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13.2. Third Party Involvement in the Reproductive Process : Comparative Aspects of the Legal and Ethical Approaches to Surrogacy

- Majdah ZAWAWI
Lecturer, Islamic Law Department,
Ahmad Ibrahim Kulliyyah of Laws, 
International Islamic University Malaysia.
Email: Z.majdah@edu.my

1. Introduction

"To Allah belongs the dominion of the heavens and earth. He creates what He wills and (plans). He bestows (children) male or female according to His will (and plan). Or He bestows both males and females, and He leaves barren whom He wills: for He is full of Knowledge and power."[1]

At a time where choices were once limited, infertility was a malady that was feared by many; and for a long time nothing much could be done to alleviate the sufferings that it brought on many unfortunate couples. However, with every suffering Allah has provided a cure as He promises: "For every disease there is a treatment"[2]

Indeed, man has proven the truth of this promise with the advancement in science and technology. Although the problem of infertility has not been totally eliminated, scientists have been able to come up with better ways to help childless couples fulfill their dreams of having a child. Moving from the more traditional use of herbal concoctions, mankind can now depend on various forms of reproductive technologies to assist them in their plight against infertility, with better accuracy.

The greatest breakthrough in modern reproductive technologies must have been the birth of the first test tube baby, Louise Brown in 1978. Since then, scientists have made tremendous progress in assisted reproductive technologies and have developed various types of procedures to better address the problem of infertility. These technologies include artificial insemination (AI), in vitro fertilization (IVF), gamete intra-fallopian transfer (GIFT), zygote intra-fallopian transfer (ZIFT), intra cytoplasmic sperm injection (ICSI) and the most recent possibility includes the use of nuclear transfer technology for reproductive purposes in humans. The variety of treatments provides better success rates in couples trying to have a child.

Nevertheless, as technology permits the fertilization of the sperm and the eggs to occur outside the womb, the possibility to procreate is no longer restricted to married couples only. True, legislations in certain countries, such as section 13(5)[3] of the Human fertilization and Embryology Act 1990, among others mentions that in considering a woman for treatment, the welfare of the resulting child will be the primary concern and the existence of a father is regarded as an important aspect of qualifying for the treatment. However, the Act is also seen to adopt a tone of temperance by considering not only married couples in matters pertaining to parental orders, but also couples who are in a stable and subsisting relationship.[4] In spite of the general importance placed on marriage, the fact remains that the possibility to procreate is now wider and in some cases is extended to involve third parties who are not originally a part of a subsisting family.

The involvement of third parties in the reproductive process can began as early as conception. Artificial insemination and in vitro fertilization techniques using donor sperms or with donor egg for example allows third party involvement even from the beginning of the reproductive process. Other techniques include GIFT and ZIFT, which allows embryo donation. These techniques bring about issues of the legitimacy of the resulting child and parental responsibilities of the parties involved.

However, even more pressing problems arise when the sperm of the man is used to fertilize the ovum that did not belong to his wife and where the husband and wife has agreed to a surrogacy agreement. The situation becomes even more complicated as question then arises as to the status of the commissioning father, his wife and the woman hired to carry the baby. As cases have shown, more often than not, when brought to trial, the Court is faced with a difficult duty to dispense justice to parties who have agreed to an inequitable contractual bond where the injustice cannot be undone.

Due to its controversial nature of surrogacy, this paper aims at primarily looking into the legal and ethical implications of surrogacy arrangements in the UK and the US whilst comparing it to the position under Malaysian laws.

Although initially frowned upon, there is evidence to show that surrogacy arrangements are more popularly accepted now than it was when first introduced. The change in attitude can be seen not only in the rise of surrogacy contracts in both the UK and the US but also in the judicial attitudes of the judges and law makers of both countries. Nevertheless, the UK, which previously seemed to adopt a rather conservative approach to surrogacy if compared to their American counterpart, has in the past couple of years been more open and accommodative to surrogacy arrangements. The similarities and differences between these two jurisdictions shall be highlighted in the first and second part of this article. Despite attempts to reconcile the issues of reproductive rights to that of respecting human dignity, the ethical debate rages on and this may be attributed to the impact that surrogacy arrangements have left on the resulting child, the commissioning parents, the surrogate mother and her family. My argument will be that despite the acceptance of the procedure by certain quarters, the fact remains that surrogacy arrangements are selfish and exploitative in nature and should not be encouraged nor condoned.

The third part will focus on the legal and ethical position of surrogacy under the Malaysian laws, primarily its position under the Shari'ah or Islamic laws and secondly, its position under the civil laws. Here, comparisons will be made to the legal situation under the Shari'ah and the Malaysian civil laws to that of the UK and US. This is based on the differences found in the philosophy of the law. Whilst Islamic law aims at protecting the five important interests in human life (Kulliyyah al-Khamsah)[5] and it does this by strict compliance to predetermined legal principles which is steeped in moral basis, Western law places more emphasis on man made laws with differing moral standards which concentrates more on the exercise of individual freedom.

Thus, this article will be concluded with a comparison of these three systems which will end with a contention that there is a vital need to include moral and ethical considerations in determining the legality of the type of reproductive technologies used by couples in their plight against infertility.

2. Why Surrogacy?

Surrogacy is a situation where "one woman carries a child for another[6] with the intention that the child should be handed over after birth[7] " in return for which the surrogate mother is paid a determined amount of money for bearing and delivering the child. The childless couple (usually married[8] ) will then have a child although not born by them, but will be genetically related to both or at least one of them.

