within the mother-to-be’s reproductive tract.
General issues that arise in the case of reproductive technologies include the mere permissibility of surrogate motherhood, the legitimacy of surrogate contracts, and preimplantation genetic diagnosis (PGD) to determine genetic based diseases and abnormalities, sex, and other information. IVF has its own particular issues such as supernumerary embryos (embryos beyond the number wished to be implanted in the mother), which poses the question of what do with the extra embryos. The choices are implant all the embryos and place the mother at risk while reducing the chance that any embryo will survive to birth. The other option is to reduce the risk to the mother reduce the number of embryos by offering some to research, aborting some, or freeze the embryos (cryopreservation) (Eskandarani 2008).
Using reproductive technologies raises a whole host of difficulties and considerations not associated with typical methods of reproduction, so why is it done? In some cases an individual or a couple is simply unable to produce a child otherwise, but do not wish to adopt. The groups afflicted include the 8 to 15% of couples that suffer from infertility (Eskandarani 2008), and women with medical conditions that put them at elevated risk if they were to become pregnant and undergo childbirth. This latter group is likely to opt for surrogacy if they wish to have children.
The Rulings of Catholics on Surrogate Motherhood
Heterologous artificial fertilization and homologous artificial fertilization are two terms the Vatican uses to describe assisted reproductive fertilizations. Heterologous artificial fertilization is the result of a woman’s egg being fertilized by a sperm belonging to a man other than her husband. Homologous artificial fertilization is the result of a woman’s egg being fertilized by a sperm belonging to her husband (Ratzinger 1987).
In regards to Catholic ethics, there is a Biblical basis for surrogate motherhood in Sarah, Rachel, and Leah allowing handmaidens to carry children for their husbands (Field 1988), but despite this example in the Old Testament, the Vatican had this to say when asked if surrogate motherhood was an acceptable practice:
No, for the same reasons which lead one to reject heterologous artificial fertilization: for it is contrary to the unity of marriage and to the dignity of the procreation of the human person. Surrogate motherhood represents an objective failure to meet the obligations of maternal love, of conjugal fidelity and of responsible motherhood; it offends the dignity and the right of the child to be conceived, carried in the womb, brought into the world and brought up by his own parents; it sets up, to the detriment of families, a division between the physical, psychological and moral elements which constitute those families. (Ratzinger 1987)
This means that surrogacy is not allowed based on a breach of the child’s right to be conceived, birthed and raised by a married couple, and a breach of the parents rights to be the sole ones to conceive, birth, and raise their child. The statement “brought into the world” even prohibits homologous fertilization in the case of surrogacy because the surrogate mother is the one to bring the child “into the world.” In this sense, the surrogate mother breaches the rights of the married couple in the the process of birthing the child. On the other hand, asking the surrogate mother to release her rights to the child she birthed violates her rights as the gestational mother.
Homologous artificial reproduction is still allowed if the gametes (egg and sperm) come from martial partners and the wife carries the subsequent fertilized egg, but issues still arise in the case of supernumerary embryos. In Catholicism the death of an embryo is equivalent to the death of a human being, so any action that results in the destruction of an embryo or risk of destruction of an embryo constitutes murder or reckless endangerment, respectively. As such, abortion is prohibited and cryopreservation is not allowed for it “constitutes an offense against the respect due to human beings by exposing them to grave risk of death or harm” (Ratzinger 1987) for there is substantial risk to the embryo in the course of freezing and thawing. Donating embryos to research is not allowed unless embryo shall not be harmed, and the embryos donated to research should also be eventually implanted into the woman of origin’s reproductive track with the intention of development and birth (Ratzinger 1987). Similarly, PGD is allowed as long as it does not constitute a risk to the embryo and the embryo shall be implanted with the intention of development and birth regardless of what is discovered from tests.
United States Law on Infertility Treatment
Of the three views on treatments for infertility, US Law grants the most autonomy to the individual. AI, IVF and surrogacy are allowed with no regulations based on marital status. The actions in the instance of Supernumerary embryos and PGD are nearly without limitation.
According to US law, eggs and sperm can be anonymous in AI and IVF and these treatments can be administered to single women as well as married women, and women in a committed relationship with another woman. In the case of supernumerary embryos, women may implant as many or few embryos into their reproductive tract as they wish, and their only limitation is what their doctor considers safe for them. Excess embryos can be aborted, donated to research (including that which may lead to the destruction of the embryo), and cryopreservation of the embryos with impunity. Many US citizens find these actions morally reprehensible however, and laws can change at a much quicker rate than the Vatican or Islamic muftis (…) can find a means of reinterpreting revelation, so US law can be considered relatively less constant.
