Lineage
(Al-Nasab)
Prelude
Every man is free to say whatever he wants, and no one is entitled to
stop him from doing so. By the same token, it is also not incumbent upon anyone
to heed his statements or to consider them with respect. This is true
irrespective of the speaker's station, whether high or low, venerable or
otherwise, when his speech pertains to something outside the area of his
specialty. Therefore, if an
authority on law gives an opinion on a question of medicine or agriculture, it
is not correct for a plaintiff to cite that opinion in support of his case, nor
is it correct for a judge to base his judgment upon it.
Similarly, in the case of apostles, prophets, Imáms and
authorities on law, it is not obligatory upon anyone to believe their statements
about issues concerning physical nature, such as the creation of the earth and
the heavens, the distances between them, their origin and their end, the
elements of which they are composed and the forces therein.
Sacred personalities at times explained a certain phenomenon in their
capacity as a sacred authority; at other times they spoke about things in their
personal capacity, like all other human beings who say what they conjecture or
hear from others. Therefore, when they speak in their religious capacity, it is
mandatory upon us to listen to them and to obey them, as long as their religious
decree does not exceed the limits of their specialty.
But when they speak in their personal capacity, it is not mandatory to
follow them, because, here, their word is not regarding religion or things
related to it.
Thus a legislating authority, religious or secular, should limit itself
to framing and expounding laws and regulations, with the aim of encouraging some
acts and discouraging others, and explaining their causes and effects, approving
one contract as binding together with its terms and conditions and invalidating
another as not binding, and issues of this kind which safeguard the social order
and ensure the common good.
But as regards natural phenomena--such as the minimum or the maximum
period of pregnancy--it is not within the domain of a lawgiver to either affirm
or deny them or to make amendments. This is because the realities of nature and
their causes are not alterable; they do not change due to the change of
conditions and passage of time, in contrast with social laws, which are laid
down, abrogated and modified by the lawgiver's will.
It is obvious that a lawgiver does make external realities of nature the
subject of his laws, for instance, when he lays down that a child in the womb
has the right to inherit from the father, that the birth of a child leads to an
increase in the statutory allowance of the mother, or that when the wheat
produce exceeds the consumption of farmers, the surplus should be taken into
government custody, etc. But the explanation of natural phenomena relating to
the subject of laws is the task of specialists. If there is anything in the
statements of legal authorities explaining or defining such phenomena, it is
nothing but an attestation of what specialists have reported. Therefore, when a
judge refers an issue for specialist opinion and the fact is known showing the
error of its description by jurists, it is not mandatory that their observations
be followed, because we know with certainty that the jurists have spoken
regarding a phenomenon which pre-existed legislation; the intent of their
remarks was to explain this pre-existing fact. Thus, when the opposite is proved
to follow their word would be equivalent to acting against their purpose and
intention. The jurists themselves name this kind of mistake "mistake in
application"; it is similar to the mistake of a person who asks for a cup
while pointing towards a stone resembling it.
After this introduction, we move on to our actual subject. As the child is the subject of many Islamic laws--such as its
right to inherit from the father; the illegitimacy of its marriage with its
sibling, the father's right to act as a guardian of its person and property
until maturity; the mandate of its maintenance, and such other legal and moral
rights--the jurists are forced to determine the minimum and the maximum period
of gestation. It is obvious that this issue pertains to the specialty of doctors
of medicine not of law, and, therefore, it is not necessary that the word of
jurists be acted upon if it contradicts actual fact and reality. Because, in
such circumstances, the logic of reality is stronger than their logic, and its
proof prevails over their evidence. When the opinions of natural philosophers
and physical scientists collapse before reality, it is more in order that the
observations of those who are in no way connected with a particular field of
specialization should collapse before facts. We mention here the views of
different schools of Islamic law regarding the minimum and maximum period of
gestation, on the assumption that one is not obliged to follow these views when
they are not in consonance with facts.
