FAROOQ SIDDIQUI Versus Mst. FARZANA NAHEED
RIAZ AHMAD KHAN, C.J.-- Farooq Siddiqui son of Muhammad Aslam Qureshi, petitioner herein, is a Pakistani born American citizen. According to his statement before the Court he is Doctor by profession and deals in surrogacy cases. Since his own wife was unable to give birth to a child so he gave an advertisement in the newspapers for a surrogate. In response to the advertisement, the respondent Mst. Farzana Naheed offered her services in exchange of money. According to the petitioner, Mst. Farzana Naheed was paid Rs.25,000 for medical examination. After results of test she was found fit for surrogacy procedure. She gave birth to a daughter namely Fatima Siddiqui. According to the petitioner, this surrogacy contract was oral but since the whole procedure was to be carried out in Pakistan and there was every possibility of reaction from the society and family of the respondent wife so in order to cover up the story a false drama of marriage was arranged. After giving birth to the daughter, the respondent refused to hand over the baby to the petitioner and refused to fulfill the contractual obligation.
2. On the other hand, the case of respondent is that the claim of the petitioner regarding surrogacy is totally false and fabricated. She was lawfully married to the petitioner and was and is his legally wedded wife. Out of the wedlock the daughter was born and the petitioner is bound to pay for expenses regarding education and brought up of the minor daughter.
3. Since the respondent had refused to hand over the custody of the minor to the petitioner so the petitioner filed a petition for custody of minor in the Court of Guardian Judge/Senior Civil Judge, Rawalpindi. The said petition was dismissed vide Order dated 24-12-2011. The petitioner failed to get the custody of the minor up to the Hon'ble Supreme Court of Pakistan. During these proceedings the petitioner filed a petition before this Court, which was also dismissed. On the other hand, decree for maintenance of minor was passed in favour of wife of the petitioner. The petitioner then filed the present petition before this Court as according to him his claim regarding surrogacy was not accepted and he was not handed over custody of the minor but was ordered to pay for maintenance of the minor. His claim is that if he is accepted as father of the minor then custody of the minor be handed over to him. Since a very important question of surrogacy was involved and according to the petitioner there was an oral agreement between him and the respondent so it was decided that the issue of surrogacy vis-a-vis the contractual obligation is required to be examined and the petition was admitted on the following grounds:--
"The issues involved in the case are (i) as to whether the agreement executed between the parties for producing a child as a surrogate mother is in accordance with the Injunctions of Qua'an and Sunnah? (ii) if it is presumed that the agreement is lawful contract under the Contract Act, whether the same would also be in accordance with the Injunctions of Qur'an and Sunnah? (iii) In absence of any law if a child is produced by a surrogate mother under which law the custody of that minor is to be governed? (iv) any other question raised by the parties."
4. In response to issuance of Notices, the respondent as well as Federal Government, Government of Balochistan, Government of Sindh, Government of Khyber Pakhtunkhwa and Government of Punjab filed their comments. Professor Dr. Muhammad Yousaf Farooqui and Dr. Muhammad Aslam Khaki were appointed Jurist-Consults. They have also submitted their reports. Sardar Ghazanfar Khan, Advocate appeared on his own, and in order to assist the Court, filed his comments. The petitioner, in addition to his written reply, made oral submissions. We have also heard the Juris-Consults, Standing Counsel for Federal Government and the learned Counsel appearing on behalf of all the four provinces.
5. Surrogacy is a new way of producing children, however, originally it started with the concept of test tube baby. It is a natural phenomenon that people usually want to have their own children and do not wish to adopt other children. People usually prefer the continuation of their own lineage. It is because of this urge that the concept of test tube baby developed. In the normal set of circumstances a young woman produces an egg in monthly menstrual cycle which is released from the ovary. This egg during sexual intercourse is fertilized into an embryo after meeting with the sperm released by the male partner. The embryo through a particular process reaches the uterus of the woman and in that way she gets pregnant in the normal course.
6. Unfortunately some women are incapable of fertilizing a sperm and as a result to do not get pregnant. In such a case sperm is obtained from the husband and egg from the wife which is fertilized in a test tube and then it becomes an embryo. This embryo is placed in the womb of the wife and in natural process she produces child. The process of fertilization by manually combining an egg and sperm in a laboratory and then transferring the embryo to the uterus is called In Vitro Fertilization.
