CRITICAL EXAMINATION OF THE RIGHT OF ARTIFICIALLY INSEMINATED CHILD TO INHERIT UNDER ISLAMIC LAW

CRITICAL EXAMINATION OF THE RIGHT OF ARTIFICIALLY INSEMINATED CHILD TO INHERIT UNDER ISLAMIC LAW

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ABSTRACT

The advancement in Science and Technology and the quest for children led to the development and invention of a new process of human procreation, (Artificial Insemination) other than the natural way. This process involves obtaining the semen from a man to inseminate a woman in other to induce fertilization and produce a child, if Allah so wishes. Sometimes, the semen is obtained from the woman‟s husband and many a time from a donor (third party). However, the conception of a child through the medium of artificial insemination involving married couples may not generate any issue or problem with regards to paternity and right of inheritance under Islamic Law if such semen is that of the legal husband of a valid Muslim marriage. On the other hand, conception of a child through the donor‟s (third party) semen is definitely accomplished with the problems of paternity, the right of the child so conceived to inherit under the Law; and even raises doubts on the legality of the processes of artificial insemination. I cannot be able to provide in this project, adequate knowledge of the whole segments of the subject-matter as perfection belongs to Him alone (Allah), the knower of all things, but it is equally hoped that this project will go a very long way to sensitize the vast majority of our people on the issue of artificial insemination. Hence, this research among other things discussed therein, critically examines the legality of Artificial Insemination in line with the provisions of Islamic Law and also the implications of such insemination on the status of the child conceived there from as well as his right of inheritance under Islamic Law.


CHAPTER 1

GENERAL INTRODUCTION

1.0.0 INTRODUCTION

1.1.0 BACKGROUND OF THE STUDY

 The need for bearing children, feeding them, cuddling them, rearing them, participating in their future and sharing their dreams is immense; it is a basic human need, a necessity. It has been so since the birth of humanity, and will always be so. In a country like Pakistan, or any country for that matter, the lack of children can lead to broken homes, and up until the time the home is finally broken up the wife faces a constant threat of divorce. Even if divorce is not imminent, the prospect of becoming the neglected second wife of a Muslim husband is always present, not to speak of the constant bickering and ultimate miserable relationship to which divorce might be preferable. For these disillusioned parents, especially depressed wives, modern technology offers a ray of hope, just as it has revolutionized human life in almost every other area including health and fitness.

For these couples or women, assisted reproductive technology is an answer to their prayers and dwindling hopes. Their hopes are dashed, however, when a large group of Muslim scholars point out to them that this technology is the very foundation of sin, and employing it for the birth of a child will open the very gates of hell for them.[1] If an unfortunate couple recovers from the onslaught of these scholars, they are confronted by a growing body of Muslim doctors who are eager to develop Islamic bioethics. Some of these doctors are even more enthusiastic in branding this reproductive technology as sinful and they confine the permitted form of technology to cases that may not even need the option granted to them by Islamic bioethics, as nature may take over and give them a child in the natural way. It is not polite to point out who these good intentioned men and women of learning are, and there are many, because a jurist always focuses on the reasoning advanced, the evidence adduced, the dalil, and not on who is making the argument or presenting the evidence. It may be indicated here that the Islamic Fiqh Academy at Jeddah is included in this learned group.[2]

The concept of inheritance is being practicing from the very beginning of the world. It is present in all the religions in the world but different in shapes and in practice. The Law of Inheritance is buildup on the basis of the Islamic Law of Inheritance. A lot of studies have been done on inseminated child in Islam. But no paper the researcher has found where the solution to the conflict is provided. For this reason, limited literature review is available here. conflict among the scholars is increasing day by day and the nation is trying to find out the reasons behind this problem and also to find out the solution to this problem.

1.2.0 OBJECTIVE OF STUDY

  It is against this backdrop that this paper examines the phenomenon of artificially inseminated child to inherit under Islamic law with a view to situating its strategic position and its  implications.

1.3.0 SCOPE OF THE STUDY

The enormity of the subject matter has led to the selection of some aspects of Islamic law. In general, reference is made to Section conditions for inheritance and succession.

 1. 4.0 METHODOLOGY

This research methodology is normative or doctrinal research (library research). Normative legal research is the legal researches which use the law as foundation of norm. The norm system in question is related to principle, norm, and rule from legislation, verdict, treaties, and doctrine concerned annulment of an arbitration award.[3] First stage of normative research comprises a research with purposes to achieve objective law, by conducting research on legal issues. The second stage of normative legal research is aimed at obtaining subjective law (rights and obligations).[4] It also concerns with critical review of legislation and of decisional processes and their underlying policy

1.5.0 LITERATURE REVIEW

This argument has two interrelated parts. The first is about attributing paternity to the husband where his fatherhood is doubtful. The second is about attributing paternity to the social mother when the ovum is hers, but is borne by the surrogate mother after fertilization.

