Fatwas

Question: Medical Science has greatly developed in various fields. One of them is ‘Test Tube Baby’ means to have pregnancy through artificial means. Usually there are seven methods of it.  There are even such methods in which mixing and loss of origin (ancestry) and family is required. Besides, other obscenities are also there that can be realized through questions. This practice is spreading rapidly in the Western world and suspiciously entering among the westernized Muslims of the Subcontinent.

Keeping in view the present scenario, you are requested to clear the doubts in the following methods that what methods are lawful and which are not, under the light of Hanafi Jurisprudence.

1) If the sperm (The male reproductive cell; the male gamete) is of other man instead of husband, and it is inseminated with the ovum (The female reproductive cell; the female gamete) of wife, then the development of fetus be done in the womb of wife?

2) If external insemination be done by the husband’s sperm and wife’s ovum, or fetus be developed in the womb of other woman that voluntarily offers her services?

3) If insemination be done externally between two strangers’ sperm and ovum of male and female respectively and the development of the fetus be done in the womb of wife?

4) If insemination be done externally by taking the sperm of husband and the ovum of wife and the development of the fetus be done in the womb of another wife of the husband?

5) If the sperm is of husband the ovum is of wife and external insemination be done, then the development of the fetus be done in the womb of the wife?

6) If sperm of the husband be introduced into vaginal tract or any appropriate part of the womb in such a way that the process of insemination be undergone there itself?

7) If the sperm is of husband and the ovum is of such a woman who is not his wife and after the process of insemination the development of the fetus be done in the womb of the wife of the husband?

From: Mubarak Husain Misbaahi, Editor in Chief Mahnaamah Ashrafia

 Answer: In the Name of Allah the Merciful the Compassionate O Allah, praise belongs to You, and O Messenger of Allah! The peace and blessings be upon you. The answers to the questions are given in a concise manner.

1) If the sperm is of other than husband, its insemination be done with the ovum of wife and the development of the fetus be done in the womb of wife – this method of having pregnancy is, however, unlawful (Haraam). It’s like adultery (zina). The men and women who practice it are committers of major sin and ought to have penalized. There are many reasons of this obscene act being unlawful:

• The above mentioned non-natural method of increasing human generation is opposed to the method stipulated by Islam. Islam has made wife and husband the means of increasing human generation. It is said in the Holy Quran, “Mankind, fear your Lord, who created you of a single soul, and from it created its mate, and from the pair of them scattered abroad many men and women”. The sperm of husband is like a seed and the womb of wife is similar to ground for its installing and developing. Allah the Almighty says, “Your women are tillage (farming field) for you; so come to your tillage as you wish. (Al Baqrah: Verse: 223)

• The explanation of the above mentioned verse according to Hashia As Saavi alal Jalaalain: “Wives have been likened to land, in which seed is sowed and sperm have been equated with seed, which is sowed in the land. And consequently, the offspring that comes into existence by this method have been compared with crop which is produced from the land.

It is unlawful to any man that he shall sow his seed (sperm) into other’s land (womb) and it is also not lawful that he shall irrigate other’s land (fetus) with his water (sperm).

There is a saying of the Messenger of Allah,

"لا یحل لا مر‏‏‏‏ء یومن باللہ والیوم الاخر ان یسقی ماء زرع غیرہ" (Abu Da’ood: Kitabun Nikah)

Putting of our seed (sperm) into other’s land (womb of other’s wife) is seen as adultery and in the above mentioned methods of getting pregnant the same thing is seen; so it is unlawful (Haram).

• The child who is born from other than husband’s sperm, Islam doesn’t declare it lawful (rightful heir). Allah has described family relation and in-law’s relation at the level of gratitude and favour in the course of His bounties. He says,

“و Ú¾Ùˆ الذی خلق من المآء بشرا فجعلہ نسبا Ùˆ صھرا Ùˆ کان ربک قدیرا” 

He is the One Who created the man out of water, then established his relations and in-laws and your Lord is All-Powerful. (Al Furqaan: 54)

There is (heterogeneity) amalgamation of family and in-laws in the above mentioned method of pregnancy which is means of breaking these relations that is unlawful (Haram).

