This article has been written by Mr Anish Parhi, a 1st year student of, NLUO National Law University Odisha.
Abstract:
This analysis aims to explore the intricate dynamics between Islamic principles and the evolving legal framework surrounding surrogacy within the context of Muslim marriages in India. As we delve into this complex subject, we’ll navigate the diversity of perspectives within the Muslim community, unveil the implications of existing laws, and examine the challenges faced by those seeking surrogacy options.
India’s surrogacy regulations are primarily shaped by the ‘Assisted Reproductive Technology (ART) Regulation Bill, 2020’, and the ‘Surrogacy (Regulation) Act, 2019’. The ART Bill focuses on regulating assisted reproductive technology while emphasizing the protection of the rights of all parties involved. Simultaneously, the Surrogacy Act prohibits commercial surrogacy, allowing only altruistic surrogacy. Importantly, these regulations apply uniformly to all Indian citizens, regardless of their religious affiliations.
In looking at surrogacy laws and Islamic rules in Muslim marriages in India, it gets a bit tricky, especially when it comes to things like inheritance and who’s considered part of the family. The Surrogacy Act tries to fit in with Islamic ideas by saying no to commercial surrogacy, trying to keep things ethical. But there’s a catch – the traditional Islamic way puts a lot of importance on being biologically connected to your parents.
The Surrogacy Act is trying to follow Islamic principles, focusing on doing surrogacy in a way that’s in line with what Islam teaches about family and ethics. But, here’s the challenge: Islamic laws about family and inheritance often revolve around being biologically related. This makes things a bit tricky when it comes to recognizing children born through surrogacy.
The worry about lineage and inheritance points out that we need to find a careful balance between what the law says and what Islam teaches. The Surrogacy Act tries to manage this balance, but it’s clear that we need more thoughtful discussions and teamwork between the legal folks, religious leaders, and the Muslim community. This way, we can make sure that surrogacy rules not only fit with Islamic beliefs but also handle the specific concerns about family and inheritance.
As we try to figure this out, it’s clear that keeping things simple and making sure everyone understands the rules is super important. We need ongoing talks and education to bridge the gap between what the law says and what people believe in the Muslim community. This way, surrogacy can work alongside Islamic traditions, respecting what’s important to people while still keeping things ethical and respecting family ties
Introduction:
India’s demographic composition and intricate legal framework contribute to the complexity of understanding surrogacy within the context of Muslim marriages. This examination seeks to explain the legal recognition of surrogacy in India by delving into the perspectives of Islamic principles and the evolving legal landscape.
Surrogacy, the act of facilitating another person or couple in having a child, intersects with an array of beliefs and regulations in India, particularly within the framework of Muslim marriages. This analysis aims to provide a comprehensive understanding of how surrogacy is perceived and governed.
The exploration involves a perspective which involves both sides , considering both Islamic principles and the dynamic legal environment in India. Islamic principles, which guide the beliefs and practices of Muslims, play a crucial role in shaping attitudes towards surrogacy within the Muslim community. Simultaneously, the evolving legal landscape, including recent legislative changes, adds another layer of intricacy to the understanding of surrogacy in India.
The significance of this analysis lies in the careful examination of how surrogacy aligns with Islamic principles and navigates the evolving legal terrain. Surrogacy, being a means of family formation, holds particular relevance in the context of diverse cultural and religious perspectives. Ensuring that surrogacy practices adhere to both legal standards and cultural sensitivities is necessary for fostering ethical and inclusive family planning.
This study is important because it carefully looks at how surrogacy fits with Islamic beliefs and deals with the changing laws. Surrogacy is a way for families to grow, and that’s a big deal in a country with lots of different beliefs. Making sure that surrogacy follows the rules and respects the beliefs of everyone involved is super important for making sure families are formed in a way that’s fair and respectful.