Apparently there are several reasons why childless couples resort to surrogacy arrangements. Nevertheless, the general impression suggests that the inspiration and driving force behind these types of arrangements comes from the husband or the male partner of the infertile woman.[9] It is the man's desire to have a child genetically related to himself, which appears to be the prime motivation for many surrogacy arrangements.[10]

Other reasons for resorting to surrogacy include health or career impediments on certain women. For example, a woman's life may be put to danger if she was to carry the child herself[11] or she might want a child but does not want the inconvenience of pregnancy due to her career. Aside from that, such a service could also be desirable for single men or homosexual couples who want to build families of their own.[12]

Another more novel reason for surrogacy comes with possibilities created by the latest cloning[13] technology. In cloning, the need for surrogate mothers could indeed be real. In order to perfect cloning techniques, scientists would need real women to carry the clones to term in order to ensure that the resulting clone child is normal.[14] It is in this instance that Gena Corea was correct when she used the term, "breeder woman" to describe surrogate motherhood.[15] In such a circumstance, surrogate mothers are akin to breeder cows.

3. Types of Surrogacy Arrangements

Surrogacy pregnancies could be achieved through several procedures, depending on the condition of the parties involved. Surrogacy that most closely resembles 'natural' reproduction is one that is achieved by way of artificial insemination. This type of surrogacy is also known as full surrogacy and is usually considered when the wife of the commissioning father is infertile in that she is unable to provide an ovum and there is a problem to her uterus. This type of surrogacy involves taking the sperm of the commissioning father and artificially inseminating the surrogate mother who will then carry the resulting embryo to term. There is clearly a biological relation between the surrogate mother and the child as she not only gestates it but also provides half of the genetic material of the child.

The second type of surrogacy is known as partial surrogacy, where the sperm of the commissioning father is taken and used to fertilize the ovum of his wife through in vitro fertilization. The resulting zygote is then implanted into the surrogate mother to be brought to term. The resulting child will thus be the true genetic child of the commissioning parents but was born via a living incubator. Thus, the term 'in vitro fertilization surrogacy'[16] is also used to describe this type of surrogacy.

The third type of surrogacy may be achieved when the commissioning parents obtain sperm and ova from donors and after fertilization is achieved, the resulting zygote is then implanted into the uterus of a surrogate mother. Once born, the child is expected to be handed over to the commissioning parents for adoption.[17]

4. The Problems with Surrogacy

The problem with surrogacy is not because it is an unnatural way of getting a child.[18] It is because of the impact it left on the concept of mother and child relationship. As Andrea Stumpf puts it, traditionally, a mother of a child was "the one from whose womb the child came"[19] and traditionally, this was an unshakeable presumption.[20]

Surrogacy makes things somewhat complicated. A child born a result of a surrogacy arrangement could in fact have up to three "mothers" in certain instances. The surrogate who carried him would definitely be his "natural" mother if she supplied the ova and carried him to term. If the surrogacy involved the surrogate mother as a mere "carrier" of the child then, the "genetic" mother would also be in the picture, and so the child now has two mothers. Finally, in extreme cases, if the commissioning mother is not able to provide her ova and neither does she want the surrogate to use hers, then an ova from a donor would have to be used, and matters would worsen if even the sperm was taken from a donor to be fused with the donated ova. In such a circumstance, not only will the child end up having three potential "mothers" but also two potential "fathers" as well!

In order to "solve" this confusion, contracts of surrogacy have been resorted to. The main aim of these types of contracts is to determine the placement of the child after his birth, in that the surrogate mother will agree that for an agreed sum, she will be expected to carry the child to term and upon safely delivering the child, she must agree to surrender not only the custody of the child to the commissioning parents for them to care and nurture, but also relinquish all her parental rights over the child. And so arises the notion of womb leasing and baby selling. This brings us to the moral and ethical discussion of surrogacy arrangements.

One such issue usually arises in cases where the surrogate mother refuses to honour her part of the bargain and does not want to part with the child after she delivers the child. Then the issue of legality and enforceability of the contract would also arise. Should such contracts be enforceable to begin with?

And so the proponents of surrogacy submits that there is an eminent need to construe the intention of the parties from the contract, which they had signed.[21] Both parties entered into the agreement with knowledge and precise information on the nature of the contract. The surrogate mother was not forced to do anything that she did not want. Therefore, she should not be allowed to back off from her promise when the baby is later born.

Some feminists even argue that a woman should be allowed to do whatever she wishes with her body. After all, if a man could sell his sperm, why should a woman be stopped from using her reproductive organs for a certain payment.[22] She is, after all helping an unfortunate couple and not causing any difficulty to anyone but herself.

Those against surrogacy arrangements claim that surrogacy is in fact a form of exploitation of women.[23] Objections towards surrogacy have similar under tones of the objection towards prostitution. The Warnock Committee for example strongly condemned surrogacy for financial profit and treat her uterus as the mere incubator for someone else's child. It would also leave a very unhealthy impact on the resulting child. Once born, he is already the subject of a legal dispute and should he be unfortunate enough to find out later in his life that the person who had carried him had done so for purely economic reasons would certainly blight his future.[24]

The ethical debate on surrogacy intensifies when something goes wrong with the pregnancy. What happens if the baby is born, with a defect and the commissioning parents refuses to accept him and neither does the surrogate? If precedence is to be taken from the Stivers-Mallahof case, then there can be no denying that surrogacy arrangements are nothing more than contracts for the hiring of a womb and for the purchase of the resulting child.

