Law & Ethics Shiite Perspectives on Kinship and New Reproductive Technologies

MORGAN CLARKE Islamic medical ethics are a burgeon- Lebanon has a thriving and diverse thus debate is perhaps more immedi- ing topic among and academic reproductive medical sector: procedures are ate than elsewhere. Techniques such as scholars alike. Organ transplantation, practised that have aroused much ethical IVF are widely available and utilized in cloning and euthanasia have pro- controversy, such as those using donor eggs Lebanon. However, no consensus has voked widely documented Muslim and sperm. Sunni ulama have reached a broad been reached on the ethical regula- debate. Some of the most interesting consensus on these matters, and do not allow tion of such technology between the issues are those centring on the new donor procedures. However, Shiite opinion religious communities, and so even reproductive technologies (NRT) such remains diverse: some Shiite authorities ethically controversial procedures such as in vitro fertilization (IVF). Muslims allow their followers these controversial as those involving donor eggs remain have for the most part welcomed treatments, but have evolved concomitant relatively freely practised; and indeed these new medical techniques as a rulings that entail surprising new patterns patients come from other Middle East- remedy for infertility. And yet some of kinship relations. ern countries to benefit from this rela- of the possibilities such procedures tively relaxed regime. Of course, not raise are still problematic for many, coming from a variety of ethical everyone pays strict attention to the opinion of religious experts, and perspectives. IVF involves fertilizing an egg outside the body with the relationship between fatwa and practice has formed an important a sperm and then transferring it to the uterus of a woman for ges- part of my research. tation and delivery: this allows eggs, sperm and uterus to be from unrelated parties, unrelated that is, in terms of marriage or “partner- Shiite opinions on IVF ship.” Commentators in the West have sensed that such possibilities The lack of consensus in Lebanon over these matters, and the wide- herald a new age in kinship thinking and prac- spread practice of donor egg procedures, among other controversial tice, or at the very least force people to ques- measures, is in no small part due to the position adopted by Ayatol- Doctors keep tion the meaning of even the most basic kinship lah ‘Ali al-Khamene’i, spiritual leader of the Islamic Revolution in Iran concepts, such as motherhood: is motherhood a and thus widely followed amongst Lebanese Shiites. Khamene’i does genetic relation, or one earned through the car- not prohibit the use of sperm or eggs from a third, or even fourth Khamene’i’s fatwa rying and delivery of the child? My own research party, by a husband and wife2 (nor, by implication, does he prohibit has investigated to what extent such transfor- surrogacy arrangements), as, he holds, zina requires the physical act mations and interrogations might apply in the of sexual intercourse. This opinion, stated in a fatwa collection widely collection on the Islamic Middle East, both in theory and in prac- available in Lebanon and confirmed for me by Shaykh Muhammad tice: for, beyond the discussions of the ulama, Tawfiq al-Miqdar, Khamene’i’s representative in Beirut, has proved IVF and allied technologies are now widely highly influential in the practice of such procedures in Lebanon.3 Doc- shelves of their available and utilized in the region.1 tors keep Khamene’i’s fatwa collection on the shelves of their surgeries Sunni ulama have reached a broad consensus to demonstrate the permissibility of such procedures to sceptical Mus- that medical interventions in human reproduc- lim patients; and many such patients have profited from it to under- surgeries. tion should restrict themselves to a husband and take donor sperm and egg procedures, even surrogacy arrangements, (one) wife couple, without the involvement of any with a clear conscience. Amongst the ulama, however, it is viewed with other parties, as would be the case in those proce- some astonishment, consistent with a common lack of high regard for dures using donor sperm and eggs, and gestational surrogates (where Khamene’i as a legal thinker. I was strongly advised by those in Shiite another woman carries an embryo formed from the couple’s sperm and jurisprudential circles in Lebanon to go beyond Khamene’i’s opinion to egg). Such third party procedures are seen as akin to, if not identical look at those of other authorities. with, zina: that is, illicit sexual relations, such as fornication and adul- Muhammad Husayn Fadlallah, Lebanon’s most prominent tery. They, like zina, imply a “mixing up” or “confusing” of relations. This Islamic figure, does not hold with the entirety of Khamene’i’s opinion, is consonant with a wider popular unease concerning such procedures. finding the use of sperm from a third party unacceptable. He does, However, while many scholars have assumed that this Sunni consensus however, permit the use of donor eggs.4 While, according to doctors, signifies the end of the matter, some Shiite opinions are at stark odds patients were previously advised by Shiite authorities that it was advis- with this position, and these issues are far from finally resolved in Shiite able, or essential, for the egg donor to marry the husband, albeit tempo- jurisprudential circles. rarily, this condition seems recently to have been lifted. This holds true I have been studying these debates and examining their conse- of Fadlallah’s position, as I discovered from my interviews with him and quences for kinship thinking, and have carried out extensive fieldwork other members of his staff. For his part, Khamene’i clearly stipulates in in Lebanon, in both medical and religious settings. Lebanon is rich in his fatwa that marriage is not required. This removal of the need for such religious diversity: for one thing, clearly, Christian opinions are impor- a marriage is significant for the practice of egg donation, not so much tant as regards religious debate and medical practice; but, furthermore, because of the difficulty of persuading an egg donor to undertake such Shiite and Sunni opinions are to be found alongside one another, and a marriage, as due to the fact that egg donation very frequently occurs

