'The desperation of the infertile, the scientific zeal of the physician and scriptural restrictions posed by Shari'ah appear to have different pathways.'
Muslims constitute over a fifth of the global population, ninety per cent being Sunnis and the rest Shi'a. Of the 50-80 million infertile world-wide, more than half are Muslims (1), whose infertility is mainly due to tubal pathology and male factor (2). Fecundity is cherished in Muslim society where children are highly valued, parenthood culturally mandatory and childlessness socially unacceptable. Though encouraged to seek a cure (hadith), Muslims believe in the philosophy of utter resignation to the will of Allah ('tawakkaul Allah') and the infertile Muslim is governed by Qur'anic verse:
'...He creates whatever He wills. He grants daughters to whom He wills, and sons to whom He wills; and makes barren whom He wills' (Ash-Shura 42: 49-50)
Shari'ah and evaluation of Assisted Reproductive Technologies (ARTs):
The essential sources of Islamic law (Shari'ah) are the Qur'an (divine revelation) and the Hadith (divinely-inspired sayings, actions and tacit approval of Prophet Muhammad). Islamic jurisprudence (Fiqh), a human construct, is composed of resolutions by Islamic jurists over the past millennium and complements the Qur'an and Hadith.
The triad of mujtahid, ijtihad and fatawa constitute the mechanism for evaluation of Shari'a compatibility. A Mujtahid is a Muslim learned in religion and fiqh and empowered to perform a reasoned analysis based on divine texts and personal judgement (ijtihad). While the Sunni infra-structure entertains independent (individual) ijtihad, it advocates the Islamic concept of joint consultation (shura): 'Believers are those who conduct their affairs by consultation (shura)' (Q 42:39).
This explains the emerging dominance of collective Sunni ijtihadi institutions represented by Shari'a Councils or Fiqh Academies with representation from a wide spectrum of international experts in appropriate fields enhancing the legitimacy and validity of the fatawa. The Shi'a, however, does not have the equivalent of collective ijtihad, relying instead totally on their Marja'I, who consult experts when necessary.
A fatwa is an Islamic legal decree by a qualified mujtahid in response to an inquiry regarding a controversial issue. Fatawa, though authoritative, are not legally binding unless backed by government legislation. An infertile couple therefore has several options open to them if, in seeking treatment, they find themselves in violation of a fatwa. They could get a second opinion, by opting for another fatwa of their choosing. They could appeal to the state, which reserves the right to overturn any fatwa it deems opposed to Islam or Muslim society. Or, finally, they could transgress the Shari'a boundary and engage in cross-border 'reproductive tourism', facing the consequences in the hereafter.
Shari'ah compatibility of ARTs:
The Hadith 'Seek treatment, but do not use unlawful methods, as Allah did not make them avenues of cure for the Muslim community' precludes Muslims from using Shari'a incompatible ARTs.
Five essential Qur'anic principles mainly govern ARTs:
1. Preservation of sanctity of life: 'Do not take life, which Allah has made sacred, except for just cause' (Q17:33) - abortions are therefore disallowed.
2. All conceptions must occur under the marriage contract: 'He has established the relationship of lineage and marriage' (Q25:54) - extra-marital, post-divorce and posthumous conception are therefore prohibited.
4. Gestational carrier is the mother: 'No one can be their mother except those who gave them birth' (Q58:2) - therefore surrogacy is disallowed.
5. Islam permits transgression of Shari'a for a just cause: 'But whoso is compelled by necessity, without wilful disobedience, not transgressing due limits, thy Lord is forgiving, most Merciful.' (Q6:145)
Islam has been acclaimed as a religion of Usr, which means there are provisions to relieve hardship. In interpreting the Qur'an or hadith, Allah's intention (maqasid) is all-important and public interest must be catered for, if necessary by juristic preference (istihsan). In cases of absolute necessity strict Islamic laws (azima) can be overcome by concessions (rukhsa) to alleviate hardship. So, for example, while the Qur'anic verse: 'Do not take life, which Allah has made sacred except for just cause' (Q17:33 ) precludes abortions, Islam permits this if there is a danger to the mother's life (as verse Q6:145, above).
Moreover, Shari'ah provides flexibility: fatawa are categorised by the rule of fives (akham al-khamsa) ranging from wajib (obligatory) to forbidden (haram), both being mandatory with the three intermediate stages of recommended (mubah), permissible (mandub) and reprehensible (makruh), being left to the discretion of the individual.
The Shi'a constitute an integral part of the family of Islam. However, neither the message nor the spirit of Islam could prevent the cleavage within its fold, due to differences in theological doctrine, ideology and politics.
Divergences in interpretation of the Shari'ah:
'The interplay between the cutting edge of ART and dynamic changes in Islamic perspectives demonstrates considerable variation in the way in which Islamic scholars perceive what is and what is not permitted by Islam.'
Sheikh Jad al-Haq, Grand-Sheikh of Al-Azhar University, issued his historic fatwa in 1980 based on the Qur'anic verses listed above and served as the guide-post followed by all Muslims, till Ayatholla Khamenei's fatwa of 1999. The dramatic innovative declarations by the Shi'a Marjai' (eminent Shi'a jurists) and their unique perceptions of ijtihad, legitimising egg and embryo donation and surrogacy under the umbrella of flexible or temporary (mut'ah) 'marriage', has caused a paradigm shift.
Mut'ah originated as a pre-Islamic Arabian custom, designed to curb promiscuity and provide a veil of legitimacy for Man's excesses (3). The Shi'a claim of the validity of mut'ah, which rests on the interpretation of the words 'Famastanta tum bihi' (Q4:24), is refuted by the Sunni Muslims and is currently an exclusively Shi'a privilege (4). The polemics of this debate aside, what is the legitimacy of using mut'ah as an avenue to obtain third party assistance in ART to 'borrow' her egg, embryo or her womb? The answer lies, perhaps in the following statement from an illustrious contemporary Islamic scholar:
'...Shi'ism is not a heterodox sect and Sunnism and Shi'ism are both orthodox interpretations of the Islamic revelation and constitute two different perspectives of Islam' (5).
Less spectacular, nevertheless fascinating, is the interesting twist whereby, if the Sunnis wish to avail themselves of these liberal rulings of the Shi'a, they could theoretically go across the Sunni-Shi'a divide adopting the Shi'a Jafari school ruling, under the guise of takhayyur, meaning the use of a doctrine from a different legal school (6).
Even more dramatic, perhaps almost revolutionary, is Ayatholla Khamenei's fatwa of 2003, where he has extended his generous approvals to include extra-marital conception and sperm donation and the use of sperm after death! The Shi'a pragmatism and their innovative ijtihad to direct the new technologies towards diagnostic and therapeutic goals using the mut'ah avenue remain controversial.
The high incidence of infertility among Muslims and the predominance of male infertility need to be addressed. Fatawa on broader issues with global implications such as ARTs, must be determined only by collective ijtihad. Sunnis and Shi'a must address the current impasse across the Sunni-Shi'a divide to provide a clear, compassionate pathway for the unfortunate infertile Muslims.