INFERTILITY AND ISLAMIC RELIGIOUS THINKING

INFERTILITY AND ISLAMIC RELIGIOUS THINKING
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Assisted Reproduction Technologies (ARTs) have been a revolution in infertilitytreatment around the world. The birth of Louise Brown, the first “test tube” baby, in 1978 through in-vitro fertilisation was a breakthrough in the procreation process. For the last 30 years, this technology has been more widely used in infertility treatment and, so far, more than two million babies have been born using this technology worldwide. This treatment is also practised in the Muslim world where Islamic morality plays a dominant role, by accepting some practices of ARTs and rejecting others. One of the major areas of rejection and controversy is third-party donation (Atighhetchi 2000; Larijani and Zahedi 2007; Serour and Dickens 2001). In most Muslim countries, ARTs have been practised according to the religious norms and ruling, whereas in the Western countries and the rest of the world, ARTs are being practised by the rules and regulations of each individual country.

In Islam, infertility is recognised as a disease and the treatment of any disease is strongly encouraged (Fadel 2002). It is mentioned in the tradition of the Prophet of Islam that God did not create any disease without its treatment (Nordin 2012; Mahmoud 2004). Islam also gives strong emphasis on high fertility (Schenker 2000). Therefore, seeking the treatment for infertility is desirable to continue human procreation (Abduljabbar and Amin 2009). According to all schools of Islam, infertile married couples can seek the treatments available to them such as IVF, surgical sperm retrieval, embryo transfer within the husband and wife (Husain 2000).

However, third-party donation has raised a controversy within the Islamic religious thinking as third-party donation gives birth to a new idea of kinship, which entangles biological, medical, legal, moral, ethical and religious aspects (Inhorn 2011). Although kinship has different forms and meaning from different cultural perspectives, the Islamic idea of kinship is determined by one of the three ways: consanguinity, marriage, and fostering by breastfeeding in infancy (Larijani and Jahedi 2007).

After the birth of the first IVF baby, a number of authoritative religious decrees were issued by Islamic scholars in the Muslim world permitting IVF between married couples and prohibiting third-party donation. However, divergences emerged in the 1990s as the Shia religious scholars in Iran and other countries issued religious decrees for and against the acceptance of gamete donation (Inhorn 2005). With these premises in mind, I shall discuss the Islamic thinking on gamete donation.

The Sunni religious scholars’ position surrounding gamete donation is as vivid as they are absolutely against any involvement of a third party in the procreation process. According to them, the troubling aspects of third-party donation are adultery, potential incest and the lack of biological descent, the violation of marital contract between husband and wife, and the breach of the Islamic law of inheritance. They also share the view that third-party donation confuses lineage, kinship and descent.

Shia (Iranian) religious leaders’ openness towards third-party donation is based on the societal need, as 10–15% of Iranian couples are infertile. In the past, Iranian Shia religious leaders also played a significant role in population control, proclaiming religious decrees in favour of family planning, which eventually won a UN award in 1988 (Inhorn 2005). It is interesting to mention that while the Al-Azhar and other Sunni Muslim scholars’ fatwas on IVF mainly rely on scriptural references (the Hadith, Islamic jurisprudence and intellectual reasoning); Khamenei’s and other Shia scholars’ fatwas lack those references. Instead, they rely mainly on individual intellectual reasoning while favouring the appropriateness of gamete donation in the procreation process.

However, if we critically analyse Sunni religious scholars’ arguments prohibiting gamete donation, many of them seem to be logically weak. One of the reasons for the prohibition of gamete donation is potential incest among the offspring of the donors (Inhorn 2005). However, if the donors are known, then the problem of potential incest can be resolved. Therefore, the question can be raised whether the Sunni scholars would accept third-party donation if the donors are known. However, in that case there are very few chances of donation for the reason that the donors’ anonymity and safety are not guaranteed. Another problematic aspect of gamete donation to Sunni religious scholars is the law of inheritance because, according to Islamic Sharia law, children inherit from their biological parents. Theoretically, if the donor child inherits from his or her biological father, then there is no violation of the Islamic law of inheritance. However, in practice, potential donors may be discouraged from donating gamete if the child will inherit from his or her biological parents.

Sunni religious scholars argue that third-party donation is a form of adultery, although it does not involve any sexual relations. Moreover, in Islamic Sharia law, the concept of adultery and the various forms of punishment of adultery have also been explicitly stipulated. According to all the Islamic theological schools, sexual intercourse is a necessary condition for the punishment of adulterers. According to the Shafii theological school, an adulterer cannot be subjected to punishment if there is no natural lust for a member of the opposite sex. That is why Sunni religious scholars, who consider third party involvement in the procreation process as adultery, remain silent on the issue whether donors and recipients should be subjected to the punishment of adultery.

Interestingly, with regard to the egg donation and surrogacy in a polygamous family, the Sunni scholars are also against these procedures, although all the objections raised against egg donation and surrogacy are absent in polygamy. Theoretically, in a polygamous family, the egg donation happens from one legitimate wife to another legitimate wife of the same husband; so in both cases, the donors and recipients are known and all the parties are within the marital contract. Eventually, there would be no possibility of incest, as the donor would be known to the donor child and happen to be the stepmother, and the children of the donor would be the stepbrothers and stepsisters.