فھل عسیتم ان تولیتم ان تفسدوا فی الارض Ùˆ تقطعوا ارحامکم اولئک الذین لعنھم اللہ فاصمھم Ùˆ اعمی ابصارھم 

If you turned away, would you then haply work corruption in the land, and break your bonds of kin. Those are they whom Allah has cursed, and so made them deaf, and blinded their eyes. (Muhammad, 23, 24)

There is amalgamation of family and in-laws in the above mentioned artificial method of pregnancy which is a means of breaking these relations that is unlawful (Haram).

In the period of ignorance, there was also a method of marriage in which husband used to tell his wife to send a proposal of intercourse to so and so man when she had cleaning from menses. The wife used to have intercourse with that stranger and the husband did not have intercourse with his wife until she gets pregnancy from the intercourse of that stranger. After the disclosure of the pregnancy, the husband used to have intercourse with her if he wishes. The husband used to practice this custom because he wanted to have children from the sperm of a noble family. This type of marriage was called ‘Nikah-e-Istabza’.

It is written in the ‘Chapter of Divorce’ in Sunan Abu Da’ood.

Translation: There were four types of marriages in the period of ignorance, among which one method was same which is practiced today that a man sends proposal to someone’s daughter or sister and marries with her by offering dower. The second method was, in which the husband used to tell his wife to send a proposal of intercourse to so and so man after she had cleaning from menses. The wife used to have intercourse with that stranger and the husband did not have intercourse with his wife until she gets pregnancy from the intercourse with that stranger. After the disclosure of the pregnancy, if the husband wishes, he used to have intercourse with her. This type of marriage was called ‘Nikah-e-Istabza’ (نکاح استبضاع).

The last part of the above mentioned Prophetic saying is as follows:

Translation: When Allah descended Hazrat Muhammad Mustafa sallahu alaihi wa sallam, He turned down all the methods of marriages of the period of ignorance except the Islamic way of marriage.

The earlier mentioned method of pregnancy and Nikah-e-Istabza both are same because in both the methods, children are born by enwombing wife with the sperm of a man other than husband. The only difference between the two methods is that in Nikah-e-Istabza the child is born by the unlawful intercourse between both the parties which is unlawful because of adultery and this act is liable to punish. But in the earlier stated artificial method of pregnancy, child is obtained unlawfully by insemination between the sperm and ovum of both the parties (stranger and wife). In terms of meaning both the methods are same but practically different. So, there is no doubt in being unlawful of them. But the artificial method would attract only penalty for being adultery in terms of meaning but would not get punishment.

2) It is unlawful to inseminate externally the sperm of husband and ovum of wife and develop fetus in the womb of woman other than wife. Here also there is state of joining up family relation. The child relates to mother also and here the child will be heterogeneous by relating mother. As the woman who offered her voluntary services for the development of a stranger’s fetus in her womb (even though this service is unlawful), according to common law she will not be the mother of the child. And this child will belong to that woman for whom she offered those services. She will be called mother and all maternal rights, according to common law, will go to her. But in view of the Islamic law, the only woman will be the mother of the child who nurtured it in her womb, fed it on her blood and gave birth to it after bearing pain upon pain.

The Holy Quran says, 

“ھو اعلم بکم اذا انشاء کم من الارض و اذا انتم اجنۃ فی بطون امھاتکم۔”

Translation: Very well He knows you, when He produced you from the earth, and when you were yet unborn in mothers’ wombs. ( An Najm: 22)

The Holy Quran says,

“یخلقکم فی بطون امھاتکم خلقا من بعد خلق فی ظلمات ثلث”

Translation: He creates you in your mothers’ wombs creation after creation in threefold shadows. (Az Zumr: 6)

It is also written in the Holy Quran,

“واللہ اخرجکم من بطون امھاتکم لا تعلمون شیئا و جعل لکم السمع والابصار والافئدۃ لعلکم تشکرون”

Translation: And it is Allah who brought you forth, knowing nothing, from your mothers’ wombs, and He appointed for you hearing, and sights, and hearts, that haply so you will be thankful.