7. Apart from the above said situation, there may be other situations where either the husband may not be in a position to produce a healthy sperm or the wife due to age or some other medical problems may not be able to maintain a pregnancy, all these cases can be summarized in the following manner:--
(i) Male Sperm fused with female egg by IVF method.
(a)
Donor sperm
Wife Egg
In wife womb
(b)
Husband sperm
Donor egg
In wife womb
(c)
Donor sperm
Donor egg
In wife womb
(ii) Male sperm fused with female eggs by IVF method
(a)
Husband sperm
Wife egg
In surrogate mother
(b)
Husband sperm
Donor egg
In surrogate mother
(c)
Donor sperm
Wife egg
In surrogate mother
(iii) Male sperm fused with female eggs single parents/couple.
(a)
Father sperm
Surrogate mother egg (artificial insemination)
In surrogate mother womb
(b)
Donor sperm
Mother egg
In surrogate mother womb
8. All the above said situation may result into the following four categories of cases;- i) The sperm does not belong to the father but the egg is obtained from the mother; ii) The sperm and the egg belong to actual married couple but the embryo is placed in the womb of third lady who gives birth to child; iii) The sperm belongs to the father but the egg to the donor and the child is also produced by the donor; and iv) Neither the sperm belongs to the father nor the egg to the mother but the child is produced by the donor for the couple;
All the above said cases are, in fact, the cases of surrogacy.
9. Surrogacy has been derived from a Latin word, which means appointed to act in place of. It is a technique of assisted reproduction wherein a women bears and delivers child for other couples. In case, if a man is incapable of producing child and the sperm is obtained from the third person that cannot be called a case of surrogacy for the simple reason that the child does not belong to the father. The issue arises when the woman is hired for carrying child for a couple for some monetary or other consideration.
10. In all the above said processes the surrogate mother, who is arranged, is paid certain amounts for carrying out the child for nine months and then producing child for another woman. So far all practical purposes the surrogate mother gives her womb on rent.
11. Due to advanced medical technology in some countries at one time different eggs are obtained from the body of a woman and when one egg is used the remaining eggs are frozen and kept in bank so that those may be used in future. The surrogate mother is compensated financially for going through the pains and agonies of producing a child. In advanced countries the surrogate mother is also protected through insurance so that if any untoward incident happens she may be compensated adequately and in addition to that medical expenses are also borne by the hiring couple.
12. The first case of such nature which came to light was of Baby M. In this case a woman by the name of Mary Beth Whitehead had agreed to become a surrogate mother for a couple. As a result of child was born. In this case sperm was obtained from the husband and the egg from Mary Beth Whitehead. After birth of a daughter Mary Beth Whitehead refused to hand over the child to the couple and she declared that her own husband was the father of the child. She accepted that she had entered into a contract of surrogacy with the couple and had received the amount but she offered to pay back the money as during the period of pregnancy she had developed emotional attachment to the child. On her refusal the couple went to the Court of New Jersey. In the trial Court the case was decided against Mary Beth Whitehead but in appeal the judgment was reversed. She was declared as real mother and the hiring couple were given the visitation rights. The child was handed over to Mary Beth Whitehead. Since it was a first case, so became talk of the town not only in United States but struck the headlines of the newspapers the world over. Afterwards the lady Mary Beth Whitehead also wrote a book titled "A Mother's Story". This case followed by certain other cases which became quite famous and necessitated proper legislation. In every country it was realized that there should be some law regarding surrogacy but it was not an easy task. In a similar case a lady by the name of Crystal of USA entered into an agreement of surrogacy with a couple. She was paid $22000 and an embryo was placed in her womb. Unfortunately before birth of the child it was found that the upcoming child had certain deformities. The couple asked her for abortion but she refused and gave birth to a deformed child. This case was reported in daily Mail dated 24th August, 2015.
13. In U.K. a gay couple had entered into an agreement with a woman who had agreed to become a surrogate mother for gay couple, whose sperm was used for producing a child. After the birth of the child the surrogate mother refused to hand over the custody of the child to gay couple. The case, however, was decided in favour of the gay couple. The case was also reported in Daily Mail, 24th August, 2015. The references of different cases have been given to show complexity of the issue and the background which requires legislation on the subject in different countries. In United States every State has got its own law regarding surrogacy, however, generally surrogacy is not prohibited and almost daily in the newspapers there are some advertisements regarding the need of surrogate mother. In U.K. surrogacy agreements are legally binding in the Court, even without a formal written contract. However, the custody of the child is decided by the Family Courts keeping in view the best interest of the minor. In Canada there are two types of laws. In one part of the country surrogacy is partly allowed but in other part that is Quebec surrogacy agreements are not recognized and the mother who gives birth to a child is considered as a legal mother of the child. In Finland also surrogacy agreements are illegal. The same is the case with France, Georgia, Hong Kong, Hungary, Iceland, Italy and Japan where even the doctors, agents and their clients are to be punished for arranging commercial surrogacy.