The Minimum Period of Gestation:
The opinion of all the legal schools of Islam, both Sunni and Shi'i, is
that the minimum gestation period is six months, because the 15th verse of the
chapter al-’a<qáf expressly states that the gestation period (muddat
al-<aml) along with the period of suckling (rida`ah) is thirty months:
... And its gestation and its weaning shall be a
period of thirty months
and the 14th verse of chapter Luqmán states
that the period of suckling is to be two complete years:
... And its weaning shall be in a period of two
years.
When two years are subtracted from thirty months,
the remainder is six months, which is the minimum period of gestation. Modern
medicine supports this view and the French legislature has also adopted it.
The following rules are derived from the above observations:
1. When within six months of her marriage a woman
gives birth to a child, the child will not be attributed to her husband.
Al-Shaykh al-Mufíd and al-Shaykh al-^úsí-- both
Imamis-- and al-Shaykh Mu<yí al-Dín `abd al-\amíd of the
\anafi school have said that the choice of denying or accepting the child's
parentage lies with the husband. If
he accepts the child as his, the child shall be considered his legitimate
offspring, and shall enjoy all the rights of a legitimate child.
Similarly, the father shall have all those powers over it as over the
other legitimate children.
When
the couple differs regarding the period of their conjugal relationship (she
claims that they existed since six months or more, and he denies it, claiming
the period to be shorter than six months and denying the child to be his), Abu
\anífah is of the opinion that the wife's word shall be considered true
and acted upon without her taking an oath.
The Imamites say: If circumstantial evidence favors his or her
contention, it will be acted upon, and if no such evidence exists, the judge
shall accept the wife's word after she takes the oath that sex relations with
the husband had existed since six months; then the child shall be attributed to
the husband.
2. When a husband divorces his wife after
intercourse and she, after observing the waiting period, marries another and
gives birth to a child within six months of her second marriage, if six months
or more--but not exceeding the maximum period of gestation--have elapsed since
her intercourse with the first husband, the child shall be attributed to the
former husband. But if more than six months have elapsed after her second
marriage, the child be attributed to the second husband.
3. When a woman contracts a second marriage after
divorce and then gives birth to a child within six months of intercourse with
the second husband, if more than the maximum period of gestation has elapsed
since intercourse with the former husband, the child shall not be attributed to
any of them. For example, if eight months after divorce a woman marries another
person and after living with him for five months gives birth to a child,
supposing the maximum period of gestation to be a year, it is not possible to
attribute the child to the former husband, because more than a year has elapsed
since they had intercourse. It is neither possible to attribute the child to her
present husband because six months have not yet passed since their marriage.
The Maximum Period of Gestation According to Ahl
al-Sunnah:
Abu Han;fah has said: The maximum gestation period is two years on
account of a tradition narrated by 'A ishah that a woman does not carry a child
in her womb for more than two years. Malik, al-Shafi'; and Ibn Hanbal state the
period to be four years, on the basis that the wife of 'Ajlan carried her child
for four years before delivery. It is strange that the wife of his son,
Muhammad, had a similar gestation period. In fact all women of Banu 'Ajlan have
a gestation period of four years, which
indicates God's power over His creation.
This argument, if it proves anything, shows the piousness of these
legists and their good intentions, and how often the logic of piety prevails
over the logic of reality.
'Abbad ibn 'Awwam puts the maximum period of gestation at five years,
al-Zuhar; at seven years, and according to Abu 'Ubayd there is no maximum period
of gestation.
It follows from these conflicting opinions, that if a person divorces his
wife or dies and she, without marrying again after him, bears a child, the child
shall be attributed to him if born after: two years, according to Abu Hanlfah;
four years, according to Sháfi`is, Málikis and \anbalis; five
years, according to Ibn 'Awwam; seven years according to al-Zuhar;; and twenty
years according to Abu 'Ubayd.