It has been suggested that where the baby is born less than perfect, the parties should go back to the terms of a contract. As in defective goods, similarly a defective baby would have to be kept by the surrogate, as he did not fulfill the determined specifications.[25] There has also been suggestions that should the surrogate mother not want the care and responsibility of the baby, she should be allowed to offer it for adoption as she did not have the intention to keep in the beginning anyway.

Due to the ethical and moral issues involved in surrogacy arrangements, many still frown upon surrogacy, especially if it has a commercial motivation. However, according to them, in extreme circumstances, surrogacy should be allowed if purely done for altruistic reasons. This is noticeable in the UK where commercial surrogacy has been declared illegal but surrogacy is still allowed if it is not done for commercial purposes. Therefore, there is a middle view that opines that altruistic reasons for surrogacy should be allowed to help alleviate the sufferings of childlessness for some couples. Whatever the justification, some countries like the United States and the United Kingdom has seen it fit to consider surrogacy as a valid form of treatment for infertile couples but such arrangements are subjected to certain rules and regulations.

5. Legal Position in the United States.

The law with regards to surrogacy in the United States began to develop when the case of Baby M[26] was brought to court. In that case, the Court decided that although the contract must be considered unenforceable, it was in the best interest of the child that the baby be given to the Commissioning father and not the surrogate mother.[27] This set the judicial tendency in US courts whereby, although the surrogacy agreement in itself is considered as void and unenforceable, the custody of the child will usually be awarded to the commissioning parent and not the surrogate.

Judicial decisions from the US courts tend to take the position of considering the best interest of the child resulting from a surrogacy arrangement rather delve into the moral and ethical status of the act. A number of the decisions tend to point to a pattern of recognizing the rights of the commissioning parents over and above of the surrogate mother, regardless of her participation in the surrogacy arrangement. The case of Baby M for example reflected this attitude. In that case, the Supreme Court of New Jersey had invalidated the surrogacy agreement and had held that the best interest of the child was best served if placed in the custody of the commissioning father. Although the Court acknowledged that the consent given by the surrogate mother at the time of entering into the contract could not have been full and informed consent, they merely restored her parental rights but not the custody of the child.

The decision in Baby M was however greatly criticized as being callous and unfeeling towards the surrogate mother. Wilentz C.J. in that case while holding that surrogacy contracts are invalid and unenforceable due to the lack of informed consent on the part of the surrogate mother, nevertheless conveniently awarded custody of the child to the commissioning parents instead of the surrogate mother. The court even suggested that the surrogate mother cannot be considered to have given full informed consent before she delivers as at that time the feelings which developed between her and the baby had yet to be formed. As such, for a surrogacy contract to be binding on her, her consent to part with the baby must be considered only after the baby has been born and she has had time to consider her feelings towards the baby thereafter. If she still decides to continue with the surrogacy agreement, only then can the agreement be enforced against her.

Although the intention of the Court for awarding the custody of the baby to the commissioning parents is to deter women intending to venture into such commercial transactions from doing so, the end result is severe injustice caused to the surrogate mother. This is aptly considered by one surrogate who commented that surrogacy "is transferring the pain from one woman to another, from a woman who is in pain from her infertility to a woman who has given up her baby".[28]

In cases of in vitro fertilization surrogacy or partial surrogacy, the surrogate is even more unfortunate. In the 1993 case of Johnson v Calvert[29] , it was held that when two women contest for the custody of a child resulting from a surrogacy arrangement, the Court held that the woman who "intended to bring about the birth of the child that she intended to raise as her own is the natural mother under Californian law." The Court mentioned that in this case proof of giving birth is not the only way of determining the natural mother of a child. Instead, the Court gave due recognition to the woman who donated her ovum thus proving that she had a genetic relationship with the child although not giving birth to the baby.

To further illustrate the nonchalant attitude towards the plight of the surrogates and the general willingness to accept surrogacy arrangements as a valid subject matter for commercial transaction and the baby as made to order goods, it would be interesting to look into the Stivers-Mallahoff case.[30] In that case, Mr. Alexander Malahoff of Queens, New York had contracted with Mrs. Judy Stivers to have her artificially inseminated with his sperm and the child to be delivered to him after it was born. In January 1983, a baby boy was born with mental retardation .[31] Both parties rejected the unfortunate baby and announced that it would be put up for adoption. While in the hospital, the baby developed strep infection and it was reported the Mr. Mallahoff, who had commissioned for the pregnancy had instructed the hospital not to treat the baby.[32] Treatment to the baby was however given at the initiative of the hospital after obtaining the necessary court order.

It was further contended by the Stivers that not only did Malahoff refuse to pay them, but he had also asked Mrs. Stivers to "start over and make a new one for him".[33] Clearly, the child was treated like defective merchandise that did not fit the specification for the good, could therefore be replaceable.

Regardless of the outcome of the case, the issue to be pointed out here is that if the practice of surrogacy was to be accepted as a form of treatment for infertility, no matter how far the denial goes, the child remains to be perceived as the subject matter of the contract. According to some American writers, this is just a risk that the contracting parties would have to take, as in the risk of surrogate mothers changing their minds when the child is born.[34] The callousness present in this line of thinking permeates similar individualistic approaches to concepts of reproductive rights. Concentration is given to the suffering of individual couples without considering the horrendous consequences to other parties such as the surrogate herself and even worse to an unfortunate child such as the Stivers baby as mentioned above.

To date there is no federal legislation in America governing surrogacy arrangements and not all states have specific legislations governing surrogacy arrangements. Thus, the legal position in America on surrogacy is largely dependent on the states. Some states have enacted specific legislations making commercial surrogacy unenforceable for example Indiana, Kentucky, Louisiana, Michigan, Nebraska, and Utah[35] whilst other states such as New Jersey tend to rely on existing legislations which govern the adoption cases. One example of such laws is the prohibition of baby selling in adoption cases and the best interest of the child when deciding to award custody.

