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Hamdard Islamicus Vol. XLIII, No. 1 53

ISLAMIC VIEWPOINT ON SURROGACY WITH THE
SECOND WIFE

DR. MUHAMMAD QASIM BUTT*
PROF. DR. SULTAN SHAH**
*Lecturer, GC University Lahore

e-mail: muhammadqasimb@yahoo.com
**Dean, Faculty of Languages,

Islamic & Oriental Learning, GC University Lahore

Surrogacy is a technique of assisted reproduction that involves the
employment of IVF in a distinct way.It is indicated in women who have
a problematic uterus due to which they cannot gestate an embryo. Although
surrogacy appears to be simple, but ethical, legal, and psychological issues
involved in it are complex.A majority of Muslim jurists is against any kind
of surrogacy; only a few of them approve it with strict regulatory measures.
However, there is some hope for infertile Muslim couples if the surrogate
arrangement is made between a man and his second wife. This paper aims
to highlight the Islamic viewpoint on the possibility of surrogacy with the
second wife.

Key Words:  Surrogacy, gestational, necessity, mother, genetic mother, surrogate.

By definition, surrogacy is the practice whereby one woman
(the surrogate mother) carries a child for another person or persons
(the commissioning couple) as the result of an agreement prior to
conception that the child should be handed over to that person after
birth.1The practice of surrogacy comprises two kinds. In the first
kind, a woman is impregnated with the sperm of the commissioning
male by AI. The surrogate contributes her ovum as well as uterus;
this is known as “traditional surrogacy.” The other kind of surrogacy
is coupled with IVF-ET in which the embryo is transferred to another
woman, who contributes only her uterus. This is known as
“gestational surrogacy.”



54 Islamic Viewpoint on Surrogacy...

Verdict against Surrogacy

The opinion of majority of Muslim jurists, the bodies of fatÉwÉÍ
and Islamic biomedical organizations is against the use of any kind
of surrogacy. For instance, the Seminar on Human Reproduction in
IslÉm held by the Islamic Organization for Medical Sciences (IOMS)
in 1983 A.D. stated in recommendation No. 5 while commenting on
the practice of IVF-H:

“It was also agreed that the practice is unlawful if it involves
an alien party, whether in the form of semen, an ovum, an
embryo, or a womb.”2

This means the procreation must be a role of a married couple,
with the exclusion of donated sperm, ovum, embryo, or womb. The
surrogate is not related to the commissioning father, so his sperm
cannot be deposited in her womb in a traditional surrogate
arrangement, as this is forbidden to use a uterus for an alien sperm.
The Prophet ( ) made it ÍarÉm by the following statement:

ِر أَنْ  ْوِم اْآلِخ ِ َواْليَ َّ ا ْؤِمُن بِ ِرٍئ يُ لُّ ِالْم َال يَِح
ِرهِ  اَءهُ َزْرَع َغْي ِقَي َم يَْس

“It is not lawful for a man who believes in Allah and the last
day to water what another has sown with his water.”3

The preservation of lineage (ÍifÐ al-nasab) is a necessary
objective of Sharʑah and care must be taken in matters related to
genealogy.Therefore, the gestational surrogacy is also forbidden as
it involves the donation of a human fertilized ovum to the uterus of
an unrelated woman. The IOMS Symposium on “The Islamic Vision
of Some Medical Practices” held in 1987 recommended in the 14th

recommendation:

“It was unanimously approved to emphasize the fifth
recommendation of the symposium on “Reproduction in IslÉm”
regarding the prohibition of implanting a woman’s fertilized
ova in another woman’s uterus. Adequate precautions must be
taken to prevent the use of fertilized ova in such an illegitimate
pregnancy.”4



Hamdard Islamicus Vol. XLIII, No. 1 55

The Council of the Islamic Fiqh Academy of Jeddah in its third
session held in Amman in 1986 discussed seven methods related to
test-tube baby, as they used the term, though it is a misnomer.
Among these seven methods, only two were approved as permissible
that concern homologous AI and IVF. The prohibited methods involve
the donation of gametes, or transfer of embryos to unrelated women.
One of them reads the following:

“(Prohibited is) The fertilization taking place in vitro between
the semen and the ovum taken from the spouses, and the
fertilized ovum is then planted in the womb of a volunteer
woman.”5

This is the prohibition of gestational surrogacy with an unrelated
(ghayr maÍram) woman. This is strange to find that all five prohibited
methods concern in vitro fertilization. The traditional form of
surrogacy that involves in vivo fertilization in the surrogate by using
a man’s semen has not been mentioned. The same Council discussed
the fate of surplus fertilized ova and reiterated its verdict on gestational
surrogacy in another way in its sixth session held in 1990 in Jeddah:
“It is prohibited to inseminate fertilized ovules into another woman.
Precaution must be made to prevent the use of the fertilized ovules
in an unlawful pregnancy.”6

The Islamic Fiqh Council of Makkah discussed the issue of
artificial insemination and test tube babies in its seventh session held
in 1984. The Council detailed seven possible methods and prohibited
all those among them that involve the donation of sperm, ovum or
use of uterus of another woman. Two methods were approved that
involved AI and IVF between husband and wife. One of the
prohibited methods relates to surrogacy:

