1005P - REVIEW PAPER ON SURROGACY WESTERN VS ISLAMIC ETHICS

I am not happy with the general flow and organization of the paper. It is basically stating the western view points alongside the Islamic ones without serious comparisons. The Islamic views are also stated in a sweeping way without deeper analysis. The language used is not academic. I have highlighted my comments within the paper. I will write an editorial on surrogacy to make sure that our Muslim readers get a clear picture  Omar H Kasule Sr.

 

Ethics of Surrogacy: A Comparative Study of Western Secular and Islamic Bioethics

Abstract

The comparative approach regarding the ethics of surrogacy from the Western secular and Islamic bioethical view reveals both commensurable and incommensurable relationship. It is not either straight forward ‘commensurable’ or straight forward ‘incommensurable.’ Islamic bioethics is straight-forward in prohibiting surrogacy both from the intrinsic and extrinsic basis [statement not ijma]. Its ethical stance focuses on the ‘intrinsic goodness’ while excluding women womb from rent service [surrogacy by a relative is not rent of a womb]. It highlights ‘extrinsic’ or ‘instrumental goodness’ by highlighting mainly on the lineage problem [lineage is not a problem the biological mother is the owner of the ovum] and also other social chaos and anarchy. Western secular bioethics is relative. It supports it for some extrinsic goodness and also condemns it for some extrinsic badness. Like Islamic ethics, it does not say that the woman’s womb is very precise for its good in itself, so although other things are subject to rent, the woman’s womb is not. Both are eager to highlight the welfare of the mother, child and society as a whole but the approaches are not always the same.

Surrogacy: Definition, Reasons and Classification

Surrogate literally means “substitute”. In this case, a woman bears a child for another woman. Actually the concept of surrogacy is a by-product of Artificial Insemination (AI) and In-Vitro Fertilization (IVF). In a surrogacy arrangement, a woman carries a baby in her womb through pregnancy and after delivery of the child, it is handed over to another person and the surrogate mother will be free from all responsibilities to the child or its family.

The most low-tech treatment to overcome infertility is surrogacy. A lady may offer to carry a child to term and give birth to it to help a couple who are unable to do so on their own.¹

Married couples look to surrogacy when the wife is physically unable to conceive a child or unable to carry a baby inside her. She may have a genetic disease that she is unwilling to pass along to the coming offspring. Even the woman may not want to become pregnant because of her busy schedule of work or other business. The couple may choose surrogacy with the hope that the kid will be at least half-related to them. Sometimes, unmarried couples look for a surrogate mother although the practice is not very common. Similarly, this practice is open for a single man willing to be a father.²

Surrogacy is of two types, genetic surrogacy and gestational surrogacy. In Genetic surrogacy, the egg of the surrogate is artificially inseminated by the donor’s sperm (the father of the child). On the contrary, in gestational surrogacy, the ovum of a woman is fertilized by the sperm of a male in vitro and is implanted in the uterus of another woman whose uterus is ready to bear the fetus up to birth. The ovum donor may not have uterus or it has been removed because of some disease.

Similarly, when a woman is incapable of producing ova as a result of disease, injury or normal aging, a donor ovum may be fertilized in vitro and implanted in her uterus and she then gestates the baby to term. Thus, this technique opens the way for post-menopausal women or many women once considered hopelessly barren to become pregnant and give birth to a child even though they have no genetic link to the child .³ From another standpoint, surrogacy can be either commercial or altruistic. In the former case, the surrogate is paid for donating the egg, gestating the fetus or both. In altruistic surrogacy, the surrogate is unpaid and so it is regarded as a gift.⁴

Surrogacy: Islamic Bioethics Perspectives

Hiring a ‘womb’ for procreation is a very recent phenomenon that contemporary jurists have to handle. Islamic bioethics cannot be positive towards this practice because surrogacy is a clear form of using a foreign element that is donor sperm in the womb of a woman. Mufti Sheikh Ahmad Kutty, an Islamic scholar opines that since it involves entrance of male sperms [no sperm is involved it is a zygote that is implanted] to the uterus of a woman to whom he is not married, it definitely falls under the specific category of transgressing the bounds of Allah.⁵

In view of the term ‘transgressing the bounds of Allah’ he mentions the following verse of the Qur’ān [surrogacy is not zina]

وَالَّذِينَ هُمْ لِفُرُوجِهِمْ حَافِظُونَ (5) إِلَّا عَلَى أَزْوَاجِهِمْ أوْ مَا مَلَكَتْ أَيْمَانُهُمْ فَإِنَّهُمْ غَيْرُ مَلُومِينَ (6) فَمَنِ ابْتَغَى وَرَاءَ ذَلِكَ فَأُولَئِكَ هُمُ الْعَادُونَ (7) المؤمنون

“and who are mindful of their chastity, [not giving way to their desires] with any but their spouses - that is, those whom they rightfully possess [through wedlock]: for then, behold, they are free of all blame, whereas such as seek to go beyond that [limit] are truly transgressors”.⁶

Again, a very basic purpose of Sharī‘ah (maqasid al- sharī‘ah) is to protect lineage (hifz al-nasl) or progeny.

Consider a case of gestational surrogacy. If she is married, the resultant child would legally be that of her husband although the sperm was donated by another person. The case of genetic surrogacy is more critical and troublesome because here the woman is not only carrying the fetus but also donating her egg. So here she is the actual mother of the child but unfortunately not given the status of one mother. In fact, surrogacy creates a dilemma regarding the identity of the offspring. In a word, the status of any baby born under the surrogacy contract would be illegitimate because here the contracting man has not entered in to matrimonial contract with the surrogate. “Even if a husband gave written consent that his wife could act as a surrogate, there is a religious problem that would prohibit this. Islam prohibits the semen of one man to touch a fetus that is a product of another man’s semen. Will we issue a law prohibiting husbands from exercising their legal right [to sexual relations] with their wives when they are pregnant with another man’s baby? And were such a law passed; will we put these husbands under 24-hour surveillance to make sure they do not have sexual contact with their wives —which are their right, in accordance with their marriage contracts? Or shall we create a special prison for such men, who rent out the wombs of their wives” ?⁷ To quote Serour, “The basic concept of Islam is to avoid mixing genes, as Islam enjoins the purity of genes and heredity. It deems that each child should relate to a known father and mother. Since marriage is a contract between the wife and the husband during the span of their marriage, no third party intrudes into the marital functions of sex and procreation. A third party is not acceptable, whether providing an egg, a sperm, or a uterus. Therefore, sperm donation, egg donation, and surrogacy are not allowed in Islam”.⁸

Basically surrogacy is entitled with the struggle between two mothers. Who is the real mother here, the egg provider or the womb provider? That is, whose claim is stronger over the child here? [this is not an issue one is a biological mother and the other is a foster mother]

It is a noteworthy point that the Qur’ān declares the womb as ‘rāhim’— one of the 99 attributes of Allah (S.W.T), the Almighty. Rāhim means compassionate. The reasoning behind this comparison may be that as Allah is most compassionate to His creature, the mother is also most compassionate to the child [this comparison is irrelevant].

