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Surrogacy: Current Landscape And Its Standing in Islam

Surrogacy is a reproductive arrangement where a woman carries and gives birth to a child for another individual or couple. In gestational surrogacy, a surrogate carries an embryo created using gametes from intended parents or donors with no genetic relationship to the child.

Traditional surrogacy involves surrogacy using one's own egg fertilized with the intended father's sperm. Surrogacy can help infertile couples, same-sex couples and single individuals achieve parenthood. However, it raises ethical, legal and emotional considerations, including concerns about exploitation, parental rights and the well-being of all parties involved.

Under the Surrogacy (Regulation) Act 2021, individuals and couples meeting specific criteria are eligible for surrogacy services due to medical conditions that require this option. The law allows widows, divorcees between the ages of 35 and 45 and legally married Indian couples to use surrogacy.

For couples, both partners must fall within a certain age range: the man between 26 and 55 and the woman between 25 and 50, with no previous biological, adopted or surrogate children. Commercial surrogacy is prohibited, punishable by up to 10 years in prison and a fine of Rs 10 lakh. Only altruistic surrogacy is permitted where there are no financial transactions and the surrogate is genetically related.

The Surrogacy (Regulation) Act 2021 prohibits commercial surrogacy. Only altruistic arrangements are permitted, where women acting as representatives receive no monetary reward or compensation.

Furthermore, it only allows for gestational surrogacy, where assisted reproductive technologies (ART) such as in-vitro fertilization (IVF) are used to induce a surrogate pregnancy.

It also established age and other criteria both for persons intending to become parents through surrogacy and for those who could act as surrogates. Only married couples and perpetually married single women (widowed or divorced) can apply for surrogacy.

In addition, expectant parents must present a "certificate of necessity" that confirms the medical indications that justify the use of gestational surrogacy. The rules required the prospective parents to use their own gametes.

The latest amendment to the Rules allows the use of one of the parental gametes together with the donor gamete in the case of couples where one of them has a medical condition that requires such use.

No such relaxation has been made for single women accessing surrogacy. Therefore, in the case of gestational surrogacy, which is permitted, the emphasis is on absolute compliance with the contribution of gametes by the future parents.

According to the amended Surrogacy (Regulation) Rules, 2022, the District Medical Board must certify that either the spouse is suffering from a medical condition that requires the use of a donor gamete.

Indians, constrained by surrogacy laws, are now going abroad to become parents, Single men, women, same-sex couples, and even straight couples are opting for commercial surrogacy in the US, Canada, Eastern European countries, and Latin America.

Surrogacy in Islam:

Most Shia religious leaders support Sunni views third party donations are prohibited. However, in 1999, Ayatollah Khamane'i, the supreme Shia jurist in Iran has issued a fatwa allowing a wider use of donor technologies than the two mentioned above by the Islamic Fiqh Council. Khamane'i decided to donate eggs, sperm and gametes and surrogacy is permitted under certain conditions.

For example, egg donation is allowed as long as the husband temporarily marries an egg donor, ensuring that all three parties are married. It is worth noting that temporary marriage (mut'a), a form of time-limited union, is permitted among the Shiites.

Khamanei's vindication authorization of embryo donation is that the embryo comes from a married couple and is given to another married couple, a that the procedure does not involve direct bodily sexual contact that would constitute an adulterous relationship. It is it is also worth noting that some egg donors were friends or relatives, members of the agnatic group of infertile couples.

In some cases, the problem of a barren wife is solved by marrying a second wife. Descendant of man second wives are legally accepted under Islamic law and are

he grew up in a polygynous marriage and an extended household. Usual focus on traditional the family as the basic stable unit of society provides another solution for childless couples.

Another future solution for childless Muslims can be doctors: further clinical experience and advances in surgical techniques could cause the uterus transplantation a reality in the treatment of infertility sometime in the future.

Such a procedure would be particularly attractive for Muslim communities, where the concept of a surrogate mother and the donation of sperm, egg, or embryos are completely unacceptable from a religious and ethical point of view.

In short, surrogacy is not allowed in Sunni Islam in any one of its forms. To solve the problem of childlessness, Sunni Muslims are encouraged to raise orphans. Some couples choose to foster children who are related by blood, especially the descendants of their own siblings, while some follow Khamanei's fatwa, which contradicts Sunni Muslim view.