“The external insemination takes place in the test container
between the sperm and ovum of the couple then, the zygote is
planted in the uterus of a woman who volunteers to bear it.”7

    On March 29, 2001, the Islamic Research Council of Al-Azhar
issued a decision that prohibited all types of surrogacy arrangements
that involve a third party including use of cryopreserved gametes
subsequent to divorce or the death of a spouse. Despite these views,



56 Islamic Viewpoint on Surrogacy...

some jurists approve of gestational surrogacy who disagree on
whether the surrogate must or must not be a second wife of the
husband8). For instance, Abd al-Mu‘ÏÊ BayyËmÊ (d. 2012) argued for
the permissibility of womb-leasing on the basis of an analogy with
breast feeding.9

Surrogacy with the Second Wife

As seen above, the main thrust of all rulings related to surrogacy
is on the risk of lineage that exists when the male and the surrogate
are unrelated. However, the problem of lineage in the procedure of
surrogacy may be removed if the commissioning male and the
surrogate-to-be are related to each other with a valid marriage (nikÉÍ
ÎÉÍÊÍ).

As a general understanding, the participation of a third personin
a husband-and-wife relationship has been denied by a majority of
Muslim jurists even if that third person is the wife of the
commissioning male. One striking reference was seen when the
Islamic Fiqh Council, Makkah, approved of surrogacy in 1984, on
the condition that the surrogate is the second wife of the
commissioning male. It says while commenting on the permissible
methods of IVF:

“The seventh method (in which the sperm and ovum are taken
from the couple, and after their insemination in the test-container,
the zygote is planted in the uterus of the other wife of the same
husband, whereas she volunteers out of her own choice for this
pregnancy on behalf of her co-wife, whose uterus is surgically
removed) seemed to be permissible to the Council, if it is really
needed and the above-mentioned general conditions are met.”10

The collective wisdom of the Council can be read in the words
of the ruling. It was a conditional permission, and it laid down six
conditions for this as follows:

1. The procedure of IVF shall be done with homologous gametes,
i.e. “the sperm and ovum are taken from the couple.”

2. The male and the surrogate must be related to one another by
a marriage, i.e. “the zygote is planted in the uterus of the other
wife of same husband.”



Hamdard Islamicus Vol. XLIII, No. 1 57

3. The surrogate shall perform the procedure with her free choice;
she cannot be forced to engage in it. Moreover, she shall do
this as a volunteer; not for the sake of money, as it says “she
volunteers out of her own choice.”

4. There shall be a definite necessity for it as the first wife is a
person “whose uterus is surgically removed.”

5. The other causes of necessity or need shall be justified and the
procedure is done only “if it is really needed.”

6. The conditions of caution shall be observed and the procedure
is done only if “general conditions are met.” That is, expert
doctors shall perform the procedure; preferably a female shall
do it, and a male doctor is consulted only in the absence of a
female; a family member shall be present at the time of transfer
of embryos; and the exposure of the female body is limited to
the possible extent.

The fatwÉ was a blessing for those couples who are infertile
because the wife’s uterus has been removed. She becomes a barren
after her hysterectomy, and there is no other choice for her to have
her own child. Obviously, she experiences hardship (mashaqqah)
and suffers from a necessity (ÌarËrah). Similarly, a woman who has
premature ovarian failure may become barren because she cannot
produce ovum. Nonetheless, she has a uterus and can serve as a
surrogate mother. She is also in need of marriage and children.
Moreover, if a husband’s wife has become barren after hysterectomy,
he may marry a woman who has premature ovarian failure, now
both women may benefit from surrogacy. The first wife will give
ovum and the second wife will gestate. Both will become mothers
in this way.

The Holy Qur’Én proclaims concerning those who are in extreme
necessity:

ه َم َعلَْي َال إِثْ اٍد فَ اغٍ َوَال َع َر بَ ُطرَّ َغْي ِن اْض فََم

“But whoever is forced (by necessity), neither desiring (it) nor
transgressing (its limit), there is no sin upon him.”11

Al-mashaqqah is more general than ÌarËrah and an easement (taysÊr)
is brought to remove the hardship. One way of ease is to allow in
time of necessity what has been disallowed in normal situation. The



58 Islamic Viewpoint on Surrogacy...

surrogacy with the second wife is not allowed when the first wife is
healthy and fertile as there is no need of it.