In the Qur’ān it is mentioned,

إِنْ أُمَّهَاتُهُمْ إِلَّا اللَّائِي وَلَدْنَهُمْ (2) المجادلة

“None can be their mothers except those who gave them birth”.⁹

So, a surrogate mother may claim the real motherhood that bears the egg of another lady in her womb. But although the woman is leasing her womb, she does not have any legal marriage bond with the father of the child. So, how could she claim to be the real mother?[a woman who gets pregnant by rape or by zina is a legal mother of the child]  But similarly, how could the ovum donor have full claim over the child because she does not bear the child as mentioned in the Qur’ān?

In such a dilemma, we may try to compare the surrogate mother with a foster mother (in case of gestational surrogacy). In such an instance, the sperm and ovum of a legally married couple is fertilized in vitro in the laboratory and then it is replaced in the womb of a surrogate mother either voluntarily or on a commercial basis. So, here the woman who provided the ovum may be real mother because the child will have genetic link with her and the woman who carries the fetus in her womb and gives birth to it is like the foster mother. But careful and reasonable mind can not accept this analogy. It fails to have acceptance in the preliminary stage because the wet nurse does not have any relationship with the father of child of whose she is a wet nurse [both the wet nurse and the surrogate mother have no relation with the father; a zygote is implanted after external fertilization]. But in a surrogacy contract, either the woman is artificially impregnated with the sperm of the father of the child or the embryo is placed in her womb to carry it up to term and give birth to it.

It is true that Muslims can transfer their child to a wet nurse to be breast fed by her. In that case, just as a woman becomes a mother to a child by virtue of suckling, her daughters become his sisters, her sisters his aunts etc. Therefore, the foster-sisters, foster-aunts and foster-nieces are all muharramat and marriage to them is permanently forbidden.¹⁰ But any attempt to find out similarity between these two acts is not appropriate and justified because the wet nurse feeds the child up to a certain period but does not have any biological relationship with him [surrogate mother also has no biological relation]. On the other hand, a surrogate is carrying a fetus in which there is a clear participation of a donor sperm other than her husband’s. So, it is a very foolish and illogical endeavor to place surrogate mother and wet nurse on a common platform.¹¹

Ethics of Surrogacy: A Comparative Study of Western Secular and Islamic Bioethics

 A comparative study of both approaches that is Islamic and Western secular philosophical perspectives reveals some similarities and dissimilarities. Both the approaches are concerned about the well-being of both mother and child. Both are very concerned about the good of the society. Still Islamic ethics aims at the good of the society in such a way which is not in affinity with Western secular philosophical way. For example, Robertson looks for a very straight forward utilitarian interpretation to justify the practice of surrogacy. He opines that although surrogacy is a deviation from our cultural norms of reproduction, nevertheless it is good for the parties involved. His argument is that if surrogacy arrangement can fulfill the desire of a barren couple, why should we deprive them from taking this opportunity? He argues that it also opens the way for financial gains of some needy women also. In addition, some women enjoy pregnancy and the respect and attention that it draws. It is a blessing for the child also because he/she would not come to the light of the world otherwise except through this special arrangement.¹² The approach of Islamic ethics is very different on this point. Islamic ethics first determines the intrinsic value of the woman’s womb and then justifies the moral worth of renting it on an extrinsic basis. The ‘intrinsic value’ of something is supposed to be the value that the thing concerned has for its own sake or in itself. A thing which is intrinsically good is non-derivatively good. But extrinsic good is something which is not good in it but derivatively good. It is good not for its own sake but for the sake of something else that is good and to which it is related somehow. Islam designates ‘motherhood’ a very special status which it wants to protect any how and does not want to undermine it. It gives the woman’s womb a highly superior and pure status. So, even if any other thing of the world can be rented, the womb cannot. In Arabic, the verb ‘wālada’ means to give birth to. Both parents are ‘wālidan’ or ‘wālidayn’, the form for two persons. Both ‘wālid’ and ‘wālida’ would mean the person who gives birth to a child. The Qur’ān says,

وَوَصَّيْنَا الْإِنْسَانَ بِوَالِدَيْهِ حَمَلَتْهُ أُمُّهُ وَهْنًا عَلَى وَهْنٍ وَفِصَالُهُ فِي عَامَيْنِ أَنِ اشْكُرْ لِي وَلِوَالِدَيْكَ إِلَيَّ الْمَصِيرُ (14) لقمان

“And [God says:] ‘We have enjoined upon man goodness towards his parents: his mother bore him by bearing strain upon strain, and his utter dependence on her lasted two years: [hence, O man,] be grateful towards Me and towards thy parents, [and remember that] with Me is all journeys’ end”.¹³

 A lot of things in the world are available for rent, we can rent a luxurious hotel, we can rent a car of latest model, and even a palace would be hired for good living. But womb of a woman is not a matter of joke according to Islam. It is very precious, very pure, and very honorable compared to any jewel of this world. It possesses its intrinsic value. So, we are obliged to protect its honor and no foreign element that is sperm of a third person except her husband should be allowed to enter in it. Some philosophers are delighted to consider the intrinsic value to be crucial to a great variety of moral judgments. A fundamental form of consequentialism determines the right or wrong of an action exclusively on the basis of whether its consequences are intrinsically better than those of any other action one can perform under the circumstances. Another form of consequentialism holds the view that the moral worth of the action would at least in part to do with the intrinsic value of the consequences of the actions people can choose. The third form links intrinsic value to judgments about moral justice in so far as it is good that justice prevails and injustice is avoided. The fourth formulation supposes that moral judgments of virtue and vice is also a concern for intrinsic value in as much as virtues are good and vices are bad in ways that appear intimately linked to such values. Although while determining the moral worth of any action, Islamic ethics does not ignore the after effect produced by it, it seems that in letting the womb to be rented it is closer to deontology than consequentialism. Definitely, Islamic ethics presupposes the bad effect of surrogacy on the future generation, on the society, on the harmony of family; nevertheless it starts in a deductive way.

