TALQĪḤ MAṢNŪ‘Ī AZ NIGĀH FIQH.[ ARTIFICIAL INSEMINATION FROM A JURISPRUDENTIAL PERSPECTIVE]. By Seyed Asghar Nazemzadeh Qomi. Qom, Iran: Islamic Sciences and Culture Academy. 2021. Pp. 364. Paper. 1,500,000 IRR
One of the significant and contemporary issues is artificial insemination, which has gained fundamental importance in the treatment of infertility with advancements in medical and genetic science. Consequently, numerous questions arise regarding its permissibility and the affiliation of the newborn to the biological mother. Scholars of both Shia and Sunni traditions have sought to address these inquiries.
As noted, this topic is relatively new and has been explored in this work. The analysis of this matter has been conducted by specialists in both jurisprudence and medicine, leading to valuable insights being offered in this text.
This work is structured into seven chapters. In the first chapter, four points concerning marriage and parenthood are presented. The first point addresses the desire for children, emphasizing that the wish to have children is a natural inclination among humans. The second point pertains to the conditions for having children. Islam, a religion that is in harmony with human nature and needs, strongly emphasizes marriage and legitimate relationships, advocating strongly for parenthood within the framework of marriage. The author references various verses and traditions in this context. The third point is the emphasis on childbearing in Islam. The significance of having children is so pronounced that in some narrations, a woman of dark complexion who bears a child is preferred over a fair and attractive woman who does not. The final point concerns the importance of having healthy and righteous offspring. The hadiths that advocate childbearing refer to children who are a source of pride for the Prophet and their parents in terms of faith, morals, and religiosity.
The second chapter addresses the terminology associated with artificial insemination. The term “talqīḥ” (insemination) derives from the root of “laqḥ” meaning of making pregnant or causing to conceive. In this context, artificial insemination refers to becoming pregnant without sexual intercourse between male and female, facilitated through laboratory procedures. The term “ janīn” (embryo) is also discussed; etymologically, this comes from a root of “jin” meaning to cover or conceal, and it signifies the fetus in the mother’s womb, which is hidden from the sight of others. Another term used is “ ḥaml” (gestation,) synonymous with “janīn” (embryo.) The term “firash” (the lawful husband) is defined as one who has the right to have intercourse with his wife. Additionally, terms such as “sperm” and “ovum” are examined, where “sperm” refers to male gametes and “ovum” denotes the female gametes, with the ovaries being the female reproductive glands. The chapter further discusses the historical background of artificial insemination, noting that this topic has only gained prominence since 1914 in the medical and infertility research fields.
Chapter three delves into the concept and reality of lineage “nasab”. It questions whether a child born through artificial insemination is recognized in Islam or societal norms as being affiliated with the male and female involved, or if they lack affiliation altogether. From a societal perspective, such a child is seen as belonging to their parents. In jurisprudential terms, if the marriage between the man and woman occurs under Islamic conditions, the child is legitimately considered theirs. Hence, a child born out of wedlock does not belong to the parents and is deemed illegitimate. The chapter subsequently outlines the juridical evidence for the non-affiliation of a child born from adultery to the lawful parents.
In chapter four, the practical principles “ūsūl ‘amalīye” of juristic action concerning artificial insemination are discussed. It addresses the scenario where a question arises about the legitimacy of introducing sperm from a strange male into a strange female without contact or penetration and whether such action is forbidden or permitted. The author asserts that the principle of caution in marital law is to assume the legitimacy of the marriage rather than its invalidity. According to the narrations, if there is no evidence against it and doubt exists about whether the child from artificial insemination is linked to the sperm and egg donors, the presumption is that the child is attached to the biological parents. Moreover, it highlights that artificial insemination involves neither marriage nor sexual intercourse; rather, it concerns the union of sperm from a strange male with an ovum from a strange female. Therefore, in cases of doubt regarding the permissibility or prohibition of artificial insemination, it is ruled as allowable.
In chapter five, various types and rulings of artificial insemination are discussed. Artificial insemination can be divided into three primary categories: the first category involves intrauterine insemination; the second involves in vitro fertilization; and the third pertains to generating offspring outside the womb. For the first category, the author outlines eight scenarios along with their respective rulings. The first scenario involves transferring the husband’s sperm to his wife’s womb, which is deemed permissible, and the child born from this procedure is considered to belong to both parents. The second scenario involves introducing strange sperm into a strange woman’s womb; there is agreement among Shia and Sunni scholars that this is prohibited. The third scenario discusses transferring an ovum from one woman to the womb of another infertile woman. While it appears permissible to transfer the ovum, the details regarding the affiliation of the resulting child with the respective woman must be carefully considered. In the fourth scenario, insemination of an animal is discussed; medically, this is not feasible to produce offspring, but if it were, various opinions on the ruling exist regarding its permissibility. The fifth scenario involves transferring animal ova into a woman’s womb, which, if it leads to the ovum being absorbed and followed by impregnation, would not cause prohibition. The sixth scenario involves transferring a woman’s ovum to an animal’s womb after copulation; there is no evidence to prohibit this action. The seventh scenario deals with obtaining male animal sperm and transferring it to a female animal’s womb, which does not carry prohibition. The final scenario addresses using plant pollen for insemination. If this were plausible, there would be no evidence for its prohibition; depending on whether the resulting entity possesses characteristics of a sperm or an ovum, its legitimacy could vary.