Legislation in Egypt relieves us from a critical examination of these
varied opinions. The Egyptian Sharí`ah courts followed the Hanafis code
until the passing of Act 25 of 1~29. Section 15 of this Act categorically
mentions that the maximum period of gestation is one year.
The Maximum Gestation Period According to the Shí`ah:
There is a difference of opinion among Imam; scholars regarding the
maximum period of gestation. Most of them have stated it to be nine months, some
of them ten months, and some others a year. Thus there is a consensus that the
period does not exceed a year, even by an hour. Therefore, if a woman, divorced
or widowed, gives birth to a child after one year, the child shall not be
attributed to the husband, because there is a tradition from al-'Imam al-@ádiq
('a):
If a man divorces his wife and she claims to be
pregnant, and then gives birth to a child after more than a year has passed,
even though by an hour, her claim shall not be accepted.
Walad al-Shubhah:
Shubhah--that is a mistake which leads a man to have intercourse with a
woman haram to him, as a result of his ignorance of her being such--is of two
kinds: shubhat `aqd(mistake of contract) and shubhat fi`l (mistake of act).
1. 'Mistake of contract' occurs where a man concludes a marriage contract
with a woman in a manner in which legal contracts
of marriage are concluded and later it is known that
the contract was invalid due to the presence of a cause sufficient to invalidate
the contract. 2.
'Mistake of act' occurs where a person copulates with a woman without there
being between them any contract, valid or invalid, and he does so either without
conscious attention or thinking that she is ,halal to him, and later the
opposite is discovered. Sexual
intercourse by a lunatic, or an intoxicated person, or a person in sleep, or a
man under the false impression that the woman is his wife, comes under this
category. Abu Hanífah has extended the meaning of this form of 'mistake'
to its utmost limits where he has observed: Where a man hires a woman for some
work and then fornicates with her, or hires her for fornication and does so, the
two will not be penalized for fornication, because of his ignorance that his
hiring her does not include this act.
Accordingly, if she is working in a business establishment or a factory
and the proprietor of such establishment copulates with her believing this to be
one of the benefits which accrue to him as a result of his hiring her, this act
will not be termed fornication, but will be considered 'a mistake' and shall be
a valid excuse for the proprietor in Abu Hanífah's opinion.
It follows from the above discussion that a child born as a result of
'intercourse by mistake' is a legitimate offspring and is equal in all respects
to a child born out of a valid wedlock, irrespective of whether the mistake is a
'mistake of contract' or a 'mistake of act'. Therefore, he who has intercourse
with a woman while in a state of intoxication, or in sleep, or in a state of
lunacy or under coercion, or before reaching the age of maturity, or under an
impression that she is his wife, with the opposite being discovered later--in
all such cases if she gives birth to a child, it shall be attributed to him.
The Imamiyyah have said: In all such cases of mistake, the legality of
lineage is established and if the man refuses to recognize the child as his, his
refusal shall not be accepted and the child will be compulsorily attributed to
him.
Muhammad Muhyi al-Din, in al-'Ahwal al-shakh,siyyah, p. 480, observes
that lineage is not established in any form of 'copulation by mistake' unless
the person acting mistakenly claims the child to be his and acknowledges it,
because he knows himself better. But this view is incorrect when applied to a
lunatic, to one in sleep, or to an intoxicated person, because they do not act
with conscious intent. It is also inapplicable in the case of mistake of
contract because there is no difference between a valid contract and an invalid
contract except that the couple shall separate when the invalidity of the
contract becomes known, and there is a consensus among the Sunni and Shí`i
schools that whenever a mistake, in any one of its different forms, is proved,
it is wajib for the woman to observe 'iddah, as observed by a divorcee; she is
also entitled to receive the full mahr. Therefore, the rules which apply to a
wife will apply to her as regards 'iddah, mahr and child's lineage.
