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Advances in Social Sciences Research Journal – Vol. 11, No. 9
Publication Date: September 25, 2024
DOI:10.14738/assrj.119.17618.
Shokri, S. & Karimi, S. (2024). A Comprehensive Theological and Scientific Study of Gestational Surrogacy. Advances in Social
Sciences Research Journal, 11(9). 196-219.
Services for Science and Education – United Kingdom
A Comprehensive Theological and Scientific Study of Gestational
Surrogacy
Sareh Shokri
IslamicAzad University of Damavand
Saadi Karimi
Islamic Azad University South Tehran
ABSTRACT
With advancements in science and in response to the desire of childless individuals,
surrogacy has emerged as a contemporary method of treating infertility.
Intriguingly, due to its novelty, this topic has sparked considerable legal and
jurisprudential debate. In essence, this medical procedure involves fertilizing a
woman's egg with a man's sperm outside the womb. Subsequently, due to the
woman's inability to carry the pregnancy, the embryo is implanted into another
woman's uterus. Surrogacy, in fact, is a means for infertile couples to have a child.
Through assisted reproductive technologies, an embryo created via in vitro
fertilization is transferred to a gestational carrier, who carries the pregnancy to
term and then relinquishes the child to the intended parents. In Iran, assisted
reproductive technologies are employed when couples, or either partner,
experience infertility. In these procedures, the sperm and egg of the legal and
marital couple are fertilized in a laboratory, and the resulting embryo is donated to
another legal and marital couple. A crucial issue in this context is the determination
of the child's parentage, especially maternal lineage. Due to the silence of the law,
this matter must be resolved by examining the Constitution of the Islamic Republic
of Iran and relevant jurisprudential opinions, as well as the perspectives of legal
experts. In this regard, determining the maternal lineage, which involves the
biological mother and the gestational carrier, presents a challenge and requires
further exploration. The conclusion of this paper is that, based on Quranic verses,
hadiths, the principle of freedom of will, the intentions of the parties involved, the
best interests of the child, customary practices, and legal principles, the gestational
carrier is considered the legal mother of the child.
Keywords: parentage, maternal lineage, embryo donation, in vitro fertilization,
perspectives on embryo donation, surrogacy.
INTRODUCTION
The earliest recorded thought regarding in vitro fertilization can be traced back to a physician
named Schenk in 1880. Although his attempts to fertilize the ova of mammals such as rabbits
and guinea pigs in a laboratory setting were unsuccessful, the efforts of scientists who followed
him culminated in the birth of the first child conceived via in vitro fertilization (IVF) in 1978 in
England. This pioneering child, named Louise Brown, was born in Oldham, England. In Iran, the
first IVF procedure resulted in a successful birth in Yazd in 1989. Currently, numerous centers
across the country are engaged in this field. The realities arising from these births, both
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Shokri, S. & Karimi, S. (2024). A Comprehensive Theological and Scientific Study of Gestational Surrogacy. Advances in Social Sciences Research
Journal, 11(9). 196-219.
URL: http://dx.doi.org/10.14738/assrj.119.17618
domestically and internationally, prompted Iranian lawmakers to enact the first legislation
governing IVF in 2003. This paper aims to examine some of the primary issues in this area,
specifically focusing on the inheritance rights of children conceived through IVF, while
deferring other topics such as kinship, guardianship, custody, child support, and upbringing to
future discussions. Given that one of the prerequisites for inheritance is lineage, this paper will
explore the concept of lineage in various contexts of embryo formation. Once the lineage of an
embryo is established, the child inherits from their biological parents, and their share will be
determined according to the relevant inheritance laws. [1]
Statement of The Problem
The union between a man and a woman, commonly referred to as marriage, serves various
purposes, one of which is the continuation of the human race. If either or both partners lack the
necessary reproductive health, this fundamental function of the family is compromised. The
treatment of infertility has long been a focus of research and medical experts, and assisted
reproductive technology (ART) has emerged as a significant method for addressing infertility.
ART encompasses various techniques, including intrauterine insemination (IUI) and in vitro
fertilization (IVF). Beyond religious and societal perspectives, third-party involvement in these
procedures may arise. This raises several legal questions, such as the permissibility of renting
or lending a uterus, and more broadly, whether reproductive contracts for others are valid.
Assuming that IVF and embryo transfer are legally permissible, to whom does the resulting
child belong? To the genetic parents, the intended parents, or the gestational carrier? Another
crucial issue is the legal status of a child born through embryo transfer involving a third party,
in simpler terms, the determination of the child's parentage. This research aims to answer these
questions.
Importance and Necessity of The Research
This research addresses the existing gaps and discrepancies in research, the need for the topic,
its potential theoretical and practical benefits, and the novel materials, methods, or processes
that may be employed. Parallel to the ability to apply this method in experimental sciences,
complex and specific issues have arisen in jurisprudence and law. It is imperative to address
these issues based on legal and jurisprudential principles and to provide appropriate solutions.
These issues revolve around in vitro fertilization and the determination of the lineage of a child
conceived through IVF. Clarifying the legal status of such children is of significant analytical
importance.
Moreover, there are varying perspectives regarding genetic lineage. Most jurists and legal
scholars believe in the existence of genetic lineage, but this view is inconsistent with the
apparent provisions of the law on the donation of embryos to infertile couples, leading to
contradictory judgments. Given these issues, the need for a suitable mechanism and solution
becomes evident.
Research Objectives
The primary objectives of this research include:
1. Identifying the lineage of a child born through assisted reproductive technology and
examining different viewpoints.