The identification of renting a womb with intrinsic badness may not satisfy some philosophers. When we ascribe intrinsic goodness to something, it is natural then that we would face the question: how would you assess the accuracy of it being so? How would you give guarantee that it has intrinsic goodness? In fact, this is an epistemological question with which our discussion on axiology is not concerned. But still we have to face the conceptual philosophical question: what is it for something to have an intrinsic value? We would not be able to prove that surrogacy is intrinsically bad but there is no doubt about its extrinsic badness.

Islamic ethics bears a negative outlook towards surrogacy because of its failure to protect progeny. Even in case of bigamy (a husband married to two wives) in which, an ovum being taken from one wife and fertilized with the husband's sperm, and carried till birth in the womb of the second wife, the pregnancy is carrying an alien seed, which is outside the marriage contract binding the husband and his second wife. Besides, the child will belong to the woman who carried it and gave it birth.¹⁴

Here lies the main difference between the two perspectives, the Western secular philosophical thought and Islamic ethical view point. Western secular philosophers criticize surrogacy on different grounds. They frequently argue that instead of making a better family tie, it threatens it. Even they worry about the family of the surrogate mother also. For example, Krimmel thinks that through surrogacy arrangement, the family of the surrogate would face some haphazard situation also. When the baby is handed over to the adopting parents, it is removed not only from the surrogate mother but also from her family. Don’t the siblings of that baby be interested that their little baby brother has been given away? Instead of having happiness, the couple may engage themselves in quarrel and ultimately the marriage bond may be broken. It may happen that the adopting mother has no biological link to the baby but the adopting father has. May not the father say to his wife, “ Well, he is my son, not yours”?; in any case, if the marriage ultimately turns out to be invalid, then should custody in a subsequent divorce between the adopting mother and the biological father be treated simply as a normal child custody dispute?¹⁵ But Islamic ethics looks at the issue very differently. To quote Mohammad Hashim Kamali, “The laws of Sharī‘ah are for the most part distinguishable in regards to their objectives (maqāsid) and the means which procure or obstruct those objectives. If the means violates the basic purpose of the Sharī‘ah, then it must be blocked. The means are generally viewed in light of the ends they are expected to obtain and it is logically the latter which prevail over the former in that the means follow their ends, not vice versa”.¹⁶

            According to Islamic ethics, if the means violates the basic purpose of the Sharī‘ah, then it must be blocked. Surrogacy arrangement gives rise to illegitimate babies in society which are the very means to enslave the human spirit. This kind of devilish deception is very unwanted in Islam [not academic language]. There is no place for surrogate motherhood within the Islamic system, for the evils that would accrue from it will far outweigh any good. Surrogacy encourages unmarried women to “lease” their wombs for monetary benefits. This would in effect undermine the institution of marriage and family life.

Krimmel compares surrogate motherhood with second marriage. He says that it has some affinity with second marriage where the children of one party by a prior marriage are adopted by the new spouse. As asymmetry in second marriage situations causes chaos in a family, surrogacy is also no exception.¹⁵ Analysis of the above argument in relation to Islamic ethics view points reveals dissimilarities between them. Both condemn surrogacy, but the arguments are different here. Islamic ethics never disallows second marriage because it does not create any problem in the lineage of the offspring. But it vehemently prohibits surrogacy because it fails to preserve the principle of progeny. The Council of the Islamic Fiqh Academy holding its third session, in Amman, Hashemite Kingdom of Jordan, From 8 to 13 Safar 1407 H (11 to 16 October 1986), declared that surrogacy (the fertilization taking place in-vitro between the sperm and the eggs taken from the spouses, and then the fertilized ovum being implanted into the womb of a volunteer woman) is Islamically forbidden and absolutely prohibited due to the consequences manifested in employing them of the lineage being confused and loss of motherhood.¹⁷

Because of its commercial color, some would like to call surrogate motherhood commercial motherhood (CM) or ‘baby contracts’ because it commercializes reproduction and turns human beings, that is mother and child into objects for sale.¹⁸ On the basis of the Kantian second formulation of ‘categorical imperative’, selling people is wrong because it treats them as means not an end, as objects rather than persons. Selling of babies has an analogy with slavery. For this reason, some would identify surrogate motherhood as a danger to the child. In surrogacy, deliberately only one of the parents will assume responsibility for the child. Though it is very natural to the parents but not to the child. Furthermore, that arrangement may not satisfy the psychological demand of the baby. Again, couples having a child through surrogacy may be more reluctant than traditional parents to accept babies with defects. The psychological danger to the child will be that he will not be ready to learn that he was the product of a surrogacy arrangement. There are some evidences regarding this matter .⁴

In fact, instead of hoping that a baby be a means to achieve some other goal, the procreator should desire it for its own sake. Therefore, if surrogacy arrangements are approved by society, there is a great danger that we will come to view children as commodities. Surrogate motherhood arrangements are designed to separate in the mind of the procreator (the surrogate mother) the decision to create a child from the decision to have and raise the child. In a word, the baby is conceived not because he is wanted by his biological mother, but because he would be useful to some one else or the carrying mother will have some money from the client. He is carried in the womb of the mother in order to be given away. Instead of viewing them as unique individual personalities to be desired for their own right, we may view them as items of manufacture to be desired because of their utility. The business of an agency that matches surrogate mothers with infertile couple is described by a newspaper in this way: “Its first product is due for delivery today. Twelve others are on the way and an additional 20 have been ordered. The “company” is Surrogate Mothering Ltd and the “products” are “babies.” There are various situations in which surrogacy contract may take place, such as a single woman may use AID or a single man may use this arrangement. In both cases, they would want a child but not willing to be burden with a spouse. This practice intentionally deprives the child of a mother or a father and fundamentally unfair to the baby.¹⁵