The mistake may be from the side of the man as well as the woman, so that
both are ignorant and inattentive. It may be from only one side, such as when
the woman knows that she has a lawful husband but hides it from the man, or when
he is aware while she is a lunatic or in a state of intoxication. When the
mistake is from both sides the child shall be attributed to both of them, and if
the mistake is from only one side the child shall be attributed to the parent
acting under mistake and not to the parent who was aware.
If a person copulates with a woman and then claims ignorance regarding
its being haram, his word shall be accepted without proof and oath.
In any case, the legal principles, according to Sunni and Shí`i
schools, do not permit any ruling ascribing illegitimate birth to a child born
of a father when there is a possibility of ascribing its birth to a mistake.
Therefore, if a Qádí has evidence before him to suggest 99%
probability of the child's illegitimate birth and only 1% probability suggesting
it is 'a child by mistake', it is incumbent upon him to accept the latter
evidence and disregard the former, giving preference to halal over haram and
legitimacy over illegitimacy, in consonance with the Divine injunctions:
And speak good to the people (2 83)
k~sehew much su.spicion, for surely some suspicion
is a sin. (49 12)
Commentators
of the Holy Qur'án have narrated that one day when the Prophet (s) was
delivering a sermon, a man who was taunted by people regarding his lineage,
stood up and asked, "O Prophet, who is my father?" The Prophet (s)
replied, "Your father is Hudhayfah Ibn Qays." Another parson asked him
(s), "O Prophet, where is my father'.)" The Prophet (~) replied,
"Your father is in hell. ' Here verse l~)1 of the chapter nl-Ma'idah was
revealed:
O believers, question not concerning things which,
if they were revealed to you, would vex you....
Traditions
of the Prophet (S) recorded by Sunni and Shí`i sources state:
Penal consequences are repelled by doubts.
I cavc that which puls you into doubt for that which
does not.
Imam 'All Ibn Abu, ^álib ('a) has said:
c~ivc the hcst interpretalion to your hrother~s act.
Al-'Imam al-Sadiq ('a) has said:
Reject
the evidence of your ear and eye regarding your brother.
The
above-mentioned verses of the Qurí·n and the reliable and unambiguous
traditions quoted, as well as many other verses and traditions of the kind, make
it incumbent upon every person to abstain from testifying and judging anyone as
an illegitimate offspring unless there exists certainty that he is not in
reality a child of mistake in any of its forms.
Child Born of al-Mut`ah:
There
is something in this regard of which most people are not aware, and I thank the
person who wrote me a letter inquiring about this issue. Now, with the present
opportunity to explain this legal and historical issue, I intend to be brief to
the best of my ability. I shall he a narrator, not a partisan or critic, and
shall leave the reader to judge for himself, keeping the matter open for him to
affirm or reject.
There is a consensus amongst the Sunni; and Shí`i schools that
mut'ah (temporary marriage) was halal by the order of the Prophet (S) and that
Muslims performed mut'ah during his time. But they differ regarding its
revocation. The Sunnls say: Mut'ah has been revoked and made haram after being
halal earlier.
The Sh;'ah state: Revocation has not been proved: it
was halal and shall remain so until the Day of Judgment. The Shl'ah cite verse
24 of Surat al-Nisá' as evidence:
...
Give them ~heir dowry for the mut'ah you have had with them as a duty....
(4
24)
And that which Muslim has narrated in his al-Sahih
as a proof:
I he Companions of the Prophet (s) performed mut'ah
during his lifetime and during the reigns of Abu Bakr and 'Umar.
The
mut'ah form of marriage is a marriage for a fixed period of timc. and according
to the Shi'ah it is similar to the permanent marriage as regards the recital of
a contract proving express intention of marriage.
Consequently, any form of
sexual contact between a man and a woman without a contract will not be
considered mut'ah even if it is by mutual consent and inclination. When the
contract is recited it becomes binding and its observance becomes obligatory.
It is compulsory that mahr be mentioned in the contract of mut'ah. This
mahr is similar to the mahr of a permanent wife, there being no prescribed
minimum or maximum limit, and half of it subsides when the stipulated period is
gifted or expires without consummalion, in consonance with the rule applied in
the mahr of a permanent wife divorced before consummation.
