CRITICAL EXAMINATION OF THE RIGHT OF ARTIFICIALY INSEMINATED CHILD TO INHERIT UNDER ISLAMIC LAW
Islamic law emphasizes the importance of fertility in both partners of a married couple and the ability to bear children, as the foundation of a healthy and successful marriage.
The prophet‟s encouragement to prefer to marry a fertile woman (walud), who may not be so pretty, to a beautiful respectful woman who is sterile1 well conveys the message. Not only women are addressed in regard to fertility. In the Hadith we find that a sterile man („aqim) is reproached by the prophet for not informing his wife prior to their marriage that, he was incapable of begetting children. The prophet (S.A.W) instructed the man (akhbirha wakhayyirha).
“Let her know and consequently let her choose!”2
The woman was legally justified on the basis of this information, to refuse to marry the sterile man. Every woman is entitled to a productive marriage, and the law strongly defends this right.
Although, marriage in Islamic law is not perceived only as a means for reproduction, and although, the sexual relations between husband and wife are not believed to be merely for reproductive purposes, the bearing of mutual, legitimatized children is nevertheless a desired and expected outcome of any shar‟iah marriage. Hence, Islamic law recognizes no other means/ way of obtaining children than by bearing them, especially adoption is completely forbidden in Islamic law. It is not surprising that, infertile Muslim couples have become highly interested in artificial insemination as a means of helping them to produce the desired child.
In recent years, artificial insemination has acquired a variety of forms, including test-tube babies and surrogate mothers in various contractual agreements with infertile couples, as well as the simpler methods. All these have provided new hope to childless couples all over the world.
It is however, expedient to proffer a definition for artificial insemination. Artificial insemination or A.I is the process by which sperm is placed into the reproductive tract (not through a sexual intercourse) of a female for the purpose of impregnating her through that means, other than N.I, or sexual intercourse3. As earlier revealed that, this medium of giving birth, is used as an assisted reproductive technology, using either sperm from the woman‟s male partner or sperm from a donor (donor sperm) in cases where the male partner produce no sperm or the woman has no
3 http://en.Wikipedia.Org/wiki/E:/Books/Artificial Insemination.html;assessed on the 5th December, 2010.
male partner (i.e. single women and lesbians). In cases where donor sperm is used the woman is the gestational and genetic mother of the child produced and the sperm donor is the genetic or biological father of the child.
This matter has been highly debated by the lawmakers of the Western world (England, France, Egypt and other countries). The House of Commons (England) has decided that a committee of Legal experts should be formed so that they may study this subject.4
The medics of France have made this matter dependent on the agreement of the spouses and permitted this, if both of them agree. In Italy, the Pope has made it prohibited through religious decree.5 The Grand Mufti of Egypt has in his own opinion, viewed artificial insemination to be worse than adoption, which was mentioned, is prohibited in Islam.6
In view of the above positions, it will be relevant thus, to juxtapose those positions from the pure Islamic perspective of artificial insemination. Indeed, artificial insemination is one of the new issues on which Muslim scholars have recently done some Ijtihad in the light of some basic
principles and values of the Qur‟an and Sunnah. Artificial insemination using husband‟s semen, simply because he could not deposit them inside his wife‟s tract is legally recognized under the Islamic law, having it premised on the validity of their marriage. The semen collected from a donor, (AID) is illegal and to some jurist, apposite to committing of zina. To others it is not, but could be seen as grievous sin as zina in which Hadd punishment cannot be meted on the perpetrators but could only be punished under ta‟azeer. With regard to the child born as the result of this, he is to be ascribed to the mother who bore him, and not to the man who donated the sperm, as is the ruling the case of zina and as such, cannot inherit is father, but his mother.
It should however, be pointed out at this juncture as observed by a professor of Islamic Jurisprudence, at Al-Azhar university, Cairo7; “Artificial inseminations expected as a matter of necessity be conducted under meticulous as well as safe laboratory conditions. The owners of those labs should be trustworthy people”.
While affirming the permissibility of Artificial Insemination in Islam, Islamic Fiqh Council, stressed the necessity of carrying out of the operation when both the husband and wife are alive.
. 7 Fattah A., in his commentary on this point July11, 2007, 4: pm; www.google.com
1.1.0: BACKGROUND OF THE STUDY.
The issue of artificial insemination came to lime light in the recent years. Though, the first reported human artificial insemination donor was in 1884. This was carried out by Dr. Pancoast8, and his operations were tagged to be a rape. This is because; it was devoid of the woman‟s consent. Islamic law decries or detests artificial insemination by a donor (AID), the effect of which attributed the child bore to his mother. He could, as a matter of law inherits his mother and not the sperm donor. This is simply because there was no valid marriage contract between the duos. Artificial insemination by the husband on the order hand is recognized under the law in as much as, the marriage contract is valid and the operation is carried out during the duo‟s life time. The child born out of this can equitably inherit both parents and the paternity is ascribed to his father. All the jurist are unanimous of this ascribed to this opinion, having relied in an Hadith of the prophet (S.A.W), who said;
“Marry and procreate that I will be proud with your numbers on the Day of Judgment”9
8http://en.Wikipedia.Org/wiki/E:/Books/Artificial Insemination.html;assessed on the 5th December, 2010.He is a
Prof. at Jefferson Medical College, Philadelphia.
