Wednesday, November 22, 2017 - 4 Rabi' al-Awwal 1439
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Does a surrogate mother have rights on the child she carries?

Does a surrogate mother have rights on the child she carries?

Answer

Islam attaches great importance to familial relationships. It tolerates no deliberate confusion of lineage and threatens with severe punishment any person who tampers with genetic familial relationships. If you consider the reasons behind the institution of the mandatory waiting period for a woman after divorce or a husband’s death during which she may not remarry, you will find that the main reason is to ascertain whether or not she is pregnant. Indeed, Islam does not allow a man to divorce his wife if he has had intercourse with her during an interval of cleanliness from menstruation. He must wait until she has her next period, so that the divorce can take place at the beginning of her waiting period. If it is discovered later that she is pregnant, her waiting period extends until she gives birth. This last ruling also applies to widows who have to observe a waiting period which normally extends to four months and ten days. The reason for this is to leave no room for any confusions related to paternity and to preserve the child's right either to be brought up by the father if the mother is divorced from him or to receive his share of inheritance if his father has died.

Similarly, Islam forbids adoption wherein a married couple claim parentage to a child which is not theirs. Again, this proscription aims to ensure that inheritance rights are preserved. In countries where adoption is permissible, an adopted child receives a share in the inheritance of his adoptive parents. He or she can have no claim to any share in the inheritance of their biological parents or other members of their biological family. While this may be to the benefit of the child in many cases, it is not always necessarily so. Moreover, this situation affects the rights of the adoptive parents’ other heirs. In Islam, when a man or woman dies without leaving behind a child of their own, their estate goes to other heirs defined by the Islamic system of inheritance. Some of these would not normally inherit if the deceased had a child of his or her own.

It is well known that Islam lays down rules for mutual family solidarity. When a person is guilty of accidental killing, he is required to pay blood money to the victim’s family. If he cannot afford it, his heirs must come to his help. They are required by Islamic rules to contribute to the blood money he is to pay. If a man deprives some of his heirs of their inheritance shares by adopting a child, he deprives himself of his right to call on them to help him in such a case. All of the above explains some of the reasons for the meticulous care Islam gives to preserving familial relationships.

Surrogate motherhood is a term that defines a process wherein a woman carries a child for the benefit of a childless couple usually for an agreed upon fee. The process starts with introducing the biological father’s sperm into the surrogate mother’s uterus who goes through a natural period of pregnancy. A contract is drawn whereby she forgoes all claims to the child. At the end of the pregnancy she gives birth under the supervision of the medical experts involved in the process and the couple take the child. There have been cases when the surrogate mother made claims to the child and the courts of the United States have looked into these claims at one time or another.

We need go no further than the question put by our reader asking whether the surrogate mother can be considered a third parent. His question arises from what he says about her having no genetic link with the child. It may be so, but she certainly has a very strong link with the child she carries for nine months, giving it the same nourishment any pregnant woman gives to her fetus.

Muslim scholars who studied the new techniques developed to help women get pregnant have ruled that they are permissible only when they involve married couples. No one else should be involved. This means that artificial fertilization is permissible if the wife’s egg is fertilized by her husband’s sperm and then the fertilized egg is inserted in her uterus and not in the uterus of another woman. Artificial insemination is prohibited when it involves a third party as in surrogate motherhood.

It is better for everyone to steer away from such confusion. Every married couple should remember that it is God alone Who determines whether to bestow on them the blessing of having children and it is He alone Who determines whether their children shall be males, females or a mixture of both. Again, He is the One to determine whether they remain childless. Acceptance of His decision is the mark of true faith.

As I have already mentioned, it is open to any couple to bring up any child who is not their own. But adoption must not be carried out in the same manner as in non-Muslim countries. The child should continue to be called after his or her biological father. Any deviation from this is likely to cause lineage confusion and is therefore prohibited.
 

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