It is incumbent upon the woman with whom mut'ah has been contracted to
undergo the 'iddah after the completion of the stipulated time, with the
difference that a divorcee observes an 'iddah of three months or three menstrual
cycles, while in mut'ah she observes an 'iddah of two menstrual cycles or
forty-five days. But as to the 'iddah observed on the death of the husband, the
wife in mut'ah observes it for four months and ten days, which is the same as
observed by a permanent wife, irrespective of consummation. The child born of this form of marriage is
legitimate and enjoys all the rights of a legitimate child without the exception
of a single legal or moral right.
It is compulsary that mut'ah be contracted for a fixed period of time and
it is necessary that this stipulated time be mentioned in the contract. The wife
in mut'ah does not inherit from her husband and her maintenance is also not
obligatory upon him, in contrast with the permanent wife, who both inherits and
is entitled to maintenance. But a wife in mut'ah can stipulate at the time of
the contract that she shall inherit and be entitled to maintenance, and if the
contract is concluded on these terms, the wife in mut'ah becomes similar to a
permanent wife.
In spite of their belief in the validity of mut'ah, the Sh;';s of Syria,
Iraq and Lebanon do not practise it, and the Ja'fari Shar;'ah Courts in Lebanon,
since their inception, have neither applied this form of marriage nor authorized
it.
The Illegitimate Child (Walad al-Zina):
One
who studies the verses of the Qur'an, the traditions of the Prophet (s) and the
statements of Muslim legists, finds that Islam leaves no room for anyone to
accuse others of fornication. Islam has framed the related rules of furnishing
proof and giving judgment in a manner that makes this task difficult or even
impossible. Whereas Islam considers two just ('adil) witnesses sufficient for
proving homicide, in the case of fornication it requires four just witnesses to
testify that they have witnessed the act of penetration itself. It is not
sufficient for them to say that so and so fornicated with so and so, or that
they saw the two naked hugging each other in a bed under a single cover. If
three witnesses bear witness while the fourth abstains, each of the three shall
be liable to a punishment of eighty lashes. Similarly a person who accuses a man
or a woman of fornication shall be liable to eighty lashes.
The purpose behind all this is to cover the deeds of people, to protect
their honour, to protect the family from the fear of ruined descent and the
children from homelessness.
Fornication is the committing of the act by a mature and sane person with
the knowledge of its being haram. Therefore fornication cannot be committed by a
person who has not attained maturity or is insane or is ignorant or has been
coerced or is in a state of intoxication. The act committed by these people will
be considered 'intercourse by mistake', and we have discussed earlier the rules
which apply to it. From the above discussion, it becomes clear that the Islamic
Law gives a very restricted interpretation to fornication; firstly, by limiting
its application to an act committed with knowledge and intention, wherein there
is no scope for attributing it to a mistake or fault in any manner. Secondly, it
has restricted the manner of proving it in court by requiring four just
witnesses who havc sccn it with their own eyes, whereas, generally, such an act
is not observable. It is possible for a single witness to have seen it, wl1ilc
it is almost impossible for three or four persons to do so. All this clcarly
indicates that Islam has firmly closed the door in the face of tho.se who seek
to raise this thorny issue, because God does not like the spread of indecency
among His creatures.
Thcrc is a consensus among legists of all the legal schools that whcn
fornication is proved in its above-mentioned meaning and manner, the child born
of it shall not inherit from the father because no Icgal lineal bond is
established between them.
But the legists have landed themselves in a legal difficulty by giving
the fatwa that an illegitimate issue cannot inherit, and are puzzled in finding
a way out of this difficulty: If an illegitimate child is not attributable
legally to its male 'parent', then, accordingly, in such a situation, it cannot
be impermissible for a man to marry his illegitimate daughter and for an
illegitimate son to marry his sister or paternal aunt as long as he is
considered a stranger to the male 'parent'.