6. Legal Position in United Kingdom

Initial reaction to surrogacy happened in 1978 when the case of Av C was brought to court. However, legislation only came into being approximately ten years later, after the Baby Cotton case. In 1985, the Surrogacy Arrangements Act was enacted and later on in 1990, the Human Fertilization and Embryology Act came into being.

Both these legislations make surrogacy arrangements illegal and any such contracts are considered as void. The effect of considering a contract as void is that the court will take the position as if the contract had never happened. As a result, the commissioning parents will not get their baby and the surrogate will not get her payment. What about the child? The resulting child will be regarded as the child of the surrogate and she will be entitled to keep it. Thus this is the direct opposite of the legal situation in the US.

Commercial surrogacy has also been declared as unlawful under the Surrogacy Arrangements Act, 1985. However, it only awards criminal punishment to agencies or middlemen who take profit from the surrogacy transactions. No similar laws exist in the US. The surrogate mother and the commissioning parents however, will not be punishable for any offence. Although the intention of the legislation is to curb surrogacy arrangements, the leniency given to the commissioning parents and the surrogate is a matter to be criticized. It is submitted that in order to ensure that childless couples do not resort to this practice some form of deterrence must be provided and punitive punishment could be one way of doing so.

As a result of the laxity of treatment towards the commissioning parents and the surrogate mother, non-commercial surrogacy is still being practiced in the UK. The Surrogacy Arrangements Act 1985 for example is directed towards commercial agencies, which recruit surrogate mothers.[36] The Human Fertilization and Embryology Act 1990 in turn, tries to regulate altruistic surrogacy whereby section 30 of the Act provides the procedure to be taken by the commissioning parents in order to ensure that the resulting child is legally placed with them in after he is born. Accordingly, the child must first be registered as the child of the surrogate mother and, if she is married, her husband or partner will be treated as the father. Once this has been done and once a parental order has been granted to the commissioning parents under section 30 of the Human Fertilization and Embryology Act, 1990, the Registrar General will make a separate Parental Order Register registering the child and cross-referencing to the entry in the existing Register of Births.[37] It is therefore, not possible to "pretend" that the resulting child is the "natural" child of the commissioning parents. The records will stand and at the age of eighteen, the child may be supplied with information enabling him or her to obtain information pertaining to their history.

7. The Malaysian Position

The Malaysian legal scenario is a unique blend of Islamic laws and civil laws.[38] This is largely influenced by the make up of the country, which houses a majority of Muslims as well as Chinese, Indians and other ethnic cultures. Although governed by one system of justice whereby parliamentary legislations generally apply to all citizens, legislation with regards to family matters are divided into Islamic laws and civil laws.

Under the civil laws, there are no legislations, which directly governs either the act of surrogacy or the status of a child resulting from such an arrangement. The relevant legislation which governs family matters amongst the non-Muslim population in Malaysia is the Law Reform (Marriage and Divorce) Act 0f 1976 whilst the Muslims are bound by the Shari`ah law either those which had been legislated or not.

But before looking into the provisions of the Law Reform (Marriage and Divorce) Act, 1976, perhaps Section 112 of the Evidence Act 1950, which applies to both Muslims and non-Muslims, could better elucidate to us the possible status of surrogacy in Malaysia. The section provides:

"The fact that any person who is born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."

The application of this section would pose a problem to the legitimacy of a child born out of surrogacy arrangements since recognition is only given to the husband of the surrogate and not to the man commissioning the pregnancy and far less recognition is given to his wife. In fact, the commissioning father has no legal backing since only the husband of the surrogate may disavow any the legitimacy of the resulting child to himself by proving that he and his wife "had no access to each other at any time when he (the child) could have been begotten."

For non-Muslims, a child brought about by a surrogacy arrangement would, under the Malaysian law could have two possible statuses. Firstly, if the surrogate mother is a married woman, then she will be considered as the mother of the child and her husband would be considered as the father. This possibility is also supported by s. 87 of the Law Reform (Marriage and Divorce Act, 1976 which provides:

"In this Part, wherever the context requires, `child' has the meaning of `child of the marriage' as defined in Section 2 who is under the age of eighteen years."

The position of s.112 of the Evidence Act 1950 and the above cited section would seem to imply that should the surrogate mother change her mind and decide to keep the child for herself, she would be able to do so as the present situation would give her ample recognition and protection over her rights on the resulting child.

The second possibility would arise in a situation where the surrogate was an unmarried woman. Due to her unmarried status, the resulting child would most definitely under Malaysian law be an illegitimate child. The commissioning father will not be recognized in law as the legitimate father of the child, but the law does recognize him as the child's natural father.[39] However, again, the commissioning father would not be able to obtain custody or guardianship over the child.

Nevertheless, should the surrogate mother have no qualms about giving up the child, and then the commissioning parents could adopt the child as their own. Nevertheless, they are prohibited from falsifying registration and registering the child as their own as this would be in direct contravention with section 466 of the Penal Code which makes forging a register of Birth as a crime which is punishable with a maximum of seven years imprisonment and fine.

The remaining issue that arises is the legality of the contract of surrogacy. Should the commissioning father wish to claim his rights under the law of contract, could it be done? This too might not work to his advantage as it could contravene section 24(e) of the Contracts Act, 1950 which reads:

"The consideration or object of an agreement is lawful unless -c
(e) The court regards it as immoral or opposed to public policycto be unlawful. Every agreement of which the object or consideration is unlawful is void
."

