Molecular and Cellular Endocrinology 169 (2000) 137– 141

www.elsevier.com/locate/mce

Islamic tradition and medically assisted reproduction

Dariusch Atighetchi *
Istituto per l’Oriente, ‘C.A. Nallino’, Rome, Italy

Abstract

Sunni Islam has no supreme legal authority and disagreement by doctors of Islamic law over all issues not clarified by Islamic
law is physiological. This is the case with Medically Assisted Reproduction: after an initially critical attitude, tolerance, limited
exclusively to homologous practices, is spreading, whilst recourse to heterologous practices is considered on a par with adultery
or fornication and is therefore prohibited. ‘Unnatural’ reproduction techniques are not generally deemed capable of violating
divine will. © 2000 Elsevier Science Ireland Ltd. All rights reserved.

Keywords: Islam; Assisted reproduction; Legal opinion; Cryopreservation; Pre-embryos

Sunni Islam (which includes 90% of the world’s
Muslims) has no supreme juridical – religious authority
or teaching. The Sharia (Islamic law) is the Law of
divine origin which regulates all human acts on the
basis of four sources, the first three being of divine
origin:
1. The Koran, that is the direct and literal word of
God (the Old and New Testaments are only texts
inspired by God, the original contents of which are
believed to have been manipulated);
2. the ‘traditions’ (hadith pl. ahadith) of the Prophet
Muhammad (died 632 AD) of varying legislative
value;
3. the uninterrupted and unanimous consent of the
doctors of the Law (Mufti, Ulama and Fuqaha)
and/or the faithful; and
4. reasoning by analogy.
In situations which are regulated neither by the Holy
Sources nor by the Sharia, the believer turns to a
doctor of Islamic law who can only issue a legal
opinion (Fatwa). The value of documents issued by the
major pan-Islamic organizations, which may be the
object of dispute by other bodies or religious authorities
have substantially the same value.
* Present address: Viale Caldara 10, 20122 Milan, Italy. Tel.:
+339-02-5511400; fax: + 339-06-8079395.
E-mail address: dario – atico@iol.it (D. Atighetchi).
2. Three premises are to be made
(A) From the juridical –religious point of view, the
legitimisation of recourse to medical practices absent
from the Tradition entails tracing a similar practice or
an allusion in the Koran, the ‘traditions’ of the Prophet
or in a classic juridical text. In their absence, a tech-
nique may be justified if therapeutically effective, if it
does not violate the precepts of the faith, if it satisfies
the principle of public benefit (Maslaha) and the princi-
ple of the necessity to save human life.
(B) The status of the embryo and the foetus in Mus-
lim law has been influenced by two mainstays
(Atighetchi, 1993, 1998):
1. The infusion of the soul on the 120th day after
fertilization (minor sources put it at the 40th or
42nd day); consequently the foetus without a soul
appears less protected compared to that with a soul.
The penalties imposed for an induced abortion (al-
most always the ‘blood price’) were more severe
after animation.
2. The almost unanimous acceptance of therapeutic
abortion as the mother’s life is of greater value than
that of the foetus.
Before animation, the positions of the four Sunni jurid-
ical and canonical schools (namely Hanafite, Malikite,
Shafiite and Hanbalite) on induced abortion varied
from permission against a valid motive to reprobation
and even prohibition. The entire context inevitably
reflects on the protection of the embryo in Medically