2. Identifying the rights and duties of children born through assisted reproductive
technology, as well as the rights and duties of individuals involved in such procedures.
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Research Questions
The research questions are as follows:
1. What are the different perspectives on the origin of lineage in assisted reproductive
technology?
2. What are the implications of accepting each of these perspectives?
3. Considering the existing laws, regulations, and viewpoints, which perspective is most
suitable within our legal system?
Research Hypotheses
Generally, there are two perspectives:
1. The theory of genetic lineage
2. The theory of uterine lineage
• If the theory of genetic lineage is accepted, the possibility of returning a child
conceived through assisted reproductive technology may exist. However, if uterine
lineage is accepted, this possibility will be eliminated.
• The theory of uterine lineage may prevent potential future disputes.
3. Is the theory of uterine lineage the most suitable perspective?
RESEARCH METHODOLOGY
This research is primarily analytical in nature and can also be classified as descriptive research.
The research methodology is based on a review of articles, a literature review, and an
examination of existing studies in this field. In terms of its objective, research can be categorized
into basic and applied research. The goal of applied research is to discover new knowledge with
a specific application for a product or process in reality [2]. This research is considered
"applied" in this sense [3]. Furthermore, research can be divided into cross-sectional and
longitudinal studies based on the study period. To collect information, a combination of library
research methods is employed. The library research method is primarily used to study the
literature on the subject and review previous research. This research examines existing
evidence and documents in previous studies to find a potential solution to this problem. In vitro
fertilization was first performed on fish in 1765 by a German scientist named Jacobien for the
purpose of improving breeds and reproduction. Subsequently, it was also tested for human
reproduction and became common in some countries like the United States. With
advancements in science and the use of superior techniques, the first test-tube baby, Louise
Brown, was born in London in 1978 through the efforts of Dr. Steptoe and his colleagues.
Following this success in the United Kingdom in 1988, 956 babies were born through in vitro
fertilization. Similarly, in the United States, this procedure was performed more than forty
thousand times, with 8741 cases resulting in pregnancy and 5103 cases involving in vitro
fertilization (surrogacy).
Research Instruments
The tools that humanities researchers have developed to collect data include questionnaires,
interview cards, observation cards, index cards, forms, and the like. These tools are selected
and designed according to the type of research and its methodology. In this study, information
was gathered through library research and by reviewing previous studies. It is worth noting
that in the process of conducting this research, library research was initially conducted to
obtain statistics and existing documents related to uterine lineage.
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Shokri, S. & Karimi, S. (2024). A Comprehensive Theological and Scientific Study of Gestational Surrogacy. Advances in Social Sciences Research
Journal, 11(9). 196-219.
URL: http://dx.doi.org/10.14738/assrj.119.17618
Limitations of The Research
1. Limitations in collecting information and reliable sources in this field
2. Difficulty in finding expert specialists who have sufficient knowledge in this area and
can answer questions
3. Lack of sufficient information on this research and the absence of direct sources
4. Experts' opinions are based on jurisprudence and law, and there are no available
documents
RESEARCH OVERVIEW
The Womb
In recent years, this method of infertility treatment has also been used in Iran. In vitro
fertilization can solve many problems for families who are deprived of the blessing of having
children. However, like other new issues, it has caused concerns and opposition. This issue is
not only important from a jurisprudential and legal perspective but may also have more
significant ethical and social dimensions. Issues such as combining sperm with an egg outside
the womb, transferring an embryo of a couple to a third woman's uterus, combining the sperm
of a man and a foreign woman, and donating eggs/embryos... Artificial insemination has various
types, including artificial insemination with the husband's sperm. In this research, the focus is
on examining the legal rulings and obligations related to surrogacy, as well as investigating the
lineage and resolving the problem of the lineage of a test-tube baby.
Gestational Surrogacy
This is a method for infertile couples to have children. Through assisted reproductive
technologies, a gestational carrier becomes pregnant using an embryo created from the genetic
material of the intended parents. After birth, she surrenders the child to the intended parents.
[4]
Definition of Embryo
An embryo is a developing organism in the womb. [5]
Donated Embryo:
A donated embryo is the product of in vitro fertilization between legally and religiously married
couples. It can be at a stage from fertilization up to five days. This embryo can be either fresh
or frozen. [6]
Embryo Donation and Its Types
Definition of Embryo Donation:
In many cases, the number of embryos collected from a couple undergoing IVF treatment is
greater than the number needed for a single treatment cycle. In this situation, the excess
embryos are frozen and stored for future use. Using frozen embryos in subsequent transfers
gives couples approximately a 30% chance of pregnancy. In many cases, couples, after
becoming pregnant with their own frozen embryos, decide not to use the remaining embryos
and are willing to donate them to couples who do not have sperm or eggs. [6]
Types of Embryo Donation:
Embryo donation refers to the donation of an embryo created from the egg of a woman and the
sperm of her partner to a woman who does not have eggs but whose uterus is capable of
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carrying a pregnancy. In other words, a fertile couple donates their embryo to an infertile
couple who lack both sperm and eggs but have a uterus capable of carrying a pregnancy. This
can apply to situations where either the man lacks sperm, the woman lacks eggs, or both
partners are infertile. [6]
Lineage
Before the advent of the sacred Islamic law, the concept of lineage was understood as the result
of the combination of a man's sperm and a woman's egg. The relationship between a child and
the providers of the genetic material, i.e., the man and woman, is known as lineage.