Nevertheless, there is a possibility that the commissioning father could go around this section as the Malaysian Courts have been rather unsure in their determination of what amounts to immoral acts and acts which is opposed to public policy.[40]

True, if compared to the US and UK situations, it can be seen that the legal position of surrogacy in Malaysia is still rather murky. The present legislations are still very basic in nature and does not even begin to address the complex problems that involve any third parties in the reproductive process. In the case of surrogacy it is even more unsettled as it seems to involve an intricate web of legal issues.

Fortunately, to date there has been no legal claims made for surrogacy arrangements or any other orders pertaining to third party involvement in the reproductive process in Malaysia. For many Malaysians third party involvement in the reproductive process is not an acceptable form of treatment for cases of infertility. In a society where importance is placed on marital relationships and on the traditional concepts of the family, Malaysians are very careful when seeking the various forms of assisted reproductive treatment available to them. Assisted reproductive techniques which help married couples obtain their dream of having a child must still be restricted to that which involves sperm taken from the husband and ova taken from the wife, which is later to be carried by the wife.

As such, the notion of surrogacy has not yet found its place in the Malaysian society. It is submitted that this is the main reason for such a laid back attitude of the Malaysian legislators to the possible perils of the new reproductive revolution to Malaysians. The maintenance of religious beliefs and a strong sense of respect to rich Asian cultures is a strong influence to reproductive choices in Malaysia. Although many aspects of the Western thought have evaded the Malaysian attitudes and thinking, there remains a significant part, which maintains the respect for religion and preservation of Asian values, which have not yet been eroded.

8. Status of Surrogacy in Islam

In Islam, the womb is known as "Rahim" a word that is also used to describe one of the attributes of Allah s.w.t, i.e. him being the Most Compassionate.[41] It is rather interesting that the same name is given to the womb. Perhaps, the reason being that the manifestation of the Allah's compassion to human kind begins while he is still in the dark recesses of his mother's womb.

The discussion of the position of surrogacy must begin with a discussion of procreation in Islam. It must be mentioned on the outset that procreation is only allowed within a legally binding marriage.[42] The main reason for such a moralistic approach to intimate sexual relations is to ensure the protection of the five essential values in a man's life, primarily in this case, his faith and progeny.

Procreation within a valid marriage and which results in legitimate children and further includes other legal consequences. Provisions on maintenance (nafkah) of the children, naturally arises out of kinship.[43] The right of custody (hadhanah) also arises out of such legitimate relations. Aside from that, rights of inheritance too involve a child being born within a valid marriage.[44] When a child is born within a valid marriage the aurah and prohibited degrees of marriage is also determined by the Shariah.

In view of the above legal setting, surrogacy arrangements would not only up heave the very notion of family relations, but it could also cause chaos to the determination of rights and responsibilities under Islamic laws.

Not only is surrogacy prohibited under the Islamic family laws, as a consequence of such regulations, neither would surrogacy be allowed under Islamic laws of contract. Whilst the Islamic economic system allows individual freedom in forming commercial transactions, such freedom must be coupled with responsibility, to the other contracting party as well as to the society at large. As Afzalur Rahman aptly puts it:

"Islam allows neither unrestricted freedom to damage the interest of the community or the individual, nor does it recommend totalitarian regimentation so as to destroy the personality of the individual, which is the central figure and source of strength of its system."[45]

9. Conclusion

Technology is a tool, but one to be careful with. It aims at facilitating human life and as for medical technology; it is designed to help alleviate the suffering of mankind as far as possible. But human kind must be careful in using that technology, as it could very well lead to the very destruction of humanity.

Man made laws can try to regulate human actions; nevertheless, it will not always achieve justice. Take the legal position of the United States for example, although the surrogacy contracts have been considered as illegal and unenforceable, the fact that judges in the Baby M and Johnson v Calvert's case clearly point that the custody of the child be given to the commissioning father. This clearly causes an injustice to the surrogate mother who later decides that she cannot part with the child that she has carried for nine months and risked her life to deliver, as Alta Charo puts it be it with a contract, without a contract, with payment, without payment, legal or illegal, the surrogate gets the same thing, no baby. Such decisions fail miserably in stopping surrogacy arrangements. In fact, it further promotes the practice amongst childless couples. Surrogacy would give them an opportunity to get a baby without any pain and it's done for free! Since surrogacy arrangements are held as void and unenforceable, the surrogate will not be able to make any claims against the commissioning parents. It seems one way of "punishing" the surrogate mother for having the audacity of agreeing with such a transaction.

Perhaps there must be a limit to human autonomy. There must be a limit to a person's right to do anything that he wishes with his body. Allow me to repeat myself; there are some things that should not be made the subject matters of commercial agreements. This is not a novel idea. There are certain things in life, which are inalienable, which means that it is non-transferrable and non-saleable.[46] According to Radin:

"Market-inalienability often expresses an aspiration for noncommodification. By making something non-saleable we proclaim that it should not be conceived or treated as a commodity. When something is non-commodifiable, market trading is a disallowed form of social organization and allocation. We place that thing beyond supply and demand pricing, brokerage and arbitrage, advertising and marketing, stockpiling, speculation and valuation in terms of opportunity cost of production."[47]

Some examples of subject matters where commodification is contested includes, infants and children, fetal gestational services, blood, human organs, sexual services are some examples. I would like to take this a bit further by asserting that while some of these subject matters such as blood and human organs are non-saleable, they may however be transferable as gifts. However, there must be certain matters, which are both non-saleable and non-transferable such as infants and children, use of the uterus and sexual services. The reason being that firstly, to allow the sale or even transfer of this subject matter would go against the nature of human being. The nature of a mother is to carry her child and care for it once it is born. Any acts, which violate this basic nature, will sooner or later result in the psychological disturbance on both the mother and the child.[48]

For surrogacy arrangements with an altruistic incentive, surrogacy does not seem too problematic on the outset. After all why shouldn't a woman decide what she wants to do with her body, especially if it is to help another "suffering sister"? It may be acceptable in the West, where matters of kinship have no legal significance. Such an approach seems to be rather unfair to the surrogate mother and there has been a recent move in the UK to allow a determined amount of payment to be made to the surrogate mother for all the sacrifices that she has made to the commissioning parents.

