Repugnancy to Injunction of Islam

2017 PLD 78 FEDERAL-SHARIAT-COURT Judicial Precedent

Art. 203-DShariat petitionMedical jurisprudenceSurrogacyRepugnancy to Injunction of IslamChild produced through In Vitro Fertilization (IVF) procedure by using sperm of a third person

Where the husband was not in a position to produce a child or there was some problem in the sperm of the husband and the sperm was obtained from a third person, in that case the child would belong to the person, from whom the sperm had been obtained

Child would not belong to the husband who had arranged the sperm from a third person

Even if the egg belonged to the wife of the person who had arranged the sperm from a third person, for all practical purposes the child would belong to the person from whom the sperm had been obtained

Such an arrangement would be illegal and against the injunction of Holy Qur'an and Sunnah

Shariat petition was disposed of accordingly.

2017 PLD 78 FEDERAL-SHARIAT-COURT Judicial Precedent

Art. 203-DShariat petitionMedical jurisprudenceSurrogacyRepugnancy to Injunction of Islam

Child produced through In Vitro Fertilization (IVF) procedure by using sperm of the husband, eggs of the wife, and placing the embryo in the womb of the wife

Where the sperm had been obtained from husband and the egg from the wife and the same had been fertilized in the test tube through medical process and the embryo was then placed in the womb of the wife, in that case the child would belong to the actual husband and wife

Such process could not be considered as illegal or against the injunctions of Holy Qur'an and Sunnah

Child in such a case by all means would be legal and legitimate

Shariat petition was disposed of accordingly.

2017 PLD 78 FEDERAL-SHARIAT-COURT Judicial Precedent

Art. 203-DShariat petitionMedical jurisprudenceSurrogacyRepugnancy to Injunction of Islam

Producing a child through a surrogate mother [Per Riaz Ahmad Khan, C.J.]: Where a woman was arranged as a surrogate mother against a monetary consideration or some other reasons, the whole procedure as well as the resulting birth of the child would be illegal and against the Injunctions of Holy Qur'an and Sunnah

Children born through surrogacy were not produced by a couple through the bond of Nikah

Object of producing children through surrogacy was to satisfy the desire of a woman who may not wish to marry a man or go through the pains of delivery or was infertile

Homosexual couples could also have such desires

Paternity and maternity of child would become irrelevant in case of surrogacy

Only if a baby was born through mechanical/medical process where the sperm belonged to the husband and the egg to the wife and the child was born through the wife, in that case the procedure would be legal and lawful

In all other cases surrogacy procedure would be unlawful and against the Injunctions of Holy Qur'an and Sunnah

His Lordship observed that surrogacy procedure was not only based on exploitation rather the whole concept was illogical, cruel and absurd; that if a woman was asked to carry a child for an unknown couple and then go through the pains of delivery and deliver a child for another couple, it would be beyond human understanding that the woman, who carried the child for nine months, would not develop emotional feelings for the child to whom she gave birth; that in such a case the woman became only a machine not having any feelings, emotions or love, and that surrogacy also disturbed the settled principles of inheritance given by the Holy Qur'an

[Per Allama Dr. Fida Muhammad Khan, J]

Use of a third party in the process of pregnancy was prohibited, whether the subject was liquid sperm or egg or embryo or a third party, and whether it was involved by way of lease or donation

Shariat petition was disposed of accordingly.

2017 PLD 78 FEDERAL-SHARIAT-COURT Judicial Precedent

S. 2Penal Code (XLV of 1860), PreambleConstitution of Pakistan, Art.203-DShariat petitionMedical jurisprudenceSurrogacyRepugnancy to Injunction of IslamContract for producing a child through a surrogate mother

Federal Shariat Court held that whole procedure of surrogacy as well as the resulting birth of the child was illegal and against the Injunctions of Holy Qur'an, and directed that suitable amendment should be made in S.2 of the Contract Act, 1872 and it may be specifically provided that any agreement regarding surrogacy would not be enforceable by law as the same would contain unlawful proposals and unlawful considerations; that the Penal Code, 1860 should also be amended and suitable section of law be added regarding definition of surrogacy; that surrogacy should be declared as an offence punishable with imprisonment as well as fine, that further amendment be made in the Penal Code, 1860 that the couple who arranged a surrogate mother would be liable to punishment along with surrogate and the doctor who carried on the surrogacy procedure; that the Penal Code, 1860 should provide punishable for the doctor who maintain a sperm bank or egg bank for future use, which should include imprisonment and fine, and that it must also be provided that any doctor involved in the procedure of surrogacy should lose his license

Shariat petition was disposed of accordingly.