Javed Ahmed Ghamdi has deemed surrogacy as permissible in Islam. According to Wikepedia the term ‘surrogacy’ is defined as: an arrangement, often supported by a legal agreement, whereby a woman (the surrogate mother) agrees to bear a child for another person or persons, who will become the child’s parent(s) after birth.

In a video clip that was made publicized, Ghamdi was asked the following question: In a situation where a couple is unable to have children, can the husband’s sperm be placed in the uterus of another woman at a certain predefined contractual terms of payment to that woman to bear a child for the couple? Is this a permissible act in Islam?

The answer that was given was that he has permitted the birth of a child in this manner. The proof that he has given for this is that in the manner where another woman is allowed to nurse a child, the womb of another woman can be “rented out” for the purpose of child-bearing. Hence, he has based the answer to this question on the basis of the fact that since nursing by another woman is allowed, so the child-bearing with sperm placement is also allowed.

Scholars in consensus in gatherings of knowledge and conferences have Islamically stated that bearing of a child in such a manner is strictly not permissible as per Sharia. According to the scholars of Fiqh in the Organization of Islamic Cooperation (OIC), in their conference in 1986 have elaborated seven conditions and have only considered two out of the seven as permissible. These two conditions are only permissible given a necessary circumstance.

One of the condition is such that the sperms of the couple are extracted from the wife and fertilized outside of the uterus to be later injected back into the wife’s uterus. In this manner the couple uses their own sperms for the child.

The second condition is that the sperm of the husband is to be injected into the uterus of his wife.

Other than this, any other condition where the sperm of the husband is injected in another woman who is not the wife is considered impermissible and haram.

Similarly, according to the Fiqh Academy of the Muslim World League, in its conference in 1985 has permitted the injection of the husband’s sperm only in the wife. It cannot be injected in any other woman other than his own wife. Islamic Research Institute, Cairo, in a conference has deemed it impermissible the act of using another woman’s womb for another’s baby at a predetermined price.

This is as per the consensus of the majority of the scholars. Although, Javed Ghamdi has mentioned the argument as stated in few Arabic articles, but these articles are not considered authentic or acceptable.

We now would like to come to the proof of the argument given of the impermissibility of the surrogacy. The way of the scholars is that they look for the context of the argument (nass) at hand. Then they try to s it speculate with proofs (qiyas) from Qur’an and Sunnah. This is also related to the context at hand.

As per Javed Ghamdi, this particular issue of surrogacy does not have a stipulation; it does not have a condition or requirement that is specified or demanded as part of an agreement. In our opinion, this is a wrong assumption. This arugument does have a condition and a basis. There is guidance given to us in this matter with regards to verses of the Qur’an and hadith.

To have a basis (to be called mansoos) requires two concepts:

  1. Firstly, there has to be a context given in religious knowledge. Here what is implied is that it should be derived from the study of figh (usool fiqh) through which this context has been brought about.
  2. Secondly, the context has been brought about mentioned in Qur’an and Sunnah

Our scholars have derived a structured analysis of understanding of such arguments. It is well thought out and begins with its understanding from the Arabic language. Below the ‘Context’ is the ‘Apparent’. Hence, the two together are able to prove the context and are to be completely aligned with each other. The argument at hand is then proven holistically. Figuratively, it can be represented as this.

The scholars have understood the argument and its meaning in light of Five Dimensions:

  1. With regards to the meaning and the vastness of the meaning in the text given
  2. With regards to the literal meaning of the words used as well as the hidden meaning
  3. With regards to the meaning of the words used and how it affects the argument at hand
  4. With regards to the meaning of the words in the various arguments presented to support the argument
  5. The various objections are also taken into consideration

Then each dimension is presented with layers. For example, is the word that is mentioned an apparent one in its meaning or is there a hidden meaning somewhere? It has been found that each word can have up to eight (8) layers where the word can be placed (in meaning) in any of the layers given. Hence, the word is like a building with eight sections. Four sections can be seen visibly erecting from the ground whereas the remaining four sections can be seen. So we observe a direct relationship between the words presented and their meaning. The analysis of the two is not only accepted by the majority of the scholars but they have also contributed to their understanding.

Going back to the discussion at hand regarding the permissibility of surrogate mothers, here is what the Qur’an says:

إِنْ أُمَّهَاتُهُمْ إِلا اللائِي وَلَدْنَهُمْ

Their mothers are none but those who gave birth to them.
[Al-Mujadila:2]

Here it is apparent that there is a biological mother and one of the genetic contributor. The Prophet ﷺ has said:

اَلْوَلَدُ لِلْفِرَاشِ وَ لِلْعَاهِرِ الْحَجَرُ

for the boy is for (the owner) of the bed
 (Sahih al-Bukhari 6817)

From this it is clear that the child belongs to the person who has given birth. The person committing adultery does not get anything.