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138 D. Atighetchi / Molecular and Cellular Endocrinology 169 (2000) 137–141
Assisted Reproduction, in particular on cryopreserva-
tion and experimentation.
(C) In the Koran, offspring are considered a divine
blessing. The duty of curing infertility is all the more
important when the importance of the family in Muslim
society is considered. Sterility damages above all the
image, the position and self-esteem of the woman,
whose social role has always been conditioned by her
reproductive capability.1
In 1992, the world’s Muslim population amounted to
 1 billion and 250 million individuals (24% of whom
were girls of reproductive age); the average rate of
infertility amongst married women of reproductive age
wavered between 10 and 15%, mainly attributable to
obstruction of the tubes (for example in Egypt)
(IICPSR, 1998). In Tunisia, sterility affects almost 20%
of married couples.
Initially, the attitude of Muslim jurists regarding the
different techniques of assisted reproduction was very
critical if not hostile. The reasons included the fear that
they would be used outside the principles of the Sharia.
The problem of sterility was to be solved by recourse to
polygamy, repudiation and marrying someone else.
Moreover, fertility and sterility were considered the
result of divine will (Koran 42,49 – 50), therefore all
reproductive means except natural methods were to be
avoided. Lastly, in practice, the doctor carrying out the
assisted reproduction would have to see the parts of the
woman’s body that only her husband is allowed to see.
On the basis of these assumptions, even homologous
artificial insemination is forbidden (for example, the
Fatwa issued by the Lebanese Shiite sheikh Gawad
Mughniyyah and the Penal Code of Libya, 1972).
There are currently religious personalities who pro-
hibit all types of artificial fertilization, such as Abd
Al-Halim Mahmud, who was the Sheikh of Cairo’s
Al-Azhar University (the most authoritative in the
Muslim world) from 1973 to 1978.
1
According to the Sharia, the juridical condition of the woman,
within the family, is different from that of the man, and this is
confirmed by the different possibilities offered to a husband or wife
when the other partner is sterile. In fact, if the wife is infertile, the
husband may remarry, as Islamic law allows polygamy up to a
maximum of four wives (Koran, 4,3). Alternatively, the husband can
repudiate his wife. Unilateral repudiation by the man has always lent
itself to abuse and the mere accusation of a wife’s infertility was
sufficient for the husband to send her away. (Chafi, 1987; Santillana,
1926). On the contrary, when it is the husband who is infertile, the
Sharia does not grant the woman the faculty of repudiating him.
However, in the legislation of many Muslim countries today, as
marriage maintains the character of a private contract, the woman
may include a number of conditions in her favour in the contract (e.g.
that the husband does not take a second wife, that he is not infertile,
etc.) with non-fulfilment by the husband giving her the right to obtain
a divorce; or, the wife can put an end to the marriage by paying
compensation or redemption to the husband so that he repudiates her.
Finally, in some countries, in the event of specific male diseases, the
wife may have recourse to judicial divorce (Chafi, 1987).
Following the initial preclusion, acceptance became
wider as medically assisted reproduction (MAR) con-
tributes to the stability and continuity of married life,
but always within the limits laid down by the Sharia,
with these limits basically being respected by positive
laws in the different countries (Atighetchi, 1994a, 1997).
3. How is consent to some practices of MAR
articulated?
The Koran and the ahadith use the term ‘zina’ to
indicate both fornication and adultery, i.e. any sexual
relationship between a man and a woman who is not
his wife or slave (Santillana, 1926), and this offence
could be severely punished according to the Sharia. At
present, sexuality is allowed exclusively within marriage
and therefore all the techniques of heterologous artifi-
cial reproduction where an individual, who is extrane-
ous to the couple, provides, for any reason whatsoever
and independently of the time, sperm, ovules, embryos,
uterus, etc. to the couple who are unable to use their
own, are assimilated to acts of ‘zina’. Vice versa, only
homologous techniques are tolerated or accepted.
In Islam, the only legitimate filiation is that with
respect to the paternal figure, therefore children gener-
ated by heterologous techniques are destined to a very
difficult position as they cannot belong to the paternal
family; they are not recognized: the illegitimate child
(walad az-zina) belongs to the mother who generated it
(Santillana, 1926).2
Other factors come into play in favour of ho-
mologous techniques. For example, the Tradition al-
lowed the possibility of a pregnancy that did not derive
from a direct carnal contact, i.e. penetration (Rispler-
Chaim, 1993); the medieval jurists could accept that a
woman inserted the sperm which she deemed to be that
of her husband into her uterus by herself. Moreover,
for those in favour of MAR, reproduction by means of
instruments other than natural ones, similarly to re-
course to ‘unnatural’ instruments for contraception, is
not considered an infringement of divine will in that
any reproductive (but also contraceptive) technique has
an effect only if God so wishes (Atighetchi, 1994b).
Lastly, Islamic morals do not stand in the way of
masturbation if the final purpose is insemination or
artificial insemination.
2
Sheikh Mughniyyah expresses himself clearly on this: The new-
born child is attributed to the mother as it is the result of fornication
and inherits from its mother. If a child born out of fornication is
attributed to its mother, then all the more reason why so is a child born
