The issue of artificial insemination has raised many questions, and the religious scholars have controversial opinions regarding it. Some of them are proponents; others are opponents. Because of the moral and social consequences that result from it, we believe we should highlight this problematic issue with the Religious Authority, Sayyed Muhammad Hussein Fadlullah, in order to benefit from his justifications and proofs and to clarify its ambiguous aspects from a jurisprudential perspective.
His Eminence saw that the artificial insemination process which is sometimes made by taking the sperm from an unknown volunteer (other than the husband), in case the husband has no sperms, or by implanting a sperm of a man (known) other than the husband in the wife's womb, or by taking a sperm from the husband and fertilize it in the ovary of a woman other than the wife… this process could not be evaluated according to the physical/material criteria. His Eminence also indicated that in the "reproduction system" there are two kinds of relationships that are defined and codified by the Islamic law for the sake of preserving the lineage, one is legitimate and the other is illegitimate. Hence, there is no problem in fertilizing the ovum of the wife with a sperm of her husband. Some people impose restraints on showing the private organs, but, there are some solutions for this problem. But, in principle, the artificial insemination is permissible if it is made from the husband and his wife, in which the ovum will be taken from the wife's womb to be fertilized outside her body, then, it will be returned back to her womb. Therefore, there is no problem with this process and the baby is considered hundred per cent a legitimate child.
It is illegitimate to fertilize a woman's ovum with a sperm of a man other man rather than her husband, but this process is not considered as a kind of adultery and the child is not an illegitimate one because the definition of the illegitimate son differs from this one. However, the child is not considered the son of the husband, but rather the son of the owner of the sperm.
Another issue may be raised which is to suppose that it is not a prohibited to fertilize an ovum of a woman rather the wife with the sperm of a man, and then implant it in his wife's womb.
Some may have tried to take legal precautions in adopting this process, so, they included it in the marriage contract. In this case, is it obligatory to take the ovum only during the contract period from the woman whom the man concluded a contract, or is it permissible to use the ovum that was fertilized before concluding the marriage contract? In this case, His Eminence considered that fertilizing the ovum of a foreign woman with the sperm of the husband is an impermissible act and there is no room for any precaution in this case. But, that will be permissible if he concludes a marriage contract with this woman, without considering whether the fertilization occurred before or after the contract. However, the problem is who will be the mother of the ovum, the ovum’s owner or to the woman who carries it? Our teacher Ayatollah Sayyed Al-Khoei considered that “the mother of the child will be the woman who carries the ovum and gives birth to the child, since, Allah says: “Their mothers are not, but those who gave birth to them”. So, the mother is the one who gives birth to the child.”
“The other opinion which we adopt along with other scholars – considers that the mother of the child is the owner of the ovum, since, the child is formed from the sperm and the ovum together, and Allah knows best. Through justifying this operation, His Eminence, depend on the idea of existence: “Because the ovum is the basis of the child’s formation. Thus, the sperm and the ovum play an integral role. Therefore, we see that the mother is not the woman who carries the ovum and she is just like a container who holds it, nourishes it and brings it up, whereas, she does not have any other role in making it grow and she will be to him only like a foster mother. Surely, this is a jurisprudential controversial issue.
If the sperm is from another man, the husband will not be the father in this case, even though the ovum is implanted in his wife’s womb. Besides, his approval does not make any change. So, the marriage contract which brings the husband and his wife together does not make him the father of her embryo which is not a result of their matrimonial relationship.
Many medical institutions have made different researches for the sake of improving the quality of artificial insemination in order to solve the problem of millions of sterile spouses who do not have any choice other than adopting a child… His Eminence saw that the main idea of these institutions is based on the idea that says that it is not important to have children from the husbands or wives and that there is a method that must be adopted in order to achieve this goal: first comes the freedom of sex as it was stated in Beijing’s conference which was held for single mothers. However, we are not talking about this method. We are discussing the method that is based on the fact that the child's existence that is: "Being the father of the child means that you have to be the cause of his existence; not your wife- whom you have concluded a marriage contract with- that had the child from another man, while, you do not have anything to do with his existence".
Accordingly, His Eminence finds no difference between that issue and the issue of adopting a child, since; the children must be from both the husband and the wife. If the wife's child is from a man other than her husband, “this will not be an internal solution for the problem because the husband will just try to deceive himself by thinking that the child is born inside the matrimonial life, but, this does not mean that he is the child's father.
As to His Eminence, the problem is that: "We try to engage wholly in the tragedy, while ignoring the nature of reality. Hence, tragedy may bring your tears but it could not bring you a means of solving your problem. Every one of us has his own tragedy that he has to live. The general jurisprudential point of view considers that the woman, who carries in her womb an ovum which is not hers, is not considered the mother of the embryo, because, she did not participate in his existence, but rather she participated in bringing him up and thus, he is not her infant. Nowadays, some scholars consider that what causes the woman to become a foster mother of the child is that the feeding must exceed certain times of nursing. Therefore feeding the baby means that the woman has given him something from her body and became his mother even as a foster mother. Maybe, it is said that the embryo was nourished from the mother for nine months, whereas, this is a jurisprudential issue that has not reached a final ruling yet.
His Eminence sees that this fertilization is not considered a compromise if one of the two spouses is the father/mother of the child. He emphasized that the child’s existence is based on the motherhood, fatherhood and the childhood, since; the child is a continuity of the existence. You are a stranger to this child, what is your relationship to him if there is a marriage contract between you and his mother? What is the different between this child whom your wife carries and who is not from you, and the child of your neighbor? The marriage contract between you and her does not make a continuity of existence. It creates a lawful process which legitimized for you and for your wife certain situations.”
On the other hand, His Eminence indicated that “nothing in the Sharia is called “lending a womb” without a legitimate ruling. Therefore, it is impermissible to insert a sperm of a foreign man in the womb of a married woman. It is also impermissible for him to conclude a marriage contract with her because she has a husband. If a woman is unmarried and is not fulfilling a Iddat period, it is permissible for a man who concluded a contract with her to insert his sperm in her womb or transmit an ovum which is fertilized with his sperm to her womb.”
However, The Sayyed considers that the artificial insemination or the so called "tube babies" is permissible on condition that: "the fertilization is made from the sperm of a husband and the ovum of his wife. It is also permissible to take out the man's semen either by an instrument or by masturbation through the wife's hand, while he has to avoid showing the doctor his private organ. The woman also should not show the male doctor her vulva, except if it was the only way to be pregnant.
With respect to some jurisprudential issues in which the emulation (Taqleed) of both the doctor and his patient differs at a time it is necessary to make some surgeries such as ovariectomy (the surgical removal of one or both ovaries), inserting the loop, or other issues that are controversial among scholars, His Eminence considers that, “the doctor must follow his/her Religious Authority because he/she is responsible for this process. For instance, if a woman emulates a religious authority who permits her to look at the private sexual organs of the other woman and she visits a female doctor whose emulation prohibits her to look at the private sexual organs of another woman, the female doctor in this case is prohibited from treating her patient in unnecessary cases. If a female doctor emulates a religious authority who has no opinion or Fatwa concerning this issue, it would be permissible for her to look at the private sexual organs of her female patient whose religious authority permits her to do so.