Asim Zahoor BA Islamic Studies

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Student and Course Details

Full Name Asim Zahoor

Course Title BA Islamic Studies

Assignment/coursework Details

Module Name Maqāsid al Shariah

Module Code BISA 601

Name of Tutor Dr Fella Lehmar

Due date 20h December 2019 

Assignment title Surrogacy a rationalist discourse in Islam: A response to Tawfique al
Mubarak’s ‘Surrogacy and Islam: Between permissibility and prohibition’.

Temporary marriages in light of the function of marriage

Word count 1573

Student signature: Asim Zahoor

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Surrogacy a rationalist discourse in Islam: A response to Tawfique al Mubarak’s ‘Surrogacy

and Islam: Between permissibility and prohibition’.

Beyond the discussion of the permissibility or impermissibility of surrogacy in Islam, it is

important firstly to mention that the very discussion holds a distinct merit in influencing the
nature of Islamic legal discourse. In view of the fact that there exists (understandably so) no
text from the Qur’an and Sunnah that discusses the status of surrogacy, any attempt to
reach a legal verdict would necessitate reliance upon rational tools such as looking at the
aims of Islamic law (Maqāṣid al Sharī’ah), this means no Muslim scholar who seeks to restrict
the scope of surrogacy can do so without shunning a literalist approach to the Qur’an and
Sunnah that does not recognize the legitimacy of rationale in arriving at legal conclusions.
Surrogacy thus poses a huge quandary to literalist scholars who disavow rational means. This
then comes to set the tone of Tawfique al Mubarak’s discussion on the permissibility of
surrogacy which is primarily reliant upon maqāṣid al Sharī’ah to come to the conclusion that
surrogacy in Islam is impermissible although other more limited arguments are used as shall
be explored later.

From the outset Mubarak divides surrogacy into two types, that of traditional surrogacy in
which the surrogate provides her own ovum to be fertilized, and that of gestational
surrogacy in which the ovum is provided by the male’s partner/wife and it is merely inserted
into the womb of the surrogate. In the first type the child has no genetic link with the
father’s partner, whereas in gestational surrogacy the child is linked to the father’s partner
and the surrogate mother has no genetic link with the child she carries in the womb. The
very fact of the matter is that neither of the two can be defined as Zinā (illegal intercourse)
which refers to penetration in heterosexual relationships outside the legal framework set by
Islam, whether such penetration results in an egg being fertilized or not (Doi p.236).
Surrogacy however does not depend on penetration thus proscription cannot be based on
traditional notions of Zinā. Mubarak uses verses from the Qur’an to indicate that one may
not engage in sexual relations except with one’s wives and concubines (Qur’an), but sexual
relations is not a necessary feature of surrogacy, however if one was to rationally interpret
the verse, one can understand that the prohibition of sexual intercourse is due to the
possibility of fertilization outside the framework of marriage/concubinage, which is
anathema to the preservation of lineage. The strongest argument cited by Mubarak is the
notion that surrogacy undermines the preservation of lineage, he cites the OIC fiqh council’s
decision to reverse their previous judgement that gestational surrogacy between co-wives

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was permissible because of the possibility that lineages may become mixed due to super
fecundation (where a woman maybe impregnated twice in one pregnancy, either by the
same man or more than one man). However it is still unclear how traditional surrogacy
undermines preservation of lineage because presumably the surrogate and the donor would
be made known in the clinics, the only way lineage in this scenario maybe undermined is if
the surrogate engages in other relationships with other men during this period which may
result in super fecundation. However if the surrogate was to restrict sexual relations till
delivery (like the ‘Iddah i.e. waiting period in Islamic law) then the issue of mixed lineage
becomes a non-issue, thus Mubarak must provide better arguments to show that surrogacy
necessarily results in confused lineage. A possible argument that can be advanced is that
there exist no guarantee that the surrogate will subscribe to such abstinence unless she
bounds herself to the regulations of marriage, just like the Sharia does not allow fornication
as there is no guarantee that lineage maybe preserved even though couples do not intend to
have children.

Other arguments cited by Mubarak is the potential confusion that the child may carry with
respect to his two mothers, but this is unnecessary as there exists only one biological mother
(the one who provides the ovum), as for the surrogate mother she occupies the same
position as a wet-nurse as the wet-nurse just as the surrogate is seen as a mother by virtue
of her breast milk being the conduit for which the child depended upon and grew. Another
argument although limited to paid surrogacy refers to the invalidity of such a transaction on
the basis there is no guarantee that the fetus will survive or be free from deficiency hence it
serves as Bay’ Gharar (indefinite transaction).

Mubarak’s arguments against surrogacy are not decisive in validating his conclusion that
surrogacy is impermissible, this includes the ambiguity of the verses he cites to prohibit
traditional surrogacy, the supposed confusion that a child may entertain is dispelled when it
is known there is only one biological mother and that Islam affirms the connection that may
be felt by a child (however traditional surrogacy does pose this issue as the child is taken
away from its more entitled biological mother), his inclusion of the invalidity of Bay’ Gharar
is valid but limited to paid surrogacy only, the strongest arguments came from his advocacy
that lineage may become confused through surrogacy, but as elaborated above the
arguments did not fully explain how lineage may be confused if the surrogate mother was
made to abstain from sexual intercourse during the pregnancy.