The involvement of means and end is very common in every walk of life. For example, I want to go to Canada through the aircraft Air Canada. Whenever I reach Canada, I am at the end which is the destination of Canada through the means of the specific aircraft. My end is the destination. But the dialectic of ‘ends and means’ occupies a different and significant position in moral philosophy. Means is the way or activity employed by some to achieve a certain outcome. This outcome is the end. There are some tensions between ends and means. Means stands for the conditions applied to have a goal; end is to what the means aims at. It is something ‘ought to be.’ The tension between them, to use German philosopher Hegel’s idea, ‘passes over into the dialectic of life and cognition.’ In moral philosophy, the concern is whether this end justifies the means or not. If it has the strength to justify the end, the moral worth of the action is unquestionable. But if the end is unable to justify the means, then it is morally wrong to pursue the act. In surrogacy, the child is definitely used as a commodity for the higher aim of the satisfaction of the desire of the parents. After the birth of the child, he or she will have to face the question ‘who am I, whether I am in dark about my root?’ It may in turn cause psychological danger to him or she and also other difficulties associated with it. Here, the intending parents are using two persons as means to achieve a selfish end, the womb of the surrogate and the coming child.

But the supporters of commercial surrogacy would refute the objection that surrogacy involves baby selling because it is impossible to sell to one what is already his own and the child is already the father’s natural property. The payment to the surrogate is not for the child but for her services in carrying it to term.¹⁹ Purdy opines that women are selling their services, not babies because we never consider babies as property. Therefore, as we cannot sell what we do not own, we cannot sell babies. The comparison of surrogacy to slavery is also weak. Any decent moral theory would view slavery as wrong because the institution allows people to be treated badly. Their desires and interests, whose satisfaction is considered to be essential for a good life, are held in contempt. Specifically, egregious is the callous disregard of emotional ties to family and self-determination generally. But surrogacy deprives babies of neither.²⁰ But Islamic ethics lies 180 degrees from Purdy’s. Rather, it has affinity to Kantian ethics. According to Kantian ethics, a rational act must set before itself not only a principle, but also an end. A person is not merely a means to some other ends rather, always an end in his or her self. A person has perfect duty not to use itself or others merely as a means but always as an end. In Islamic Law, the validity of a sale contract is determined on the basis of whether such transactions are allowed in Islam. The Prophet (p.b.u.h) approved and confirmed different types of transactions which did not conflict with the principles of the Sharī‘ah and disapproved and prohibited those business practices which were against the purposes and aims of the Sharī‘ah.¹⁰ For example, buying or selling wine is surely harām in Islamic law. Similarly, since in Islamic ethics, surrogacy fails to protect lineage this type of transaction is not valid. Moreover, in Islamic ethics, surrogacy amounts to dehumanizing the process of assisted reproductive technology by reducing womb to the level of a commodity that can be rented for service. It is a clear sign of violating the dignity and honor that Allah Almighty has bestowed on human beings. Here, the womb is used as a means to achieve an end. It seems Islamic ethics is wider in evaluating the morality of surrogacy than that of Western secular ethics. It not only sees the interest of the child whether he or she is used as a commodity but also protects the dignity and honor of women’s womb.

Still some Western secular bioethicists argue on the line of Islamic ethics. For example, Anderson’s argument is consistent with the spirit of Islamic ethics. He argues that the surrogate industry makes way for adoptive couples to specify the height, I.Q., race and other attributes of the surrogate mother, in the expectation that these traits will be passed on to the child. Degradation occurs when something is treated in accordance with a lower mode of valuation than is appropriate to it. Since children are valued as mere use-objects by the mother and the surrogate agency when they are sold to others, and by the adoptive parents when they seek to conform the child’s genetic makeup to their own wishes, commercial surrogacy degrades the status of children as commodity.²¹

Human nature is such that when one pays money, one expects value. It is very disappointing for the parents when they learn that the child is born with some genetic or congenital birth defect. The surrogate mother might blame the biological father for providing defective sperms and similarly, the adopting parents might accuse the surrogate for a defective ovum or for improper care of the fetus during pregnancy. So, the consequence is that, neither the adopting parents nor the surrogate would like to keep the child. Like bruished fruit in the produce bin of a supermarket, this child would become a reject.¹⁵ Is it not like treating the child as commodity? This criticism of Krimmel is also the criticism of Islamic ethics.

Early feminist movement felt that there were many dual standards of law in favor of men and endeavored to get rid of it to emancipate and elevate women. In fact many of these double standards were based on Christianity. After a hard struggle, they succeeded to achieve the right to own property, vote, divorce etc. Eventually, the feminist movement started to oppose any social roles based on gender. They realized that complete equality lies in making women the same as men. There should be no differentiation of gender roles in society and there should be a move towards a unisex society to achieve equal rights for women. ‘Unisex society’ stands for a society in which an absolute and unqualified equality of men and women will exist not withstanding gender differences. They opine that just like men, women should be active and not passive in sexual intercourse. These feminists are very surprised to see the difference of work on the basis of gender differences. They ask why the husband would do the superior work such as earnings, career making and other external work. Is not he an authoritarian in becoming the head of the family? The feminists consider the work of men as more honorable. Why must the women bear the burden of carrying and rearing the child? She would have spent more time in building up her career if she would be relieved from the obligation of giving birth to a child and ultimately rearing it. She can refer this task of bearing a child to a surrogate mother for her comfort. In fact, all women must have the right to have complete control over their reproductive lives.

Islamic bioethics cannot concur with the feminists’ views. It vigorously condemns the line of feminism as an unnatural and abnormal mode of philosophical thought. Islamic ethics considers the different roles of men and women as equally necessary and praiseworthy. Men and women can never be equal because they are biologically and emotionally different. While feminist philosophers want to strip women of their feminine natures to achieve equality with men, Islam treats this as a way for restraining and confining women by forcing them to fit a very unnatural mold. For Islam, the question of equality of man and woman is very misleading, meaningless and vague. So, the discussion of equality of them is irrelevant. Rather, each performs certain duties and responsibilities according to his/her nature and constitution. Certainly, it does not unequivocally violate the equity between them. The Qur’ān itself does not differentiate a man from a woman in relation to Allah (S.W.T):