Where the husband accuses his wife of unlawful intercourse, the couple has to undergo the procedure of li`an, which is the taking of oaths first by the husband and then by the wife. If both do so, it is the statement of the wife that is preferred. When a child is born, the husband has to deny paternity within seven days of birth according to some and within the postnatal period according to others.[5] If he fails to do so within the prescribed time, paternity of the child is attributed to him.[6] The attributing of paternity has the welfare of the child in view. The tradition above and this procedure are reflected in the principle, “al-waladlil-firash.” This is usually translated as “the child is attributed to the marriage bed.” In fact, the principle means that the child is attributed to the “man who had legal access for sexual relations.” The latter meaning includes the paternity of the child born to a slave girl too; where paternity is attributed to the master. It may be mentioned here that paternity of an illegitimate child can be claimed at any time by the father on the basis of earlier marriage or shubhah of marriage, but till such time that he does the child remains attributed to the mother.[7]

The assigning of paternity is not confined to this case alone. It is well known that the minimum period for gestation is six month on the basis of the Qur’an. It is, however, less well known that the maximum gestation period, where a woman has not claimed the termination of her waiting period on the basis of monthly cycles, is two years according to the Hanafi school. The maximum period is four years according to the Shafi`i and Hanbali schools, on the basis of which there have been a few judicial opinions in Saudi Arabia that have upheld this maximum period.[8] The legal basis for this is the principle of `adah (the scientific and physical state observed) among women during the period of the Prophet (P.B.U.H).[9] Those who rely on scientific facts alone today will say that this is not possible. The jurists were aware of this too, but the important point to note here is that it is the welfare of the child that takes over here and not the integrity or reputation of the parent. For the welfare of the child, who is likely to be declared illegitimate otherwise, the law assigns paternity to the husband. It may be noted that the illegitimate child cannot easily inherit from the genetic mother, because he is pushed to the last slot in the line, that is, even after the next of kin of the mother.[10] The discrimination and hatred exhibited for such a child by society is very cruel as compared to the denial of inheritance. Paternity is, therefore, assigned to the husband.

The issue then is whether the social mother, who has knowingly contributed her ovum fertilized by the sperm of her lawfully wedded husband for development in the womb of the surrogate mother, can be assigned the maternity of the child, that is, can the law create a fiction in her favour that calls her the mother of the child borne by the surrogate mother along with all the legal effects. It is suggested that the law should create such a fiction on the basis of necessity and on the basis of analogy from the above cases for the social mother and the interests of the child to be born. Assume, for example, that the naturally born child of the social parents and their child born through the surrogate mother grow up and now want to get married to each other, will such a marriage be permitted by the scholars. If not, then on what grounds will such a marriage be prohibited?

A theological argument is also advanced with the complaint that Muslim scholars are relying solely on the law to answer the important issue of the surrogate mother, and very little attention is being paid to the theological foundations.[11] We may quote the learned author:

More often than not, contemporary Muslim scholars, both the conservative minded and the liberal minded, do not consider the theological implications of using a legal discourse to determine an answer for contemporary issues. Issuing a fatwa assumes that both the theology – which is conclusive – and the ethical paradigms – which blossom from the theological discourse – are unshaken by the fatwa offered. If a fatwa dismantles the Islamic theological and ethical paradigms, then perhaps the question leading to the fatwa should be investigated first.[12]

The main argument is advanced on the basis of the verses 49 and 50 of chapter 42 of the Qur’an: “To Allah belongs the dominion of the heavens and the earth. He creates what He wills.

He bestows (children) male or female according to His Will; or He bestows both males and females, and He leaves barren whom He wills: for He is full of Knowledge and Power.”[13] The argument then is that the Muslims throughout have resorted to prayer and lawful (halal) cures rather than resorting to unlawful means. Resorting to unlawful means will amount to opposing the Will of Allah and this may upset the basic requirement of submission to His Will. The author goes into further details, but this appears to be the crux of what he has stated.

The response to these worthy arguments is that, first, it has been assumed that the procedure involved in reproduction through the surrogate mother is unlawful. We have tried to show above that there is little to indicate that the procedures are unlawful in their entirety. Second, in those early times, blood transfusion, transplants and other similar processes might have been deemed inconceivable if not unlawful. Today, technology has informed us that lives can be saved through these processes, and many scholars are inclined to declare most of these processes as lawful. In the same way, the making of babies through assisted reproductive technology has been made possible, and the jurists as well as experts on theology must reexamine many of these issues, although as we have claimed earlier that this is a legal issue.


[1] See, e.g., a more systematic and logical  ruling issued by Muhammad ibn Adam al-Kawthari, Darul Iftaa, Leicester, UK: “What is the Islamic  position on surrogate motherhood?” (available at http://qa.sunnipath.com/issue_view.asp?HD=1&ID=3622&CATE=95, accessed March 5, 2014).


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