Linguistically, lineage means ancestry, origin, and kinship. Although, in common usage and
language, a child born out of adultery is also considered a child, and based on the Supreme
Court's unanimous ruling number 617-3/4/1367, the adulterer is considered the child's legal
father, obligated to fulfill all paternal duties such as providing for, caring for, educating, and
obtaining a birth certificate for the child. However, the legal and customary relationship
between a child and the providers of the genetic material (sperm and ovum) is only recognized
in Islamic law if it results from lawful sexual intercourse within the context of a marriage or at
least a belief in the existence of a marital relationship. Therefore, mere birth from someone's
sperm does not establish a legal lineage [7]. All embryos conceived through natural sexual
intercourse between a man and his lawful wife, or those conceived through intrauterine or in
vitro fertilization using the sperm and egg of the husband and wife, have a valid and lawful
lineage and are protected by law. Embryos created from the sperm of a non-marital man (other
than the lawful husband) and the egg of a non-marital woman (other than the lawful wife),
regardless of the method (natural or artificial), lack a legitimate lineage (and consequently are
deprived of the benefits of a valid lineage, such as inheritance). Islam, in a healthy society,
strongly emphasizes marriage and family formation and respects procreation and childbearing
through the sacred and honorable bond of marriage.
Origins of Lineage:
The concept of lineage, rooted in biology, has been universally accepted in human societies
since ancient times. Customs have recognized this relationship, and both religious and legal
systems have affirmed it, although there are differences between customs, religions, and laws
in defining its scope and regulations. For example, from an Islamic legal perspective, this
relationship and kinship are valid only when formed within a legitimate framework. However,
since this research focuses on the specific lineage (the bond between parents and children), it
can be argued that the formation of a human being from the combination of a man's sperm and
a woman's egg results in the establishment of lineage from the perspective of all human
societies.
Conditions for The Establishment of Lineage:
As mentioned, from an Islamic legal perspective, a valid lineage must meet certain conditions.
These conditions are sometimes fulfilled within the context of marriage and sometimes outside
of it. Since, in Islamic law, marriage is the sole foundation of a family, the issue can be examined
in two situations.
a) Establishment of Lineage within a Family: For a family to be formed, a valid marriage
is necessary. And for a valid lineage to be established within a family, a conception must
occur between the couple. Therefore, lineage arising from a family has three elements:
a) the existence of a valid marriage, b) the occurrence of sexual intercourse between the
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Shokri, S. & Karimi, S. (2024). A Comprehensive Theological and Scientific Study of Gestational Surrogacy. Advances in Social Sciences Research
Journal, 11(9). 196-219.
URL: http://dx.doi.org/10.14738/assrj.119.17618
spouses, and c) the conception of a child as a result of the sexual intercourse between
the spouses.
b) Establishment of Lineage Outside the Family: Islamic jurisprudence and laws derived
from it recognize the lineage of a child conceived outside the context of a family to their
biological parents in certain circumstances. This typically occurs in one of three natural
situations: a) sexual intercourse under a mistaken belief, where individuals were
unaware of the invalidity of the marriage or sexual act due to ignorance of the law or
facts. b) sexual intercourse with someone who lacks the capacity to consent, such as a
person who is asleep, unconscious, intoxicated, insane, etc. c) sexual intercourse with
someone who is coerced into the act.
Types of Kinship
Kinship can either arise from a valid marriage or outside of marriage. Kinship resulting from a
marriage is the most common type and is referred to as legitimate kinship. Kinship outside of
marriage may be a result of sexual relations due to a mistake (e.g., mistaken identity) or may
occur without any conventional sexual intercourse, such as through in vitro fertilization. This
type of familial relationship can be termed kinship arising from in vitro fertilization. Finally, a
child may be born from an illicit relationship between a man and a woman. [7]
Therefore, the legal implications of kinship will be examined under the following four headings:
1. Legitimate Kinship
2. Kinship Arising from a Mistake
3. Kinship Arising from In Vitro Fertilization
4. Kinship Arising from Adultery
Section One: Legitimate Kinship:
Legitimate kinship, also known as lawful kinship, arises from a valid marriage. In Iranian law,
kinship is considered legitimate when, at the time of the child's conception, a marital
relationship exists between the child's parents.
Legitimate kinship is the standard and complete type of kinship recognized in all countries and
carries various legal consequences such as guardianship, child support, and inheritance rights.
Whenever the legitimacy of a child's kinship is disputed, three elements must be proven: the
marital relationship, the maternal link, and the paternal link. The Family Court has jurisdiction
over disputes regarding kinship.
Section Two: Kinship Arising from a Mistake:
A mistake refers to an incorrect belief or perception that someone may have about something.
If a man engages in sexual intercourse with a woman, believing that they are married when in
fact they are not, this act is referred to as sexual intercourse under a mistake or cohabitation
under a mistake. If a child is born from such an act, the child is called a child born of a mistake,
and the kinship is referred to as kinship arising from a mistake. According to the Civil Code,
kinship arising from a mistake has all the rights of kinship arising from a legitimate relationship.
Kinship Arising from In Vitro Fertilization:
Kinship arising from in vitro fertilization will be explained in detail in the following chapter.
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Journal, 11(9). 196-219.
URL: http://dx.doi.org/10.14738/assrj.119.17618
on customary practices to define kinship would be insufficient, as customs are primarily
associated with traditional methods of procreation and may not adequately address modern
reproductive technologies like in vitro fertilization.