IÌÏirÉr and ÌarËrah, on the other hand, appear due to Ìarar to
the individual. When a person is afflicted with harm, he is in need
of a way out to prevent himself from it. In such a needful situation,
an effort is made to remove the harm as far as possible. Therefore,
if the first wife of the husband is ill and does not have a uterus a
harm (Ìarar) afflicts her that shall be removed:

انِ  ْمَك ْدِر اْإلِ ْدفَُع بِقَ َرُر يُ الضَّ

“Harm shall be repulsed as far as possible.”12

Hence, when her ÌarËrah is justified, the surrogacy arrangement
with the second wife that was impermissible in normal situation
becomes permissible for her. The permission in her context means
a concession (rukhÎah) in her case due to necessity. Although she
may also remain content with her childless status as a matter of
resolve (‘azÊmah), but resoluteness of one woman does not prevent
the other from choosing concession. RukhÎah for her is to permit
her surrogacy with a co-wife of her husband despite its prohibition
for the general population of healthy women as per the juristic
maxim:

وَراتِ  ُح اْلَمْحُظ ُروَراُت تُِبي الضَّ

“Necessities render the prohibited things permissible.”13

The Qur’Énic verse puts two limitations to the doctrine of
necessity: the absence of al-baghy and al-‘adÉ’. Now, the verse
means that the concession due to necessity shall be extended to an
individual who is not bÉghÊ, i.e., who does not surpass the extent up
to which the need can be fulfilled, and who is not ‘ÉdÊ, i.e. who
does not transgress the limits of permission to enter into the sphere
of prohibition. If the couple undergoing surrogacy with the second
wife fulfil both conditions, they can be considered a suitable case
for rukhÎah due to iÌÏirÉr or ÌarËrah.

Obviously, the concession is given for medical reasons, not for



Hamdard Islamicus Vol. XLIII, No. 1 59

non-medical reasons. Therefore, if someone performs gestational
surrogacy with the second wife to preserve the physical beauty of
the first wife, or to accomplish the pursuit of her career, or to relieve
her of the pain and discomfort of gestation, then the concession will
be revoked and the original prohibition will come into play:

هِ  َل بَِزَواِل ْذٍر بََط اَز ِلعُ ا َج َم

“Whatever is permitted due to an excuse becomes invalidated
on cessation of the excuse.”14

The fatwÉ of 1984 was beneficial for women with a problematic
uterus. It contained the spirit of consideration of public welfare
(maÎlaÍah murÎalÉh). However, in 1985, the same approval was
withdrawn. This raises doubts on the withdrawal, as the duration of
one year is a very short period to judge the pros and cons of the
previous ruling. The fatwÉ of the approval of the practice and its
dissemination required time more than a year. Even if people acted
upon the permission, they would need more than one year to get a
child via surrogacy with a co-wife. Did the Council receive sufficient
data to come to a conclusion that the previous verdict had been
problematic? If they did find it permissible a year ago, then for what
reasons this was done? What appeared before them to change their
opinion? If surrogacy with a co-wife was plainly against the principles
of IslÉm, then the members of a Council could not have agreed to
it for a while.

In 1985, the IFC, Makkah, gave reasons to revoke their previous
verdict. Their main concern is the risk of the possibility of another
pregnancy in the surrogate by the husband’s intercourse. The
surrogate will contain two zygotes in this situation, one with her
own ovum and the other with the ovum of the first wife. The
complications will occur as regards to the identity of each zygote.
The observations made by the Council follow:

“The second wife in whom the fertilized ovum of the first wife
was planted, may conceive second pregnancy before the closure
of her uterus for pregnancy of zygote, through the husband’s
intercourse with her in a period that is close to the plantation
of zygote, then she delivers twins and it is not known who is



60 Islamic Viewpoint on Surrogacy...

the child born out of zygote and who is the child born out of
the husband’s intercourse. It is also not known who is the
mother of the child born out of zygote and who is the mother
of the child born out of the husband’s intercourse. One of the
two pregnancies may terminate as leech or embryo and its
abortion takes place with the delivery of the other pregnancy,
which is also not known whether this child is out of the zygote
or out of the husband’s intercourse. The whole situation causes
the mixing of lineage from the side of real mother for each of
the pregnancies. It also causes the confusion in respect of other
related rulings. Therefore, the entire issue made the Council to
stop its ruling on this case.”15

The argument for the reversal of the fatwÉ can be scrutinized
in the following:

1. The husband can avoid copulation with the second wife for
three previous menstrual cycles before performing the procedure
of surrogacy. If he confesses of the conjugal act with his second
wife, then wait for three menstruations to pass by to ensure that
her uterus is now free.

2. The surrogacy may be performed after ultrasound examination
of the uterus for clarification (istibrÉ’ al-Íamal). Then, monitor
her during the progress of the procedure. Once implantation
has occurred after embryo transfer, it is established that this
embryo belonged to the first wife. After this time, if she gets
pregnant with her husband, the age of both embryos will be
different, so they can be easily distinguished.

3. Another option is to perform the marriage contract (‘aqd al-
nikÉÍ) between the husband and the second wife, and provide
them separation for some time when there is no other
impediment to copulation. This will establish khalwah ÎaÍÊÍah,
though actual copulation has not taken place. Now, the uterus
of the second wife is free and embryo transfer can be performed
without any risk of another pregnancy. The husband may
copulate with her after the delivery of this child.

4. There is another solution that the second wife may agree to
surrogacy provided she has her first child with the husband
and has passed the suckling period of two years. Now, her



Hamdard Islamicus Vol. XLIII, No. 1 61

right of having a child is preserved and she can avoid copulation
for three cycles before going for surrogacy for the first wife.
This stipulation may be settled before the marriage contract.

