MEDICALLY ASSISTED REPRODUCTION
Due to the prohibition on adoption in most Muslim countries, infertile couples are turning to other methods to have children. Medically assisted reproduction (MAR) is now used throughout the Islamic world.
Muslim jurists were initially critical of different methods of MAR, as many feared these methods would be used in defiance of Shari’ah.[998] Furthermore, unnatural methods of reproduction were avoided as fertility and sterility were considered to be the result of divine will (Quran 42, 49-50). Additionally, doctors carrying out the procedures would have to see parts of a woman’s body that only her husband should see. Based on these views, some religious leaders prohibit all artificial methods of reproduction.[999]
MAR has become increasingly accepted, as it contributes to the stability and continuance of marriage and the family.[1000] While there is disagreement about most aspects of MAR, the general position in Islam today is that only homologous techniques are allowed.[1001] All heterologous techniques involving a third party who is extraneous to the couple, whether it is a sperm or egg donor or a person implanting the embryo into the woman, are classified as acts of zina.[1002]
Reproduction (and contraception) by unnatural instruments are not considered an infringement of divine will as it is thought that the reproductive or contraceptive technique will only be effective if God wishes it.[1003] While some argue that the recourse to semen banks comes under masked forms of zina and is thus not allowed,[1004] in 1997 the National Committee for Medical Ethics of Tunisia noted that sperm banks are accepted, for example, in order to ‘preserve the gametes of young people who are to undergo operations resulting in sterility’.[1005]
In polygamous relationships, ‘the implant of the embryo which was the result of the gametes of the husband and of one of his wives into a second wife maintains the reproductive relationship within the same family nucleus’,[1006] making it a homologous technique. This further displays the interchangeability of wives, and their lack of power and individual rights.
Most Muslim states do not have specific legislation regulating MAR practices. In Saudi Arabia, ministerial regulations are applied and the authorisation for the centres comes from government authorities,[1007] whereas Tunisia is the only Arabic-speaking country that has legislated on the issue of IVF. Here, the law states that ‘assisted reproduction treatment for infertility should be performed with gametes of a married couple, and frozen gametes or embryos are only to be used if the couple is alive and the marriage contract is valid and with valid consent’.[1008]
The law further provides that cryopreservation of embryos is allowed for five years, which can be extended for another five years, and any patient can ask for destruction of cryopreserved embryos if they are filing for a divorce.[1009] Cryopreservation of embryos does not take place in Saudi Arabia, while multiple pregnancy reduction is practised in the Kingdom.[1010]
There is also the issue of sex selection technologies, which have been condemned on the basis that they discriminate against female embryos and foetuses, ‘perpetuating prejudice against the girl child and social devaluation of women’.[1011] While some scholars accept sex selection and some oppose it, both agree that family, as the core of Islamic society, should be maintained.[1012]
Due to the uncertainties and risks involved with MAR, it is tolerable only in cases of extreme necessity and in the absence of any better alternatives.[1013] In summary, it appears that no one form of MAR is allowed throughout the Islamic world, and that each case must be considered on its merits.[1014] Clearly, however, the more liberal Tunisia offers a much broader range of options for women.
VI.