Hence, this hadith also proves that the person giving the birth is the mother. The verse and this hadith’s understanding is the context which is mentioned is clear. The understanding with regards to the meaning of the Arabic linguistic is also very clear. The meaning of the word is not the only thing that is looked at or in what context the word has been derived, rather the apparent or direct understanding of the word is also considered which also proves the meaning. This, by far, is then accepted by scholars of all language.

One way to understand this concept is that the Qur’an has commanded mu’min men and women to protect their private parts. In the Qur’an it is stated:

قُلْ لِّلْمُؤْمِنِیْنَ یَغُضُّوْا مِنْ اَبْصَارِهِمْ وَ یَحْفَظُوْا فُرُوْجَهُمْ

Tell the believing men to reduce [some] of their vision and guard their private parts. That is purer for them. Indeed, Allah is Acquainted with what they do.
[An-Nur:30]

وَالَّذِينَ هُمْ لِفُرُوجِهِمْ حَافِظُونَ ﴿٥﴾ إِلَّا عَلَىٰ أَزْوَاجِهِمْ أَوْ مَا مَلَكَتْ أَيْمَانُهُمْ فَإِنَّهُمْ غَيْرُ مَلُومِينَ

And they who guard their private parts
[Al-Muminun:5]

The ‘protecting of private parts’ implies that a mu’min will never desire his sperm to be given to a non-mahram woman and have it placed in her womb. The only two people where it can be planted like a seed is the womb of his wife or whom his right hand possess i.e slave girls.

As far as Javed Ghamdi’s evidence that any nursing woman of the child is also called a ‘mother’ is concerned, it directly contradicts the hadith we just learned that the mother is the one who gives birth to the child. Hence, his argument is weak. The Qur’an refers to a nursing woman as a mother out of respect for the act of nursing. She does not take the place of the child’s biological mother. She becomes like the mother out of respect just like the wives of the Prophet ﷺ are called ‘Mothers of the Believers.’ That does not make them mahrams to everyone and they are allowed to physically touch her as they are allowed to interact with their own mothers. It is merely a use of a terminology to form an association and prove that no marriage can take place between the nursed son and the woman who has nursed him.

This etiquette of the Qur’an is of prevention. By calling the nursing mother a ‘mother’ prevents the marriage and hence gives certain boundaries.

The argument at hand was that the woman whose sperm has been used is called the mother. Qur’an and Sunnah prove otherwise. They clarify that the mother who gives birth to the child is the mother and remains the real mother. The one donating the sperm may be called the mother just as the nursing mother is called a mother.

As far as the argument that if nursing mothers can be hired, then similarly why can’t wombs of women can also be hired? The question that arises here also is that if wombs can be hired then why can’t private parts be used for business also? If the trade in womb is possible then the trade in private parts is also permissible. This refers to the marriage of ‘mutah.’

The real matter at hand is that the Qur’an has allowed nursing of another’s child. This is the final understanding of the matter without any argument. The fact that the womb can be used at a predetermined rate has no evidence in Qur’an and Sunnah. In fact, there is evidence that exists against it.

Javed Ghamdi Sahab’s reason is a reasoning with apparent differences (qiyas ma’ alfaariq). This is a clear understanding of reasoning in the science of figh (usul of fiqh). The biggest debate in this science is of the arriving of reasoning with a burden of proof. This is done through what is known as the Science of Citation and Extraction. First is the process of finding an exception in a particular context that has not been mentioned apparently in the verses of Qur’an or hadith. Yet, to understand it, an exception has to be sought. This is called takhrij ul manat. Tanqeeh ul manat is then the process of eliminating all exceptions except the one that is most suited and most applicable. The exception then has to fall under all categories of acceptability/eligibility or not, whether there is a command that contradicts it and whether it is apparent and clear.

Qiyas or coming to a deductive reasoning is not merely whether something is permissible or not permissible, it is an entire science of derivation and research. Otherwise it is just a general ruling. Even then the ruling is to be first verified by argument and assessed for its proofs. The questions that arises is that whether one is using approbation (istihsan) or using the presumption of continuity (istihab). A simple derivation does not serve the purpose of complete understanding and acceptability.

To sum all of this up, it is well understood that the stance of Javed Ghamdi is not authenticated by any science or discipline of fiqh reasoning. Hence, we encourage everyone to thoroughly look into this article to understand why not and eventually disregard his permissibility of the concept of the hire of surrogate mothers. This is a great trial (fitnah) of current times and we must understand it in the correct perspective and have an obligation to speak against it. And Allah (SWT) knows best.

Original Urdu Article on Islamfort:

https://islamfort.com/2020/12/23/karae-ki-maan/
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