Consequently, the precise nature and essence of kinship remain a complex issue. A fundamental
question is whether kinship is established through biological ties and natural birth, or if it is
primarily a legal construct. In other words, is kinship based on biological reality or legal fiction?
And if the basis of kinship is biological, can the legislature disregard certain legal consequences
have based on societal considerations? Therefore, a thorough examination of the criteria for
establishing a parent-child relationship is necessary.
Legal Consequences of Kinship in Civil Law:
The most significant legal implications of kinship arise in the realm of civil law, particularly
family law. These consequences encompass both rights and obligations associated with family
formation and procreation, giving rise to specific legal rules and duties.
Prohibition of Marriage:
Based on Quranic verse 23 of Surah An-Nisa, a general principle prohibits marriage between
individuals who are closely related by blood. This raises the question of whether such
prohibitions also apply to children born out of wedlock. In other words, can a child born from
an adulterous relationship marry their biological mother or father? All Imami jurists, regardless
of their stance on whether such a child is legally connected to their biological parents, agree
that such a marriage is prohibited. The reason for this prohibition is based on linguistic
grounds, and some jurists have also cited the principle of precaution. [13]
"There seems to be no valid religious argument for claiming that a child born out of wedlock is
an unbeliever. As Shahid Thani correctly pointed out, such a claim is based on a flawed and
incomplete principle. However, regarding other arguments, it is undeniable that the natural
attribution of a child to their biological parents is indisputable; this natural attribution is
governed by natural laws and does not fall within the realm of legal constructs. Iranian Civil
Law, in Article 1045, explicitly states that the prohibition on marriage applies equally to both
legitimate and illegitimate children, making no distinction between them.
Custody:
There are two primary viewpoints regarding the custody of children born out of wedlock. The
first, based on the prevailing opinion among jurists, is that the biological parents do not have
custody rights over such children. However, the second viewpoint, which is based on the
recognition of a customary kinship between the child and the biological parents, grants custody
rights to the biological father and mother. Adherents of the first viewpoint have proposed
solutions to address the potential negative consequences of denying custody to these children,
arguing that justice demands that innocent children who are victims of their parents' actions
be protected. Some have suggested that since the child requires care, and this is a communal
obligation, the biological parents, as the cause of the child's existence, are the most suitable
individuals to provide care."[14]
Some scholars, relying on the principle of causation in civil liability law, argue that the biological
parents of a child born out of wedlock have a duty to provide custody. They cite Article 10 of
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the Civil Liability Law, which states that compensation for damages in modern law is not limited
to monetary compensation. Instead, a court can order other forms of remedy to redress the
harm caused. The determination of the appropriate remedy is left to the court's discretion, and
the court may decide that requiring the parents to care for the child is a suitable way to remedy
the harm caused to the child. [15]
A legitimate kinship is one that arises from a valid marriage, where a marital relationship exists
between the individuals involved in the conception. Iranian law also considers a kinship to be
legitimate if a marital relationship existed between the man and woman at the time of
conception, unlike French law, which considers a child legitimate if the man and woman are
married at the time of the child's birth (Article 312 of the French Civil Code). The legal and
jurisprudential approach regarding the status of children conceived under a mistaken belief
that the parents were married is an extension of the concept of legitimate kinship (Articles 201
and 202 of the Iranian Civil Code). Illegitimate kinship occurs when the relationship between a
man and a woman is outside of marriage and not based on a mistaken belief. After the advent
of Islam, ignorant marriages that were prevalent in pre-Islamic times were abolished by the
Prophet. The Prophet's command to enter into valid marriages, as a strong covenant, was not
merely an establishment of a new rule but rather aimed to promote order, moderation, and
stability within the family unit. Islamic guidance reflects a harmony between natural needs and
legal provisions, organizing the identity of the family based on justice, realism, and
monotheism. According to Islamic law, an illegitimate child is not attributed to the father or
mother and has no legal relationship with them. Iran, having largely adopted its civil law from
Islamic law, has relied on the prevailing opinions of jurists in many areas related to this subject.
Legitimate Kinship in Imami Jurisprudence
A legitimate kinship is one that is established through a valid marriage, where a marital
relationship exists between the individuals involved in the conception. In Iranian law, a kinship
is considered legitimate only if a marital relationship existed between the man and woman at
the time of conception. This differs from French law, which considers a child legitimate if the
man and woman are married at the time of the child's birth (Article 312 of the French Civil
Code). The legal and jurisprudential approach towards the status of children conceived under
the mistaken belief that the parents were married is closely related to the concept of legitimate
kinship (Articles 201 and 202 of the Iranian Civil Code). Illegitimate kinship occurs when the
relationship between a man and woman is outside of a marital context and not based on a
mistaken belief. After the advent of Islam, ignorant marriages that were prevalent in pre- Islamic times were abolished by the Prophet. The Prophet's command to enter into valid
marriages, as a strong covenant, was not merely an establishment of a new rule but rather
aimed to promote order, moderation, and stability within the family unit. Islamic guidance
reflects a harmony between natural needs and legal provisions, organizing the identity of the
family based on justice, realism, and monotheism. According to Islamic law, an illegitimate child
is not attributed to the father or mother and has no legal relationship with them. Iran, having
largely adopted its civil law from Islamic law, has relied on the prevailing opinions of jurists in
many areas related to this subject. [15]
Kinship and its Legal Nature: The Evidentiary Value of DNA Tests
The evidentiary value of DNA tests in determining kinship is contingent upon understanding
the legal nature of kinship. This raises the question of whether the truth of kinship is based on
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male sperm into the female reproductive tract. Artificial insemination, specifically, involves the
introduction of sperm into the uterus using medical instruments or other means besides sexual
intercourse. [22]
Types of In Vitro Fertilization:
With advancements in modern medicine, many infertile couples are now able to overcome their
challenges through innovative fertility treatments such as artificial insemination. Artificial
insemination encompasses various techniques including intrauterine insemination, in vitro
fertilization, embryo donation, gamete donation, and gestational surrogacy.