Although, since 1985, the general prohibition on surrogacy
with the second wife has existed in the Muslim world, but the
exceptional cases can be treated with the procedure while observing
the following limitations of the Sharʑah:

1. The marriage contract shall be valid.
2. The second wife shall give her consent to the procedure.
3. She shall be treated as a wife, not a ‘surrogate on rent’. She

shall receive a dower (mahar), food and clothing (nafaqah)
and accomodation (suknÉ) according to the custom and the
agreement of the marrying parties.

4. The first child shall belong to her irrespective of the gender of
the child, and surrogacy may be performed when two years of
suckling have passed.

5. She may ask for the husband’s right to divorce to be delegated
to her before performing the surrogacy. In return, she shall
agree to relinquish her right to the custody of the child to the
first wife.

6. The surrogacy shall be done only for one child irrespective of
the gender of the child, and that must be performed after the
second wife has received her own child. Now, both women
will have a child each.

7. Both wives shall live with the same husband like any other
polygamous arrangement after the procedure.

8. Both women will become mothers in their respective manner.
One is the ovum donor, the genetic mother, and the other has
given birth, the surrogate mother.

9. As both are wives of the same husband, the right of visitation
is secured. The emotional trauma to the surrogate mother may
be relieved as she has her own child, and she can also visit the
other child. The emotional bond between the genetic mother
and the child is strong as he resembles her mother and gets her
characteristics. Moreover, the genetic mother may receive
medicines for an induced lactation and breastfeed him to
experience the feeling of suckling. In this way, the surrogacy
arrangement is superior to the adoption of a child.



62 Islamic Viewpoint on Surrogacy...

10. The deprived women may be preferred for the second marriage
in this case. Such women might agree to the procedure to find
a safe home and a comfortable life, otherwise they are neglected
on account of poverty, disability, ugliness, orphanage,
widowhood, divorcement, ignorance, and cultural drawback. If
the second wife is of a lesser status than the first, she is more
inclined to accept her as a competitor. The second wife will
also tend to avoid confrontation with the first woman. The
relationship of the first couple may persist due to love, while
the relationship of the second couple will persist due to children.
Although the second wife is a marginalized woman, but she is
the mother of both children in the home, hence, her status will
improve in the family and in the society.

Real Mother in Gestational Surrogacy

The technique of  artificial insemination involved separation
between the conjugal and procreative acts. The in vitro fertilization
involved the issue of collecting an ovum from a woman’s body and
fertilizing it in a laboratory. Now, the surrogacy poses another issue:
the separation of ovum and uterus in procreation, i.e., a separation
between the genetic mother and the gestational mother.

In AI and IVF, the embryo belonging to a woman is sent back
to her uterus. Hence, the ovum and the uterus come from the same
woman. But, in surrogacy the ovum and uterus are separated, which
is unprecedented in Islamic jurisprudence. The main concern is to
find who is the ‘real mother’, whether a genetic mother (ovum
donor) or a surrogate mother (uterus donor)? A sundry of juristic,
legal, ethical and economic issues relates to the real mother that may
be jeopardized in confusion of nasab to the woman.

The Muslim discussions on the subject vary with respect to the
identification of the real mother in a surrogate arrangement. Most of
them consider the surrogate as the real mother because she suffers
the pangs of pregnancy and childbirth, whereas some of them
consider the ovum donor as the real mother because she is supplier
of genetic matter of the child.
The arguments that consider the employment of the word wÉlidah
to refer to the real mother might not be very useful. This is because
a perusal of the text reveals that the words umm and wÉlidah have



Hamdard Islamicus Vol. XLIII, No. 1 63

been used interchangeably. In surrogacy, to define the real mother
with the term wÉlidah is difficult, because normally umm (the genetic
source) is the wÉlidah (the birth giver) and each of these terms can
be used for the other. Consider the following verse that describes
parental relations:

هُ  ا َوَحْملُ عَتْهُ ُكْرًه ا َوَوَض هُ ُكْرًه هُ أُمُّ انًا َحَملَتْ ِه إِْحَس اَن بَِواِلَدْي نَس ْينَا اْإلِ َوَوصَّ
ْهًرا وَن َش الُهُ ثََالثُ َوفَِص

“And We have enjoined on man kindness to his parents. His
mother carried him with hardship and gave birth to him with
hardship, and his gestation and weaning (period) is thirty
months.”16

The injunction of kindness is given to a man about his
‘wÉlidayn’ (wÉlid and wÉlidah), i.e., those who give birth (wilÉdah).
One has to perceive with a neat caution that the term wÉlidah, as
referred to in the word wÉlidayn, has been used synonymously with
the term umm, which occurs in the next part of the verse. Hence,
wÉlidah (the birth giver) and umm (genetic mother) mean the same
woman in this verse.

The above verse reveals that the mother (umm) is the one who
bears the child (Íamalathu), then delivers him (waÌa‘athu), and
suckles him (fiÎÉluhu). Among these functions of a mother,
pregnancy (Íamal) and delivery (waÌ‘) cannot be separated, but
pregnancy (Íamal) and suckling (raÌ‘) may be separated from other
processes. With this separation, however, the status of the woman as
a mother does not break down. She who breastfeeds is equal to the
mother who bears the pregnancy and gives birth.

