The Islamic viewpoint on new assisted reproductive technologies.

• Author: Fadel, Hossam E.

INTRODUCTION

The desire to have one's own offspring is a very strong human instinct. The Quran, the holy book of Muslims, documents this fact: "Wealth and progeny are the allurements of this world." (1) A common supplication of Muslims is, "And those who pray, Our Lord, grant unto us spouses and offspring who will be the comfort of our eyes." (2) On the other hand, Muslims believe that God ordained that some couples would be infertile. "He creates what He wills. He bestows male or female children to whom He wills. He bestows both male and female children (to some) and He leaves barren whom He wills." (3)

Islam also acknowledges that infertility is a significant hardship. (4) The Quran gives the example of two prophets, Abraham and Zacharyyia, peace be upon them, who were barren and described how they longed to have children of their own, even as they grew old and almost despaired of having children. "Then did Zacharyyia pray to his Lord, saying, `O my Lord! Grant unto me from You a progeny that is pure, for You are He that hears the Prayers.'" (5) The method they used to achieve their goal was to ask God repeatedly and sincerely with humility and faith. Eventually God answered their prayers. "And the angels gave Abraham glad tidings of a son endowed with knowledge!" (6)

This does not mean that Islam asks the infertile couple only to pray to overcome this problem. A basic Islamic principle permits persons facing hardship to use all lawful means to solve their problem, while at the same time preserving their trust in God that He will help them achieve their goal. This is especially true in matters of health and disease. Prophet Muhammad, the prophet of Islam, stated, "For every disease God has created a cure except senility [meaning death]. So progeny of Adam seek cure for your ailments!" (7) This is conditioned on the use of lawful means and the sincere belief that God is the ultimate source of cure. (8) As Abraham is reported in the Quran as saying, "And when I get sick it is He who cures me." (9)

Thus, it is clear that infertile couples are instructed and encouraged to seek cure of their infertility, but within the limits of what is permissible in Shari'ah. (10) The command to seek cures for disease also applies to physicians and other healthcare providers. As a result, discovery of new methods for the treatment of infertility, as well as all other diseases, is, in principle, a perfectly legitimate pursuit, but with the caveat that harmful or illegitimate methods are not to be used. (11)

The Quran describes as losers in the Hereafter those who "learn that what harms them and does not benefit them." (12) The Prophet's supplications include, "Oh God, teach me what is useful," and, "I seek God's refuge from all knowledge that is harmful." (13)

1. THE RISE OF MODERN REPRODUCTIVE TECHNOLOGY

   Until recently, the treatment for fertility was mainly by medications to correct hormonal deficiency, or by surgery to correct anatomical defects. These treatments were mostly non-controversial from an ethical or religious point of view. The recent advent of assisted reproductive technologies ("ARTs"), however, changed this situation dramatically. These technologies transferred the process of procreation from a private, personal relation between husband and wife, into artificial means in a lab, and, in many instances, involving a third or fourth party in the process. These changes in the procreative process challenge basic religious and ethical concepts. (14)

   Before describing the specific reproductive procedures and the Islamic view of these procedures, how Muslim jurists derive their religious opinions on whether a certain procedure is permissible will first be explained.

   1. Background of Islamic Law

      The primary sources of Islamic law, the Shari'ah, (15) are the Quran, the true word of God, and the Prophet's traditions and sayings that have been preserved over the centuries as His Sunnah. (16) Laws governing topics that are not directly covered by these two sources are to be determined by a process of legal reasoning, or Ijtihad. (17) The rules of Ijtihad are stipulated in a well-established methodology called Usul-al-Fiqh. (18) This process of Ijtihad takes into consideration Qiyas (analogical reasoning), (19) Istihsan (juristic preference), (20) Maslahah Mursalah (unrestricted public interest), (21) Sadd al-Dharai (blocking the means), (22) `adat (23) and `urf (24) (customary practice), and istishab (presumption of continuity). (25) The most important of these concepts in relation to the topics of this Essay are to be discussed below.

      1. Istihsan--Juristic Preference

         The first principle, the Istihsan (juristic preference) allows the jurists some leeway in interpreting the law to allow for something that is useful. (26) In such cases it will be permissible to allow the spirit of the law to prevail over the letter of the law.

      2. Sadd al-Dharai--Blocking the Means

         The second principle is the blocking of the means, which occurs in one of two situations. The first situation is when a lawful means is expected to lead to an unlawful (or harmful) result. The second situation is when a lawful means, which normally leads to a lawful result, is used to procure an unlawful end. In these cases, the means itself become unlawful.

      3. Maslahah Mursalah--Unrestricted Public Interest

         The third principle is "public interest." In defining "public interest" the jurists have to weigh the benefit that may occur to an infertile couple by having a child, versus the harm that it may cause to the resulting child and any harm to society as a whole. In a case where the harm outweighs the benefit, that procedure becomes...