Therefore, an illegitimate son is either a legally recognized issue and
thereby entitled to everything to which legally recognized children are
entitled, including the right of inheritance and maintenance, or he is not a
legally recognized issue and thereby entitled to all those things which are
established as regards those who are legally unrelated, including the marriage
with a daughter or a sister. To differentiate between the effects of a single
undivided cause is to claim something without requisite proof; it amounts to
inclining towards something without any reason for doing so. Therefore, we see
the legists differ on this question after having concurred earlier (i.e. in
excluding him from inheritance). Malik and al-Shafi'; have said: It is
permissible (in such a case) for the person to marry his daughter, his sister,
his son's daughter, his daughter's daughter, his brother's daughter and his
sister's daughter when these relations have been established as a result of
fornication. because they are strangers' to him and no legal lineal bond exists
between them. But this manner of
solving the problem reminds one of the saying: "The cure is worse than the
disease."
Imamiyyah legists, Abu Hanlfah and Ibn Hanbal have observed: We ought to
differentiate between the two si~uations. We must disqualify the child from
inheriting, while at the same time prohibiting matrimonial relationship between
the child or its father within the prohibited degrees of relationship. Apart
from marriage, to touch and to look at each other is also haram for both of
them. Therefore, a father cannot look at or touch his illegitimate daughter
despite her inability to inherit from him and his of inheriting from her.
They argue that the establishment of matrimonial relationship is haram by
pointing out that an illegitimate child is after all an offspring, both
literally and by general acceptance. Consequently, whatever is haram between
fathers and children is also haram for the illegitimate child and its father.
Their argument about the child's disqualification from inheriting is based upon
the fact that the child is not acknowledged by the Shar;'ah as its father's
offspring and this is expressly stated by the verses of the Qur'an and
traditions.
Al-Laqit:
Al-laqit
is a child found by a person in a state in which it is incapable of fending for
itself, whom he takes and brings it up along with the rest of his family. All
the legal schools concur that the laq i t and its guardian do not inherit from
each other, because the act of giving shelter to an abandoned child is purely an
act of kindness done in the spirit of cooperating in the performance of good and
righteous deeds. It resembles the gifting of a fortune to someone
making him prosperous after earlier indigence and
distress with the hope of acquiring God's grace. As this act of kindness is no
cause for inheritance, similarly the giving of shelter to an abandoned child.
Adoption (al-Tabanni):
Adoption
is the taking by a person of a child of known parentage and attributing it to
himself. The Islamic Shar;'ah does not consider adoption as a cause of
inheritance, for it does not change the actual fact from what it is; the lineage
of the child is both known and established, and lineage can neither be abrogated
nor eliminated. This has been clearly mentioned in this verse of the Surat al-
'Ahzab:
. . Neither has He made your adopted sons your sons
(in fact). That is your own saying, the words of your mouths; but God speaks the
truth, and guides on the way. Call them after their true fathers; that is more
equitable in the sight of God.... (33:~, 5)
The exegetes have mentioned an interesting episode in relation to the
revelation of this verse. Zayd ibn Harithah was made captive during the
Jahiliyyah and the Prophet (~) bought him. After the advent of Islam Harithah
came to Makkah and asked the Prophet (s) to sell his son to him or to free him.
The Prophet (s) said: "He is free; he can go wherever he wants." But
Zayd refused to leave the Prophet (s ). His father, Harithah, became angry and
said: "O people of Quraysh, bear witness that Zayd is not my son." The
Prophet (s) then said: "O people of Quraysh, bear witness that Zayd is my
son."
The legists have mentioned many other subsidiary
issues under this head, and of these are some which are neither acceptable to
human reason nor in harmony with the Shar;'ah. One of them is the one quoted by
the author of al-Mughni (vol.7, p.439) from Abu Han;fah, who holds: If a man
marries a woman in a gathering and
then divorces her in the same gathering before
leaving it, or marries her while he is in thc east and she in the west, either
way if she gives birth to a child six months after the marriage, the child shall
be attributed to the husband.