Although this solution is costly in terms of time, money, travel, physical and physiological suffering, and psychological stress, the end result is considered worthwhile from their perspective.

Gestational Surrogacy:

Gestational surrogacy is a reproductive arrangement in which a woman, known as a gestational surrogate or gestational carrier, carries a pregnancy for another individual or couple using embryos created through in vitro fertilization (IVF).

Unlike traditional surrogacy, where the surrogate egg is fertilized with the sperm of the intended father, gestational surrogacy involves the transfer of embryos created from the gametes of the intended parents or donors into the uterus of the surrogate.

This method allows individuals or couples who are unable to conceive or carry a pregnancy to have a child genetically related to one or both parents. It also provides solutions for same-sex couples and individuals who want to build their family. Gestational surrogacy offers greater legal and emotional clarity compared to traditional surrogacy because the surrogate has no genetic relationship to the child she is carrying.

However, gestational surrogacy raises ethical, legal and social considerations. Ethical concerns may arise regarding the commercialization of reproduction, the rights and welfare of surrogates, and the potential exploitation of vulnerable women. Legal issues regarding parental rights, custody and surrogate compensation vary widely across jurisdictions, leading to legal ambiguity and potential conflicts.

In addition, gestational surrogacy may face social stigma or moral judgment in some communities, raising questions about wider societal acceptance of alternative family building methods.

Despite these challenges, gestational surrogacy continues to be a valuable option for individuals and couples seeking to fulfil their dreams of parenthood. Effective regulation, ethical guidelines and support services are essential to ensure that gestational surrogacy arrangements promote the welfare and rights of all parties involved.

Surrogacy in India:

India's Surrogacy Industry has been criticized for exploitation of surrogates, lack of regulatory oversight, and ethical concerns regarding commercialization of reproduction. Initially, India was one of the most sought-after countries for international surrogacy because of its low cost and legal permissibility.

However, India's surrogacy industry has been subject to allegations of exploitation and abuse of surrogate mothers. The lack of a comprehensive legal framework and safeguards has raised concerns about the well-being of surrogate mothers and the ethical consequences of commercialization of reproduction. In response to these concerns, the Indian surrogacy industry has undergone substantial regulatory reforms.

Benefits of Surrogacy:

Surrogacy offers hope to infertile couples, same-sex couples, and single individuals who long for parenthood but encounter biological challenges. By providing a pathway to conception and childbirth, it brings to life the dreams of parenthood that may otherwise seem out of reach.

Additionally, surrogacy enables a deep genetic connection between the child and one or both intended parents. Whether through traditional or gestational surrogacy, the utilization of the intended parents' gametes ensures a biological link that enhances the familial bond and identity of the child.

Additionally, surrogacy empowers intended parents to have a significant level of involvement in the pregnancy journey, serving to safeguard the well-being of both the surrogate mother and the unborn child. This involvement extends to overseeing prenatal care, allowing for the supervision of the surrogate's health, lifestyle, and medical appointments, thereby fostering a secure and healthy pregnancy environment.

Disadvantages of Surrogacy:

Surrogacy's critics point out the exploitative nature of the practice, especially for women from disadvantaged backgrounds who may be tempted by financial gain. The exploitation of women's bodies and reproductive capabilities raises ethical questions, as financial gain may take precedence over informed consent and independence.

The emotional implications of a surrogacy arrangement are huge, both for the surrogate mother and for the intended parent. The surrogate mother may develop strong emotional ties with the unborn baby, which can cause distress upon giving up the baby postpartum. Similarly, the intended parent may face complex emotions, particularly when bonding with a child that may not share the same genetic makeup.

The complexities of a surrogacy situation are compounded by legal uncertainty, as laws and regulations vary from state to state. This leaves the intended parent vulnerable to legal challenges, such as establishing parental rights, in states where there is no legal recognition of or regulation of the practice.

Surrogate Motherhood at the International Level:

At the global level, there is ongoing debate and a lack of consistent regulation surrounding surrogate motherhood. Some nations have legalized and put regulations in place for surrogacy, while others have outright bans or strict laws. This lack of agreement results in legal uncertainties, ethical challenges, and the potential for exploitation.

International bodies like the United Nations have not created comprehensive guidelines or treaties to address surrogacy, leaving individual countries to establish their own policies. The varying approaches taken by different countries highlight the necessity for international discussions and collaboration to establish clear, ethical, and rights-focused frameworks for surrogate motherhood.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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