Infertility is one of the most known malfunctions of human body, with a history as old as human being existence. During centuries and ages, this disorder was thought to be irresistible divine curse without any way out to enjoy child bearing. Initiation of medical procedures that increase the possibility of pregnancy, like IVF(In-Vitro Fertilization) and IUI(Intra-Uterine Insemination) and its spread during the late 20th century ruined the ancient belief about infertility. This disorder is now being treated as an illness and infertile couples seek severely for medical solutions instead of giving up and bonding their condition to supernatural causes. In treatment procedures like IVF and IUI, there is no need for a third party involvement.
But, in cases where the couple lack capability of reproduction without any third party gamete or womb, third party assisted reproduction emerges. Here, many legal and ethical issues arise. The most significant one is the recognition of parentage for the spring of third party assisted reproduction. In countries with secular legal system, the complexity is far less. the actual family takes precedence and the courts do not involve in the biological origin of the fetus or his/her bond with the surrogate. However, this approach is not accepted in legal systems based on ideological concerns. In Islam, for example, the parentage is a key concept with gross effects on inheritance and other financial and non-financial rights and duties of a family member. So, contrary to the secular laws, there is no room for contractual consent and free will in determining the legal parents.
It is obvious that benefitting of third party assisted reproduction procedures in an Islamic legal system may lead to some dilemma about the parentage and role playing of actors in the resulted family. For instance, in an embryo donation treatment, it is not clear whether the donors are real parents or it is the intended parents who enjoy and undertake paternity rights and obligations. Some Muslim scholars believe in paternity of genetic parents, while others think the delivery of child is the criteria for paternity and hence, introduce the biological mother who delivers the baby as the real mother. The controversy even intensifies when a Muslim scholar seeks for the real father, particularly in the case of surrogacy.
Considering these problems, although assisted reproductive medicine is vastly applicable in secular systems, Islamic countries with mostly banned it. However, as a country with Shi’a majority, Iran seems to be a unique exception in Muslim world that despite its ideological law, practices all methods of assisted reproduction even those involve third party intervention. There is only one brief law called “embryo donation to infertile couples’ act” passed in 2003 by Iranian parliament. According to the law, each Iranian infertile couple enjoys the right to have access to an embryo of a fertile couple, subject to proof of applicants’ infertility. Although Iranian law did not regulate other methods of assisted reproduction like IVF and IUI, gamete donation and surrogacy, all these treatments are common and being applied. It seems that Iranian legislator intentionally did not discuss other ways of infertility treatment, in order to avoid the Islamic controversies about parentage, child custody and inheritance.
This tolerant approach toward infertility treatment, has made Iran as one of the main destinations of Muslim infertile couples of other countries. Although benefitting from donated embryos is banned for non-Iranians, IVF, IUI, surrogacy and even gamete donation are accessible. This has made Iran a fertility hub in the region and attracts hundreds of Muslim patients across the middle east to visit Iran and enjoy the treatment annually.
-By Dr. Seyed Mohammad Azin – Founder and Manager of Dr. Azin Law Clinic
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