ISLAMABAD: As the Council of Islamic Ideology (CII) declares the concept of surrogacy un-Islamic, the ‘biological father’ of a girl wonders who will be responsible for her upbringing.

In the light of the CII decision, the status of the surrogate child will be ‘illegitimate’, legal experts believed.

Farooq Siddiqui lost a legal battle for the custody of his surrogate child, Fatima, in 2012 after the Lahore High Court (LHC) dismissed his petition, saying there was no law that would legitimise his claim for giving him the custody of the child, who is now 10 years old. Surrogacy is an act of carrying pregnancy for intended parents.

The man had lost legal battle to get custody of his daughter from her surrogate mother

Siddiqui claimed that he had paid $30,000 to Farzana Naheed under the surrogacy agreement. As per the agreement, he added, Naheed was supposed to hand over the baby to him after the birth.

However, the woman refused to give the baby to Siddiqui which forced the latter to initiate the legal fight for custody of the child. The woman claimed that she had given birth to the child after marrying Siddiqui. But the ma denies marrying Naheed.

After the court verdict in 2012, a lawyer filed an application with the CII seeking its opinion on surrogacy.

The CII recently declared that the “act of renting womb (surrogacy) is un-Islamic. It is a sin if someone hires a womb.

The child would belong to the mother and the biological father cannot claim any right on the child nor would the child relate to him in any manner.”

Following the CII decree, Siddiqui approached the FSC asking: “When the custody of the baby is totally denied to the claimant on the basis of the Sharia, who should be responsible for her upbringing?”

Another question Siddiqui raised was: “What will be the rights of the claimant who used the sperm to make the embryo of this type of baby and paid all the procedural expenses, including the payment to the surrogate mother?”

The FSC would take up the matter next week.

Siddiqui filed the petition with the FSC as he is paying approximately Rs50,000 for the upbringing of the child to the mother.

Talking to Dawn, he said the lower court had ordered him to pay for the maintenance of the child. “If I dont have any legal claim to the child, why am I required to pay for her upbringing,” he asked.

Barrister Ahmed Hassan Rana said since Pakistan had no such law, there was no protection to surrogacy.

“The CII declared surrogacy as a sin, hence the status of the surrogate baby would be an ‘illegitimate child’,” he said, adding in such a case there was no law which can compel the biological father to pay maintenance for the upbringing of the child.

Abdul Rauf, Inspector (legal) Islamabad police, also said there was no law in the country that can explain who would be responsible for the upbringing of an ‘illegitimate’ child.

In such cases, he added, only the mother takes responsibility for the child or it is handed over to some orphanage. In very rare cases, the father either takes responsibility or keeps that child with him but under the law the father cannot be asked to bear the maintenance costs of the ‘illegitimate’ child.

Before the LHC, Siddiqui alleged that in the beginning Naheed was willing to become a surrogate mother but as the pregnancy progressed, she and her relatives started blackmailing him to get more money.

After giving birth to the child, Siddiqui said Naheed left the baby with him and disappeared only to file a habeas corpus petition with a family court. On March 1, 2005, a sessions court handed over the two-week-old Fatima to Naheed.

Four years later, Siddiqui challenged the sessions court order in the LHC which finally dismissed the petition.

Published in Dawn, November 16th, 2015

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