out of artificial insemination. Moreover, the child is not attributed to
the owner of the sperm as the latter did not personally perform sexual
intercourse in the form of marriage or any similar union; this child is
attributed to the person who gave birth to it because it is really her
child and therefore it is hers also by right (Castro, 1974).
 D. Atighetchi / Molecular and Cellular Endocrinology 169 (2000) 137–141
It is to be remembered that in the event of a couple
being unable to have children, adoption is not possible,
as it is forbidden by the Sharia on the basis of Koran
33,4 –5, and this prohibition has been kept by virtually
all Muslim countries.
The Fatwa (legal opinion) on FIVET issued by Gad
Al-Haq, Mufti of Egypt in 1980 (IICPSR, 1998;
Rispler-Chaim, 1993), basically summarizes what has
been stated. According to this legal opinion, all tech-
niques are acceptable if the gametes come from the
married couple and the embryo is implanted into the
wife without the participation of any third parties, who
would otherwise make the practice similar to adultery
(zina). In Islam, the offspring, independently of the
type of fertilization, must be the fruit of the biological
and legally married father and mother. Adoption is
forbidden. Recourse to semen banks comes under the
masked forms of zina with the difference that the donor
is unknown; furthermore, this possibility may induce a
selection of gametes to produce an improved race. A
child born from heterologous artificial fertilization is
considered the equivalent of an illegitimate child whose
paternity cannot be attributed to the father but only to
the mother who gave birth to him, in the same way as
to an illegitimate child. Moreover, a man who accepts
insemination of his wife by the semen of another man
loses his honour and is a man to be despised as he is
too weak to protect his wife, letting her dignity be
violated.
Sheikh Yusuf Al-Qaradawi (Qaradawi, 1994) recalls
that Islam protects the offspring, forbidding any rela-
tionship of ‘zina’ (adultery and fornication) as well as
adoption, for the purpose of keeping the offspring free
of any extraneous and ambiguous implants. His opin-
ion coincides with that of another authoritative jurist,
Sheikh Mahmud Shaltut, according to whom, insemi-
nation by means of a donor other than the husband is
a crime which combines at one and the same time both
the negative result of adoption — that is the introduc-
tion of an alien element into the offspring — and the
sin of adultery (Qaradawi, 1994). The distinction be-
tween homologous and heterologous practices repre-
sents the fundamental feature in the ethical – juridical
debate in the Muslim world and is unanimously ac-
cepted by jurists, the majority of whom tolerate exclu-
sively homologous techniques. Disagreement remains
over all the other aspects of MAR.
The final document on FIVET by the jurists of the
Muslim World League (M.W.L.) who met in Mecca in
1985 judged the techniques of homologous fertilization
to be coherent with the principles of the Sharia, inde-
pendently whether ‘in vivo’ or ‘in vitro’. However, both
due to the uncertainties of the results that may be
achieved and to the omnipresent risk of error (for
example, switches of sperm or embryos, etc.), recourse
to assisted reproduction was considered tolerable only
139
in cases of extreme necessity and in the absence of any
better alternatives (Borrmans, 1987).
In the 1985 session, the decision adopted by the
doctors of the Law of the M.W.L. in 1984 was exam-
ined once again. This had admitted in vitro fertilization
using the gametes of the husband and wife, with the
subsequent insertion of the embryo into the uterus of
another of the same man’s wives who voluntarily car-
ries the pregnancy to term as the first wife, who had
provided the ovules, was without a uterus. In a polyga-
mous relationship, the implant of the embryo which
was the result of the gametes of the husband and of one
of his wives into a second wife maintains the reproduc-
tive relationship within the same family nucleus. For
this reason, it would once again be a case of a ho-
mologous technique of artificial fertilization. In the
Islamic world today, polygamy affects a very small
number of families, lying between 1 and 5% of the total
and therefore, a great minority, also because of the
preference given by State authorities and jurists to
monogamy, although without polygamy as permitted
by the Koran actually having been prohibited (the
prohibition is present in positive law in Tunisia and
Turkey alone).
As Islamic law rejects any situation of uncertainty in
establishing the legitimate paternity refusing all promis-
cuity, similarly the 1985 session intended guaranteeing
the child’s definite filiation, also with respect to the
maternal figure by refusing ‘surrogate maternity’ in a
polygamous relationship. The International Conference
on human reproduction in Islam, which was held in
Cairo in 1991, also expressed itself in this direction.
Naturally, in a context where there is no supreme
juridical authority, there are experts (e.g. F. Ben
Hamida) who nevertheless consider that the practice of
‘surrogate mothers’ is coherent with the principles of
the Sharia. For example, several cases have been re-
ported in Lebanon.
Further differences emerge on other topics. In Jed-
dah (Saudi Arabia) in 1990, the sixth International
Conference of Jurists of the Organization of the Islamic
Conference recommended fertilizing only the strictly
indispensable number of eggs with the husband’s se-
men. The surplus pre-embryos should be left to die
spontaneously (Albar, 1991); cryopreservation is illicit
as is the donation of fertilized eggs. According to other
experts, the number of eggs to be fertilized must not
exceed the number to be implanted into the uterus and,
above all, these pre-embryos must not be killed or used
for experiments, precisely because of the respect due to
life at all stages (El-Abbadi, 1990).
