One form of a surrogate mother is the woman solicited by a married couple to be impregnated by the husband's semen, in case the wife cannot get pregnant. The surrogate mother will carry the baby through the antenatal period, and after birth hands the baby over to the soliciting couple. In this case the baby will be the child of the husband and the surrogate mother, but biologically alien to the wife.
The other form of surrogacy is resorted to if husband and wife can provide sperm and ovum, but for some reason the wife cannot (or does not want to?) carry the pregnancy, as in cases of absent or defective uterus (or may be at some future development cannot afford to be encumbered by a pregnancy interferring with her career or affecting the beauty of her physique?). In such a case in-vitro fertilization is carried out using husband's sperm and wife's ovum, but the resulting embryo is deposited into the uterus of the surrogate mother, and after birth she is to hand the baby over to the soliciting couple.
As surrogacy became praticable, Steptoe and Edwards had to modify their terminology, using the term 'embryo replacement' instead of 'embryo transfer' the new term signifying that the embryo is in fact replaced into its real mother, whereas "transfer" more appropriately befits the new procedure of lodging the embryo into an alien woman.
The existance of the need created a market for surrogacy, and the existance of a market further augments the need. Agencies for surrogacy sprang up one after another, operating on purely business
grounds. Investment in motherhood apparently became a prosperous business, the agency mediating between infertile couples and women prepared to lease their uterus for the duration of pregnancy in lieu of the expenses of antenatal care and a total fee at the end.
The details of the transaction were prepared by legal experts, the medical procedures were carried out by highly qualified medical personnel and the laws of the land had nothing against the new activity for legislation usually lags behind emerging developments. In the brief history of surrogacy interesting incidents have been reported. There were occasions when the surrogate mother aquired a deep feeling towards the fetus during the course of pregnancy, and by the time of birth a feto maternal bond had been already established and she would not give away the child whom she conceived, carried, delivered and is now ready to suckle.
The opposite situation is reported when the neonate was found to have a congenital abnormality. This time it was the surrogate who was keen to enforce the signed contract and obligate the soliciting couple to take the baby. The soliciting couple would refuse, and accuse the surrogate of having sex with another man achieving the pregnancy, and that the new born baby was not their own embryo that had been lodged into her but failed to implant.
One woman carried the embryo of her sister, and literature on medical ethics exhibited debates on who is mother and who is aunt. On another occasion an ovum was taken from a daughter, fertilized by her step father's sperm, carried by a surrogate, and the born child was taken by her mother and step father .
In the majority of cases, however, the pattern is that a married couple would hire a woman to carry their embryo, and at birth give it back, usually in lieu of a pre-agreed fee.
For the first time in human history the human female accepts to get pregnant with the prior meditated intention of giving away her child. And since this is usually done for money 'motherhood' , for the first time in human history is being reduced from a "value" to a price. If this practice becomes widespread, the effects on the cohesion of successive generations might prove devastating, causing the already felt generation gap to become an unbridgeable rift of indifference and even animosity. If social norms are ever to accomodate the status of children as "commodities", subject to "buy-sell" rules, other values than parenthood will certainly dwindle, leaving little room to time-honoured values as positive emotion, love, family ties, mutual compassion and tender loving care within the family unit. Surrogacy is not acceptable to Islam, again on the premises that pregnancy should be a fruit on the tree of a legitimate marriage. In the symposium on "Reproduction in the Light oflslam" (Islamic Organization of Medical Sciences, Kuwait, 24-27 May, 1983), attended by medical and juridicial muslim scholars, the technology of in-vitro fertilization and embryo replacement (into genetic mother) or transfer (into surrogate mother) was discussed at length. The consensus was the acceptability of the technique within a family structure of husband and wife, during the span of their marriage, and without the intrusion of another party, be it sperm, ovum, embryo or uterus.
Although considered to be illegitimate pregnancy, the question of sur- rogacy opens another front of debate, as to who should be considered the mother of the child: the one who gave the ovum or the one who carried the baby through pregnancy and gave birth to it. In other words who has the legitimate claim on the crop: the farmer or the seed merchant. On the one hand a woman gave the genetic material, whereas the other received a few cells that weighed a fraction of a particle of dust and recruited her body systems for its nourishment and growth over nine months of biological. and psychological interaction until born some seven pounds in weight: out of her own body.
The separation of the "womb" relation from the "ovary" relationship is a new event, and because old jurists did not address this question contemporary jurists have to. The Quran gives clear guidance that we will quote, but let us first make some linguistic remarks.
In the Arabic language the terminology of' 'parents' , is derived from "natality". The verb "walada" means to give birth to. .."father" is "walid" and "mother" is "walida", the feminine form. Both parents are "walidan or walidayn", the form for two persons. Both "walid" and "walida" would mean the person who gave (or produced) the birth of a person. Although God knows that we are related to both the ovary and the womb of our mother, the reference in the Quran is always made to the womb relation, and it was repeatedly stated in the Quran that our mothers are those (women) who gave birth to us:
"None can be their mothers except those who gave them birth. " (58:2)
"And we have enjoined on man (to be good) to his parents (his walidayn), in travail upon travail did his mother bear him and in years twain was his weaning. ..(hear the command): Show gratitude to me and to your parents (your walidayn). To Me is your final goal." (31: 14 )
"We have enjoind on man kindness to his parents (walidayn) in pain did his mother bear him and in pain did she give him birth"(46: 15)
The mothers (walidat) shall give suck to their offspring. " (2:233)
By terminology and by description the mother is the one who gives birth. If we consider an imaginary case of bigamy (a husband married to two wives), an ovum being taken from one wife, fertilized with husband's sperm, and carried-till-birth in the womb of the second wife: the procedure is also condemned because it entails the carrying in pregnancy of an alien seed, which is outside the marriage contract binding the husband and his second wife. At any rate, the child will belong to the woman who carried it and gave it birth.