• Intrauterine insemination involves the introduction of sperm into the woman's uterus
using a medical device to facilitate fertilization.
• In vitro fertilization takes place outside the woman's body. The fertilized egg (embryo)
is then transferred into the uterus using specialized instruments. [23]
• Fertilization, the union of sperm and egg to form an embryo, and the early stages of
embryonic development occur outside the woman's body in this method.
Various Forms of in Vitro Fertilization and Their Islamic Rulings
Given that artificial insemination often serves as a preliminary step in gestational surrogacy, it
is essential to first examine the Islamic legal rulings pertaining to the different forms of artificial
insemination. The applications of artificial insemination are diverse, making it challenging to
establish a singular Islamic legal ruling that encompasses all scenarios.
Figure 1: Methods of in vitro fertilization
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Journal, 11(9). 196-219.
URL: http://dx.doi.org/10.14738/assrj.119.17618
involves retrieving oocytes from a donor, fertilizing them in a laboratory, and subsequently
transferring the resulting embryos to the recipient's uterus.
Regarding parentage, the following generally applies:
a) Paternal Lineage: The child is genetically linked to the sperm donor.
b) Maternal Lineage: Three primary perspectives exist:
• Genetic Mother: The biological mother is the egg donor.
• Gestational Mother: The woman carrying the pregnancy is considered the mother.
• Dual Maternity: Both the egg donor and the gestational carrier are considered
mothers. [25]
5. "The woman lacks both oocytes and a uterus, while the man has sperm.
Figure 5: depicts this anatomical absence."
6. The couple is unable to conceive naturally due to the woman's lack of eggs and uterus,
and the man's lack of sperm.
Table 2: the woman's lack of eggs and uterus, and the man's lack of sperm.
Egg donation + sperm donation
(without a marital relationship)
and transfer to a full gestational
surrogate is strictly prohibited and
there is no need for a ruling on its
permissibility. In such cases,
Egg donation + sperm
donation (from a
married couple) and
transfer to a gestational
surrogate is
permissible. The donors
Non-donor
sperm is directly
transferred to
the gestational
surrogate
Non-donor sperm is
combined with the egg
of the gestational
carrier in a laboratory,
and the resulting
embryo is transferred
to the uterus."
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donated embryos or legally
adopted embryos can be used.
are the biological
parents.
7. The woman has oocytes, but lacks a uterus, while the man has sperm. In a gestational
surrogacy arrangement, the man's sperm fertilizes the woman's egg in vitro, and the
resulting embryo is transferred to the uterus of a gestational carrier.
Figure 6: Absence of Uterus.
Studies on Gestational Surrogacy
Karim and Mehri (2016) conducted a study on the legal status of gestational surrogacy. They
highlighted that the birth of a child through gestational surrogacy, a modern societal
phenomenon, involves a woman carrying another individual's embryo in her uterus. After the
pregnancy and childbirth, based on a pre-existing agreement, the resulting child is handed over
to the intended parents. The practice of gestational surrogacy has garnered significant attention
from scholars and jurists in recent times. Since there is no explicit evidence in Islamic law
prohibiting this practice, the principle of permissibility is the most widely accepted stance.
Based on this principle and upon confirming that such a practice does not contradict Islamic
teachings, it can be asserted that the retrieval of an egg from a woman, its fertilization with a
man's sperm in a laboratory, and subsequent implantation into another woman's uterus is
permissible. The rulings and implications of this method can only be deduced from relevant
Qur'anic verses, hadiths, and legal principles, as well as specific evidence related to non-
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Journal, 11(9). 196-219.
URL: http://dx.doi.org/10.14738/assrj.119.17618
traditional methods of reproduction. If some scholars have expressed reservations about this
practice, it is likely due to concerns about the possibility of committing unlawful acts during the
preparatory stages, such as obtaining an egg from a non-mahram woman or acquiring sperm
through illicit means. [26]
Sadeghi Moghadam (2013) investigated the lineage and inheritance rights of children
conceived through in vitro fertilization. The advancements in genetics and the ability to
cultivate embryos outside the natural uterus have prompted legal and religious scholars to
question the permissibility of such procedures and to address issues related to lineage, kinship,
guardianship, custody, maintenance, and inheritance. The most crucial aspect in this context is
the formation and origin of the embryo. Once the lineage of an in vitro embryo is established,
the issue of inheritance becomes clear. If the embryo is conceived before the death of the
genetic parents and is born alive, it inherits from its genetic parents (the sperm and egg donors)
and has no lineage or inheritance rights with respect to the gestational carrier. [27]
Nazari (2003) conducted a study on the legal status of the lineage of children born through
artificial insemination. The findings of this study indicate that the lineage of children born
through artificial insemination is traced back to the original sperm and egg donors. [28]
Safiri and Taherkhani (2009) examined the maternal lineage of children born through embryo
donation in Iranian law. They concluded that according to Qur'anic verses, the gestational
carrier is considered the biological mother of the child."[29]
The Status of the Lineage of Children Born Through Gestational Surrogacy in Iranian Law
The lineage of a child born through gestational surrogacy can be examined from both maternal
and paternal perspectives. There are various opinions and viewpoints on this matter, which we
will discuss below:
Paternal Lineage
In Shi'a jurisprudence and Iranian law, several presumptions have been established to prove
lineage and maintain family harmony. The most important presumption for proving paternity
is the presumption of legitimacy .»الحجر للعاهر و للفراش الولد »In legal terminology, 'للفراش 'refers to
the marital bed, and the presumption of legitimacy states that if a child is born to a married
woman, the child is presumed to be the husbands. The primary basis for this presumption is a
hadith of the Prophet which states: "The child belongs to the marital bed, and the illegitimate
child belongs to the adulterer." This hadith offers two possible interpretations of 'للفراش'. It could
mean the marital bed, implying lawful sexual intercourse, or it could refer to the marital
relationship between the couple. Considering the second interpretation, we can definitively
attribute the child to the intended parents, as a marital relationship exists between them.