إِنَّ الْمُسْلِمِينَ وَالْمُسْلِمَاتِ وَالْمُؤْمِنِينَ وَالْمُؤْمِنَاتِ وَالْقَانِتِينَ وَالْقَانِتَاتِ وَالصَّادِقِينَ وَالصَّادِقَاتِ وَالصَّابِرِينَ وَالصَّابِرَاتِ وَالْخَاشِعِينَ وَالْخَاشِعَاتِ وَالْمُتَصَدِّقِينَ وَالْمُتَصَدِّقَاتِ وَالصَّائِمِينَ وَالصَّائِمَاتِ وَالْحَافِظِينَ فُرُوجَهُمْ وَالْحَافِظَاتِ وَالذَّاكِرِينَ اللَّهَ كَثِيرًا وَالذَّاكِرَاتِ أَعَدَّ اللَّهُ لَهُمْ مَغْفِرَةً وَأَجْرًا عَظِيمًا (35) الأحزاب

“Verily, for all men and women who have sur­rendered themselves unto God, and all believing men and believing women, and all truly devout men and truly devout women, and all men and women who are true to their word, and all men and women who are patient in adversity, and all men and women who humble themselves [before God], and all men and women who give in charity, and all self-denying men and self-denying women, and all men and women who are mindful of their chastity, and all men and women who remember God unceasingly: for [all of] them has God readied forgiveness of sins and a mighty reward”. ²² Allah (S.W.T) again says,

مَنْ عَمِلَ صَالِحًا مِنْ ذَكَرٍ أَوْ أُنْثَى وَهُوَ مُؤْمِنٌ فَلَنُحْيِيَنَّهُ حَيَاةً طَيِّبَةً وَلَنَجْزِيَنَّهُمْ أَجْرَهُمْ بِأَحْسَنِ مَا كَانُوا يَعْمَلُونَ (97) النحل

“As for anyone - be it man or woman - who does righteous deeds, and is a believer withal - him shall We most certainly cause to live a good life and most certainly shall We grant unto such as these their reward in accordance with the best that they ever did”.²³

Feminist philosophers pose the ethical issues of surrogacy from a different angle. In fact, feminism itself has got different dimension of thoughts. For example, radical feminism, Marxist feminism, liberal feminism all has definite views regarding surrogacy.

Liberal feminists argue that women and men are basically the same, so women should have the right to do whatever they want. Nobody has any right to interfere with their acts. They can do anything with their bodies because the bodies are their properties. If a woman wishes to be a surrogate mother, nobody can resist her and if a woman wants to hire a surrogate to carry her child, nobody has any right to prevent her from doing it. The liberal feminists believe that, in this way, women can enjoy equal right to men. They view surrogacy as a manifestation of women’s liberation. Christine Sistare opines that surrogacy is not bad and banning it would violate the rights of all women to be depositors of their own reproductive capacities. She argues that the right to have control over one’s own body justifies a woman’s right to profit from letting others hire her body to produce children. Referring to all the paid surrogates who gave up their children and did not renege on their contracts, she asked, “Are all such women monsters” ? ⁴

The feminists further argue that the right to enter surrogacy arrangements is a part or natural extension of the right to personal autonomy. To invalidate such contracts would be to violate women’s right to self-determination and reinforce the negative stereotype of women as incapable of full rational agency. Hugh McLachlan opines that to make commercial surrogacy illegal would be to prohibit mothers from making other particular interpretations of their pregnancies which they might want to make. Lori Andrews argues that one of the hallmarks of feminism is the idea that biology is not the destiny.²⁴ Although a woman has the right to bodily integrity and as such to abortion, as a surrogate she would have no right to determine the destiny of the fetus. Through entering the contract, she has given the fetus the right to inhabit her body, which she cannot withdraw, without the permission of the couple.

Today, feminists struggle against subordination to the male within the home. They argue that household work minimizes the status of women. They want to fight for a society where a woman can freely choose whether to reproduce or not, whether to become a typical housewife or not. Islamic ethics rejects all types of male-female polarity and male-female stereotypes. It says that if feminism achieves their goal to be like men, it will force them to alter their true nature. The most important difference between man and woman is that man is physically stronger than the woman. Men have a much larger muscle mass than women. Man and woman differ in their hormonal chemistry which not only affect personality traits but also capable to alter the emotions and cognitive functions of the brain. Overall, the differences between man and woman are remarkable and attempt to deny these will have dangerous effects on women.

Men and women are identical in value as human beings. But equality does not signify sameness as both the sexes has different physical and emotional traits. Allah (S.W.T) declares the sameness of both the genders in this way,

يَا أَيُّهَا النَّاسُ اتَّقُوا رَبَّكُمُ الَّذِي خَلَقَكُمْ مِنْ نَفْسٍ وَاحِدَةٍ وَخَلَقَ مِنْهَا زَوْجَهَا وَبَثَّ مِنْهُمَا رِجَالًا كَثِيرًا وَنِسَاءً وَاتَّقُوا اللَّهَ الَّذِي تَسَاءَلُونَ بِهِ وَالْأَرْحَامَ إِنَّ اللَّهَ كَانَ عَلَيْكُمْ رَقِيبًا (1) النساء

“O Mankind! Be conscious of your Sustainer, who has created you out of one living entity, and out of it created its mate, and out of the two spread abroad a multitude of men and women. And remain conscious of God, in whose name you demand [your rights] from one another, and of these ties of kinship. Verily, God is ever watchful over you!”. ²⁵

If the question of discrimination comes, it is in relation to the specific function or role performed by them. The obligations, rights and responsibilities of women are not different from those of men. But they are not exclusively identical with them. Islam makes a distinction between ‘equality’ and ‘identity.’ Although division of work exists between men and women it does not go against their equal status. They are complementary to each other in a multi-functional organization rather than competitive with each other in a uni-functional organization.

Therefore, both Western secular and Islamic bioethical approaches endeavor to respect and to protect the right of women. But the way is different. Their goal is one, but the approaches are different. Islamic ethics delineates the picture of women’s ideal liberation from quite a different way compared to Western secular philosophical perspectives. Islamic ethics rigidly asserts the equality of the two genders, but it profoundly steers mankind away from recognizing that men and women are the same. The striking and most remarkable difference between the two approaches is that Islamic ethics respects the differences between men and women, therefore, treating each individually. Thus, due to the obvious differences between men and women, Islam exhorts the man to be the protector of the women. Allah (S.W.T) says in the Holy Qur’ān,

الرِّجَالُ قَوَّامُونَ عَلَى النِّسَاءِ بِمَا فَضَّلَ اللَّهُ بَعْضَهُمْ عَلَى بَعْضٍ وَبِمَا أَنْفَقُوا مِنْ أَمْوَالِهِمْ (34) النساء

“Men shall take full care of women with the bounties which God has bestowed more abundantly on the former than on the latter, and with what they may spend out of their possessions”.²⁶  [the whole of this paragraph has nothing to do with the article – very irrelevant].