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Bibliography
Doi. A.R (1984) Sharī’ah; The Islamic Law (Taha Publishers)
Ibrahim. A.H (2017) Maqāṣid al Sharī’ah as a complementary framework for conventional
bio-ethics: Application in Malaysian Assisted Reproductive Technology (ART) fatwa [Accessed
Online: https://www.ncbi.nlm.nih.gov/pubmed/28895055]

Mubarak.T (2014) Surrogacy and Islam: Between Permissibility and Prohibition (International
Institute of Advanced Islamic Studies; Vol 5 No 2) [Accessed Online:
https://www.icrjournal.org/icr/index.php/icr/article/view/413]

Safiuddeen.M (2013) Maqāṣid al Sharī’ah as a complementary framework for conventional

bio-ethics [Accessed Online: https://www.ncbi.nlm.nih.gov/pubmed/23836155]

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Asim Zahoor BA Islamic Studies

Temporary marriages in light of the function of marriage

This blog shall be seeking to add to the contributions made by Badran and Turnball’s 2019
paper ‘Contemporary Temporary Marriage: A Blog-analysis of First-hand Experiences’ which
aims to unearth the utilities and demerits of temporary marriages. However the paper had
failed to mention whether temporary marriages fulfilled the objectives of conventional
marriages. Utilities cited by the paper include giving young people unable to take the
responsibilities of a permanent marriage to pursue love but in the organized fashion of
conventional marriages, however the exploitative effects of temporary marriages are cited
as aiding prostitution which can degenerate into child abuse. It shall be the attempt of this
paper to add to the contributions made by exploring whether temporary marriages
correspond to the maqāṣid (objectives) of permanent marriages.

In order to do this we must ask ourselves as to what distinguishes marriage from zinā
(fornication)? Why is it that zinā represents one of the major sins in Islam whereas marriage
which only entails a couple to profess their marital status before two witnesses makes a
world of difference between a major sin (zinā) and an admirable sunnah (practice) of the
Prophet? The answer could be said to lie in the formal nature of marriage which allows for
relationships to be formed in an organized manner. Primarily this formal organization aims
to result in ḥifẓ al nasl (preservation of lineage) which scholars of maqāṣid al sharī’ah
(objectives of Islamic law) have asserted to be the primary rationale in the proscription of
zinā (Dār al Iftā 2019). Having multiple partners is not the sin of zinā as men can have an
unrestricted amount of women through the institution of concubinage which indicates that
the Sharia sees no issue with multiple relations so long as they are conducted in an
organized fashion (Clarence-Smith p.1 2007).

With the prevalence of DNA testing it can be argued that the function of marriage has
become obsolete, however this is not necessarily true as there can exist situations where the
father may not be subject to DNA testing due to the fact his identity is unknown (BabyCentre
I’m pregnant after a one-night stand N.D.).

In the context of preserving lineage it could be argued that temporary marriages conform to
the function of marriage with the existence of regulations such as ‘iddah (waiting period
after the nullification of marriage to discern whether one has a child or not), although the
‘iddah in this marriage is one menstrual cycle as opposed to three which is found in
conventional marriages (Ibn ‘Ashur), also the ‘iddah can serve to restrict temporary

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marriages degenerating into prostitution as it will limit women to have a limited amount of
partners within a year.

Children from temporary unions however risk being born into broken family, this is made
even more dangerous by the fact that temporary unions are seen as a solution to young
people who are ill prepared to assume the responsibilities of marriage (the ability to divorce
in conventional marriages may suggest however that this is a secondary feature of
marriage). However just because temporary unions suffer this deficiency it does not mean
that it does not correspond to the primary objective of marriage which is the preservation of
lineage, one example is the detestability in Hanafite law of slaves giving birth to their
husband’s children (al-Hidāyah p.94), this is because that child will be transferred into the
ownership of the mother’s master, however this deficiency does not result in the
impermissibility of slave women getting married and having children as the primary aim of
marriage which is the preservation of lineage has been satisfied, similarly although
temporary unions may suffer a deficiency too, it corresponds to the greater objective of
marriage which is ḥifẓ al nasl.

It is hoped that this short article can serve as an impetus to further studies as to how it can
be understood as to what represents a primary function behind a law and what represents
merely a secondary feature? It is concluded however that temporary unions certainly
correspond to the primary aim of preserving lineage although it suffers from certain
shortcomings not so pronounced in conventional marriages but it entertains utility such as
ease (taysīr) which is not found in conventional marriages.

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Asim Zahoor BA Islamic Studies

Bibliography

BabyCentre (N.D.) I’m pregnant after a one-night stand [Accessed Online:

https://www.babycentre.co.uk/a570867/im-pregnant-after-a-one-night-stand]

Badran and Turnbull (2019) Contemporary Temporary Marriage: A Blog-analysis of First-

hand Experiences (Journal of International Women’s Studies Vol 2: Issue 2, Article 17;
Bridgewater State University) [Accessed Online: https://vc.bridgew.edu/cgi/viewcontent.cgi?
article=2106&context=jiws]

Clarence-Smith. WG (2007) Eunuchs and Concubines in the history of Islamic Southeast Asia
(Brill) [Accessed Online; https://brill.com › downloadpdf › journals › mnya › article-p8_1]

Dar al Ifta (2019) The Higher Objectives of Islamic Law [Accessed Online: http://www.dar-
alifta.org/Foreign/ViewArticle.aspx?ID=499&CategoryID=3]

Ibn ‘Ashur (2008) Tafsīr al Taḥ’rīr wal Tanwīr (al Dār al Tūnisiyyah li al Nashr) Vol 5 [Accessed
Online: https://ia800506.us.archive.org/9/items/FP3667/thtn05.pdf]

Ibn Azraq. M (2016) Zawāj al Mut’ah Qir’ā’ah Jadīdah’ fī al fikr al Sunnī (Dār al Ru’yah’)

Murginānī (2000.) al Hidāyah, Bāb Nikāḥ’ al Raqīq Vol 3 (Maktabah al Bushrā)