Surrogacy in Islamic Law: Concerns and Considerations

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By: Dr. Mohammad Akram Nadwi
Oxford

I received the following question from some brothers working in the field of Islamic dawah in the United States:
“... The surrogate mother was not inseminated with sperm but with a fertilized egg, so I find it difficult to understand the reasoning behind requiring marriage between the husband and the surrogate mother. If the purpose is to secure social and legal rights, this can be achieved through the legal contract between the surrogate mother and the biological parents. This practice has no precedent in Islamic jurisprudence, and I find it challenging to locate an analogy within Islamic law. What is your opinion on this matter? I would like to hear your insights.”

I responded as follows:
Surrogacy is a process in which a woman agrees to carry a fertilized egg until delivery on behalf of a couple who will become the child’s legal parents. Couples may resort to surrogacy when natural pregnancy is impossible or poses serious health risks to the woman. Some countries permit this practice based on the perceived benefit of helping couples unable to have children.

1. Lack of Contentment with Allah’s Decree
Surrogacy indicates a lack of acceptance of Allah’s will and implies a weakness or flaw in belief in Allah and reliance upon Him. Muslims should limit their desires within what is permissible in their faith and in line with the lawful means established for them. If they cannot fulfill their desires within these bounds, it is better to exercise patience. If they are not blessed with children, they should find solace in caring for the children of their siblings or relatives, or they may adopt and care for orphans, who are in great need of someone to care for them and manage their affairs.

2. Reduction of Motherhood to Mere Egg Production
Surrogacy reduces motherhood to the mere production of an egg, disregarding the importance of carrying and nurturing the child in the womb. In contrast, the Quran emphasizes the value of motherhood, associating it with the hardship of carrying and delivering the child, followed by breastfeeding and weaning. These initial stages create a strong bond between mother and child. Numerous studies show that a child becomes attuned to the physical rhythms, chemistry, and sound patterns of the mother in whose womb they grow.

3. Exploitation of the Surrogate Mother
It is unjust to exploit a surrogate mother’s poverty, making her endure the pains of pregnancy only to separate her from the child at birth. This suffering is inevitable regardless of whether the surrogate mother is compensated. The only case where this hardship could be compensated for is when the surrogate mother is a close relative of the biological mother, allowing her to find comfort in helping her relative and being able to witness the child’s growth.

4. Does Not Imply Permissibility Even in Extended Family
This does not mean surrogacy is permissible even if it is voluntary, without financial compensation, and within the extended family. Permitting surrogacy would likely lead to false claims of kinship between the surrogate mother and the biological mother, as is evident where laws prohibit financial compensation but surrogacy persists widely.

5. General Principle of Caution
One should not deem something permissible for a society if it only occurs in exceptional cases. A key principle to follow is caution, meaning one should not engage in something simply because they are capable of it. Technological advances, even in medicine, should not be justified by their mere availability but by the consequences of their use. There are foreseeable consequences of using certain technologies, and these must be considered. If the outcomes of a technology are unpredictable, it can be tested on a limited scale if it promises substantial benefits.

From these points, I hope the need for patience and its high value is clear.

As for the matter of marriage – this has no relevance to the topic at all. First, such a marriage would be temporary, which is prohibited according to the consensus of Sunni scholars. Second, if a legal contract existed between the surrogate mother and the father, it would only complicate the issue, as it would provide her with an additional incentive to resist separation from the child.