The United States is also the site of a heated debate over surrogacy although the US legal code is far more permissive than Catholic dogma or Sharia. One of the issues debated is the legality of surrogacy contracts. In the United States surrogacy contracts first appeared 1976 (Field 1988), and these contracts usually included the surrogate mother waiving rights to the child, compensation for the surrogate mother (typically $10,000 held in escrow for duration of pregnancy or until the surrogate mother released custody), and provisions of conduct to ensure that the child born was not the result of the surrogate mother’s sexual activity.
The legality of these contracts was questioned from the beginning, and they were outlawed in New Jersey in 1986. This prohibition on surrogacy contracts was the out come of a court decision dealing with the “Baby M.” incident. In brief, the “Baby M.” incident occurred when the Sterns, a wedded couple, contracted Mary Beth Whitehead to be a surrogate mother. The legal issue developed when Mrs. Whitehead violated the contract by fleeing to keep the baby. The courts ruled that the baby belonged solely to the Sterns, but the courts also outlawed surrogacy contracts based on adoption law. The Sterns receiving custody highlights the importance of biological parenthood (Mr. Stern) and well being of the child (which Mrs. Whitehead proved she was not able to provide by her law breaking and irresponsible behavior) under the United States legal code (Field 1988).
Due to the fervor of this debate, the cores of US law come into play in court decisions, so we can use this debate and related ones to discern the ethics and principles behind the legal system. The first thing to discern is what laws effect surrogacy and which of these is supercedes all others. Civil law, contract law, adoption law, and criminal law all apply to the case of “Baby M.,” and adoption law played a prime role here. At the heart of the right to Surrogacy is the Constitution, and core to the constitution are civil liberties, which a are enumerated in the Bill of rights and amendments (Field 1988, Gostin 1988).
Behind the legality of being able to be a surrogate mother (not the right to have or contract a surrogate mother) is the right to privacy, which is in turn based in the fourth and ninth amendment. The fourth amendment protects against unjustified search and seizure and the ninth states that the lack of a right in the constitution does not mean that the right does not exist. These and other amendments are the basis for court such as Roe vs. Wade that establish privacy and childbearing as part of women’s constitutionally protected rights (along with contraception and abortion). These rights also make banning the payment of surrogacy difficult because banning payment acts as a de facto ban on surrogacy because it drastically reduces the financial viability of being surrogate mother. On the other hand, an argument for the ban of payment lies in the 13th amendment, banning the sale of human beings. The take home message here is that there are morals and ethics inherent in the US legal code, but they are not as salient or well defined as those in Islam and Catholicism (Gostin 1988).
The Rulings of Islamic Jurists on Infertility Treatment
Islam is not a monolithic tradition like Catholicism, so legal interpretations can vary on controversial issues, so there is a notable plurality of opinion in Sharia regarding the proper approach to infertility. Fatawa, opinions of trained clergy, range from the progressive position of Ayatollah Khamanei to the conservative interpretation of this passage from the Sura Shura (Consultation):
“God has control of the heavens and the earth; He creates whatever He will – He grants female offspring to whoever He will, male to whoever He will, or both male and female, and He makes whoever He will barren: He is all knowing and all powerful.” (Qur’an 42: 49-50)
One interpretation of this paragraph is the inability to reproduce through coital relations is the will of God that an individual should have no children, but other jurists and modern medical experts would argue that if vitro fertilization is possible then it is god’s will that allows the gametes to join. This separates a mother’s inability to carry the child to term or become impregnated by natural means from divine will stipulating infertility. Under this framework, the biological mother is no longer defying God’s will if she seeks to have a child through IVF or other means.