Pregnancy is very much preferred in Islam. It does not consider pregnancy as a burden but as a blessing [it is both a burden and a blessing]. If a mother dies during pregnancy or childbirth she is given the status of shāhidah (‘martyr’). A Muslim woman is not encouraged to delay pregnancy for a better career [There is no shariah basis for this and it does not relate to the topic]. A feminist philosopher may agree to hire a woman and pay her to bear a child because the lady is very busy with her career and does not have enough time to bear the child in her womb for so long a time. Shulamith Firestone labeled pregnancy as ‘barbaric’ and she looked forward to the time when technology would free women from the oppression of biological reproduction. According to her, nature oppresses women by leaving them holding the reproductive bag, while men are free of this burden. She further holds the view that so long as this biological inequality holds, women will never be liberated.²⁰ So, if a woman can arrange a surrogate to bear her child in her womb, then why should she not welcome it? [This argument is irrelevant because the surrogate mother is also a woman]. The view of Shulamith Firestone is enough to distinguish the approach of Islamic ethics and Western secular bioethics regarding surrogacy. [this conclusion is untenable feminism is not a basis for the difference between Islam and the secular west regarding surrogacy]

According to Marxist Feminism, capitalist society uses women as commodity. A woman acts as a surrogate just because she has to support herself with the money she receives from the contracting party. So, a surrogate is selling her body to have money. She is nothing but an incubator or a baby-making machine.

Respect and consideration are distinct modes of valuation whose norms are violated by the practices of surrogacy. The application of economic norms to the realm of women’s labor violates women’s claims to respect and consideration in different ways. For instance, by requiring the surrogate mother to repress whatever parental love she feels for the baby, these norms convert women’s labor into a form of alienated labor. Again, by manipulating and negating legitimacy to the surrogate mother’s evolving perspective on her own pregnancy, the norms of the market degrade her honor. In addition, by taking advantage of the surrogate mother’s non-commercial motivations without offering anything but what the norms of commerce demand in turn, these norms leave her open to exploitation. The fact that these difficulties arise in the attempt to commercialize the labor of bearing children implies that women’s labor is not properly considered as a commodity. Respecting a person means to treat her in accordance with principles she rationally accepts, that is principles consistent with her protection of her autonomy and her rational interests. To treat a person with consideration is to respond with sensitivity to her and to her emotional relations with others. How to do it? This can be done by refraining from manipulating or denigrating these for one’s own interest. The failure of consideration on the part of contracting parties to the surrogacy contract implies that the contract is not simply disrespectful of the surrogate mother, but callous as well.²¹ Islamic ethics cannot but support this line of criticism of surrogacy.

Surrogacy arrangement is attacked by some feminists on the ground that it actually satisfies a male impulse and women are not free to choose it. Some feminists argue that men are like patriarchs who abuse women slaves to produce heirs. As most men prefer to have a genetic child in any way, they ignore the freedom of the wife to make a rational decision and hire a surrogate to bear the fetus of them. Barbara Katz Rothman is one of them. Barbara Katz Rothman thinks that American family law has its root in patriarchy and in men’s view of family relationships. She thinks that our contemporary societal thinking about procreation still reflects the historical origin of our society as a patriarchal system. Although the genetic parenthood of women is now recognized as equivalent to the genetic parenthood of men, the noble contribution of gestation as constitutive of motherhood still goes unrecognized. Men not only control their offspring but also the mother of the offspring. Women’s motherhood is under the control of the husband to maintain patriarchy. The newly available reproductive technology allows a woman to carry to term a fetus not conceived of her ovum. For example, modern assisted reproductive technique can Susan’s egg and put it in the womb of Mary. But who would get the status of mother here? Is Mary substituting for Susan’s body, growing Susan’s child for Susan? Or is Susan’s egg substituting for Mary’s growing in to Mary’s child in Mary’s body? The way American society has been answering that question depends on which woman is married to the child’s father. In US.A birth certificates list as the mother the ovum donor and the name of the surrogate who carried the baby is absent there. Similarly, there exist birth certificates that list as the mother the woman who carried the baby and not the name of the woman who donated egg. Legal motherhood is determined by the relationship of the woman to the father. It is in this context in which genetic parenthood is acknowledged and pregnancy ignored and finally the practice of commercial surrogacy developed. He concludes, “What is needed is to move beyond the principles of patriarchy and beyond its modifications, to an explicit recognition of mother-hood. Women are not, and must not be thought of as, incubators, bearing the children of others-not the children of men, and not the children of other women. Every woman is the mother of the child she bears, regardless of the source of the sperm, and regardless of the source of the egg. The law must come to such an explicit recognition of the maternity relationship”.²⁷

Some feminists believe that a surrogate mother enjoys no personal choice to act as a surrogate, she does it under some social pressure. She is the handmaiden of others and she is typically brainwashed into becoming a contractual mother. This objection is very silly, because this can happen in every decision of human life.

Radical feminists are in agreement with the ideas of Marxist feminist. But in addition, they argue that women are not only being forced to sell their reproductive capacity for financial gain. Women become surrogate mothers because they want to fit the idea of what a woman is supposed to be. Social norms demand that women will think of others before thinking about themselves. A good woman is looked upon as loving, giving and self-sacrificing. But real calculation reveals that in fact a good woman benefits man, not woman. In order to satisfy the desire of others, a surrogate mother hurts herself. Society also approves of her. Radical feminists feel that a woman should not hurt herself to satisfy the society.² So, radical feminists ultimately denounce surrogacy because it fails to protect the honor of women. Islamic ethics also protects the dignity and honor of women but in another way.