14. The above stated situation has created serious problems for the poor developing countries. In most of the developed countries surrogacy is either not permitted or illegal or extremely expensive. As a result most of the developed countries have turned towards the poor undeveloped countries, where poverty is order of the day, are on high risk of becoming markets for surrogacy. We should, therefore, make arrangements before it is too late.
15. In the present case, the petitioner had approached the respondent lady for producing a child. According to him, she had agreed to produce a child for him. The embryo was created with his sperm and the egg of the lady whereas no sexual intercourse had taken place. This assertion has been strongly denied by the respondent lady as according to her a proper marriage had taken place. The contention of the petitioner is that the marriage was, in fact, only arranged for face saving but no actual marriage had taken place. It was, however, contended by the petitioner that the contract was oral and he had paid certain amounts to the lady respondent. Without stepping into the factual controversy the fact remains that there is dire need of legislation in respect of surrogacy in Pakistan. At present if there is some contract regarding surrogacy that would be scrutinized at the touchstone of Contract Act. So the main question would be as to whether the contract regarding surrogacy would be a valid contract and whether surrogacy by itself is in accordance with the Injunctions of Holy Quran and Sunnah or not.
16. In the first category of cases where the father is not in a position to produce a child or there is some problem in the sperm of the father and the sperm is obtained from a third person, in that case the child would belong to the person from whom the sperm has been obtained. The child would not belong to the person who had arranged the sperm from a third person. Even if the egg belongs to the wife of the person who has arranged the sperm from a third person, for all practical purposes the child would belong to the mother whose egg has been used and the person from whom the sperm has been obtained. In such a case the whole arrangement would be illegal and against the Injunctions of Holy Qur'an and Sunnah.
17. In the second category of cases where the sperm has been obtained from the father and the egg from the mother and the same has been fertilized in the test tube through medical process and the embryo is then placed in the womb of the actual mother in that case the child would belong to the actual mother and father. This process cannot be considered as illegal or against the Injunctions of Holy Qur'an and Sunnah. The reason is that the sperm and the egg actually belong to the actual father and mother. If the couple agrees to go through the prescribed medical procedure then in that case legally no question can be raised in respect of the birth of the child. The child in such a case by all means would be legal and legitimate.
18. In all other cases where a woman is arranged as a surrogate mother against the monetary consideration or some other reasons. The whole procedure as well as the resulting birth of the child would be illegal and against the Injunctions of Holy Qur'an and Sunnah.
19. Before coming to the Qura'nic concept, it cannot be ignored that surrogacy procedure is not only based on exploitation rather the whole concept is illogical, cruel and absurd. If a woman is asked to carry a child for an unknown couple and then go through the pains of delivery and deliver a child for another couple, it would be beyond human understanding that the woman, who carries the child for nine months, would not develop emotional feelings for the child to whom she gives birth. In such a case the woman becomes only a machine not having any feelings, emotions or love. Converting human beings into feeling-less machines is the worst sort of cruelty that anybody can think of. The question is that whether the feelings of love, the pains of maintaining a child in womb and then delivery of child can be weighed in terms of money. This exploitation becomes worst when it is seen that people in the developed countries come to third world countries like India, Pakistan and Thailand where the rates are cheap, no medical protection is provided and other related facilities are also not available. If this process is allowed, it would be a new exploitation of the poor third world countries by the developed European as well as American countries.
20. The surrogacy procedure also involves another horrible aspect that is when a deformed baby is born, usually the couple, who has hired a woman to become a surrogate mother, do not develop love for the coming baby and when a deformed baby is born the hired couple usually do not own the baby. In most cases the woman who delivers the baby would not go for abortion, particularly, if the woman is a religious one she would hardly agree for abortion and that would create a new problem. If we put it in an ordinary example, it would mean as if a couple hires a taxicab and on the way something goes wrong with the taxicab the couple would leave the taxicab and hire another one. In a similar way the surrogate mother is useful as long as she delivers a baby. If she fails to deliver a health baby the hired couple would leave her to her own fate.