Furthermore, the issue of inheritance would still be a problem, since the biological parents would be known to the child. In addition to that, the egg donation from one legitimate wife to another legitimate wife in a polygamous family does not breach the marital contract, since the donation does not involve any other party, except co-wife within the marital contract (as the Sunni religious scholars consider marriage as a contract between the husband and the wife or wives). The same argument is also applicable to surrogacy in polygamous families. Interestingly, the Sunni scholars in the Fiqh Council in 1984 permitted surrogacy in a polygamous family, but the Council withdrew its approval in 1985. There are still ongoing debates among Sunni religious scholars about whether surrogacy in polygamous families should be allowed (Serour 2000; Inhorn 2006). However, the question of who is considered the mother of a donor child would continue to be an unresolved issue of egg donation and surrogacy in polygamous families.

On the other hand, the religious decrees proclaimed by different Shai Muslim scholars in and outside Iran concerning gamete and embryo donation are contradictory to one another. Nevertheless, the fatwa promulgated by the Iranian supreme religious scholar Ayatollah Khamenei on the permissibility of gamete and embryo donation has greater impact on ARTs both inside and outside Iran. Moreover, there is no law in Iran to regulate the procedures of ARTs except the newly legislated act on embryo donation. As there is no legal barrier, many infertile couples are fulfilling their wish for a child through all forms of ARTs available in Iran.

Although all types of third-party donation have been legitimised by religious decrees, many ethical issues surrounding gamete and embryo donation are not mentioned. The numerous ethical concerns regarding gamete and embryo donation for procreation include: donors, recipients, screening of donors and recipients, the well-being of future children, the potential risks and harm, the moral status of the embryo, commercialisation, distributive justice, the anonymity of donors, the right of the child to know his or her genetic origin, conflict of interest, informed consent, confidentiality, and disclosure, gamete and embryo banking, allocation of resources. As Soraya Tremayne (2006) noted; “in reality, the lack of clarity in religious ruling left a wide gap in ethical, moral and legal aspects of the practices of ARTs”. This ambiguity creates complex situations in the medical practices of ARTs in Iran and the medical doctors practising ARTs are trying to fill the gap by liberal religious ruling and by their gained biomedical knowledge to try to fulfil the wishes of infertile couples.

The ethical concerns in the fatwa, which were enunciated by Khamenei, however, contradict the general practices of gamete and embryo donation. According to his fatwa, concerning sperm donation, the child will inherit from the sperm donor and the commissioning father will be considered an adoptive father. The child will also take the name of the commissioning father rather than that of the donor. Similarly, in the case of egg donation, the child of the egg donor will have the right to inherit from the egg donor and the commissioning mother will be regarded as an adoptive mother. Eventually, in Khamenei’s view, donor anonymity is not possible in gamete donation. All the Shia religious scholars, who only support egg donation with the condition of temporary marriage, also propose that a child of an egg donor will inherit from the donor, and the commissioning mother will be acknowledged as an adoptive mother, which is quite different from the general practice of gamete donation.

All the national and international guidelines and acts on ARTs clarify that a child conceived by ARTs such as gamete and embryo donation, and surrogacy, is the legal child of the commissioning parents. The egg donor, sperm donor, and embryo donors, known or unknown, have no parental rights and responsibilities to the resulting child.

The Act of Embryo Donation to Infertile Spouses (2003) passed in the Iranian parliament is considered a major achievement for ARTs in Iran, but some of the ambiguities of the Act have created misunderstanding in gamete and embryo donation. Furthermore, the Act did not address some of the burning ethical issues of ARTs properly. It did not guarantee the necessary safeguard of the donor child. One of the major ethical concerns that the Act did not address was the genetic linkage called nasab in Arabic, which is fundamental in Islam in determining the inheritance of the child. That means that the Act did not stipulate whether the child would be considered the child of the recipient couples or that of the donor couples (Afshar and Bagheri 2012). As a result, the child might not inherit from either the recipients or the donors, as the anonymity of the donors is safeguarded. Nevertheless, in most countries, in an informed consent form, all the rights and duties of the commissioning parents and the future child are highlighted. Moreover, on the child’s birth certificate, the commissioning father is mentioned as the child’s legal father so that the rights and responsibilities of both the child and the father have been established (Meirow and Schenker 1997). So the child’s best interests are not guaranteed in the Act.

CONCLUSION
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ARTs as infertility treatment have been a flourishing medical field in Muslim countries. However, the practices have been restricted by religious decrees proclaimed by the scholars of both the two major denominations of Islam. The Sunni Muslim position on ARTs and the use of third-party donation are deeply based on the religious and moral convictions on the divinely ordained concept of marriage and family, lineage, kinship, fatherhood, laws of inheritance and blood relations. Therefore, infertile couples in the Sunni Muslim world have to remain childless, although there are available technologies to fulfil their wish for a child, unless they find any alternative solution as the religious decrees have banned the procedures.

On the other hand, Shia Muslim scholars, particularly in Iran, are open towards new medical technologies, paving the way for gamete and embryo donation. However, the lack of a legal framework and ethical guidelines, especially for gamete donation, has raised many ethical questions and, as a result, the practice of the procedures has become questionable. In addition, the religious conditions stipulated by religious scholars in their fatwas are in contradiction with national and international guidelines for gamete donation.

The religious scholars might have made a compromise with the need of the infertile couples in their society and religious beliefs. In order to overcome the problem, an act on gamete donation and guidelines on ARTs are required, and the ambiguities and loopholes in the Act on embryo donation need to be clarified. However, one of the problematic aspects of this endeavour will be making a compromise with the fatwas articulated by religious scholars, which are in conflict with the generic practices of gamete and embryo donation.

by
MD Shaikh Farid and Paul Schotsman
Gamete Donation: Ethical Divergences in Islamic Religious Thinking