In fact, a mother has four functions as mentioned in the Qur’Én:
Pregnancy (Íamal), delivery (waÌ‘ Íamal), suckling (raÌ‘) and
nurturing (tarbiyah). Three of them have been mentioned in the
above verse. The fourth function is mentioned in the following prayer
taught to the children to ask for their parents (father and mother):

ِغيًرا انِي َص ا َربَّيَ ا َكَم ّبِ اْرَحْمُهَم ل رَّ قُ

“Say, My Lord, have mercy upon them as they brought me up
(when I was) small.”17



64 Islamic Viewpoint on Surrogacy...

Pregnancy and delivery are biologically united, but suckling
and nurturing may be separated. The foster mother (by milk) does
not contribute ovum or uterus still she becomes a mother, whereas
a surrogate is providing her uterus with full gestation, she shall
preferably be called a mother.

The utilization of the womb is fairly a good point of reference
for a mother. The woman whose womb has been used for pregnancy
shall be a mother. A number of Qur’Énic verses hint that a mother
(umm) is the woman in whose womb the fetus resides:

اتُِكمْ  َه وِن أُمَّ ي بُُط ةٌ فِ ْم أَِجنَّ َوإِْذ أَنتُ

“(He was the most knowing of you) when you were fetuses in
the wombs of your mothers.”18

She is the woman who offers her womb so that the fetus
undergoes its stages of creation in it:

اتُِكمْ   َه وِن أُمَّ ي بُُط ْم فِ ْخلُقُُك

“He creates you in the wombs of your mothers.”19

She is the woman who delivers the child as the following verse
says:

اتُِكمْ  َه وِن أُمَّ ن بُُط َرَجكُم ّمِ ُ أَْخ َّ َو

“And Allah has brought you out from the wombs of your
mothers,”20

The above verses show that gestation has a special connection
with the identification of a mother. UmmuhÉt are the ones whose
wombs are used for gestation and development of fetuses and the
same are also wÉlidÉt as the fetuses come out of their wombs. In the
last verse, ummuhÉt is used in the sense of wÉlidÉt.

UmmuhÉt, the plural of umm, may be used to refer to the gene
pool of ovum donors of a person, that is, it may refer to his mother
up to all women above her. The ×anafÊ corpus, al-HidÉyah, comments
on the prohibition of marriage with women in the following words:



Hamdard Islamicus Vol. XLIII, No. 1 65

الِ  َج ِل الّرِ ْن ِقبَ ِه ِم ِه َوَال بَِجدَّاتِ َج بِأُّمِ َزوَّ ِل أَْن يَتَ ُج لُّ ِللرَّ اَل (َال يَِح قَ
اٌت، إْذ اْألُمُّ  َه دَّاُت أُمَّ اتُُكْم }  َواْلَج َه ْم أُمَّ ْت َعلَْيُك َم الَى {ُحّرِ ِه تَعَ اِء) ِلقَْوِل َوالنَِّس

اعِ  ْجَم ْرَمتُُهنَّ بِاْإلِ ْت ُح ةً أَْو ثَبَتَ ُل لُغَ َي اْألَْص ِه

“It is not permissible for a man to marry his mother and his
grandmothers from the paternal or maternal side. This is because
Allah the Almighty says: Prohibited to you (for marriage) are
your mothers. The grandmothers are also included in ummuhÉt,
because al-umm (mother) means al-aÎl (root, ancestry or
pedigree). Moreover, their prohibition has been established by
consensus.”21

In this particular sense, the woman who is the source of ovum
shall also be a mother (umm), in addition to the woman who gives
birth. However, the term al-umm is not specific for the child-bearer,
birth-giver and originator (aÎl) of the ovum, the woman who
breastfeeds a child is also known as umm (mother):

ْعنَُكمْ  ي أَْرَض تِ اتُُكُم الالَّ َه َوأُمَّ

“(Prohibited to you in marriage are) your foster mothers who
nursed you.”22

In fact, one of the functions of a mother is suckling. The above
verse referred this function to ummuhÉ, now the following refers the
same function to wÉlidÉt. This shows that umm and wÉlidah are
same in the text of the Sharʑah:

اِملَْينِ  ْولَْيِن َك نَّ َح ْعَن أَْوَالَدُه َداُت يُْرِض َواْلَواِل

“And mothers may breastfeed their children two complete
years.”23

If the woman who gives birth is meant, the term wÉlidah may
also be employed clearly:

ِده هُ بَِولَ وٌد لَّ ِدَها َوَال َمْولُ َدةٌ بَِولَ ارَّ َواِل َال تَُض

“No mother should be harmed through her child, and no father
through his child.”24



66 Islamic Viewpoint on Surrogacy...

Another mother (umm) is the mother of a person’s wife and
marriage has been prohibited with her forever (Íurmah muÎharah).
Al-HidÉyah comments on the prohibition of marriage with them in
the following words:

ْدُخْل) ْم يَ ا أَْو لَ َل بَِه ي َدَخ ِه الَّتِ أُّمِ اْمَرأَتِ اَل (َوَال بِ قَ
دِ  ِر قَْي ْن َغْي ائُِكْم}  ِم اُت نَِس َه الَى {َوأُمَّ ِه تَعَ ِلقَْوِل