Whatever the argument, the fact that surrogacy arrangements are nothing more than a contract for the sale of a baby becomes evident if and when the baby is born with a defect, as what had happened in the Stivers-Mallahof case.

This explains the difference in approach taken by Islam. Surrogacy is not permitted, not merely because of the ethical roller coaster that it causes, but it is more because of the effect that it will leave on the family involved in the act. In Islam, rights of inheritance, maintenance (nafkah), determination of the status of prohibited degrees of marriage, aurah and many other rights and responsibilities are determined by kinship (nasab). Any human intervention in this fitrah will cause a disruption in all the above matters and would cause serious injustice to those involved in the surrogacy arrangement, especially the resulting child.

And of course there is the issue of using a person's body as and when he pleases, as long as he does not hurt any other member of the society. This too is where there is a wide difference between the laws in US and UK. Whilst the West is seen to inject the idea of individual freedom with fundamental rights, Islam views it in a totally different light. In Islam, rights are coupled with responsibilities and the collective rights of the society (maslahah al-ummah) must always be given priority over individual rights. The way in which this is to be done has been clearly mentioned in the Qur'an and the Sunnah. Any violations to the laws will be punishable in this world or the hereafter.

Surrogacy, even if viewed as a private affair, between consenting adults cannot be acceptable in Islam because it will affect the lives of not only the contracting parties, but also the child and if allowed to be practiced, will cause undue confusion to the child. Although no empirical data is available to date as to the effect of surrogacy on the child[49] , it is submitted that if the knowledge of being an adopted child in itself can cause undue psychological hardship on a child, what more if a child discovers that he was conceived by a woman with the sole intention of being given up to another couple.

Which brings us to the issue of market inalienability. As the judge in Baby M's case rightly puts it, "Not everything in life can be bought". Certainly, there must be a limit to the purchasing power of the rich. And as proven in many of the surrogacy cases, where there is a market there will always be middlemen who are in search of free lunches along the way. UK legislation seems to have settled that by making it a criminal offence to surrogacy agencies to make profits out of surrogacy arrangements. The problem however remains in the US. The basic ethical belief that there are certain things that should not be bought and sold should be adhered to. It protects humans from degradation and lies in the core of human dignity. If markets were open to human organs, human blood, human babies and human wombs, the world would go back to a more gruesome form of slavery where the rich could easily enslave the poor for the use of their human organs.

Whatever the motivation, be it monetary or altruistic, the practice of surrogacy has a very real potential of being a threat to society, if it has not already been so. Once allowed there will be a clamour from all quarters to justify their need for surrogacy. A busy career woman could choose to hire a surrogate to carry her child for her. A lonely single woman would want to have a child to look after her in old age.[50] Then, there are also the lesbians and homosexuals, who too want a taste of normal family life. Sooner or later each individual will have one excuse or the other for having resort to surrogacy.

Admittedly, infertility is a most unfortunate malady. Any couple struggling with such a plight should be sympathized and should try to the best of their abilities to over come their problems. For the most part, much of the assisted reproductive technologies manage to help alleviate the sufferings of most of these couples. However, they should not allow their plight to overshadow the very basic tenets of humanity, i.e. the sacredness of the human body. It would violate the nature of mankind if a practice such as surrogacy were to made available commercial or other wise.

For Muslims, Allah has created every being in its own fitrah and He has ordained that no change should there be in that fitrah. Islam allows its believers to try their best to their abilities to find cures for diseases and He has in fact promised that for every disease there is a cure. However, there must be a limit to every act, and acts, which tend to prejudice the rights of others, are strictly prohibited in Islam. Surrogacy is one such instance where, the rights of the surrogate and the resulting child are made subordinate to that of the commissioning parents. If payment is awarded to the surrogacy, it will be nothing more than a transaction of womb hiring and baby selling, whereas, if it was done for altruistic reasons, it violates the fitrah, which Allah has already set and would not be allowed.

After all, Allah s.w.t has long reminded us of the need to maintain the ties created by the womb;

"I am Allah and I am the Most Merciful. I created the womb and named it with the deravative of My name. Whoever honours it (by maintaining the links established with the womb) I shall homour him and whoever violates it (by severing the links established with the womb) I shall disown him."

For the Muslims, it might not be easy but guidance is clear . There must be limits to human action, because to every action there is an opposite reaction, if not in this world, in the Hereafter. It is however, much more complicated for those who choose, to try and grapple the best way to justify and allow an unnatural act to result in a "natural" child.




[1] Surah al-Shura (42) : 49 - 50

[2] Hadith of the Holy Prophet Muhammad s.a.w, narrated by al-Bukhari & Muslim. Khan, Muhammad M (Trans). 1995.. Al-Lu'lu' wal Marjan. A Collection of Agreed Upon Hadith From al-Bukhari and Muslim. Dar-us-Salam Publications:Riyadh. Chapter 26, p. 232.

[3] The sub section provides, g A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth.

