Surrogate motherhood is a by-product of the artificial insemination. It has created great controversy in the legal and ethical circles around the world, especially so after the baby 'M' case of 1987.
Surrogate motherhood means that a woman allows a fertilized ovum of another couple to be injected into her womb. Then she carries the child to its full term for the other couple. This can be done free in exchange for some money as was the case in babay M's birth. This procedure of human reproduction is adopted when a woman has a problem in carrying her child to its full term.
From the shari'ah point of view, surrogate motherhood as portrayed above is not allowed because it involves the insertion of a sperm of another person into the woman's uterus. This goes against the verse of the Qur'an which says that the believing women should guard their private parts except from their spouses.
There are, however, certain procedures in Islamic marriage system which would allow some form of surrogate motherhood. For example, if a woman is having problems in carrying her husband's child to its full term, then the husband may marry another woman (on a termporary or permanent basis) and then an ovum of the first wife fertilized by the husband's sperm can be injected into the womb of the second wife with her approval.
To which of the two wives will the child belong? Does it belong to the genetic mother (the first wife) or the biological mother (the second wife)? According to Ayatullah al-Khumayni it depends on the age of foetus. If it was inseminated in the womb of the second wife after four months, then it belongs to the first wife -the second wife is just a receptacle. If it was inseminated before its fourth month, then it is difficult to say that the child belongs to the first wife.1
However, there is another way of looking at this relationship. I have already talked about the 'urfi and shar'i definitions earlier. In the present case, the common people have a perception about child-mother relationship. The 'urfi would say that the woman who "gives birth" is the mother. So based on this 'urfi perception, I would say that the child belongs to the biological mother, the second wife irrespective of its age at the time of insemination. The child will be mahram to her other children and will also inherit from her. As for the relationship between the child and the first wife, I would say that although she is not a biological mother, but her status as a genetic mother places her above a riza'i mother. (A riza'i mother is a woman who did not give birth to the child but breast-fed him or her). Based on this relationship, the child will be mahrum to all the children of the first wife even if they be from a different father; however, he or she will not inherit from her because the right of inheritance is based on uterine relationship.
1. Tahrir, vol.2, p.623.
Adapted from: "Marriage & Morals in Islam" by: "Sayyid Muhammad Rizvi"
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