دُُّخولِ  ال

“He shall not marry with the mother of his wife, whether he
has copulated with his wife or not. This is because Allah the
Almighty says: (Prohibited to you for marriage) are your wives’
mothers. This has been mentioned without the constraint of
copulation.”25

UmmuhÉt has also been used for the wives of the Prophet ( )
also, despite the absence of any physical relationship with them.
Hence, a spiritual relationship with a woman is sufficient for the
application of the term al-umm:

اتُُهمْ  َه هُ أُمَّ ِهْم َوأَْزَواُج ْن أَنفُِس اْلُمْؤِمِنيَن ِم ى بِ يُّ أَْولَ النَّبِ

“The Prophet (upon him be peace and greeting) is closer to the
Believers than their own selves, and his wives are their
mothers.”26

Most of the verses quoted above reveal that the term ummuhÉt
or umm has been used more commonly in the Qur’Én than walidÉt
or wÉidah. The term umm is used in a wider sense. It may refer to
the genetic mother (aÎl), the birth giving mother (wÉlidah), the
suckling mother (umm al-raÌÉ’), the mother of wife (umm al-imra’ah)
and the spiritual mother (umm al-mu’minÊn). In case of gestational
surrogacy, umm (mother) may refer to the surrogate for her roles of
pregnancy, birth and suckling, and also to the ovum donor because
she is the aÎl, the root of the genetic makeup of the child. By
attributing the child to both mothers, there is no assault on the
preservation of progeny and lineage (ÍifÐ al-nasl wa al-nasab).

Some Muslims suggest that surrogate motherhood can be
considered analogous to foster motherhood. As a foster mother gives



Hamdard Islamicus Vol. XLIII, No. 1 67

her milk for the nourishment of the child, a surrogate also gives her
blood for the nourishment of the fetus.27 However, this analogy is
faulty; firstly, because the surrogate places the fetus in her womb
whereas the foster mother only breastfeeds him. Secondly, the
surrogate experiences the sufferings of pregnancy and childbirth
which are not felt by the foster mother. Thirdly, the foster mother
may be unrelated to the father of the child but the surrogate shall be
related to him as his co-wife to prevent the risk of adultery.

The assault on the preservation of lineage is seen when the
male and the surrogate are not married. Only then, the prohibition
of watering the plantation of another (siqÉ al-mÉ’zar‘a ghayr) is
applicable. However, if both are married, the embryo transfer can be
done to the uterus of the second wife as it is the watering of own
plantation, not of another. The question arises that it also entails the
transfer of an ovum from one woman to another; is it permissible?
The answer favours the permission as the prohibition says:

ِر أَنْ  ْوِم اْآلِخ ِ َواْليَ َّ ا ْؤِمُن بِ ِرٍئ يُ لُّ ِالْم َال يَِح
ِرهِ  اَءهُ َزْرَع َغْي ِقَي َم يَْس

“It is not lawful for a man who believes in Allah and the last
day to water what another has sown with his water.”28

It mentions mÉ’ahu (his water), and the pronoun refers to the
male, not to the woman. The ovum of a woman is not included in
the prohibition of water (sperm) of a man. Therefore, if there is a
need, the ovum of a woman may be allowed to enter the uterus of
another woman. This is istiÍsÉn based on necessity. Moreover, the
ovum is also not present in its original form. It has changed to a
zygote or an embryo. Now, the embryo consists of ovum and sperm
of a married couple, which is permissible. This consists of the water
of husband, which is entered in the uterus of a wife, not in another
woman. This is also permissible. The transfer of ovum, which is
problematic, is not clearly prohibited, rather there is a silence about
it that entails permission. Even if someone claims disapproval of its
transfer, still it may be allowed for a limited time due to necessity
because the first wife is infertile due to the absence of her uterus or
the presence of a faulty uterus. She has no other way to get her child
except resorting to a gestational surrogate who is also her husband’s



68 Islamic Viewpoint on Surrogacy...

second wife. Lastly, it is impossible now to separate the ovum from
the embryo and get it back to its original form. Hence, it is not
obligatory to separate it as per the following maxim:

ُروَرةٍ  َع َض َراَم َم ٍز، َوَال َح َع َعْج َب َم َال َواِج

“Nothing is obligatory with inability; and nothing is prohibited
with necessity.”29

In a case of conflict for the custody of the child, a jurist has
to decide which function of the mother is strong and effective than
others that shall dominate her other roles and the child shall be
given in her custody. Apparently, that role is pregnancy and delivery,
during which she bears hardship or pain mentioned as kurh and
wahn in the Qur’Én:

ا عَتْهُ ُكْرًه ا َوَوَض هُ ُكْرًه هُ أُمُّ َحَملَتْ

“His mother carried him with hardship or pain and gave birth
to him with hardship or pain.”30