21. We have already seen that in one case a gay couple wanted to have a child and the sperm of the gay partner was kept in the womb of a girl who afterwards refused to hand over the child to the gay couple. Now it is to be seen as to whether the gay couple would be in a position to bring up a child and make him a useful member of the society. The situation would become more horrible if the sperm of a male is placed in the womb of near relative like sister mother etc. although such like cases have been reported in the press.
22. There is one more horrible aspect of surrogacy and that is relationship of the real children of surrogate mother vis- -vis the child to whom she gives birth as surrogate mother for another couple. Obviously such like situation may create unimaginable problems in future for the children as well. Particularly in Islamic countries surrogacy would disturb the settled Shari shares of heirs as settled by the Holy Qur'an. It would destroy the principles of inheritance given by the Holy Qur'an. Keeping in view all these facts it becomes clear that surrogacy even on the scale of human wisdom, is something which is aimed at the destruction of a healthy human society.
23. This fact cannot be ignored that in all societies, irrespective of religious background, certain values of good or bad are maintained as human values which are universal. Nevertheless, human values stem out of divine law as human mind is not capable of developing universal values good for all times to come. There is no doubt that certain derived principles and practices are different in different societies but the basic values remain the same. The basic aim and object of these universal values is that man should behave like a human being by distinguishing himself from animals and develop a healthy and peaceful society. Nobody can even think of a healthy society if he destroys the family unit as family by itself is the basic brick on which the structure of society is built. Surrogacy, in fact, is an axe which breaks the basic unit of society, that is the family.
24. Family is, in fact, the first institution where new born child gets natural love, affection and care. For the proper brought up of a child real family bonds are a prerequisite. When a child is given birth by a surrogate mother and handed over to a third party, the third party can never substitute the mother who has given birth to a child. This, in fact, is a fight with nature and man can never succeed in a tussle against nature. Family unit and every society is recognized and distinguished by the values it maintains. Surrogacy, in fact, destroys a healthy society.
25. It may be mentioned that the Qura'nic Concept on family and reproduction of children is quite simple and straight forward. Placing certain restrictions regarding marriage, the Holy Qur'an has given detailed Injunctions. Prohibiting the marriage contract between those who fall into the prohibited degrees and adding a few other conditions like that of dower, presence of witnesses, maintenance etc., Islam has allowed Muslims - a man and a woman - to enter into a bond of marriage through valid Nikah and reproduce children. According to the Injunctions contained in the Holy Qur'an and Sunnah of the Holy Prophet, no other way is provided for reproduction of children. Any efforts made to reproduce children through other means would be against the Injunctions of Qur'an and Sunnah, as highlighted in the subsequent paras.
26. Holy Qur'an says in Surah Nisa Ayat 24:--
But it is lawful for you to seek out all women except these, offering them your wealth and the protection of wedlock rather than using them for the unfettered satisfaction of lust.
27. Here Allah Almighty explains in clear words as to how and with whom a man can tie the knot of marriage but the overall instructions of the Holy Qur'an are that man and woman can establish marital obligations only in the case of Nikah provided the same is not forbidden as provided in the Holy Qur'an.
28. The Holy Qur'an further says in Surah Al-Muminun Ayaat 5 to 7:--
Who strictly guard their private parts save from their wives, or those whom their right hands possess, for with regard to them they are free from blame - As for those who seek beyond that, they are transgressors--
In other words Qur'an permits the sexual relations between man and woman within the bond of Nikah and not otherwise.
29. The object of Nikah and sexusal relations is reproduction of children. Qur'an says in Surah Al-Baqarah Ayat No.223:--
Your wives are your tilth; go, then, into your tilth as you wish but take heed of your ultimate future and avoid incurring the wrath of Allah. Know well that one Day you shall face Him. Announce good tidings to the believers.
30. In such a way women have been symbolized as agricultural fields and obviously a person enters an agricultural field for the purpose of reproduction so the object of sexual relations is reproduction of children but it has to be within the bond of Nikah and not otherwise. The purpose of Nikah is to determine the paternity and maternity of the child and in such a way develop and maintain a health society.
31. In surrogacy children are not produced by a couple th rough the bond of Nikah. The object of producing children through surrogacy is to satisfy the desire of a woman who may not wish to marry a man or go through the pains of delivery or is infertile. This desire may even be of a gay couple. The paternity and maternity of child would become irrelevant. As such the whole concept of surrogacy, as is generally in vogue in many countries, is against the Injunctions of Qur'an and Sunnah. Innumerable problems, which the society would face, cannot even be imagined.