A key part of surrogacy is the concept of adoption and releasing of parental rights. Unlike the United States legal system, Islam does not allow for a means of releasing rights to a child or otherwise disowning them. There is a passage from the Qur’an that states that the birth mother is the only mother (Fadel 2002), and this eliminates the rights to a child that any biological mother might have. Furthermore, there is no complete means of adoption in Islam, as demonstrated by this Qur’anic passage:
Nor does he make your adopted sons into real sons. These are only words from you mouths, while God speaks the truth and guides people to the right path. Name your adopted sons after their real fathers: this is more equitable in God’s eyes. (Qur’an 33:4)
This passage has several implications. One is that an adopted child is never considered to be the same as one’s own progeny, so the child is not entitled to inheritance from his adopted parents. When combined with other passages from the Qur’an, this passage means that the biological father of a child has no right to them if he is not married to the gestational mother for that right belongs to the husband of the gestational mother, regardless of actual paternity. This is due to the functional nature of marriage in Islam. The primary purpose of marriage is to provide comfort to the two individuals involved, but one of the other purposes is to establish a male who is unconditionally responsible for the children that arise during the course of the marriage (Vikør 2005). It is important to note that Islam praises those that take it upon themselves to care for orphans and other such disadvantaged youth. This point is exemplified in “the Cow” Sura: “‘It is good to set things right for [orphans]. If you combine their affairs with yours, remember they are your brothers and sisters.’” (Qur’an 2:220)
Many Sunnis find issue with the execution of artificial reproduction technologies. The Sunni view bears a striking resemblance to Catholocism in this issue for all forms of reproduction that Catholics would deem heterologous fertilization would not be allowed under Sunni Islam because the binding gametes from a non-married couple is a type of zina, adultery, for this reproduction is occurring outside a marriage. As in Catholocism, Sunni Islam only allows homologous fertilization in the case of the resulting egg being carried by the wife.
While artificial insemination is not allowed under Sunni Islam, Shi’i have a different, complex view. Ayatollah Ali Hussein Khamanei issued a fatwa that allowed the use of donor technologies that would amount to heterologous fertilization. In the case of egg donation, the gestational mother is also the rearing mother, but she is considered to be an adoptive parent and the resulting child is entitled to inheritance from his or her biological mother, according to Khamanei’s fatwa. Sperm donation results in a similar relationship between biological father and husband of the gestational mother. In this case zina and known paternity create issues (Inhorn 2006).
To circumvent zina in this case, the husband must have a zawaj mut’a, temporary marriage, from the time of egg retrieval from the donating mother to the time embryo implantation in his wife by zawaj nikah. Nikah is the most common and normative form of Islamic marriage. According to Khamanei’s fatwa, these zawaj mut’a (also called sigheh in Iran) are unnecessary because zina, according to him, necessitates intercourse, which is lacking in IVF and artificial insemination (Inhorn 2006).
Knowledge of one’s biological parents is important because “it is a human right to be the legitimate and real child of one’s own father, and be the fruit of the bond of legitimate marriage” (Zuhur 1992). The latter point made here is a promotion of the stability inherent in the husband and wife marriage that is a function of greater financial security and the presence of a father that will be an instructor of morals and religion (Vikør 2005). Further more, if there were a proliferation of individuals who did not know their biological parents, then there would be an increased risk of accidental incest. Such an outcome constitutes harm to society and social order, so it must be avoided whenever possible.
Fatawa from authoritative jurists agree that surrogate motherhood is not allowed under current readings of revelation (Fadel 2002). There is one loophole involving zawaj mut’a, but often times the verse from the Qur’an regarding zawaj mut’a is considered a time bounded verse, meaning it only had relevance in the time and place that it was revealed. Under rare circumstances zawaj mut’a is allowed, and surrogacy can be accomplished through a man taking a second wife via zawaj mut’a to act as a surrogate mother by carrying to term a child of either the original married couple’s gametes or the gametes of the husband and the temporary wife (Zuhur 1992). These sigheh contain components similar to that of surrogacy contracts in the United States. For instance, the temporary wife is not likely to be carrying this child out of the kindness of her heart, so the payment in United States surrogacy contracts can be substituted in sigheh with a the Mahr (dower or bride price).
Two major ethical issues arise from this arrangement of surrogacy with compensation. The first is the commoditizing of children, a point debate in the United States as well. Muftis, sharia legal scholars, view this compensation given to the gestational mother as akin to slavery since the payment is given for the carrying and surrender of the child (as far as can occur in the Islamic framework) to the contracting couple. This payment is tantamount to the buying and selling of the humans, which is atrocious in the view of modern Muslims. The second issue is the possibility of undermining the equality of every member of the ummah. Those who would be able to afford the treatments and sigheh of surrogacy would only be the rich, and they would likely contract poorer Muslim women to be the gestational mother. These two facts contribute to discord in society and are part of the reason for the fatawa against surrogacy and zawaj mut’a (Zuhur 1992).
