SURROGACY; SOCIO-LEGAL CHALLENGES

Surrogacy is some kind of a legal arrangement and a third-party reproduction in which a woman
consents to give birth to a child for intended parents who, for some medical reasons cannot
conceive on their own. People often seek a surrogacy arrangement where pregnancy is medically
impossible or the pregnancy risks are too high for the intended mother or in the case of a male
couple or a single man wishing to have a child.

Surrogacy is of two types; typical surrogacy and gestational surrogacy. The eggs of the surrogate
mother are used for conception in traditional surrogacy while gestational surrogacy is performed
by transferring embryos made through IVF with eggs from the intended mother or a donor. Thus,
the advent of IVF has assisted gestational surrogacy. Although, this type of surrogacy involves
psychological and other health risks for the surrogate mother.

Legal proceedings regarding surrogacy are complicated due to the assumption that the woman
giving birth to a child is its legitimate mother. Thus it is compulsory for a surrogate mother to
formally abandon the child she gave birth to. There are many other complications related to such
procedures where after childbirth a surrogate mother may refuse to hand over the child to the
intended parents or the intended parent refusing to accept that child after its birth.

Surrogacy becomes more complicated due to the commercial aspect attached to it. It has raised
concerns regarding the exploitation and commodification of women’s bodies for some other
person’s family building. Overall, the whole procedure of surrogacy is quite problematical

THE CONCEPT OF SURROGACY IN ISLAM

Surrogacy is considered haram in Islam and rightly so because there are so many problems
attached to the very concept of it. Islam has given a lot of importance to the whole concept of
marriage and children and the legitimate relationship between a man and a woman. The concept
of surrogacy clashes with the very basis of an Islamic society. The whole point of marriage and a
halal relationship between a man and a woman is to give birth to a legitimate child while
surrogacy goes against this very concept and therefore the child born of a surrogate mother is
like an illegitimate child. Some people may argue that surrogacy is such a good way to have
children when a couple faces medical or other constraints but this too goes against the concept of
Islam where a Muslim submits to the will of God. As it is mention in the Quran, Surah Al-Shura
(42): 49/50;

“He bestows (children) male or female according to His Will, or He bestows both males and
females, and He leaves barren whom He will: for He is full of Knowledge and Power.”

In Islam surrogate motherhood is considered to be like Zina, as the surrogate mother carries the
fertilized egg of someone other than her husband which is not permissible. The child born of
such an arrangement would have no lineage through legal marriage and would be considered
illegitimate. It's just like saying that if a product which in this case is a child is haram, the means
of acquiring such a product is also haram.

Quran has given us a very clear definition of a mother in Surah Al-Mujadalah (58:2);

“their mothers are only those who conceived them and gave birth to them (waladna hum).”

Some scholars favor surrogacy based on public interest and the fact that a surrogate mother is not
carrying her child can be overridden by the fact that she is merely renting her womb as an
incubator and she is not engaged in any act of Zina. Also, there should be no confusion about the
lineage of the child as the biological parents are already confirmed. This line of argument fails
when we look at the ayah of the Quran mentioned earlier where Allah has defined who is a
mother and that definition completely rules out a surrogate mother. Some people may equate the
concept of a surrogate mother to a wet nurse which seems absurd as a wet nurse only feeds a
child after its birth when there is no confusion as to who its mother is.

A primary Muslim belief or aqidah is that everything happens according to the will of Allah.
However, how one navigates life within the system of Allah’s will is what gives one an Islamic
personality. Some phenomena in life can be determined through man's earnings
from halal sources. For example, sickness occurs according to the will of Allah, but Islam
mandates that Muslims earn their cure by utilizing halal means such as medicine. Thus,
theologically speaking, man 'earns' his cure which is an option to petitioning an alternate
manifestation of Allah’s will. From this analysis, you can see why the Prophet Muhammad (upon
him blessings and peace) said: “Allah has not placed a cure in haram (substances).” Therefore,
seeking a cure is Islamic and required as this is also Allah’s will as long as the means are halal.
Apart from the legitimacy of a child and the problems of haram and halal, there are other
problems with surrogacy attached. It can give rise to many evils in a society such as women
renting their wombs for monetary benefits and its example is available in more backward
countries where women rent their wombs for money despite all the risks involved, money
becomes the only thing important in such cases. Such arrangements undermine the very
institution of marriage and family life as well. Hence it is clear why surrogacy is not permitted in
Islam.

SURROGACY IN PAKISTAN AND THE SOCIO-LEGAL CHALLENGES :

As mentioned earlier, surrogacy is completely prohibited in Islam due to many reasons of it

being ethically and morally wrong. Pakistan is an Islamic republic and hence Islamic law forms
the basis of all of the laws in the country, so naturally, surrogacy is not allowed in Pakistan.
Religion plays a very crucial role in Pakistani society and people are over-sensitive when it
comes to religious matters such as the infamous blasphemy laws of Pakistan.