Islamic ethics strictly advises to formulate family on the basis of biological ties not otherwise. Islam condemns surrogacy because the child will be deprived of information about his lineage [not true the child can know the biological parents]. It paves the way for half-sibling marriage which is a dangerous consequence for a society [not necessarily]. But on the contrary, a Western secular bioethicist argues that family ties have never been only biological: a husband and a wife, to take the most obvious example, are not biological relatives. It is also argued that if ‘the family’ is a good thing, then developing more kids of ways –including non-biological ways to form a family should also be seen as a good endeavor.⁴

Paid surrogacy sometimes becomes a means of exploitation. Sometimes, poor women lease their wombs to carry the fetus for some money. Evidence shows that sometimes they are given a very small amount of money for their service; sometimes they are given no money at all. This point of rejection of surrogacy is vehemently rejected by the philosophers. Michael Kinsley argues that if women are forbidden to enter into surrogacy contracts, why not ban other kinds of services that women contract to perform? He questions: if we do not want to go beyond traditional mothers, why not we forbid women to work as maids or nannies, even why not forbid them to work at all? He also argues that if the product in question was food or telephones rather than kids, a shortage would be seen as a failure of the system. For instance, when the Soviet Union forbade market contracts, shortages occurred, similarly if the U.S.A banned procreative contracts, shortages would occur.⁴ Besides, there is at least some evidence that the opportunity to be paid for one’s services in bearing child has not been exploitative of poor women. Statistics show that “average surrogate mother is white, attended two years of college, married young, and has all the children she and her husband want”.²⁸ Furthermore, some women enjoy this service with an altruistic vision. If we really want to protect those women who consider child bearing for somebody else as degrading but are compelled to do so because of economic necessity, then we have another way. We can put restrictions on who can enter into contracted child-bearing arrangements, but need not prohibit the practice entirely. Some may object that such restrictions would be unjust because they would prohibit poor women from doing something that other women were permitted to do. But that would imply that the restrictions would be denying the poor women a good, rather than protecting them from a harm which in turn means that the initial assumptions about exploitation itself was misguided.²⁸ Islamic ethics cannot support this type of reasoning to validate surrogacy because it fails to fulfill the 5 purposes of Sharī‘ah.

It is argued in Western secular bioethics that surrogate motherhood is not bad but bad is its commercialization, not because the children have intrinsic moral value or worth and that such things should never be bought, sold or owned or that the consequences for children will be bad. Is it good for children to flourish in a culture where making children is governed by the same rules that govern the making of automobiles or VCRs? The principal flaw in market analyses of the sphere of the family are a faulty set of presuppositions coupled to a dry, shrunken [not appropriate] conception of family flourishing. The presuppositions are the notion that people are best understood as rational, isolated individuals in selfish pursuit of their own satisfaction, with the values of choice and control preeminent. Each of these pieces of human life has some drawbacks. The focus on rationality underestimates the importance of the emotional in human life. The emphasis on the isolated individual discounts the great importance of relationships for people’s flourishing. Besides the celebration of control and choice plays a very limited role in family life. Rather a disproportionate emphasis on either even destroys the institution of the family. Thus, surrogacy is unethical for the practice of paying men for providing their sperm and paying women for providing their ova.²⁹ We observe a deontological type of explanation regarding the rejection of surrogate motherhood. This line of thought has no conflict with Islamic ethics.

Therefore, surrogacy is morally justified if it is not performed on a commercial basis. But even then, questions will arise: who will agree to act as surrogate with an altruistic aim? In that case, the practice would be very limited where a few women will help their own sisters or daughters etc. Even non-commercial surrogacy is not totally free from dangers and it should be carefully regulated. Because there is sufficient evidence from the Baby M case and that of other surrogate mothers who are seeking to get their baby back. The recommendation of the Ethics Committee of the American Fertility Society is that surrogacy should be practiced exclusively as a clinical experiment and also that clinics involved in this practice publish data about the process and outcomes. It is good in order to provide a scientific basis on which they can be evaluated for the purpose of fashioning public policy. But even though there is nothing intrinsically wrong with surrogacy, if it becomes evident that surrogacy arrangement result in more overall harm than benefits, then we should conclude that surrogacy transactions are ethically flawed and should be prohibited.³⁰ So, we find a utilitarian explanation of rejection of surrogacy. Actually, statistical data will never be able to express its beneficence or harm on society. The intrinsic nature of surrogacy itself reminds us that it bears no good to the society. It is an internal struggle between two women regarding their beloved child. This practice will neither satisfy the mind of the adoptive mother. ‘Adoptive mother’ –this term has some flaws, when a woman is hiring the womb of another woman only for a fixed period, then why is she the adoptive mother? She is neither the real mother nor the adoptive mother. In fact, motherhood is a very sensitive, definitive and significant relationship from time immemorial. Its nature must be absolute and should not be given any scope to be shared. The love of motherhood cannot be shared. Islamic ethics also does not permit surrogacy admitting these facts.

Conclusion

There is no fixed and uniform view regarding surrogacy in Western philosophical system because of different philosophical outlook and the relativity of morality. It seems that this practice is going on and people are desperately using it in the Western societies. In the U.S.A there is no law to ban surrogacy, so people are very apt to choose it on a commercial basis. Possibly, a very few people will act as surrogates voluntarily. Even if they do it intentionally, nevertheless, they are homo sapiens. Motherhood is such a thing which cannot be felt by others except the mother who carries the child up to term. We have heard about hiring a car, hiring a bus, hiring a house and so on. But human civilization recently also heard about hiring a womb [surrogancy is not synonymous with renting it often happens without it]. All on a sudden, it hears nice, but after some reflection, it will take us towards a lot of dilemmas because it is concerned with the body of a female and will lead us towards the idea of motherhood. Ultimately, surrogacy is a flaw from both consequential and deontological point of view. When a barren couple become crazy [not academic language] to have kids they forget about any moral principles, whether it is right or wrong. But it is one thing to have a child and another to become happy with the child. They should think about the long term consequence of the act, not only its short term consequence. It may roughly satisfy some demands of consequentialism in the sense that it opens the way to parenthood for crazy [inappropriate language] and desperate infertile couple. But, in helping to fulfill their demand, it ultimately causes harm to the child, to the society as a whole and breaks down the basic family structure. Family is the smallest unit of society.