32. In the above said circumstances, we hold that if a baby is born through mechanical/medical process where the sperm belongs to the actual father and the egg to the actual mother and the child is born by the actual mother, in that case the procedure would be legal and lawful. In all other cases surrogacy procedure would be unlawful and against the Injunctions of Holy Qur'an and Sunnah.
33. In Pakistan such an agreement, oral or written, would ordinarily be governed by the Contract Act, so suitable amendment be made in section 2 of the Contract Act, 1872 and it may be specifically provided that any agreement regarding surrogacy would not be enforceable by law as the same would contain unlawful proposals and unlawful considerations.
34. Pakistan Penal Code be also amended and suitable section of law be added regarding definition of surrogacy. The same be declared as an offence punishable with imprisonment as well as fine. Further amendment be made in the Pakistan Penal Code that the couple who arranges a surrogate mother would be liable to punishment along with surrogate and the doctor who carries on the surrogacy procedure. Another amendment be made in Pakistan Penal Code to provide punishment of the doctor who maintains the sperm bank or egg bank for using in future, which should include imprisonment and fine. It must also be provided that any doctor involved in the procedure of surrogacy shall loose his license.
35. As far as the case of the petitioner is concerned, we would restrain from passing any comments on that as under Article 203-D of the Constitution of Islamic Republic of Pakistan, this Court cannot provide any personal relief. His case has already been decided by the Civil Courts and we cannot interfere in the findings of those Courts.
36. In above terms, the Shariat Petition stands disposed of. The office is directed to send copies of this judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of all the Provincial Governments for necessary compliance.
37. The required amendments be made latest by 15th August, 2017.
(Sd.)
Riaz Ahmad, Khan, C.J.
(Sd.)
Allama Dr. Fida Muhammad Khan, J
(Sd.)
Zahoor Ahmed Shahwani, J
ALLAMA DR. FIDA MUHAMMAD KHAN, J.- I have the privilege of going through the judgment proposed to be delivered by the Hon'ble Chief Justice regarding surrogacy which has been elaborately defined and explained in great detail. I fully agree and concur with the same.
I would however, like to add that the issue in question is very sensitive and complicated and entails several practical legal issues regarding the Muslim Personal Law, particularly, like matters pertaining to inheritance, prohibited degrees for the purpose of inter se marriage and privacy etc.
I may also mention that this issue had been considered by the Islamic Fiqah Academy Jedda which has been established by the Organization of the Islamic Conference (OIC) i.e.. It is the world's highest Islamic forum for resolving various modern issues, arising from time to time, in the light of Islamic Injunctions. The said Academy in its meeting held in Makka Mukarrma in 1985 as well as in its another meeting held in Amman in 1986, passed the following resolution in respect of surrogacy:
"All the five types are strictly prohibited in Islam because it corrupts lineages and results loss of maternity and other shar'i prohibition".
"The use of a third party in the process of pregnancy is prohibited, whether the subject was liquid sperm or egg or embryo and the third party, whether involved by way of lease or donation."
The Islamic Research Academy in Cario also adopted the opinion of the Academy in 2001.
The opinion of the majority of the contemporary scholars also supported the same. The most prominent scholars having this opinion are:
Dr. Jad al-Haq; the Ex-Grand Mufti of Al-Azhar.
Dr. Sheikh Syed Wafa: Secretary General of the Islamic Research Academy in Cairo.
Dr. Ali Juma, Mufti of Egypt.
Dr. Mohammad Sayed Tantawi: The Ex-Vice Chancellor of Al-Azhar.
Dr. Yusuf al-Qadradawi: Professor of Jurisprudence at the University of Qatar.
Dr. Mustafa Zarqa: a Member of the Islamic Fiqa Academy.
Dr. Mohammad Rafat Othman: Dean of the Faculty of Sharia at Al-Azhar University and a Member of the Islamic Research Academy.
Dr. Ahmed bin 'Abdul' Aziz Al-Haddad: grand Mufti, Department of Awqaf and Islamic Affairs in Dubai.
Dr. 'Abla Kahlawi' Professor of jurisprudence at Al-Azhar University.
Dr. Souad Saleh: Dean Faculty of Islamic Studies at Al-Azhar University and others.
(Sd.)
Allama Dr. Fida Muhammad Khan, J
MWA/4/FSC Order accordingl