Challenges and Controversies:
In India, according to the Muslim Shariah, it shows the Islamic way of life and says that having another man’s sperm inside of oneself except for their own husband is prohibited and is haram in the eyes of allah and this raises a lot of concerns and problems for the Muslim belief about surrogacy due to various reasons connected to their religion.
Challenges and Problems:
Family and Lineage Concerns: In Islam, there’s a strong focus on family ties and being connected by blood. Surrogacy, especially when the baby doesn’t share genes with the surrogate, raises questions. Muslims often worry about the child’s lineage, which is crucial in Islamic laws about who gets what in terms of family inheritance.
Marriage and Natural Conception: Islam values the natural process of having babies within a marriage. Some Muslims see surrogacy, especially if it involves using someone else’s eggs or sperm, as going against this natural way of having children within a married couple. The fear is that it might lead to complications like extramarital relationships, which isn’t in line with Islamic teachings on being faithful in marriage.
Issues with Family Heritage: Because of these concerns, Muslims who consider surrogacy might face problems with figuring out the family tree. Islamic laws about who inherits what and its not clear who the biological parents are. This can lead to confusion, disagreements, and legal issues about who should get what in terms of family property.
Uncertainties about Parentage: One big challenge is that surrogacy makes it uncertain who the real parents are, especially when it comes to inheritance. In India, where there are diverse beliefs and family structures, this uncertainty can create problems in terms of both legal matters and family relationships.
Surrogacy Regulation in India:
Assisted Reproductive Technology (ART) Regulation Bill, 2020:
The ART Regulation Bill, enacted in 2020, serves as a comprehensive regulatory framework for assisted reproductive technology in India, encompassing practices such as surrogacy.
Regulatory Emphasis: The primary objective of the ART Bill is to regulate and oversee assisted reproductive technologies. It aims to create a structured framework that ensures ethical and lawful practices in procedures involving surrogacy.
Rights Protection: A key focal point of the ART Bill is the protection of the rights and interests of all parties engaged in assisted reproductive procedures, including intending parents, surrogate mothers, and the children born through such technologies.
Surrogacy (Regulation) Act, 2019:
Commercial Surrogacy Ban: The Surrogacy Act, implemented in 2019, specifically addresses the practice of surrogacy, placing a ban on commercial surrogacy. This implies that surrogacy arrangements involving monetary compensation beyond the reimbursement of medical expenses are prohibited.
Altruistic Surrogacy Focus: The legislation permits only altruistic surrogacy arrangements, where the surrogate mother does not receive any financial compensation beyond the necessary medical expenses and related costs.
Uniform Applicability: An essential feature of the Surrogacy Act is its universal applicability to all Indian citizens, irrespective of their religious affiliations. This uniform application underscores the commitment to consistent regulation and ethical considerations.
Impact and Implications:
Ethical Practices: The combination of the ART Regulation Bill and the Surrogacy Act underscores India’s commitment to fostering ethical practices in assisted reproductive technologies, particularly in the domain of surrogacy.
Rights Protection and Uniformity: The legal framework aims to protect the rights of individuals involved in surrogacy arrangements while ensuring uniform application across diverse religious and cultural backgrounds.
Comprehensive Approach: By addressing both the technical and ethical dimensions of surrogacy, these regulations provide a comprehensive approach to its governance, contributing to the responsible and lawful advancement of assisted reproductive technologies in India.
Baby Manji Yamada vs Union Of India & Anr (2008) 13 SCC 518
The Baby Manji Yamada case is a landmark surrogacy case that unfolded in India and involved complex legal, cultural, and ethical dimensions. The case revolved around a Japanese couple, Mr. and Mrs. Yamada, who sought surrogacy services in India. However, the couple divorced before the completion of the surrogacy process, raising intricate issues related to the child’s citizenship and legal status.
Challenges and Implementation Strategies within Muslim Laws:
Alignment with Islamic Principles:
Challenge: In the context of Muslim laws, concerns may arise about the child’s lineage and inheritance, aligning with Islamic principles that place significant importance on biological parentage, engage with Islamic scholars to provide religious guidance on surrogacy within the Muslim community. Establish clear guidelines that address concerns related to lineage, inheritance, and the compatibility of surrogacy with Islamic principles.
