Fatwas and ARTs: IVF and Gamete Donation in Sunni v. Shia Islam

Author:Marcia C. Inhorn
Position:Professor of Health Behavior and Health Education, Womens Studies, and Anthropology and Director

I. Introduction .II. The Role Of Fatwas.III. Sunni Islam And IVF A. The Al-Azhar Fatwa .1. Introduction. 2. In Vitro Fertilization. B. Key Points of the Al-Azhar Fatwa .C. Sunni Muslim Opposition to Gamete Donation. IV. Shi'a Islam And IVF. A. The Fatwa of Ayatollah Khamanei . B. Key Points of Disagreement over the Khamanei Fatwa. V. The Effects Of Fatwas On Marriage And Gender Relations. VI.... (see full summary)


    Marcia C. Inhorn, Ph.D., MPH. Professor of Health Behavior and Health Education, Women's Studies, and Anthropology and Director, Center for Middle Eastern and North African Studies, University of Michigan, Ann Arbor.

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I Introduction

Since the birth in 1978 of Louise Brown, the world's first test-tube baby, assisted reproductive technologies (ARTs) have spread around the globe, reaching countries far from the technology-producing nations of Euro-America. Perhaps nowhere is this globalization process more evident than in the Muslim world, where hundreds of in vitro fertilization (IVF) centers now cater to the world's 1.3 billion Muslims. In the Middle East, the private IVF industry is flourishing, with clinics found in most major cities. In Egypt, for example, nearly sixty IVF clinics cater to a population of approximately seventy million people, while in tiny Lebanon (population four million), more than fifteen IVF centers are found, one of the highest per capita concentrations in the world. In other words, IVF and even newer ARTs are a burgeoning part of everyday life in the Muslim Middle East at the start of the new millennium. Literally thousands of infertile couples from Morocco to Iran are resorting to ARTs in order to bear cherished offspring.

However, in the Muslim world, including the Middle East, ARTs are practiced according to religious norms, which are clearly set out in non- legally-binding, but nonetheless authoritative religious proclamations called fatwas. In this article, I intend to describe the impact of important ART fatwas on the practice of IVF and related technologies. Furthermore, I intend to show how ideological rifts between dominant Sunni versus minority Shi'ite forms of Islam are leading to quite divergent practices of third-party gamete donation in the Muslim world. I will do this through careful examination and comparison of two major fatwa texts, one offered by the leading cleric of Al-Azhar University in the heart of the Sunni Muslim world (Cairo, Egypt) and one offered by the supreme jurisprudent of the Shi'a branch of Islam in Iran. As will be seen, these two fatwas diverge in both style and substance, with implications for the practice of Page 292ARTs that are potentially profound. These differences, furthermore, have major implications for marriage, gender relations, and gender equity in the Muslim world, as will be shown in the final section of this article.1

II The Role Of Fatwas

Islam has often been characterized as an "encompassing" or "comprehensive" religion, in that the teachings of Islam cover many fields of human activity, be they spiritual, social, cultural, educational, economic, political, or medical. Instructions that regulate everyday activities-for example, daily prayer, pork and alcohol prohibitions, and the care of orphans and the elderly-and are meant to be adhered to by observant Muslims, constitute the Islamic sharica.2 Muslims consider the primary sources of the sharica to be the Qur'an, considered the word of God as delivered to the prophet Muhammad; the sunna and hadith, a collection of traditions and sayings of the prophet Muhammad as authenticated by Islamic jurists; ijmac, which is the unanimous opinion of Islamic scholars; and qias, or analogy, which involves intelligent reasoning on issues not mentioned in the Qur'an or hadith (usually by examining similar or equivalent issues already ruled upon).3

When an action is mentioned in the Qur'an or hadith, the correct action to be taken by a devout Muslim is considered to be straightforward. Thus, for example, there is little disagreement among Muslims regarding the prohibition against consuming pork or alcohol.4 However, when there is no direct mention of a phenomenon such as the use of ARTs in these holy scriptures, contemporary Islamic scholars must arrive at a religious judgment through interpretation, analogy, and personal reasoning, a process known as ijtihad.5 Such judgments are regularly made by leading religious authorities, who issue fatwas, or nonbinding religious opinions, interpreting Page 293whether a behavior or action falls into one of these five categories, according to the Islamic sharica: obligatory (wajib), recommended (sunna), permitted (mubah), undesirable but not forbidden (makruh), or forbidden (haram).6