Surrogacy is not an alien term in Pakistan but the fact that it has not been legalized in Pakistan
till now is threefold. The first problem is again Pakistan being an Islamic country and its claim of
adhering to Islamic principles. Pakistan has a weak law and order structure that cannot offer
proper protection to people involved in such arrangements and the third is Pakistan's lack of
advancement in medical sciences. All these are major reasons why surrogacy is such a
problematic subject in Pakistan.

Surrogacy, even if the government would want to allow it, wouldn't be able to consider the fact
that many religious political parties would come up front and oppose such an "unIslamic"
concept. Labeling such practice as adultery wouldn’t be a problem for the religious people of this
country and this would render such a practice completely out of question. Being an Islamic
country, Pakistan allows a man to marry four women at a time, and in case of infertility of a
woman, a man would simply go on and another girl which won't be a problem for him. Marrying
some other girl is easier and accepted in Islam rather than opting for surrogacy. Moreover,
various sects and their difference of opinion are also present here where one sect views such
practice as completely prohibited by Islam i.e.; Sunnis while other sects adopt a more liberal
approach like the Shia sect. Hence religious complexities become a very crucial point when it
comes to the challenges faced by surrogacy in Pakistan. Surrogacy gives rise to a concern about
the exploitation of surrogate mothers and objectification of their wombs. The surrogate mothers
often look towards monetary benefits above all, and in a society like Pakistan where people are
living in poor conditions and the class difference is huge such an arrangement would only give
rise to the exploitation of the lower class women by the higher class which would eventually lead
to many other problems as well.

Legal challenges to surrogacy in Pakistan are extensive where the law fails to provide any kind
of legislation on the matter. No protection is given to either the surrogate mother or the intended
parents in such cases. The first-ever case of surrogacy in Pakistan was decided by the Federal
Shariat Court, where the Court ruled in favor of the surrogate mother. In the case of Farooq
Siddiqui v Farzana Naheed, FSC held that where a woman is arranged as a surrogate mother, it
involves social and ethical dilemmas because it exploits poor women who bear the physical and
emotional pain of giving birth to a child. The Court observed that financial compensation
involved in surrogacy turns surrogate mothers into emotionless machines. Viewing it from an
Islamic point of view, the Court observed it as a threat to the institution of the family due to the
intervention of a third party in this process. The Court viewed that surrogacy gives rise to
numerous legal problems regarding maternity and paternity of the child. The Court considered
marriage as the only legal means of reproducing children under Islamic law. Due to the massive
amount of complications related to surrogacy, the Court refused to recognize surrogacy and
declared it against the injunctions of Islam. The Court also required to nullify any surrogacy
contract under the Contract Act 1872 and proposed to criminalize such contracts under the
Pakistan Penal Code 1860.

SURROGACY IN INDIA:

India is a secular state which means that it does not have a state religion and it is a religiously
and ethnically diverse country. India does not face religious constraints as Pakistan does and
hence since 2002 it has legalized surrogacy in the country. India has created proper legislation
concerning surrogate mothers and intended parents. India has been a hub for surrogacy for
international parents as the cost of having a surrogate in India is much lesser than those in the
U.S or U.K. India updated its laws on surrogacy in 2015 as well which provided guidelines as to
international parents and the protection of surrogate mothers and restricts them to be a surrogate
only once.

India is a fairly liberal society where they have allowed homosexuality and live-in relationships
and all sorts of things that a modern nation would adopt and hence it does not face any kind of
restrictions when it comes to surrogacy rather it is being made a fairly simple and easy thing in
the country. Moreover, unlike Pakistan, India's medical advancement is amazing which
automatically makes such procedures being carried out easily and with little to no complication.

Hence, India does not face any socio-legal challenges when it came to surrogacy because first it
is a secular state and second, its society is fairly liberal to adopt such new technology with open
arms. Also, its constitution does not bind it to follow the principles of a certain religion.

SURROGACY IN IRAN:

As surprising as it may seem but Iran has legalized surrogacy and it is the only Muslim country
to do so. The reason for it is that the majority of people in Iran belong to the Shia sect of Islam
and Shia scholars have issued a fatwa on surrogacy and making it a viable option for infertile
couples. Ayatollah Khomeini is the key scholar in this regard, he allowed the use of donor
technologies, especially in the case of surrogacy in which the egg and sperm are obtained from a
legally wedded couple. They unlike the Sunni sect have distinguished surrogacy from Zina as the
latter involves sexual intercourse while the former lacks this physical act.

Iran has found a solution and made surrogacy halal in their country despite the socio-legal
constraints and it being an Islamic country.

CONCLUSION:

Surrogacy is a critical subject when it comes to Pakistani society as our society has many flaws
that can’t be overlooked. Religious constraints, the social constraints and the clash between the
liberals and conservatives, weak legal system, poor law and order situation, all of these things
contribute to the problems faced by surrogacy in Pakistan. All in all, Pakistan could legalize
surrogacy as Iran but that would need proper legislation and serious and strict enforcement.