نٍ  ى  َوْه ا َعلَ هُ َوْهنً هُ أُمُّ َحَملَتْ

“His mother carried him, in weakness upon weakness.”31

Despite that the child belongs to both wives, the genetic mother
and the surrogate mother, preference is given to the surrogate because
the pain and hardship of pregnancy and delivery is an effective
reason for the basis of rulings in their conflict. This is because:

1. Most verses of the Qur’Én relate to the pregnancy and childbirth,
and not to the ovaries or ova. This is because the ovaries and ova
are hidden and to build a legal ruling on them is difficult. It is
impossible to judge the genetic mother with a naked eye. On the
other side, pregnancy is a visible and apparent matter and to build
a legal ruling on it is easy. Therefore, the basis of ruling is made
upon pregnancy (Íamal), and consequently, childbirth (waÌ‘ Íamal)
is biologically united to it. The hardship of pregnancy and the pain
of childbirth are the reasons due to which mothers are given a



Hamdard Islamicus Vol. XLIII, No. 1 69

higher status than fathers. These are effective in a conflict between
a genetic mother and surrogate mother. Since these hardships and
pains are felt by the surrogate mother, her status is higher than the
genetic mother, so, the child shall be given to the surrogate.
3. The Federal Sharʑah Court of Pakistan also gave the rights of
the custody of the child to the surrogate and the petition of the
commissioning father was disposed of. The case was Farooq Siddiqui
vs. Farzana Naheed Sharʑah Petition no. 2/I of 2015. Farooq Siddiqui
was a Pakistani born American citizen whose wife was infertile. He
made an oral agreement of surrogacy with Farzana Naheed at a cost
of Rs. 25,000. After giving birth to a daughter, the surrogate refused
to hand over the girl. Farzana, on the other hand, claimed that the
story of surrogacy was false and she was his wife and wanted
expenses for the upbringing of the child.
4. In cases of genealogy (nasab) of the child, the genetic source
is not preferred to the visible source. For example, when a conflict
arose between ‘Abd b. Zam‘ah and Sa‘d b. Abi Waqqas, while Sa‘d
was asking for custody of a child who belonged to his brother
‘Utabah out of adultery and ‘Abd was claiming that the child was
his brother as he was born to his father’s umm walad, the child was
given to ‘Abd b. Zam‘ah despite his resemblance to ‘Utabah b. Abi
Waqqas, the biological father. The ruling al-waladlilfirÉsh (the child
belongs to the owner of wedding bed) signifies that the decision is
based on the apparent, not on the genetic source. Similarly, even if
the ovum donor is the genetic mother, the ruling shall be based on
the apparent reason, that is the pregnancy (Íamal). The child shall
be handed over to the surrogate mother and his descent shall be
attributed to her as the Muslim jurists say:

احِ أَوْ  اَن بِالنَِّك َواٌء َك اْلِوَالَدةِ َس ُت بِ ْرأَةِ يَثْبُ ْن اْلَم ِد ِم ُب اْلَولَ فَنََس
فَاح بِالّسِ

“The descent of a child to a woman is proved by birth, whether
by marriage or sin.”32

5. WilÉdah is close to firÉsh in its meaning as it occurs within the
wedding lock, on a wedding bed. If firÉsh has been considered by
the SharÊ‘ah in case of a male, not his sperm, then wilÉdah shall be
considered for a female, not her ovum. Therefore, preference shall
be given to the woman who gives birth. Moreover, this point of



70 Islamic Viewpoint on Surrogacy...

view is more compatible with the Qur’Én as the Qur’Énic references
are abundant for the woman who gives birth.
6. As firÉsh confirms nasab without claim, wilÉdah also confirms
nasab without claim. The surrogate mother does not need to claim
that the child belongs to her. The child, in fact, belongs to her by
childbirth. If someone other than the owner of firÉsh claims the
child, he has to bring evidence in support. The child shall belong to
the owner of firÉsh as long as he does not go for li‘Én. Similarly, the
ovum donor needs to claim the child. However, as long as the birth
giver does not deny the child, he cannot be given to another woman.
7. If the child is given to the genetic mother, the need for the
surrogate will end and she will be sent out of the home. This will
cause harm to her. If the child is given to the surrogate, she also
shall not hold the child in custody and deprive the first wife to harm
her. Both of them shall not harm each other as the juristic maxim
says:

َرارَ  َرَر َوَال ِض َال َض

“There should be neither harming nor reciprocating harm.”33

Conclusion

The opinion of majority of Muslim jurists is against the use of
any kind of surrogacy because there is a risk of illegitimate lineage
that exists when the male and the surrogate are unrelated. However,
this problem may be removed if the commissioning male and the
surrogate are related to each other with a valid marriage. A woman
who has become barren after hysterectomy has no choice other than
surrogacy to have her own child. She experiences hardship
(mashaqqah) and suffers from a necessity (ÌarËrah). She may be
allowed this procedure due to necessity what has been disallowed
for others in a normal situation if certain conditions are observed as
follows:

There shall be no harm to anyone involved in the process (la
Ìarar wa la ÌirÉr). The informed consent of all, the first wife, the
second wife and the husband, is essential. The husband shall provide
mahar, nafaqah and suknÉ to the second wife. The second wife
shall get the first child for herself, then perform surrogacy after two



Hamdard Islamicus Vol. XLIII, No. 1 71

years of suckling. If she agrees to give this child to the first wife,
she shall be delegated the right to divorce. Both wives shall live
happily like any other polygamous relationship. With an agreement,
both will become mothers and shall visit the child. However, if a
conflict occurs, the surrogate mother shall be preferred.