Other opinions are such as whose validity seems questionable from the
viewpoint of medical science. The author of al-Mughni, in the same volume and on
the same page, says: "If the husband is a child of 10 years and his wife
bccomes pregnant, the child shall be attributed to him."
Similar is the one quoted by the Sh;'; author of al-Masalik (vol.2, Fasl
ahkam al-'awlad): "If penetration occurs without discharge taking place,
the child shall be attributed to the husband."
Artificial Insemination:
A
hot debate is going on in thc West regarding the answer to this question: If a
barren husband agrees with his wife that she be artificially inseminated with a
stranger's sperm, is this legally permissible?
This question was raised before the House of Commons in England and a
committee of the House was set up to deliberate on the issue. In Italy the Pope
declared it illegal. In France, the doctors observed: It is permissible if done
by the couple's consent. In Austria, the government recognizes the child as a
legitimate issue of the couple unless the husband makes a formal objection.
As tc) Islamic legists, I doubt whether they have dealt with this
question, since it is a problem of recent origin. The Imamiyyah scholars have
narrated a tradition under the head of hudud. Al-Hasan ibn 'Al; ('a) was asked
regarding a woman who after intercourse with her husband engages in Lesbian
intercourse with a virgin transferring his sperm to her, consequently making the
latter pregnant. The Imam ('a) replied: The mahr of the virgin shall be exacted
from the marric d woman because the child would not be delivered without the
virgin losing her virginity. Then, the other woman shall be stoned to death
because of her marital status.
Regarding the pregnant woman, they shall wait until
she delivers and the child shall be given to the father, i.e. the person of
whose sperm it was born. After this, she shall be llogged.
Four rules can be deduced from this tradition: (1) stoning of the married
woman, (2) liability of the married woman to pay the mahr of the other woman a.s
a compensation for her lost virginity, (3) flogging of the other woman, (4)
attribution of the child to the person of who.se sperm the child was born.
The Imamiyyah legists differ regarding application of this tradition. Of
those who have applied this tradition in totality are al-Shaykh al-Tus; and his
followers. Others, who accept the last three rules without accepting the first
one, include the author of al-Shara'i', who holds the punishment of the married
woman to be flogging in.stead of stoning.
Ibn Idr;s has rejected the tradition totally, objecting to the statement
about the stoning of the married woman, because the sentence for Lesbian
intercourse is flogging, not stoning. He also objects to the attribution of the
child to the person of whose sperm it was born, because it was not born as a
result of intercourse through valid marriage or hy mistake. He even objects to
the rule which compels the married woman to pay the mahr of the pregnant woman,
because, according to him, the woman made pregnant was not coerced, and Lesbian
intercourse with consent is similar to fornication, which does not result in
liability to pay mahr.
This is what I have found in the legal books closely or distantly
relating to the question at hand. In any case, we have two questions at hand:
(1) Is artificial insemination permissible or not in the Islamic Sham'ah? (2)
If, as a result of artificial insemination, a child is born, what shall be its
legal status and to whom shall it be attributed?