However, based on the first interpretation, which equates 'للفراش 'with sexual intercourse, we
must apply a broader meaning to the term 'intercourse' to encompass the fertilization of an egg
with sperm in a gestational carrier. Therefore, it can be argued that the term 'intercourse' used
in Article 1158 of the Iranian Civil Code refers to the cause of fertilization and the development
of the child, and this also occurs in artificial insemination. Regarding the determination of
paternity in a child born through gestational surrogacy or assisted reproductive technology
involving a third-party donor, there are differing opinions which will be discussed below. [30]
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There are four main viewpoints regarding who the father of a child born through gestational
surrogacy or assisted reproductive technology involving a third-party egg or sperm donor. We
will briefly explain these viewpoints and then, through criticism and analysis, select the one
that best aligns with our legal and jurisprudential principles."
Viewpoint 1:
Although the definition of adultery does not encompass pregnancy through gestational
surrogacy and such a pregnancy does not align with the Islamic legal definition of adultery, a
child born through this method lacks a paternal lineage. This is because conception and birth
must occur within the marital bed through sexual intercourse between a husband and wife.
However, in gestational surrogacy involving a third-party donor, conception does not occur
within the marital bed or through sexual intercourse between the husband and wife. Therefore,
the child cannot be attributed to the husband who provided the sperm. [31]
Viewpoint 2:
Proponents of this view focus on the terms of the contract entered into by the consenting adults
and the determination of parentage based on those agreements. This viewpoint is supported in
jurisdictions where all aspects of gestational surrogacy contracts are considered valid and
enforceable.
Viewpoint 3:
This view emphasizes the genetic connection to the child and considers the individual who
provided the sperm as the father. From a medical standpoint, the genetic material contributing
to the embryo from the father is the sperm present in his semen. The husband of the gestational
carrier has no biological connection to the child and therefore cannot be considered the father.
However, in terms of prohibited marriages, this child would be considered the child of the
husband, and he could not marry such a daughter. [32]
Viewpoint 4:
This viewpoint asserts that the father of a child born through gestational surrogacy is the
husband of the gestational carrier. Proponents of this view base their argument on the best
interests of the child born through this method, as well as the prevention of potential future
disputes. Additionally, they argue that this viewpoint strengthens the presumption of
legitimacy."[33]
Maternal Lineage in Gestational Surrogacy
Perhaps the most intricate and contentious issue arising from gestational surrogacy or third- party assisted reproductive technologies is the determination of the legal mother. Unlike
paternity, which is typically determined by genetic and biological connections, maternity
involves both biological (through the egg) and physiological (through gestation) ties. It is
challenging to disregard either the genetic contribution of the egg donor or the gestational role
of the carrier in determining motherhood.
The fundamental question is whether societal norms prioritize the biological creation of a
human from a man's sperm and a woman's egg or the nurturing of the fetus within a woman's
womb. Moreover, should legal systems defer to societal customs in addressing this issue?
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Regarding the establishment of a maternal relationship in cases of gestational surrogacy or
embryo/gamete donation, several theories have been proposed. A comprehensive analysis of
these theories is essential to arrive at the most appropriate conclusion.
The Egg Donor as the Mother:
Advocates of this view contend that societal norms for determining motherhood mirror those
for fatherhood. Society generally considers the woman who initiates the creation of a human
life, by providing the egg, as the mother. This is because the egg is the initial component in the
development of the embryo. Furthermore, medical evidence supports the notion that the egg is
the origin of the cells that form the fetus, while the uterus plays a secondary role. Additionally,
societal norms often equate the creation of a child from a man's sperm and a woman's egg with
a natural and inherent familial bond. Consequently, a child born through gestational surrogacy
is attributed to the sperm and egg donors, and the gestational carrier does not have a familial
relationship with the child. Societal norms typically associate genetic relationships with familial
bonds, and thus, the genetic connection between the child and the sperm and egg donors is
considered the basis for lineage. In conclusion, lineage is rooted in biological origins, making
the egg donor the biological mother. Some contemporary jurists concur with this viewpoint,
stating that "the child belongs to the woman and man who provided the genetic material" and
that "the child is considered mahram (prohibited for marriage) to the woman who carried her
in her womb, without inheriting from her."