Any religious scholar may offer a fatwa for the guidance of his followers, and many do.7 However, most Muslim countries mandate certain "official" sources of fatwas for the country. In Egypt, for example, the government has mandated that there be only three official sources for fatwas: those issued by the country's highest-ranking religious figure, the Grand Mufti of Egypt; those issued by the Grand Shaikh of Al-Azhar University; and those issued by the Fatwa Committee of Al-Azhar University.8 Because Al-Azhar, one of the oldest universities in the world, is considered by most Muslims to be the center for Islamic education in the Sunni Muslim world, the fatwas issued from Al-Azhar have great weight throughout the Arab countries, as well as the non-Arab Sunni Muslim world (e.g., South and Southeast Asia).9

Given the rapid development of reproductive technologies that were never mentioned in the Islamic scriptures, it is not surprising that many fatwas have been issued, both officially and unofficially, in recent years to cover a wide range of reproductive technologies, including those that involve birth control, abortion, sterilization, female circumcision, and surrogacy.10 Not surprisingly, ARTs have been one such area of fatwa activity, with the initial ART fatwa emerging from the Sunni Muslim world, as described in the following section.

III Sunni Islam And IVF

It is useful to begin with Sunni Islam, which is the dominant form of Islam found throughout the Muslim world.11 Nearly ninety percent of the world's 1.3 billion Muslims are Sunni Muslims, with the strictest form of Sunni Islam emanating from Saudi Arabia.12 In Egypt, for example, more

Page 294than ninety percent of citizens are fairly conservative Sunni Muslims.13

Infertile Sunni Muslim couples are usually extremely concerned about making their IVF babies in the Islamically-correct fashion. To that end, they seek out the "official" Islamic opinion on the practice of IVF in the form of a fatwa, which is perhaps best viewed as a non-binding yet authoritative religious proclamation issued by an esteemed religious scholar.14

The first fatwa on medically assisted reproduction was delivered on March 23, 1980, by His Excellency Gad El Hak Ali Gad El Hak, the Grand Sheikh of Egypt's Al-Azhar University, the major center of religious education in the Muslim Middle East.15 This initial fatwa-parts of which are posted in some Egyptian IVF clinics-has proven to be authoritative and enduring, even though it was issued at least six years before IVF and the other assisted reproductive technologies became available in Egypt and eventually other parts of the Muslim Middle East.16 Since that time, other highly regarded religious authorities-both at Al-Azhar (following His Excellency El Hak's death), the Dar Il-Iftah (i.e., the fatwa-issuing religious center) in Saudi Arabia, and throughout the Muslim Middle East-have essentially agreed with all the main points of this initial religious opinion on the subject of medically assisted reproduction among Sunni Muslims.17 In fact, the basic tenets of the original Al-Azhar fatwa on IVF have been upheld by other fatwas issued since 1980 in Egypt, Saudi Arabia, and other Muslim countries, and have achieved wide acceptance throughout the Sunni Muslim world.18

A The Al-Azhar Fatwa

Because the initial Al-Azhar fatwa has been so profoundly important and authoritative for the majority of the world's Muslims, it is reproduced here, in a close translation (from classical Arabic into English) intended to convey the original language of its writing, as well as the style of religious- legal reasoning and analogy used to make prescriptive and proscriptivePage 295statements regarding IVF and related technologies.19 Furthermore, as will be clear throughout the fatwa, many references to Qur'anic passages and other scriptural sources are cited. It is important to note here that this fatwa was obtained by the author once it had already been translated from Arabic into English under the auspices of the Ford Foundation in Cairo, Egypt. Attempts were made by the Ford Foundation translator to preserve the original Arabic and to translate the fatwa verbatim. Such verbatim translation led to some grammatical and stylistic infelicities in English. In order to make the fatwa more readable for an English-speaking audience, the author has made minor copyediting changes, which nonetheless preserve as closely as possible the meaning of the text. The "original" translation can be found in Appendix I. This "copyedited" version of the Al-Azhar fatwa is as follows:

1. Introduction

Lineage and relationship[s] of marriage are graces of Allah to mankind, highly appreciated, and they are [the] basis of judgment. 'It is He who has created man from water, then He has established relationships of lineage and marriage, for thy Lord has power over all things.' (Furqan, or the Criterion 59) Therefore, origin preservation is a most essential objective of Islamic law.

In this concern, Scholar Elghazali stated: 'Allah's goal is to prevent harm and cause welfare; however, human beings...

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