Therefore, if in order to build up a family with children, it threatens the basic make up of family, it is not good either for the neither family members nor society as a whole. We should also consider the inner dimension of morality of the act itself that is whether it is alright to carry out. As we have analyzed thoroughly, the different ethical points regarding the validity of surrogacy arrangement, it seems that its benefit is lesser than its harm both for the child and the parents. Although it is not possible to count it in a calculator, nevertheless, it seems that surrogacy itself is a bad practice and when it is associated with money, then it makes the concept of motherhood loose. All things cannot be argued, it is a matter of realization. Bioethicists can only argue regarding the validity of this practice. But the fact is that in the Western world, there is no law to prohibit it, so this practice is going on very frequently and it seems that it is very natural in the Western world. Personal freedom is at the root of this practice.

The discussion of ethics of surrogacy in comparative perspective makes one point clear that although in Western secular bioethics there are arguments and counter arguments in judging the moral worth of this ART, Islamic bioethics denounces the practice to follow the five purposes of the Sharī‘ah.

We should conclude that the debate regarding surrogacy will last for the days coming and it will not stop as we are free to cultivate our own reason to judge the morality of surrogate motherhood. But the overall analysis shows that benefits are les than its harm. It is bad both from the deontological and consequential point of view. If it would have been good from consequential point of view, then we should re-evaluate its deontological position and try to justify its relevance to the society. But we see it can neither satisfy the deontologist, nor the consequentialist nor the feminist, nor the society. So why should we support it?

References

1. Schwartz L,

Preece PL

, Hendry RA. Medical Ethics: A Case-Based Approach. Edinburgh: Saunders: 2002.

2. Anonymous (a) Reproductive Technologies. In: SG. Post (ed). Bioethics for Students: How Do We Know What’s Right?: Issues in Medicine, Animal Rights and the Environment. Vol 1. New York: Macmillan Reference:1999;177-99.

3. Munson R. Reproductive Control: In Vitro Fertilization, Artificial Insemination and Surrogate Pregnancy. In: R. Munson,(ed). Intervention and Reflection: Basic Issues in Medical Ethics. 5^th Ed. Stamford: Wadsworth: 1996;489-551.

4. Pence GE. Classic Cases in Medical Ethics. 2^nd Ed. NY: Mc Graw-Hill;1995.

5. Anonymous (b) Does Islam Allow ‘Surrogate Motherhood’? [Online]. [Accessed 15^th June 2005]. Available from World Wide Web: http://www.islmonline.net/fatwa/English/FatwaDisplay.asp?hFatwaID=98806.

6. Glorious Qur’ān, Chapter 23,Vesre 5-7.

7. Anonymous (c) Al-Ahram Weekly On-line, 17-23 May 2001, Issue No. 534 [Online]. [Accessed 15^th June 2005]. Available from World Wide Web: http://weekly.ahram.org.eg/2001/534/feat1.htm.

 8. Serour GI. Reproductive Choice: A Muslim Perspective [Online]. [Accessed 15^th June 2005]. Available from World Wide Web: http://www.hsph.harvard.edu/organizations/grhf/SAsia/suchana/1130/rh393.html.

 9. Glorious Qur’ān, Chapter 58, Verse 2.

 10. El-Helbawy K, Siddiqui MM, Shukry S. The Lawful and The Prohibited in Islam (Translation of the book Al-Halāl wal Harām fil Islām, written by Al Qaradawi,Y). Kuala Lumpur: Islamic Book Trust; 2001.

 11. Anonymous (d) Surrogate Parenting [Online]. [Accessed 10^th December 2005]. Available from World Wide Web: http://www.themodernreligion.com/misc/hh/surrogate-parenting.html.

12. Robertson JA. Surrogate Mothers: Not So Novel After All. Hastings Center Report. 1983;13(5) :28-34.

13. Glorious Qur’ān, Chapter 31,Verse 14.

14. Anonymous (e) Surrogacy [Online]. [Accessed 14^th June 2005]. Available from World Wide Web: http://www.islamset.com/ bioethics/obstet/surrog.html.

15. Krimmel HT. The Case against Surrogate Parenting. Hastings Center Report. 1983; 13(5) :35-39.

 16. Kamali MH. Principles of Islamic Jurisprudence. Selangor Darul Ehsan: Pelanduk Publications 1989.

17. Anonymous (f) Qararat wa tawsiyyat Majma’ al-Fiqh al-Islami, p. 34-35[Online]. [Accessed 10^th November 2006]. Available from World Wide Web: http://www.ummah.com/forum/showthread.php?t=55260.

18. Niekerk AV & Zyl LV. The Ethics of Surrogacy: Women’s Reproductive Labour. Journal of Medical Ethics. 1995; 21:345-49.

 19. Ketchum SA. Selling Babies and Selling Bodies. In: B Steinbock, JD Arras A J. London, (ed). Ethical Issues in Modern Medicine. 6^th Ed. NY: McGraw-Hill 2003; 625-30.

20. Purdy LM. Surrogate Mothering: Exploitation or Empowerment? In: T.L Beauchamp and L.R Walters, (ed). Contemporary Issues in Bioethics. 5^th Ed. Belmont: Wadsworth 1999; 666-74.

21. Anderson ES. Is Women’s Labor a Commodity? In: WH Shaw, (ed). Social and Personal Ethics, Belmont: Wadsworth 2002; 286-94.

22. Glorious Qur’ān, Chapter 33, Verse35

23. Glorious Qur’ān, Chapter16,Verse 97.

24. Niekerk AV & Zyl LV. Interpretations, Perspectives and Intentions in Surrogate Motherhood. Journal of Medical Ethics. 2000; 26(5):404-9.

25. Glorious Qur’ān, Chapter 4, Verse1.

26. Glorious Qur’ān, Chapter 4, Verse 34.

27. Rothman BK. Motherhood: Beyond Patriarchy. In: TA Mappes & D Degrazia, Biomedical Ethics. 4^th Ed. NY: Mc Graw-Hill 2001; 557-61.

28. Malm H. Paid Surrogacy: Arguments and Responses. In: WH. Shaw, (ed). Social and Personal Ethics. Belmont: Wadsworth 2002; 279-86.

29. Murray TH. Families, the Marketplace and Values: New Ways of Making Babies. In: TA Mappes, JS Zembaty, (ed). BioMedical Ethics. NY: Mcgraw-Hill 1991;546-53.

30. Macklin R. Is There Anything Wrong with Surrogate Motherhood? An Ethical Analysis. In: WH Shaw, (ed). Social and Personal Ethics. Belmont: Wadsworth 2002; 270-79.