LEGAL STATUS OF AI IN SHARI'AH:

LEGAL-STATUS-OF-AI-IN-SHARI'AH

ISLAMIC JURISPRUDENCE:

•     The Qur'an provides the fundamental framework for such jurisprudence in Islam. However, the Qur'an does not address every possible situation that a Muslim might confront.

•     Muslims should rely on the Sunnah, or the traditions or hadiths of the Prophet Muhammad, as a secondary source of guidance in such situations if such situations is ​not mentioned in Qur'an.

•     Muslims must seek instruction from knowledgeable Islamic jurists ('ulama') in the form of consensus (ijma') when the Sunna leaves some interpretation questions unanswered. Fatwas would be issued as a result.

•     In certain situations, In order to elucidate the norms relevant to the issues presented, Islamic jurists use analogies (Qiyas) from the Qur'an and Sunna. If none of these methods provides a clear ruling, Muslim scholars must resort to ijtihad, which is the individual intellectual effort to make a judgment.

MAIN TYPES OF AI AND THEIR SANCTION:

AI-IN-ISLAM

There are two types of AI (Artificial Insemination), Depending on the source of the sperm used in the treatment.   

Homologous Artificial Insemination (AIH): 

The male partner/spouse sperm is collected in AIH.

Heterologous/Donor Artificial Insemination (AID):

In AID, sperm is taken from third party. (no legal relation to the woman)

AIH IN QURAN AND SUNNAH & ITS LEGAL STATUS:

According to the Holy  Qur'an, it is Allah's choice whether or not to give birth to fresh children from the couples and whether or not to make some spouses infertile.

“He creates what He wills. He bestows male and female children to whom He wills. He bestows both male and female children (to some) and He leaves barren whom He wills”

Quran also mentions 2 examples of our prophets (Zakariya & Ibrahim A.S) that weren’t blessed with progeny for a long time. They sought their solution in prayer (i.e. asking from Allah s.w.t & they were blessed.)

Prophet (p.b.u.h) told that, “God has created disease and cure, and He made for each disease a cure. So seek cure, and don't seek cure through prohibited actions.”  Therefore, spouses may overcome on their childlessness through the way of medication and surgery if the treatment does not violate any principles of Sharia.

•  As long as the shariah is concerned, AIH is acceptable because in AIH legal spouses (lawfully wedded couples) is involved.

•     In AIH the transfer of sperm is between husband and wife which is legally married to each other, but due to some dieases the sperm does not transfer by natural way so AIH is adopted for transfering of sperm.

•    New born baby has also some rights. He or she shall be the legal child of a lawfully married couple. He or she must be entitled to inherit from the property of his or her parents.

•     All of these fundamental rights are guaranteed when the act is performed within the marriage, rather than after the man's death or the couple's divorce. It is not valid after a divorce.

•     Sheikh 'Abd al-Khaliq al-SharIf commented on the wife's usage of the dead husband's sperm retained in the semen bank to perform AIH as follow:

•     "It is not permissible for the woman to use the frozen sperm of her husband after divorce or after his death. The issue is permissible only when both the husband and wife are living together (i.e. they are not divorced) and both of them are alive. Hence, it is not permissible for the ex-wife or the widow to use her husband's frozen sperm after his death or after divorce.

•     The woman may face a very difficult situation as regards this, especially when she gets pregnant, while her husband is dead or she is divorced.“

•     The European Council for Research and Fatwa also expressed similar views in the following way: "It is permissible for the wife to use the sperm of her husband for fertilization unless she is divorced or the husband dies."

ISLAMIC VIEW OF AID (ARTIFICIAL INSEMINATION BY DONOR):

AID is the same process as AIH but in AID  sperm used for the reproductions is taken from third person(donor) which is not legal husband of the female.

Taking sperm from the third person and using it is prohibited in Islam. AID is punishable crime in order to preserve the the basic principle of islam and preserve the legal and ethical right of the couple. It is clearly described in the Holy Qur’an that, “Say to the believing woman that they should guard their private parts”.

In another verse, it is mentioned that, “Those who protect their private parts except from their spouses… therefore, whosoever seeks more beyond that then they are the transgressors”. The sperm of a third person is injected during the AID process, which is regarded a transgression by Muslim wives.

AID PROHIBITION & LEGAL STATUS:

•     Due to a lack of knowledge about one's (biological) genealogy, one may marry a half-brother, half-sister, or other close relative with whom marriage is prohibited. These types of events will hurt not only the individuals involved, but society as a whole in the long term.

•     Although AID is not legally or ethically zina, it is morally reprehensible and prohibited according to Islamic principles, according to the eminent jurist Mustafa al-Zarqa. Furthermore, he stated that while AID does not meet the zina requirements, it may be liable to lighter penalties according on the government's discretion.

•     If AID is used without the husband's consent, the prohibition will be considerably greater because it includes deception and violates the trust (Amana) that is part of the marriage bond.

•     According to the shariah, the result of AID is an illegitimate child, however the husband is considered the legal father of the child, in which case the kid gets inheritance rights from both the mother and the father. "The child belongs to the [marriage] bed."

•     If the AID procedure is carried out biologically, the birth mother will be considered a real mother, and her husband would be deemed a true father.

•     If the father is aware that the child does not belong to him but to someone else, he may be hesitant to fulfil his obligations.

•     Other than that Children conceived (through AID) suffer emotionally & result in weakening family ties. AIDS causes problems between spouses and undermines the family's nucleus. As a result, AID is prohibited in Sharia.