Islamic perspectives on the embryo and gamete donation

1) The embryo

Sunnism and Shi'ism comprise approximately eighty and twenty per cent of the Islamic world, respectively. Like other monotheistic religions, Islam regards one's personal identity, or one's 'I' in terms of personhood, as being tantamount to one's immortal, immaterial and rational soul. Differences between the religions, however, exist as to when the 'I' is. In other words, when does the ensoulment of the indivisible rational soul actually start?

The Catholic tradition dictates that an embryo has personhood from the very beginning, due to its possessing an immaterial rational soul. This has been challenged by third millennium biology. Assuming - as with embryos of lower organisms - a human, rationally-ensouled embryo may be divided into four totipotent cells in vitro, each with the capacity to be implanted and undergo gestation, how can a simple immaterial entity, the rational soul, too be divided into four souls?

In Islam, the embryo is deemed a sacred entity and, hence, in Shiah jurisprudence - in contrast to Sunnism - there are traditions that specify ascending fixed fines (blood money or diyyah) of gold dinars (1 dinar is equivalent to £50 sterling today) for aborting embryos/fetuses (the diyyah system is employed as a deterrent in relation to any form of destruction of human organism life). The more embryonically developed and complex the fetus is, the more the fine, so aborting a fetus at the zygote and bone formation stages involves a blood money of around 20 and 80 Dinars (£1000 and £4000), respectively. Naturally these fines were assigned after observing the aborted fetus (which need not be the case today). Note that 1000 dinars (the stipulated fine for post-ensoulment fetuses) is the complete sum in relation to persons, be they fetuses or post-birth persons.

Although deemed sacred, Islam - in contrast to Christianity - does not regard the embryo as a person. According to Shiah jurisprudence, aborting fetuses at any stage during gestation is illegal but after ensoulment (determined either by the passing of 4 lunar months of gestation or even before this limit were voluntary movement to be acknowledged), aborting the fetus is no different to infanticide due to the presence of the rational soul. In Sunni jurisprudence, the Hanafi and Hanbali schools regard ensoulment as occurring at 120 days and hold that aborting the fetus before this stage is unethical, but not illegal (no fines sentenced).

By contrast, according to the Shafi'i school , ensoulment arises at 40 days. Like the above two schools, aborting the fetus before the ensoulment stage is merely regarded unethical, but aborting post-ensoulment is considered illegal and open to tort.

Finally, in the Maliki branch of Sunni jurisprudence, ensoulment is viewed as occurring at 120 days, but aborting the fetus at whatever stage during gestation is decreed illegal as well as being unethical. Unlike Shi'ism, which maintains a diyyah system throughout gestation, Sunnism only stipulates fines for post-ensoulment abortions.  Note, however, that there are permissible indications for pre-ensoulment abortions, the stipulation of which is beyond the scope of this commentary.

2) Gamete Donation

In Islam, as well as other religions, adultery has been forbidden. The reason for announcing such deeds as illegitimate is due to the intimate sexual contact between the genitalia of unrelated members of the opposite sex. Note that, were a copulation-free contact made (e.g. hugging or kissing one another), this too is deemed impermissible (haram) albeit not qualified as adultery. Coitus interruptus or emission-free copulations between the two parties, on the other hand, will qualify as adultery.  Adultery, therefore, is realized - as deemed by the texts - once the juxtaposition (copulation) of the related genitalia has been actualized.

Leading Sunni scholars at Al-Azhar University, such as M.R. Uthman, draw analogies between gamete donation and adultery, and thus reason that it should be prohibited. Qiyas (analogical reasoning) - a legal tool employed in Sunnism and rejected by Shi'ism - is defined as 'the extension of Shariah value (a subject-matter whose ruling has been textually stipulated by the Quran/Traditions) from an original case (asl), to a new case (far'), because the latter has the same effective cause (ratio legis) as the former'. In the absence of Quranic and traditional references, this method of reasoning has constituted the main drive in Sunni legal extrapolations (save within Hanbali schools of jurisprudence).

Uthman's rationale may be structured as follows:

Premise 1: According to the texts, adultery is forbidden in Islam.

Premise 2: The textually stipulated underlying principle for the above being that two unrelated persons of opposite sexes are not allowed to execute copulation (this act being confined to legally married couples).

Premise 3: Gamete donation involves scenarios whereby a man A's sperm is fused in vitro with woman B's (who is not A's wife) egg.

Conclusion by Analogy: gamete donation is therefore prohibited

This reasoning however is not faultless. The rationale behind the original case (adultery) is not to be found within the new case in question (gamete donation). In gamete donation, one observes no traces of illicit copulation: everything is carried out in a lab environment without the assistance of any genitalia! Continuing from such logic, surrogacy and IVF may also be analogized to adultery and thus be deemed forbidden due to their possible involvement of reproductive material transfer from one man to an unrelated woman. Some may respond by saying that cases of surrogacy or IVF, which deal with a lawful couple's own embryo or sex cells, are therefore unproblematic. However, the involvement of the doctor who is executing the transfer may be analogized - in accordance with the aforementioned logic - to copulation-free contact between unrelated members and thus be deemed forbidden as a result. Furthermore, the doctor's mere looking upon the couple's gametes may even be analogized to pornography which is also deemed illegal in Islam!

According to most Shiah religious authorities, however, gamete donation per se is not deemed illegal, and the same goes for adoption, although both are prohibited by Sunni authorities. Nevertheless, questions of parenthood, inheritance and the observance of hijab regulations between genetically unrelated members of the opposite sex must be monitored under the general governing Shariah principles on these matters. Although both sects have very similar philosophies in relation to the embryo and soul, their verdicts on gamete donation, surrogacy, human cloning and other reproductive technologies differ dramatically.