9 Mukhtar, Hadith Al-Nubaurr, Darul Fikr,P.54
1.2.0: OBJECTIVES OF THE STUDY.
The sole aims and objectives of this study is to examine critically, the opinions of Muslim scholars regarding artificial insemination vis-a-vis the rights of such product (child) born out of that medium to inherit under the precinct laws of Islam.
Furthermore, this work is also aimed at enriching the understanding and knowledge of the people about the legality or otherwise of the artificial insemination under Islamic law.
Also, to justify the paternity of the child bore as a result of Artificial Insemination by Husband (AIH), and Artificial Insemination by Third Party (AID), this is in view of the prophetic tradition; which reads;
“The child belongs to the bed and for the adulterer is the stone.”10
Lastly, contribution of a Muslim to knowledge, devoid of worldly gains but what awaits him or her in the hereafter serves as one of my aims and objectives of this study for I believe, it is highly rewarded .
10 Khan M.M, The Translation of the meaning of Sahih Al-Bukhari; Madeenah, vol.8; Pg.422; Hadith No.6750.
1.3.0: FOCUS OF THE STUDY.
This study examines the opinions of Muslim scholars on the legality or otherwise of artificial insemination vis-à-vis inheritance of the product (child) there from. It also considers various forms in which artificial insemination is conducted and the permissible one under Islamic Law.
Thus, for the ascertainment of the positions of the law as regards inheritance of a child born out of Artificial Insemination to inherit under Islamic Law, recourse was had to Islamic Law of Inheritance.
1.4.0: SCOPE AND LIMITATION OF STUDY
This work is strictly limited to the indispensable but well-premised opinions of Muslim scholars on Artificial Insemination. However, for research conveniences, the work is restricted to Qur‟an,
Hadith and any other suitable materials that will suit this work so as to produce qualitative and original researched work.
1.5.0: RESEARCH METHODOLOGY
Being an essay project, the prominent things of note are set out for discussion in the work according to Islamic tenets.
In view of this, the materials used in this project include; works of prominent writers on the issue of artificial insemination under Islamic law of inheritance whose discussion, cannot be treated without having recourse to the both primary sources of Islamic law, Qur‟an and Hadith. Also taken to cognizance, are the statements of some highly versed person, who are knowledgeable/experts in Islamic Law of Jurisprudence, Usul-al-fiqh.
1.6.0: LITERATURE REVIEW
There has been series of work on the subject of Inheritance under Islamic law. In view of the significance of Qur‟an and Hadith regarding the issue of inheritance, the primary legal sources of
Islamic law had laid down a very strong foundation of distributing a deceased person‟s property.
Therefore, those areas that were not covered by the two earlier- mentioned sources are discretional to those that have attained the stage of Ijtihad, who may use their reasoning having broad knowledge of both the Qur‟an and Hadith in derivation of a rule therefrom.
So be it on the issue of Artificial Insemination being a new phenomenon in our society, drawing the attention of various jurists on how true was its validity under Islamic law; and also the rights of the child born-out of that medium to inherit under the law.
As already stated, the scholars are not unanimous over the occurrence of this new medium of procreation mainly because, it was likened to the grievous but punishable offence of zina, which was absolutely prohibited by Allah and His messenger (S.A.W) in both Qur‟an and Hadith. This project is thus aimed at examining the views of scholars on the subject matter, artificial medium of procreation, (A.I).However, in a bid to arriving at the choice of the present study, some investigations were made to survey scholarly works on this topic of discussion of the contemporary jurists in nexus with the provisions of the both the Qur‟an and Hadith.
Hence, with regard to the late well-known Grand Imam of Azhar, Sheikh Mahmoud Saltut, who was of the view that Artificial Insemination is despicable crime and a major sin just as zina.11
Though, just like other jurist, he did not generalize his view as to the one involving the consent of the legal couples legally married under Islamic law. Amongst the jurists that likened Artificial Insemination by Donors (A.I.D) to zina are; Muhammad Saleh Al-Munajjid, Sheikh Ahmad Kutty, Dr. Muzammil Siddiqi and a host of others. The rationale behind the whole rule was to bring a society stepped in immorality to observe the highest standard of morality, for when the interests of human being keep on shifting with a change in the circumstances, the laws also adjust accordingly.
11 Shaltut, „Al-Fatawa‟, (ISLAMIC LEGAL DECISIONS); p..300.
Having set forth the above background, we shall in the subsequent chapter discuss in brevity, the Islamic law of Inheritance as elucidated upon by the Glorious Qur‟an, Sunnah of the Holy
Prophet Muhammad, (S.A.W) and the various opinions of the Islamic jurists.