New legal frontier: Pakistan ill-equipped to deal with surrogacy

The country has no laws on surrogacy, leaving the rights of biological parents in the dark.

RAWALPINDI:

Fatima Siddiqi, an eight-year-old girl, has an uncertain future as her biological father fights with her ‘surrogate’ mother for her custody in Pakistan’s courts.

The battle for her custody, however, is bound to be drawn out, not only because this is the first public case of surrogacy in Pakistan, but also because the country has no laws on surrogacy.

Pakistan is not the exception though. Several developing countries have yet to legislate on surrogacy, and the practice, especially when employed commercially, is banned in most developed countries, including the United Kingdom and France. It flourishes, however, in developing countries such as India.

While most Muslim countries have no official legislation on the issue, there are Islamic decrees by local religious authorities banning the practice.

Contested surrogacy

Born through assisted reproductive technology (ART) in 2005, Fatima has been living with Farzana Naheed, who gave birth to her, since Pakistani courts have so far denied her custody to Farooq Siddiqi, who claims to be her biological father.

Farooq, in his late 50s, denies marriage with Farzana, who is in her early 30s, and claims he contracted her for surrogating a child, and paid her a handsome amount. Farzana only carried the embryo, since the eggs belong to another woman, claims Farooq.

Farzana, on the other hand, denies that she acted as a surrogate and claims she was married to Farooq in 2004, and he later divorced her. Fatima was born while they were married, Farzana claims.

She could not, however, satisfy the Lahore High Court’s Rawalpindi bench about the authenticity of her Nikahnama (marriage certificate). Meanwhile, Farooq denies that he married her, and has produced the alleged contract before the court.

The court, however, still handed the girl to Fatima because she gave birth to her, and because no surrogacy laws exist in Pakistan that would validate or nullify a surrogacy contract.

Farooq, a US national of Pakistani origin, has now gone to the Supreme Court of Pakistan asking for direction for legislation on surrogacy, and to decide the fate of Fatima, his biological daughter.

Need for legislation

Discussions with lawyers, scholars and medical practitioners shows there is a dire need for legislation on surrogacy in Pakistan, since the practice already exists.

“There are doctors in Islamabad, Lahore and Karachi silently practicing the procedure of artificial insemination after an agreement between the semen and egg donors and the surrogate mother,” said Dr Anisa Gilani, a gynecologist.

The practice is half-a-billion-dollars-a-year industry in neighbouring India where the Supreme Court declared commercial surrogacy ‘permitted’ in 2008. An Assisted Reproductive Technologies (Regulation) Bill, 2010, however, is still awaiting passage.

Dr Gilani believes Pakistan may also suit the market for commercial surrogacy since there is an abundance of poor women who may be willing to carry another couple’s child for financial compensation; she quickly adds though that there are social and religious barriers to the practice.

Legal limbo

There is a need for legislation on surrogacy since, in the absence of any laws, the practice cannot be stopped even if it’s considered socially or religiously unacceptable, said advocate Misbah Sharif, an expert in family law and Islamic jurisprudence.

Globally, there is a range of regulation and legislation on surrogacy. In some European countries, such as Austria, Germany, Italy and Switzerland, surrogacy is prohibited, and severe sanctions are applied for doctors who arrange a surrogacy for their patients. In Spain, for instance, surrogacy contracts are null and void but surrogacy itself is not prohibited by law and theoretically can be implemented.

In other countries, such as Australia, Canada, Greece, Israel, South Africa, and the United Kingdom, surrogacy is allowed on a noncommercial basis only.

Developing countries mostly turn a blind eye to the practice.

“You cannot simply call it an unacceptable practice ethically and socially. Either allow it or disallow it through proper legislation,” the lawyer said.

As the matter is before the apex court of the country, Sharif hoped some guidelines would be drawn following Farooq’s petition.

‘Disallowed in Islam’

Surrogacy contracts are unethical and disallowed under Islam, said professor Mufti Muneebur Rehman, chairman of the central Ruet-e-Hilal Committee.

There are questions about parenthood and share in inheritance of the child produced through artificial insemination, he said.

The practice of surrogacy, therefore, must be avoided, he added.

What other Muslim countries are doing

Malaysia

A fatwa banning surrogacy was issued by the Malaysian National Council of Islamic Religious Affairs in 2008. “It is not permissible for the sperm of the male of a married couple to be implanted into the egg of another woman,” said Mat Jais Kamos from the Islamic affairs department of Selangor in March 2011, adding that in vitro fertilization is permissible as long as the sperm and egg belong to a married couple.

Egypt

A committee of Islamic experts headed by Sheikh Mohammed Sayed Tantawi of Al-Azhar issued a fatwa in 2001 banning women from acting as surrogate mothers. The fatwa declared carrying another woman’s baby un-Islamic “because it violates the bonds of marriage.”

Published in The Express Tribune, December 2^nd, 2012.