Several years ago I attended a workshop in Switzerland where scholars from several European countries, as well as religious representatives from Niger and the Middle East, discussed issues relating to assisted reproductive technologies. I remember one particular exchange vividly. I wanted to inquire as to the opinion of the Chief Judge (Qadi) of a major Middle Eastern City on the issue of heterologous insemination. While I already knew that Sunni normative statements consider it forbidden, it is partly allowed and practiced in Shi’i Iran and there is a certain degree of “insemination tourism” from non-Shi’i regions of the Middle East to Iran. So I asked the Chief Qadi what he thought about that. He replied: “Just because people do it, it does not make it allowed.” And then he continued that children born out of heterologous insemination are to be considered illegitimate children and therefore no legal tie can be established between the child and the husband of the child’s mother. End of debate. And in a sense, he is right of course. The discussion may sound like a typical abstract normative discussion. Couples who travel to Iran for heterologous insemination often simply do not tell anybody, and when the child is born it is automatically registered as the child of the mother’s husband.
Reproductive technology and the Shariah
Recently, I read Morgan Clarke’s Islam and New Kinship: Reproductive Technology and the Shariah in Lebanon. A significant section of the book is devoted to analyzing Shi’i normative positions on heterologous insemination and embryo adoption. Usually the positions of scholars such as Ayatollah Khamenei draw attention, because he considers all of these constellations to be valid if the act of transfer of sperm, oocyte, or inseminated oocyte takes places within a normative framework lending legitimacy to that act. This framework can be the so-called temporary marriage (mut’ah), where a man and a woman enter into a marriage contract specifying a fixed timeframe upon which the marriage will automatically be dissolved. This is often considered as a specific Shi’i legal construct, with Khamenei’s position usually viewed as being somewhat path breaking. However, Clarke argues that Khamenei is not breaking with anything here. Rather he uses a set of traditional concepts of Shi’i normative thinking in order to create legitimacy for the specific acts under discussion. Rather, it is legal scholars such as Ayatollah Hakim who are to be considered revolutionary, for arguing that heterologous insemination is forbidden and mut’ah is not considered a “solution” here, and that if it takes place the “children conceived out of wedlock” have full legal ties to their biological fathers.
I think that Clarke makes a very important point here. His observation — with which I fully agree — links the IVF-issue to the question the rights of children born out of wedlock (awlad al-zina), which is a much larger and very political problem in contemporary Middle Eastern countries. The position of these children (and their mothers, of course) is, generally speaking, very vulnerable due to the fact that the biological ties between a child and their biological father are usually only considered legally relevant if they match with a legitimizing framework — i.e. that the man and the woman were married at the time the child was conceived. If this is not the case then the situation is very difficult because the child has no father, legally speaking. The resulting problems may range from questions of child support to issues of the child’s citizenship, which is often linked to the legal father’s nationality. The big exception here is Tunisia, which passed legalization in the 1990s stating that biology determines fatherhood. In other countries, different solutions for the most pressing problems were put into practice — however, the basic legal concept remained in place.
The former Dean of Shariah faculty at Cairo’s famous al-Azhar University, Dr. Raf’at Uthman, is one of the few contemporary Muslim legal scholars who argues that an exclusively biological father-child tie creates legal obligations. Undoubtedly this is a minority opinion, as are the historical normative precedents which he refers to (the position taken by 14th century scholars Ibn Taimiya and Ibn al-Qayyim). What I find particularly interesting here is the fact that Uthman’s position became influential in the final recommendations of the second conference of the Assembly of Muslim Jurists of America held in Copenhagen in 2004. The document largely subscribed to Uthman’s opinion — although with considerable hesitation.
What I find so interesting in this is that the framing of the recommendations explicitly restricted the whole focus of the question to “Muslims living in the West”. I think that this is partly a reflection of the widespread assumption that extra-marital sexual relations are something “Western”. This brings me back to Clarke’s book. He also shows, through the case of Lebanon, how debates about IVF can also be read as a process of negotiating identity within the binary of the perceived morally corrupt West and a comparatively virtuous East. In the concluding section of his book he quotes informants (medical doctors) on genetic tests saying that “[i]n the vast majority of cases… people were not necessarily seeking out these tests to establish someone’s social identity” (p.204). Rather, many requests for genetic testing had their background in a marital dispute in which, for example, the husband accused his wife of adultery. “More than being about relationships between parents and children, it seems here, matters of biological relatedness are about relationships between men and women, the trust between them, and their claims to being genuinely moral persons”, Clarke concludes (p.205).
Prioritizing the interests of the child or the adult?
Ethically, I think this points to a fundamental question of the apparently abstract discussion about ways of constructing lineage as a social tie as well as a legal tie. Maybe the question could be roughly phrased as “Are all these discussions really about the children? Or, perhaps, are they much more about the adults?” This is not a question exclusive to the Middle East or Islamic normativity, of course. Relatively few people know that the legislation in Germany, for example, resembles the Sunni normative view at least in one particular constellation. As in many other legal systems, in Germany a child born into a marriage is automatically considered the husband’s. If a DNA test proves that the biological father is somebody else, but the spouses do not want to change the way things are, the genetic father does not have any legal rights concerning his child. The validity of this regulation was confirmed by the European Court of Human Rights in 2012. The German commentator Heribert Prantl, writing for the Süddeutsche Zeitung, considered this a good decision, essentially because it was linked to specific cases in which adults could not “sort things out themselves” and find a compromise, and that the overarching aim should be to ask what is good for the child rather than what is good only for the adults. I think he has a point here.
Contextualizing questions of bioethics
To sum up, I consider it necessary to contextualize questions of medical ethics and to explore the broader societal debates that are negotiated through discussions concerning issues of high ethical relevance, such as IVF. Are particular issues of medical ethics really only about the issue at hand, as is usually claimed in the course of such debates? How strong is the presence of other factors in these debates, which are not directly linked to the medical technology under discussion? An example would be the aforementioned binary of a morally corrupt West and a comparatively virtuous East — a binary, which can be detected every now and then in the documented public debates on bioethical issues by Muslim religious scholars in the Middle East — and the impact of such framing on perceptions of bioethical discussions. While it has become commonplace for statements about something being “Islamic” or “(Middle) Eastern” to be critiqued as essentialist and orientalist, I argue that discussion of “the West” is equally problematic in regards to bioethics. “Western bioethics” is often used to describe an essentially US-centric approach, with a very strong focus on medical issues — completely overlooking other bioethical traditions in countries such as Germany, France or Great Britain. In this respect I learnt a lot from Tom Banchoff’s recent book Embryo politics. Similarly, in her book on Organ transplantation in Egypt, Sherine Hamdy raised the point that certain criticisms by Muslim religious scholars of particular medical practices can also be dominant in bioethical deliberations in countries such as Germany. Breaking with the habit of over-simplifying and generalizing bioethical traditions might then contribute on an ethical level to the discussion of specific issues, by raising the awareness that such discussions can easily slip into negotiations of identities rather than addressing the particular issues under discussion. Especially when it comes to the question of the best interests of children, I consider this to be of major ethical relevance.
Thomas Eich is Professor of Islamic Studies at the University of Hamburg, Germany. Professor Eich is trained as a social historian of the 19th century Middle East and classical Arabic and Islamic studies, with a longstanding interest in bioethics. He is author of Islam und Bioethik (Reichart-Verlag, 2005)