ISLAMABAD: The Federal Shariat Court (FSC) has given legitimacy to the birth of children through the in vitro fertilisation process, while declaring the practice of surrogacy “un-Islamic”, in a landmark judgement issued on Tuesday.

The 20-page judgement, authored by FSC Chief Justice Riaz Ahmed Khan and justices Dr Fida Mohammad Khan and Zahoor Ahmed Shahwani, held that if a baby is born through a mechanical or medical process where the sperm belongs to the actual father and the egg to the actual mother, and the child is borne by the actual mother, the procedure would be legal and lawful.

The IVF process is used as an infertility treatment and for surrogacy procedures, in which the woman’s eggs are removed from the body and fertilised by the sperm in a laboratory before being transferred to the same woman – or, in the case of surrogacy, to another woman’s uterus. Babies born through IVF are often called ‘test-tube babies’.

Verdict deems surrogacy un-Islamic, directs govt to amend PPC to make practice punishable

The court declared the practice of surrogacy unlawful and against the injunctions of the Holy Quran and the Sunnah of the Holy Prophet (peace be upon him), directing the government to amend the Pakistan Penal Code (PPC) to punish those who were accused of surrogacy.

The court called for appropriate amendments to section 2 of the 1872 Contract Act and the PPC to include a definition of surrogacy and to declared it punishable with imprisonment and a fine.

The verdict states that the PPC should be amended so that a couple that arranges a surrogate is liable for punishment along with the surrogate and the doctor that carries out the procedure.

It said the amendments should also include one that would punish the doctor maintaining a sperm bank for future use with imprisonment and a fine. According to the judgement, the doctor may face the cancellation of his licence if found involved in surrogacy procedures.

The court passed the verdict on a petition filed by Farooq Siddiqui, a doctor in the United States. Mr Siddiqui hired a surrogate to give birth to a child, but when the child was born in 2012 the surrogate refused to hand over custody of the child to him.

Mr Siddiqui said he paid Farzana Naheed $30,000 under the surrogacy agreement, according to which Ms Naheed was supposed to hand over the baby to him.

However, she refused to do so, and Mr Siddiqui initiated a legal fight for the child’s custody. Ms Naheed has claimed that she gave birth to the child after marrying Mr Siddiqui, which Mr Siddiqui denies.

In November 2015, the Council of Islamic Ideology (CII) declared the “act of renting womb” un-Islamic.

The CII declared that: “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.”

Mr Siddiqui argued before the court that he is paying the surrogate mother Rs50,000 a month to raise the child.

Dr Mohammad Aslam Khaki, the impartial adviser to the court in the case, also said surrogacy was against Islamic injunctions and must be declared unlawful.

The court observed that if allowed, surrogacy would create social problems in countries such as Pakistan, the child would face discrimination in society and it would create complications in inheritance.

In its judgement, the FSC directed the government to amend the PPC to discourage surrogacy by Aug 15 this year.

Published in Dawn, February 22nd, 2017