Subsequently, if the woman (having husband) who develops fetus, the child, legitimately, belongs to her husband and actually the child belongs to husband. Though, the woman of whom ovum the child born, the child also relates her as being a part of her. And the man of whom sperm the child born; the child, in spite of being a part of him, will not be his progeny. However, heterogeneity occurs here, which is unlawful. To protect ancestry from heterogeneity, Islamic law made compulsory for a divorced, mated woman to pass the period of ‘Iddat’ (4 months and 10 days).

By reasoning out the period of ‘Iddat’, Shah Waliullah Muhaddis 

Translation: One of the rationales of ‘Iddat’ is to detect the cleanliness of womb from the sperm of the husband of a divorced woman so that ancestry shall not be altered. On account of ancestry, most of the people try to dominate on others. And it is an objective of intellectuals. This is one of the exceptions of human kind and owing to this; he is prominent among all animals. This is the very expediency taken into consideration in regard of Istabra-e-raham (cleanliness of womb from the sperm). (Hujjatul Balighah: 2/256, Darul Kutub Bayroot)

However, in legalizing the above mentioned method of pregnancy, ancestral heterogeneity, severance of relations, and along with many religious and materialistic disorders, violating of authentic Islamic laws incumbent on fosterage and many issues of inheritance occur.

3) When external insemination is done between the sperm and ovum of two strangers and then the development of this fetus is done in the womb of wife, this act is unlawful and like adultery. This act is physically and lawfully obscene and the violation of these words of Holy Quran, 

“فاتوا حرثکم”. This act also leads to ancestral heterogeneity and lose, ruining of family and generation and consequently brings disorders like severance of relation and violating parental rights etc.

4) If insemination be done by taking the sperm and ovum of husband and wife and the development of fetus be done in the womb of the husband’s another wife, this condition is also unlawful. Here the ancestry of the child gets heterogeneity by relating mother. As child is born by the insemination of sperm and ovum of husband and wife and its ancestry proves by both of them. Accordingly, that wife will be the mother of the child who donates her ovum. Since, it is proved with the standards of Quran that she will be the mother of the child who delivers it.

Therefore, the Quran says, “ووصینا الانسان بوالدیہ احسانا، حملتہ امہ کرھا و وضعتہ کرھا”

Translation: We have charged man that he be kind to his parents; his mother bore him painfully, and painfully she gave birth to him. (Al AhQaaf: 15)

The Quran also says,

“ووصینا الانسان بوالدیہ، حملتہ امہ وھنا علی وھن و فصلہ فی عامین ان اشکرلی ولوالیدیک”

Translation: And We have charged man concerning his parents – his mother bore him in weakness upon weakness, and his weaning was in two years. (Luqmaan: 14) Moreover, the Quran says, “ان امھاتھم الا اللائی ولدنھم”

Translation: They are not truly their mothers; their mothers are only those who gave them birth. (Al Mujadilah: 2)

In spite of this, the woman of whom ovum child has born; she will claim of being the mother of the child and the woman who gives birth the child will also claim of being mother and the child of being the part of both the women, will relate to both of them by which it will get mixed origin toward its mother. Then there occurs dispute in the rights of mother. Besides, there will be conflict in the issues of custody and inheritance. 

5, 6) If external insemination is done by taking the sperm and ovum of husband and wife – or – if the sperm of husband is introduced to the vagina of wife or any appropriate place in the uterus that insemination would occur. Both of these methods are lawful if insemination is done by husband only because unlawfully seeing and touching of private parts is prohibited except husband.

7) If the sperm is taken from the husband the ovum from other than his wife, and after insemination, fetus is raised in the womb of the wife of him. This method is prohibited. It’s like adultery. There is heterogeneity as well as breaking of relation in this method.