Genetic Testing and Its Legal Implications
The far-reaching legal, financial, and non-financial consequences of establishing or negating
parentage have elevated this issue to one of significant importance in both legal and religious
discourse. Proving parentage hinges on two interconnected factors: a biological connection and
a legal recognition of that connection. Consequently, a mere biological relationship is
insufficient to establish parentage; only when a legal system acknowledges this relationship
under specific conditions can parentage be legally confirmed. For instance, even in cases where
a genetic relationship is undisputed, a child born out of wedlock may have a biological
connection to their parents but lacks legal parentage and the associated rights. However, given
that a biological relationship is a prerequisite for establishing legal parentage, the legal value
and reliability of genetic testing become crucial.
This article aims to examine the evidentiary value of genetic testing in paternity and maternity
disputes. Assessing the reliability of these tests requires a case-by-case analysis, as their
efficacy varies depending on the specific circumstances of each case. Before evaluating the
evidentiary weight of genetic tests in different legal proceedings, it is essential to examine their
reliability from a scientific perspective.
Genetic Testing and Its Reliability
This section will discuss blood group analysis and DNA testing, with a particular focus on DNA
testing.
Blood Group Analysis:
Human blood is categorized into four blood groups: A, B, O, and AB. These blood types is
inherited traits. Predicting blood groups in humans and forecasting the blood group of offspring
based on parental blood groups is relatively straightforward. For example, two individuals with
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blood group O will only have offspring with blood group O. Blood group analysis has numerous
applications, such as resolving cases of newborn mix-ups in hospitals. In such instances,
comparing the blood groups of the child with those of the alleged parents can often provide a
definitive answer. For example, if two families claim a child with blood group O and genetic
testing reveals that one family has blood groups A and O, while the other has blood groups O
and AB, it is clear that the child belongs to the first family, as the second family cannot produce
offspring with blood group O. Similarly, if a woman with blood group A has a child with blood
group AB with an unmarried man who has blood group AB, and the man denies paternity,
genetic analysis can confirm the possibility of paternity. However, if the man has blood group
O, it is highly unlikely that he is the father. It is important to note that while blood group analysis
can be a useful tool in paternity cases, it cannot definitively prove paternity in all cases. This is
because sometimes both the biological father and the alleged father may have the same blood
group. Furthermore, it is essential to consider that blood group systems have exceptions. [33]
DNA Testing
The most advanced and accurate genetic test is the DNA test, which offers high precision and
versatility. This section will examine the procedure, applications, and limitations of DNA
testing. Each trait is controlled by a pair of genes, one inherited from the father and the other
from the mother. The patterns that carry hereditary information in the cell's chromosomes are
actually molecules of deoxyribonucleic acid (DNA). Genes are composed of four different
nucleotides that are linked together in a chain along the DNA molecule. These four chemical
bases are adenine, thymine, cytosine, and guanine. Each gene consists of several thousand of
these bases arranged in a specific sequence, providing instructions that differ from other genes.
Determining the sequence of these nucleotides reveals the identity of each individual.
All human cells contain 23 pairs of chromosomes. Consequently, a cell's chromosomes are a
combination of the father's and mother's chromosomes, and genes are also a combination of
the father's and mother's genes. DNA molecules in different individuals, except for identical
twins, are unique. It is impossible to find two individuals with exactly the same DNA. Even the
DNA of parents and their children differs. As mentioned, genes are composed of units called
bases. The DNA molecule contains specific regions composed of 200 to 1400 base pairs. These
regions are repeated multiple times along the DNA, hence the term "repeating regions." The
sequence of bases in these repeating regions is unique to each individual. Only identical twins
have identical sequences. Therefore, by determining the base sequence in these repeating
regions, it is possible to identify an individual. Just as fingerprints are unique to each person,
DNA is also unique. [35]
The Two-Mothers Viewpoint:
Some experts consider both women involved in the creation of a child to be mothers. This is
because in the natural process of childbirth, the mother plays two roles: genetic and
physiological. Both roles are essential for reproduction. Therefore, prioritizing one role over
the other and attributing parentage solely to one requires justification. [36]
The View of No Motherhood:
A fourth viewpoint, proposed by some authors, is that neither the egg donor nor the gestational
carrier can be considered the mother. This is because a mother is defined as someone whose
child is genetically related to her and has developed in her womb. In other words, a mother
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must possess two characteristics: the child must be conceived from her egg, and the child must
develop in her womb. Therefore, if either of these characteristics is absent in a woman, she
cannot be considered the mother. [37]
The Gestational Carrier as the Mother:
In contrast to the aforementioned viewpoint, some contemporary jurists and legal scholars,
such as Dr. Mohammad Azin, contend that the gestational carrier should be considered the
mother. According to this perspective, both linguistically and customarily, a "mother" or
"parent" is a person who gives birth to another. Consequently, the woman who carries a child
and then gives birth to it is considered the mother of that child. In this context, it is argued that
if a woman implants a foreign man's sperm into her womb, she commits a sin, but the child
belongs to both her and the sperm donor. Furthermore, if the child is a daughter, the sperm
donor cannot marry her. To support this viewpoint, some legal scholars, including Dr. Seyyed
Mohammad Azin, have cited certain Quranic verses. These verses categorically refer to women
who give birth as the mothers of their children, regardless of whether the egg is their own. In
other words, the verses unequivocally state that a mother is someone who gives birth.
Moreover, other verses describe a mother as one who carries the child, gives birth, and endures
the hardships of pregnancy. Therefore, the implied opposite is that anyone who does not carry
or give birth cannot be considered a mother. Given that the fetus, after being transferred to the
gestational carrier's womb, attaches itself to the uterine wall and undergoes all of its
psychological and physical development within the womb, it is difficult to deny that the
gestational carrier should be considered the mother. Additionally, proponents of this viewpoint
cite the concept of kinship ties to support their argument, which will be discussed in more detail
below.