[4] This is evident from the wording of Section 27, 28 and 30 of the Human Fertilisation and Embryology Act 1990. Traditionally, the family is regarded as a basic social unit which constitutes at least two people, who are bound by holy matrimony. Any children born as a result of the marriage will also be included as part of the family. Nevertheless, many Western societies have come to accept cohabitation outside marriage and this has forced the laws in these countries to adapt to this change in social behaviour by giving some form of recognition to extra-marital unions in order to protect the gspousesh or children resulting from these cohabitation in the event the unions come to an end due to separation or death. See Lowe, N. and Davies, G. 1998. Bromley's Family Law. Ninth Edition. Butterworths : London. p. 1.

[5] These values include the protection of faith, life, intellect, lineage and property. For further reading on this topic see Kamali, Mohammad Hashim. (1999) The Dignity of Man : The Islamic Perspective. Ilmiah Publishers : Kuala Lumpur. p. 10.

[6] The contract is usually between the commissioning father and the surrogate mother although this may not always be the case. See Furrow, Johnson, Jost & Schwatrz. (1991) Health Law ? Cases & Materials. (2nd Ed). West Publishing Co. Minnesota. p. 974.

[7] Definition given by the Warnock Committee. Warnock, Mary. 1985. A Question of Life. Oxford : Blackwell Publishers. p. 16.

[8] A study done by Dr. Christine B. Kleinpeter from California State University, Long Beach, USA for example revealed that all the 26 couples interviewed were from gvery happy familiesh. Doheny, Kathleen. g Most Surrogate Moms Fit For The Job : Studyh . Reuters. 4th April 2002. Available at : [http://story.news.yahoo.com/news?tmpl=story&u=/nm/20020424/hl_nm/women_children_1]. Assumption that married couples are usually parties seeking a surrogacy arrangement can also be seen in the way certain legislations are worded. See for example, S. 30 of the Human Fertilisation and Embryology Act 1990 clearly makes provisions for situations involving a ehusband' and his ewife' when dealing with matters arising out of surrogacy arrangements. Aside from that, there is also indication that most surrogacy agencies in the United States for example, make it a policy that treatment will only be available to married couples. See Corea, G. (1985) The Mother Machine. The Women's Press Ltd.: London. p. 217. Aside from that the judicial decisions in surrogacy cases suggest that in the best interest of the child, the parental status commissioning parties must be taken into consideration. See In The Matter of Baby M (1988) 109 N.J., 396. 537 A.2d 1227. Also see commentaries of certain writers on this issue Russell, Irma. g Within The Best Interest Of The Child : The Factor Of Parental Status in Custody Disputes Arising From Surrogacy Contracts.h (1988-89) Journal of Family Law University of Louisville School of Law. 27 : 3, p.587 at p. 601.

[9] Stauch, M., Wheat, K. & Tingle, K. (1998) Sourcebook on Medical Law. Cavendish Publishing Ltd.: London. p. 390. The same suggestions have also been made by Gena Corea. (1985) The Mother Machine. p. 213.

[10] Ibid.

[11] The writer is rather sceptical about this reason, as in every pregnancy, for every woman, there is some degree of danger expected. Thus it would seem rather selfish for a woman to save herself from the danger but at the same time expects another woman to do it for her in return for a price. This risk is a recognised risk. See MacPhee, David & Forest, Kathy. gSurrogacy : Programme Comparisons And Policy Considerations.h 4 (1990) International Journal of Law and Family.308 ? 317 at p. 309.

[12] Corea, Gena. The Mother Machine. p. 216

[13] Cloning is a procedure which is different from the normal assisted reproductive techniques. It ia in fact an asexual form of reproduction which does not involve the use of a male sperm. Through what is known as nuclear transfer technology, a somatic cell is taken from any part of the body which will then be fused with an enucleated ova by administering determined amounts of electric pulse. Once the enucleated ova has fused with the cell, there will be normal cell division as if there was fertilization of an egg by a sperm. For further reading on the cloning process see Purves & Orion. (1983) Life, The Science of Biology. Sinauer Assoc. Inc. Publihers & Willard Grant Press : Boston.p.350. See also Bernsteins. (1982) Biology: The Study of Life. Harcourt Brace Jovanivich Inc : New York.p. 542. More often than not cloning is associated with how Dolly, the sheep was created. For an interesting account of how she was created see Krauthammer, Charles. Times Special Report on Cloning. TIME. March 10, 1997 and Nash, Madeleine. The Age of Cloning of the same issue. Cloning techniques have improved since then and are more efficient than when it was first introduced. See for example the cloning of mice by Lemonick, M.D. Dolly, You're History. TIME. August 3, 1998. p. 42.

[14] Despite worldwide objections to reproductive cloning, there are scientists who insist on continuing with this intention, thus making cloning as a possible assisted reproductive technology in the future to be quite possible. See promises made by some scientists to produce live human clones by the end of 2002. Zitner, Aaron. Cloning Controversy. The Star. August 14, 2001. p. 20 and Hassan, Najibah. gKontroversi Pengklonan Manusiah. Mingguan Malaysia. April 14, 2002. p. 32.

[15] Corea, G. The Mother Machine.p. 213.

[16] Brinsden, Peter. g Treatment by in vitro fertilization with surrogacy : experience of one British Centre.h (2000) British Medical Journal. April 1, 2000(On Line Serial) Available at : [ http://www.findarticles.com/cf_0/m0999/7239_320/61932188/print.jhtml] ( 21/5/2002)

[17] See for example the case of Johnson v Calvert (1993) 5 Cal. 4th 84 where in that case the surrogate mother tried to keep the resulting child but failed as the Court in decided that the woman who intended to bring about the pregnancy would be considered as the natural mother under Californian law.