Notes and References

1. Margaret Brazier et al., “Surrogacy: review for the UK Health Ministers of current
arrangements for payments and regulation,” Human Reproduction Update 3, no.
6 (1997): p. 624.

2. http://islamset.net/bioethics/firstvol.html Accessed March 9, 2019
3, AbË DÉ’Ëd, SulaymÉn b. Ash‘ath, Al-Sunan (BayrËt: Al-Maktabah al-‘AÎariyyah,

n.d.), 2: 248 ×adÊth: 2158.
4. http://www.islamset.net/bioethics/vision/recom.html Acessed March 9, 2019
5. The Council of Islamic Fiqh Academy, Resolutions and Recommendations of the

Council of the Islamic Fiqh Academy (1985-200), Jeddah, Islamic Developemnt
Bank, 2000, Resolution no. 16 (4-3), p. 28.

6. The Council of Islamic Fiqh Academy, Resolutions and Recommendations of the
Council of the Islamic Fiqh Academy (1985-200), p. 111.

7. The Islamic Fiqh Council, Resolution of Islamic Fiqh Council Makkah Mukarramah
(1977-2006) (Muslim World League, 2006), p. 192.

8. AÏÉ   Abd al- ÓÏÊ al-SunbÉÏÊ, BunËk al-NuÏafwa’l-Ajinnah, DirÉsah MuqÉranah
bayna al-Fiqh al-IslÉmÊ wa’l- QÉnËn al-WaÌÊ, Cairo, DÉ  r al-NahÌah al- Arabiyyah,
2001, p. 258.

9. Ayman Shabana, “Foundations of the Consensus against Surrogacy Arrangements
in Islamic Law,” Islamic Law and Society 22 (2015), p. 94.

10. The Islamic Fiqh Council, Resolution of Islamic Fiqh Council Makkah Mukarramah
(1977-2006) (Muslim World League, 2006), p. 194.

11. Al-Baqarah 2: p. 173.
12. Al-ZarqÉ, AÍmad b. MuÍammad, SharÍ al-QawÉ‘id al-Fiqhiyyah, Damascus, DÉr

al-Qalam, 1409/1989, p. 207.
13. Al-SuyËÏÊ, ‘Abd al-RaÍmÉn b. AbË Bakr JalÊl al-DÊn, Al-AshbÉh wa ’l-NaÐÉ’ir,

BayrËt, DÉr al-Kutub al ‘Ilmiyyah, 1411/1990), 1:84.
14. Al-SuyËÏÊ, Al-AshbÉhwa ’l-NaÐÉ’ir,, p. 85.
15. The Islamic Fiqh Council, Resolution of Islamic Fiqh Council Makkah Mukarramah

(1977-2006) (Muslim World League, 2006), pp. 203-204.
16. Al-AÍqaf XLVI: p. 15.
17. Al-IsrÉ XVII:24
18. Al-Najam LIII:32
19. Al-Zumar XXXIX:6
20. Al-Nahl XVI:78
21. BurhÉn al-DÊn, AbË al- ×asan ‘AlÊ b. AbË Bakr, Al-HidÉyah fÊ SharÍ al-BidÉyah

al-MubtadÊ, BayrËt, DÉr IÍyÉ al-TurÉth al-‘ArabÊ, n.d., 1: p. 86.



72 Islamic Viewpoint on Surrogacy...

22. Al-NisÉ’ IV:23
23. Al-Baqarah II:233
24. Al-Baqarah II:233
25. BurhÉn al-DÊn, Al-HidÉyah, 1: 86.
26. Al-Ahzb XXXIII: 6
27. Sharmin Islam et al., “Ethics of Surrogacy: A Comparative Study of Western

Secular and Islamic Bioethics,” JIMA 44 (2012): 3.
28. AbË DÉ’Ëd, Al-Sunan, 2: 248, ×adÊth: 2158
29. MuÍammad b. AbË Bakr Ibn QayyÉm al-Jawziyah, I‘lÉm al-Muwaqqi‘Ên ‘an Rabb

al-‘AlamÊn, BayrËt, DÉr al-Kutub al-‘Ilmiyyah, 1411/1991), 2:17.
30. Al-AÍqaf XLVI: 15
31. LuqmÉn XXXI:14
32. Al-KÉsÉnÊ, ‘Al’ al-DÊn, AbË Bakr b. Mas‘Ëd, BadÉ’i‘ al-ØanÉ’i‘ fi TartÊb al-

SharÉ’i‘, BayrËt, DÉr al-Kutub al-‘Ilmiyyah, 1406/ 1986), 6: p. 243.
33. Ibn MÉjah, MuÍammad b.YazÊd, al-QazwÊnÊ, Al-Sunan, BayrËt, DÉr al-Kutub al-

‘Arabiyyah, n.d., 3: p. 338. ×adÊth: 2341.