Your question about surrogate motherhood was as follows:
Q: Since the surrogate mother is being injected not with sperm, but a fertilized egg, I’m having difficulty understanding the basis of necessitating zawaj (marriage) between the husband and the surrogate carrier. If the issue is social protection and rights, those are entirely accounted for via legal contracts. It seems to me that this practice is difficult to do qiyas on, so I’m wondering how you think of it?
Here is my response:
A: Surrogacy is an arrangement, whereby a woman agrees to carry a fertilised ovum through to full term, and then give birth on behalf of another couple, who will be the legal parents of the child. Couples may seek a surrogacy arrangement when pregnancy is medically impossible for them or risks an unacceptable danger to the mother’s health. Some countries allow surrogacy on the basis that it helps childless couples.
I find a few problems in this arrangement, some of them rather serious.
1- It indicates a lack of contentment with God’s will, which implies a deficiency of the trust due to Him. Believers should make effort to contain their desires to those which are lawful and normal, and which can be realised by means that are also lawful and normal. Otherwise, what is best for believers is to be patient. In the situation of childlessness, they should seek consolation in the care of nephews and nieces or other children to whom they have some connection. It may also be possible, and noble, to foster or adopt orphans of whom there are many in the world.
2- It reduces motherhood to being the producer of the egg only. Carrying a child in the womb is not given any importance. While in the Qur’an the merit and many of the emotional attachments of motherhood are associated with carrying the child, the pain of giving birth, and, later, nursing it. There can be no question that the first two stages are the period during which a strong attachment develops between mother and baby. Much recent research demonstrates that the baby acclimatised and attuned to the body rhythms and chemistry and voice patterns of the mother in whose womb it is developing.
3- It is, therefore, a severe injustice to the surrogate mother to exploit her poverty and oblige her to undergo the trauma of detaching herself from the baby. This suffering happens whether the surrogate mother is paid for her service, or not paid. The only situation in which this suffering can be compensated is when the surrogate mother has some family relationship with the legal mother, and so has the consolation of helping her relative, and hope of seeing the baby grow up.
4- From that, it does not follow that surrogacy should be allowed even when it is fully voluntary and within the same extended family. The reason is that allowing it in such a case will only encourage false claims to have a relationship between the surrogate mother and the mother whose egg it is. This is to be expected because in every legal jurisdiction paying a woman to carry another’s child is prohibited, but it happens nevertheless.
5- The general principle here is that you do not make something lawful and normal for a society when the lawful and normal only occurs in exceptional situations. Another important principle – which explains the rationale of the other – is the so-called precautionary principle. In this case: you do not do something just because you can; a technology, even a medical technology is not justified by its mere existence, but by the effects and consequences of its application. Some consequences are predictable and therefore must be taken into account. If not predictable, very small scale trials may be justified if the technology promises a very great benefit.
From the above points, I hope you may understand the necessity and high value of patience.
The point about marriage is indeed irrelevant, as you say. First, such a marriage is intended to be temporary which is forbidden in Sunni Islam. Second, the problem that the surrogate mother becomes attached to the baby is complicated by having a legal relationship with the male parent of that baby: she has less incentive to go through the pain of detachment from the baby.