In chapter six, matters related to artificial insemination are presented. The first issue relates to freezing a man’s sperm and using it for insemination posthumously in his wife’s womb. Scholars have differing opinions regarding the permissibility of this practice, with some allowing it until the end of the wife’s waiting period, but prohibiting it after that. The subsequent issue involves freezing the couple’s embryo and transferring it to the wife after the husband’s death; there are three opinions on this matter, with the author considering this practice permissible. The third issue concerns transferring frozen embryos to a foreign woman’s womb, which is permissible, and the child would belong to the deceased father and the ovum donor. The fourth issue examines insemination with sperm from an unknown man; this practice is prohibited, yet the resulting child would belong to the sperm donor and the ovum donor. The fifth issue discusses insemination of the sperm of a husband with the nucleus of the wife’s egg, and there is a debate about whether the child would be attributed to the wife who donated the nucleus or the cytoplasm from a foreign woman. The author concludes that the offspring would be linked to the woman who provided the nucleus. The sixth issue pertains to sonority with a pregnant woman; while sexual relations with a menstruating woman are prohibited, there is less discussion on the permissibility of sperm transfer. However, the author asserts that if this transfer does not lead to conception, it is not prohibited, but if it does result in conception, it is forbidden due to a particular narration. The seventh issue involves the permissibility of renting a womb for embryo containment, to which jurists have deemed permissible. Furthermore, there is a discussion surrounding the affiliation of a child to either the ovum donor or the womb provider. Jurist Ayatollah Khoei and many others maintain that the child should affiliate with the womb provider, using points from various sources like the verse of ẓihār, customary understanding, and the idea that the child is always linked to the womb provider. However, the author critiques these arguments and argues that the child belongs to the ovum donor. Other discussions also arise regarding the mahram relationships of children to their biological parents, generally concluding that the child is related to the sperm and ovum givers. Another issue raised concerns the sale of sperm and ova for couples facing infertility challenges, where it is stated that buying and selling impure elements is generally prohibited unless the benefits are permissible. Similar objections regarding lack of ownership and materiality apply to a woman’s ovum. Nevertheless, if the sale of sperm and ova is accompanied by lawful benefits, this transaction holds legitimacy. The subsequent discussion revolves around the financial obligation to support a child conceived through artificial means, indicating that obligation lies with the sperm donor. If the mother receives the funds but does not utilize them for the child’s needs, it may be acceptable to withhold support from her. Additionally, the financial obligations of a woman impregnated with foreign sperm differ according to various hypothetical circumstances, but in summary, if the insemination is done with the husband’s consent, even if morally questionable, the responsibility lies with him; otherwise, it is assumed by the sperm donor.
In the seventh and concluding chapter, explanatory footnotes concerning this subject are provided. This chapter elaborates on terms and principles mentioned throughout the book, providing clarity on concepts including the principle of no harm in Islam, the meaning of the Sunnah of the Messenger of God, as well as various jurisprudential rules and operational principles, including the rule that the child belongs to the lawful husband.
Scientific Critique
- Depth of Analysis: The text generally addresses artificial insemination and its legal dimensions, but it requires a deeper analysis. Examining the social and ethical implications of this technology could contribute to a richer understanding in this area.
- Diversity of Sources: Utilizing a variety of sources, especially legal and medical perspectives from different schools of thought, could enhance the comprehensiveness and accuracy of the discussions. Referencing research and expert opinions in this field can also add to the credibility of the text.
- Relevance to Contemporary Issues: It would be beneficial to address the legal and ethical challenges associated with artificial insemination in the analyses. This can help readers become familiar with the more complex dimensions of the topic.
Practical Critique
- Applicability: While the concepts discussed in the text are highly relevant, providing practical solutions and specific guidelines for families and medical centers can make the content more applicable.
- Clarity and Language: The language and terminology used may be unclear for some readers. Clarifying complex terms and using simpler language could facilitate comprehension of the text.
- Cross-Cultural Dialogue: Examining and comparing the perspectives of different scholars and other cultures in dealing with artificial insemination can enrich the discussion. Providing practical examples from other countries and cultures can help illuminate the various aspects of this topic.