Vice versa, the ethical code of the Egyptian Ob-
stetrics and Gynaecology Association, with reference to
FIVET (Fertilization in vitro with embryo transfer)
positively judged the cryopreservation of surplus pre-
embryos to be implanted into the mother the gamete
140 D. Atighetchi / Molecular and Cellular Endocrinology 169 (2000) 137–141
came from. This is justifiable only if, when the embryo
is unfrozen and inserted into the mother’s uterus, the
husband is alive and the couple are married (Aboul-
ghar, 1990). Lastly, and this is significant, the Egyptian
Fivet Centre stated that human life begins only when
the embryo is implanted into the uterus and begins to
be nourished (Aboulghar, 1990).
Some important points of reference have been estab-
lished in the guidelines formulated at the end of the first
international conference on ‘Bioethics in Human Re-
production in the Muslim World’ held in 1991 at the
University of Al-Azhar in Cairo (Egypt). The document
(IICPSR, 1992) underlined the following points:
1. Artificial insemination is allowed if the gametes
belong to the married couple and on condition that
the fertilized egg is transferred to the uterus of the
wife if the husband is alive and the marriage con-
tract is still valid.
2. Transferring the fertilized egg to a ‘surrogate
mother’ is prohibited even in a polygamous context.
3. The number of embryos transferred to the uterus
must not exceed 3 – 4.
4. The surplus fertilized eggs (pre-embryos) may be
cryopreserved; they belong to the married couple
and may be transferred to the wife only if the
marriage contract is valid. These pre-embryos may
be used for research on cryopreservation only with
the free consent of the couple.
5. Research aimed at altering the hereditary character-
istics of the foetus is forbidden, including for the
purpose of choosing the sex.
Islam tolerates multiple pregnancy reduction when the
probability of its success is very low or if the woman’s
health is at risk (Serour, 1992).
In 1997, the Bioethics Committee of Lebanon re-
called that FIVET is also permitted when the husband
is Muslim and the wife is Muslim, Christian or Jewish
(according to Muslim law, this is the condition for
having Muslim children). The FIVET of a widow or
divorcee with her husband’s cryopreserved sperm is
illegitimate in that the marriage contract comes to an
end on the death of the husband or divorce. The
recommendation is to fertilize only the necessary num-
ber of eggs; surplus embryos remain the property of the
couple who can decide to let them die or donate them
for therapeutic research. Again in 1997, the National
Committee for Medical Ethics of Tunisia, in the ab-
sence of legislation, stated that the embryo is a poten-
tial individual; the frozen embryo should not be
preserved beyond the period of fertility of the couple or
the death of one of the partners after a term established
by the law. Sperm banks are accepted, for example to
preserve the gametes of young people who are to
undergo operations resulting in sterility.
4. The States
The first successful experiment of artificial fertiliza-
tion (Fivet) in the Arab world appears to have been
carried out in Jordan in 1987. This took place after a
Fatwa pronounced by the Mufti of the Hashemite
kingdom, Sheikh Ezzedine al-Khatib, who stated he
was in favour of the practice on condition that the
parents were married; the result was the birth of two
male twins from two mothers (Le Monde, 5/5/1997).
Despite the fact that modern medical centres are
often capable of using the most advanced reproductive
techniques, artificial insemination remains rarely prac-
tised due to diffidence caused by religious, cultural,
social and economic factors. Due to the high running
costs of these centres, the States prefer to leave their
management to private initiative, thus limiting the
clientele however to the affluent classes. Moreover,
these countries have other priorities to deal with in the
socio-sanitary field, demographic growth for example,
the reason why the legislative effort of the States to
regulate artificial reproduction remains weak, until
there is agreement between the political and the reli-
gious authorities on the subject. (Aboulghar, 1990).
The vast majority of Muslim states do not have
specific legislation regulating MAR practices. In
Malaysia and Saudi Arabia, ministerial regulations are
applied. In the Saudi kingdom and Indonesia, autho-
rization for the centres comes from government author-
ities. In Lebanon, Tunisia and in other states the
directives of the professional associations are followed.
One emblematic exception both for the itinerary fol-
lowed and the solution adopted, is represented by the
Libyan Arab Republic, the first Arab country to estab-
lish legislation with Law 175 of 7/12/1972, art. 403 a–b
of the penal Code which prohibited any kind of artifi-
cial insemination, whether homologous or het-
erologous. This totally negative position was surpassed
in 1986 by Law 17 on medical responsibility which
accepts artificial insemination and homologous FIVET
if necessary, with the consent of the couple and when
the marriage is valid.
In Muslim countries where reproductive techniques
are used, they are exclusively for married heterosexual
couples, even if travel to certain Western countries for
heterologous fertilization by couples with serious prob-
lems of fertility is on the increase. Cryopreservation of
embryos takes place (Schenker and Shushan, 1996) in
Iran, Jordan, Malaysia, Lebanon and Pakistan. It is not
carried out in Indonesia, Saudi Arabia and the Gulf
States. Micromanipulation is generally carried out, with
the exception of Malaysia, Pakistan and Indonesia.
Multiple pregnancy reduction is practised in Jordan,
Malaysia, Lebanon and Saudi Arabia; it appears to be
absent in Indonesia, Iran and Pakistan.
 D. Atighetchi / Molecular and Cellular Endocrinology 169 (2000) 137–141
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