[18] Basically all types of assisted reproductive techniques are unnatural ways of achieving pregnancy.

[19] See her article entitled, g Redefining Mother : A Legal Matrix for New Reproductive Technologies.h The Yale Law Journal. (1986) 96 : 167. p. 187.

[20] Ibid.

[21] Posner, Richard A. g The Ethics and Economics of Enforcing Contracts Of Surrogate Motherhood.h (1989) 5 Journal of Contemporary Health Law and Policy. p. 23.

[22] Feminists are faced with a difficult position in determining the status of surrogacy contracts. The view mentioned here is one that is brought by the more liberal set of feminists. Whilst another set believes that surrogacy is a clear form of exploitation of women. For an interesting account of these differences see Mahoney, Joan. g An Essay on Surrogacy and Feminist Thought.h (1988) 16 Law, Medicine & Healthcare.p. 81.

[23] Freeman, Micheal. (1989) g Is Surrogacy Exploitative?h in Shiela Mc Lean's Legal Issues in Human Reproduction. Gower Publishing Co. ltd. Aldershot. p. 166.

[24] Posner. g The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood.h p. 24.

[25] Some writers have suggested that although the child will remain with the surrogate, the commissioning parents must still be responsible for payment of the agreed amount to the surrogate, as the whole set up was initiated by them. But the Commissioning parents cannot claim for damages from the surrogate as pregnancy is not a situation which is totally controllable by her. See Stumpf. g Redefining Mother.hp. 204.

[26] In The Matter of Baby M (1988) 109 N.J., 396, 537 A.2d 1227.

[27] See the judgement of J. who also commented that if state laws prohibit monetary inducement to adoption then similar prohibitions would make paid surrogacy illegal. See comments on this issue Charo, R.A. g United States : Surrogacyh as edited in Mc Lean, Sheila. (1992) Law Reform and Human Reproduction. Dartmouth : Aldershot. p. 227.

[28] As cited in MacPhee & Forest. g Surrogacy : Programme Comparisons And Policy Implications.h p. 308.

[29] (1993) 5 Cal. 4th 84

[30] See Corea, Gena. The Mother Machine. p. 219 and Shaler, Carmel. (1989) Birth Power ? The Case For Surrogacy. Yale University Press : New Haven. p. 97.

[31] This was indicated from the baby's small head.

[32] Corea. The Mother Machine. p. 219.

[33] Ibid

[34] The case then took an unexpected turn when Mr. Malahoff was proven not to be the genetic father of the child. Apparently, although abstaining fro having sexual intercourse with her husband after the treatment, she had not done so just before the treatment was carried out on her. The Stivers then decided to keep the child. See, Stumpf. g Redifining Motherh.p . 204

[35] Charo, R Alta. (1992) g United States : Surrogacyh in Shiela Mc Lean's Law Reform and Human Reproduction. Dartmouth Publishing Co. : Alderhshot.p. 231.

[36] See section 2(1) and (4) of the 1985 Act.

[37] Lee, R.G and Morgan, D. 2001. Human fertilisation and Embryology. Regulating the Reproductive Revolution. Blackstone Press Ltd. : London. p. 200.

[38] For further comprehensive reading on the family laws in Malaysia, see Ibrahim, Ahmad. 1997. Family Law in Malaysia. Malayan Law Journal : Kuala Lumpur.

[39] See section 2 of Adoption Act 1952 (Revised 1981. "father" in relation to an illegitimate child means the natural father.

[40] For a more detailed reading on the concept of immorality and public policy under and its application under Malaysian laws, see, Boon Leong, A.P. 1998. Chesire, Fifoot and Furmstone's Law of Contract.Butterworths : Singapore. p.444-448.

[41] Baalbaki, Rohi. (1996) Al-Mawrid. Darul Ilm Lil Malayin : Beirut.

[42] This is clear from the prohibitions of having sexual inter course outside of marriage and extra-marital affairs. See Surah Al-Isra' (17) : 32 and Surah Al-Nur (24) : 2.

[43] See Surah Al-Talaq (65) : 7.

[44] See Surah An-Nisa' (4) : 7.

[45] Rahman, Afzalur. ( 1981) Quranic Sciences. The Muslim School Trusts : London. p.159.

[46] Some writers have however differentiated the two. For example, according to Radin, inalienability can sometimes mean things which are non-transferable but there are time when it can come to mean things which are transferable but only non-saleable. For further reading see Radin, M.J. g Market-Inalienability.h (1987) Harvard Law Review. 100 : 8, p. 1849.

[47] Radin. g Market-Inalienabilityh.p. 1856.

[48] Tests have shown that the surrogate mother is affected by the separation, the only difference is in the degree of the reaction given by the mothers. See Brinsden. g Treatment by in vitro fertilisation with surrogacy : experience of one British Centre.h (2000) British Medical Journal. Available : [ http://www.findarticles.com/cf_0/m0999/7239_320/61932188/print.jhtml]

[49] Recently, the UK government launched a study to look into the potential health problems faced by the 68,000 children conceived as a result of fertility treatment since the first test-tube baby was born in 1978. This would include those born from surrogacy arrangements. See Connor, Steve. g UK to track health of IVF childrenh.The Sun. 23 October 2002. p. 18.

[50] There is however a new possibility for single women to have children without having to depend on men. Cloning by way of nuclear transfer technology offers this possibility which in turn has it own set of legal and ethical issues that need to be discussed elsewhere.

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