Cultural Sensitivities:
The case involved international and cross-cultural elements, highlighting the need to consider diverse cultural practices within the Muslim community. Tailor awareness campaigns to address cultural sensitivities within the Muslim community. Collaborate with local leaders to ensure that communication is culturally sensitive and resonates with the diverse perspectives within the community.
Legal Ambiguities and Personal Laws:
The legal ambiguities in the case were multifaceted, involving international surrogacy, divorce, and questions about the child’s legal status.
Collaborate with legal experts specializing in Islamic law to navigate the complexities of personal laws. Establish legal frameworks that respect Muslim personal laws while providing clarity on issues related to surrogacy, divorce, and parental rights.
Community Engagement:
The case emphasized the importance of community understanding and acceptance, especially when dealing with international surrogacy arrangements.
Conduct community workshops involving legal experts, religious scholars, and healthcare professionals. Address concerns, dispel misconceptions, and foster an open dialogue within the Muslim community to build acceptance and awareness.
Cross-Border Surrogacy and Citizenship:
The case highlighted challenges related to cross-border surrogacy, citizenship, and the legal status of the child. Establish consistent legal frameworks for cross-border surrogacy within the context of Muslim laws. Collaborate with international jurisdictions to ensure that legal considerations align with Islamic principles and provide protection for the rights of all parties involved.
Outcome: The Baby Manji Yamada case underscored the need for clear legal frameworks and cultural sensitivity in surrogacy arrangements. Within the context of Muslim laws in India, the strategies derived from this case study would involve a collaborative and comprehensive approach, engaging religious leaders, legal experts, and the community to navigate the complexities of surrogacy while ensuring alignment with Islamic principles.
Conclusion:
In summary, thinking about surrogacy in Muslim marriages is not easy because people have different opinions. Some say it’s okay, while others say it’s not. One big worry is about the family line—making sure the child knows who their real parents are for things like inheritance. Another important thing is keeping the marriage strong. If surrogacy is allowed, it’s usually seen as better when a married couple does it.
Why someone wants to do surrogacy matters too. If a couple really wants a baby and they’re married, some people might think that’s okay. But how they do it, especially using certain medical methods, is also a big deal. People are concerned about whether these methods follow the rules of Islam.
It’s a good idea for Muslim couples thinking about surrogacy to talk to religious leaders who know a lot about Islam. They can help figure out what’s right or wrong. Talking to doctors and experts about the medical and ethical parts is also important.
As times change and medicine gets more advanced, what people think might change too. It’s key for communities to have open conversations about surrogacy and really think about all the different opinions. This way, everyone can get where others are coming from. While we figure this out, it’s super important to be respectful of Islamic teachings, think about what’s fair, and make sure everyone involved is looked after. It might take a bit, but by talking and understanding each other, we can figure out the best way to handle surrogacy in Muslim marriages
References:
This article was originally written by Prabha Kotiswaran and Sneha Banerjee published on proquest.com The link for the same is herein:
COUNTERPRODUCTIVE REGULATION OF ASSISTED REPRODUCTIVE TECHNOLOGIES: A REVIEW OF THE ASSISTED REPRODUCTIVE TECHNOLOGIES BILL, 2020:
This article was originally written by Tawfique Al-Mubarak published on platform.almanhal.com The link for the same is herein:
Surrogacy and Islam Between Permissibility And Prohibition
https://platform.almanhal.com/Files/Articles/59908
’Surrogacy (Regulation) Act, 2019’
Baby Manji Yamada vs Union Of India & Anr (2008) 13 SCC 518
This article was originally written by Aishwarya Gupta published on www.cedl.ac.in The link for the same is herein:
SURROGACY: ENABLEMENT OR EXPLOITATION? : https://www.cedl.ac.in/pdf/volume3issue1/chapter_5.pdf