Arguments Supporting the Gestational Carrier as the Mother
Proponents of the view that the gestational carrier is the mother cite several reasons to support
their position. These arguments include: 1) Quranic evidence, 2) linguistic and literary evidence
(kinship ties), 3) conformity with common sense (the person who gives birth), and 4) societal
benefits (customary practices). This viewpoint strengthens the presumption of legitimacy (or
the marital presumption) and prevents potential future disputes by the genetic or gamete
donors.
Quranic Evidence
Advocates of this view cite specific Quranic verses to substantiate their claims. For instance, the
Quran states: "We created you in the wombs of your mothers, creation after creation, in
darknesses, one within another." In another verse, God states: "And God knows what every
female bears in her womb, and by how much the wombs decrease and by how much they
increase." Thus, the Quran highlights the role of the womb in fetal development. Given this, is it
fair to consider only the egg donor as the mother and diminish the role of the gestational
carrier?
Linguistic and Literary Evidence: Kinship
The term "رحم صلة "is composed of two words: ")صلة" )صلة and ")رحم" )رحم. The literal meaning
of "صلة "derived from the root "وصل "signifies connection or joining together. "رحم "literally
means womb, the place where a child develops in the mother's body. In common usage, "صلة "
denotes kindness and friendship, while "رحم "refers to relatives and kin. In the context of " صلة
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رحم," "رحم "is used metaphorically to signify kinship or relatedness, implying that individuals
share a common origin, even if they are distantly related. The idiomatic meaning of "رحم صلة "is
the unity of relatives and the practice of visiting and maintaining relationships with family
members [38] . In conclusion, based on Quranic verses and hadiths that emphasize the maternal
role of the person who gives birth, and considering the meaning of kinship as a blood-based
connection, it can be inferred that the gestational carrier is the mother of the child born through
surrogacy. The husband of the gestational carrier is then considered the father.
CONCLUSION
This chapter summarizes the findings of this project and provides suggestions for future
research.
Key Findings
1. Familiarity with the latest IVF methods.
2. Access to modern services, leading to increased comfort and security for families.
3. Development of new methods for determining the genetic lineage of IVF embryos.
4. Review of relevant literature and utilization of existing research.
5. Identification of various viewpoints and their supporting arguments.
Research Questions
1. What are the medical perspectives on the origin of genetic lineage?
2. What are the implications of adopting each viewpoint?
3. Considering existing laws and regulations, which viewpoint is most suitable for our legal
system?
Findings
Regarding the origin of genetic lineage in children born through IVF, there are various
perspectives:
1. The egg donor is the mother.
2. The gestational carrier is the mother.
3. The child has two mothers.
4. Neither woman is considered the mother.
After careful analysis, we conclude that, based on Quranic verses, hadiths, and the concept of
kinship, the gestational carrier should be considered the mother of a child born through
surrogacy. This is because the Quran emphasizes the role of the womb in childbearing, and the
concept of kinship is closely tied to the biological connection between a mother and child.
Implications of Different Viewpoints
Different viewpoints on the identity and maternal lineage of a child born through IVF have
various implications. Some consider the egg donor the biological mother, while others believe
it is the gestational carrier. Some even argue for the existence of two mothers, and others deny
motherhood to both. These perspectives were discussed in detail in Chapter 2.
Which Viewpoint is Most Suitable?
Considering the Quranic verses, the principle of freedom of will, the intentions of the donors
and recipients, and the best interests of the child, recognizing the gestational carrier as the
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mother is the most appropriate approach. To resolve these complex issues, Iranian lawmakers
should officially recognize the gestational carrier as the mother of a child born through embryo
donation.
Discussion and Results
Embryo donation has created complex legal and ethical issues regarding the determination of
parentage. The attempts to resolve these issues have significantly challenged social norms and
led to diverse viewpoints. Societal customs are also ambiguous on this matter. Among the
various perspectives, the view that the child has no mother is not scientifically sound and
presents practical challenges. A child conceived through the voluntary union of a man and a
woman cannot be considered stateless. While other viewpoints have some merit, they are not
without flaws. Given the scientific evidence that the uterus plays a significant role beyond mere
nutrition, the viewpoint that the gestational carrier is the mother appears to be the most
accurate and reasonable. Certain Quranic verses, such as those in Surah Al-Muminun, Surah An- Najm, and Surah Az-Zumar, emphasize the importance of the womb, further supporting this
view. Moreover, according to the Convention on the Rights of the Child, the best interests of the
child should always be considered. In embryo donation cases, the intended parents are the ones
who desire the child, and the child's well-being is best served by being raised by those who
want them. Therefore, considering Quranic verses and the best interests of the child,
recognizing the gestational carrier as the mother is the most appropriate approach. Iranian
lawmakers should officially recognize the gestational carrier as the mother of a child born
through embryo donation to resolve these complex issues.
Recommendations for Future Research
1. Conduct further research to develop more effective methods for determining maternal
and paternal lineage.
2. Investigate various fertility treatments and the specific needs of children born through
surrogacy.
3. Engage religious scholars, medical professionals, legal experts, and the general public to
develop optimal guidelines for IVF procedures and parentage determination.
Overall, the research highlights the complex legal and ethical issues surrounding surrogacy and
IVF. It emphasizes the importance of considering both biological and social factors in
determining parentage. The study concludes that recognizing the gestational carrier as the
mother is the most appropriate approach based on available evidence and ethical
considerations.
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