The United Sates legal system is also concerned with the instances where a marriage may dissolve before a surrogate mother gives birth to a child, but this is not such a large concern for Islam. Although surrogacy can possibly end with no individual wishing to claim the child, Islam establishes individuals who are responsible for the child, the birth mother and her husband (Fadel 2002). On the other hand, the United States legal system also places the well being of the child over the parents’ rights to rear their child.
Islam’s take on supernumerary embryos favors the plight of the mother much more than the Catholic position. Embryos in excess of what would be safe for the woman to have placed in her reproductive track or in excess of optimum chances of fetal survival (three being considered high) can be placed in cryopreservation where they can be accessed later to attempt another pregnancy in subsequent menstrual cycles, assuming the receiving woman is the source of the eggs and she is still married to the source of the sperm. These embryos can also be given to research as along as they are not placed at risk in this research, similar to Catholics and more restrictive than United States law. As of 2002 there was no widely established moral imperative regarding unused eggs (Fadel 2002), so Muslim women were not obligated to try and birth all fertilized egg.
Islam allows for a greater degree of action than Catholicism in regards to PGD. Catholics can learn information about the genetics of the embryo but are morally compelled to continue with the pregnancy regardless of what they learn. The position of Sunni jurists places most Sunnis in a similar situation as the Catholics, but Shi’i Muslims can make the choice to abort embryos in exceptional cases. The criteria for exceptional includes two doctors agreeing that the child born from an embryo will develop severe illness, abnormalities, or disabilities that will dramatically impair the child’s quality of life and will not allow him or her to ever be fully independent (Rispler-Chaim 2003). These cases where abortion is allowed must be truly exceptional so mild disabilities, mild health problems and an undesired sex are not grounds for abortion.
Conclusion
Sharia, Catholic dogma, and US law take diverse stances on treatments for infertility, but they are not established on a whim. These opinions are the result of years spent honing, defining, and prioritizing the core ethics of each of these traditions, and the results are diverse. Thus, their view on infertility treatment is equally diverse, ranging from abundant autonomy granted to the individual in the US legal code to numerous, unyielding restrictions established by the Vatican. In the middle resides the stance of Muslim jurists, partially because Sharia is not a single codified source with an ultimate answer. As a result, a fundamentalist Sunni may have a legitimate stance almost equal to that of the Vatican while a Shi’i may have an equally legitimate stance that allows for the use of most forms of reproductive technology. Each tradition has its unique advantages and hindrances, so the ultimate superiority of one over the others is only to be found in the mind of the observer.
~Gordon Motsinger
Works Cited:
Eskandarani, H. (2008). Ethical and Legal Implications in Assisted Reproductive Technology: Perspective Analysis of the Gulf Cooperative Council States. In J.E. Brockopp and T. Eich (Eds.), in Muslim Medical Ethics: From Theory to Practice. Columbia, University of South Carolina Press.
Fadel, H. E. (2002). The Islamic viewpoint on new assisted reproductive technologies. Fordham Urban Law Journal. 30(1): 147-57.
Field, M. (1988). Surrogate Motherhood. Cambridge, Harvard University Press.
Gostin, L. (Ed.), (1988). Surrogate Motherhood: Politics and Privacy. Indianapolis, Indiana University Press.
Inhorn, M. C. (2006) Making Muslim Babies: IVF and Gamete Donation in Sunni Versus Shi’a Islam. Culture, Medicine and Psychiatry. 30: 427-450. 2006.
Ratzinger, J. (1987). May Congregation for the Doctrine of the Faith: Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation: Replies to Certain Questions of the Day. Vatican City, Rome.
Rispler-Chaim, V. (2003). The Right Not to Be Born: Abortion of the Disadvantaged Fetus in Contemporary Fatwas. In J.E. Brockopp (Ed.), Islamic Ethics of Life: Abortion, War, and Euthanasia (pp. 81-95). Columbia, University of South Carolina Press
Vikør, K. S., (2005). Between God and the Sultan : a history of Islamic law. Oxford, Oxford University Press.
Zuhur, Sherifa (1992) Of Milk-Mothers and Sacred Bonds: Islam, Patriarchy, and New Reproductive Technologies. Creighton Law Review. 25: 1725-1738.
The Qur’an. (M.A.S.A. Haleem Trans.). Oxford, Oxford University Press, 2004.