Artificial Insemination is Prohibited:
Regarding
the first question, there is no doubt that such insemination is prohibited due
to following reasons: (1) Our knowledge of the Shar;'ah, and its warning and
emphasis concerning
sexual matters, tell us that permissibility of
anything in this regard rests upon permission of the Shar;'ah. Therefore, the
mere possibility of its being impermissible is sufficient for making restraint
and caution obligatory. (2) In the thirty-first verse of Surat al-Nur:
And say to the believing women that they cast down
their looks and guard their private parts.... ~'24:31 )
God has commanded women that they 'safeguard' their
organs of reproduction; but Hc has not mcntioned from what they are supposed to
be safeguarded. Neither has He specified that they safeguard them from
intercourse or some other thing. The jurisprudents as well as linguists of the
Arabic language concur that any proposition devoid of any particular
specification implies the generality of inclusion. Similarly the inclusion of a
specification in a proposition limits the proposition to that extent. For
example, if it is said, "Safeguard your wealth from thieves", it
denotes that wealth must be protected only from being robbed. But if it is said,
"Safeguard your wealth," without specifying any specific thing, it
implies that wealth is to be protected from being robbed, from damage, from
waste, etc. Accordingly, the verse of the Qur'an connotes that the organs of
reproduction be safeguarded from everything including insemination. This verse
is reinforced by verses 5-7 of the Surat al-Mu'minun:
And who guard their private parts. Save from their
wives or those whom their right hands own, for then they surely are not
blameworthy. But whoever seeks to go beyond that, those are the transgressors.
(23 5-- 7)
The
phrase ~ ,~l ,~
indicates that any act contrary to the guarding ot the parts amounts to
transgression of the lawful limits, except that which occurs through marriage or
ownership. Though the verses speak specifically of men, it does not hinder their
application to women, because there is consensus that there is no difference
between men and women in rules of this kind.
Some may say that the phrase ,~
does not prove that this kind of insemination is haram. It only indicates
the impermissibility of (extra-marital) sexual relations, and this is the
meaning that comes to mind and is understood from the verse. In other words,
this verse may imply a wider meaning which includes artificial insemination or
somelhing else; but that which is apparent from its words is fornication, and it
is a known fact that it is the generally understood meanings of dicta that are
accepted for deriving the rules of the Shar;'ah, not their literal meaning.
The answer is that this apparent meaning of the
verse is not inherent in it; rather, this meaning has come to be associated with
the verse because of its frequent usage in that context (i.e. to mean
fornication). This is similar to the use of the word 'water' in Baghdad to mean
the water of the Tigris and in Cairo to mean the water of the Nile, but this
apparent meaning is of no consequence at all, for it fades on a little amount of
reflection. No one can claim that the word 'water' in Baghdad was coined to mean
only the water of the Tigris and in Cairo to mean only that of the Nile.
Moreover, if artiticial insemination were considered permissible on this ground,
so would be the licking of dogs..., because both these notions are far removed
trom the meaning which immediately comes to the mind.
The Offspring by Artificial Insemination:
Now a child is born as a result of artificial
insemination; shall it be a legitimate child, and to whom shall it be
attributed?
The answer is: As regards
the sterile husband, the child cannot be attributed to him under any
circumstances, and adoption is not valid in Islam:
And He has not made those whom you eall yollr sons,
your sons [33: 4]
As to the woman who bears it, some legal schools
attribute the child to her, because an illegitimate child inherits from its
mother and from its relatives through her and they inherit from it.
Therefore, if an illegitimate child can be attributed to its mother, a
child born by artificial insemination is better entitled to be similarly
attributed.
The Imamiyyah, who do not attribute an illegitimate child to the
fornicator or the l'ornicatress, observe: The child born by artificial
insemination does not inherit from its father or mother, and neither do they
inherit from it. Ayatullah al-Sayyid Muhsin al-Hak;m al-Tabataba'; has
differentiated between an illcgitimate child and a child born by insemination.
He observes: A child born by insemination shall be attributed to its mother,
because there is no valid reason to negate its status, and the grounds which
prohibit an illegitimate child from attribution to its mother do not apply here.
But as regards the man whose sperm is inseminated, al-Sayyid al-H. ak;m
says: The child shall not be attributed to him, because in order for a child to
be attributed to a person it requires that he should have had intercourse
irrespective of whether he performs it, or is unable to perform it but has his
sperm reach her reproductive organ during his el'fort, or is transferred to
another woman as a result of Lesbian intercourse as mentioned in the tradition
from al-'Imam al-Hasan ('a). Apart from these cases, a child shall not be
attributed to the person of whose sperm it was conceived, even if he is the
husband.
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