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between sisters. In Islamic law, a man is forbidden from marrying two sisters simultaneously; but the way has now been cleared by this new wave of Shiite rulings for what is, doctors assured me, a relatively common procedure in Leba- non nowadays. However, again, Fadlallah is consid- ered somewhat “hasty” by many others in jurisprudential circles, and I was fur- ther recommended to check the think- ing of some other authorities, notably ‘Ali al-Sistani and Muham- mad Sa‘id al-Tabataba’i al-. Both these authorities advise caution in these matters, and view third party interven- tions as most likely unacceptable.5 But in terms of the practice of these pro- cedures in Lebanon, and despite the widely acknowledged and growing su- premacy of Sistani’s opinions more gen- erally, these other standpoints regard- ing IVF are not widely known. No doubt this is because they are not as immedi- ately useful for patients or practitioners: while it is commonly sensed that the use of donor sperm or eggs is in some way ethically dubious, those opinions that hold otherwise are valuable evidences

for the moral permissibility of undertak- © IKRIMA ELHASSAN, UNIVERSITY OF TEXAS, AUSTIN ing such a course. Digital Debating kinship rendering What of the potential “confusion” of kinship relations identified by istidlali (legal analysis) to these debates, an invaluable resource of the IVF the Sunni ulama? Khamene’i, Fadlallah and many other Shiite authori- for other scholars.6 Here a comprehensive range of scenarios—artifi- process ties hold that paternity and maternity follow the sperm and the egg: cial insemination by husband and donor, egg donation and embryo that is, the genetic relation. This is not, one should note, the opinion of transfer, among many others—are fully explored, with the arguments Sistani, who follows the late Ayatollah Abul-Qasem al-Khu’i in holding illustrated with a wealth of citations of the Qu- that it is the gestational carrier who is to be considered the mother, ranic and riwayat literature, as well as references Notes and not the provider of the egg. This latter is also the opinion of those to secondary works and the opinions of the major 1. As medical anthropologist Marcia Inhorn Sunni authorities who deal with this problem, and, for that matter, that authorities. Paralleling to some extent discussions has documented: see, for example, her Local of the British Human Fertilization and Embryology Bill of 1990. The con- in Western “bioethics” and anthropology, the con- Babies, Global Science (New York: Routledge, sequence of following the genetic principle is that, in the case of the sequences for relatedness and even the meanings 2003). use of sperm or eggs from third parties, new and unconventional—al- of basic kinship terms such as “mother” and “fa- 2. As Inhorn has noted: “Religion and beit clear—patterns of relation are created. A child of donor sperm will ther” are debated, as well as more typically Islamic Reproductive Technologies,” Anthropology be the child of the sperm donor and not of the man who raises that concerns such as the ramifications for inheritance News 46, no. 2 (2005): 14. child. This has consequences for concomitant principles: veiling and law and marriage regulation. 3. Ayatollah ‘Ali al-Khamene’i, Ajwibat al- inheritance. A girl born of donor sperm, for instance, would have to Sistani’s work, while perhaps posing more Istifta’at (Beirut: al-Dar al-Islamiyah, 2003), veil before her unrelated “social father” (an anthropological rather than questions than clear answers, opens up for other part 2, 69-71; interview with Shaykh Islamic phrase). This would seem to raise considerable problems for the scholars a fascinating window into this area of Muhammad Tawfiq al-Miqdar, Beirut, 2003. practicalities of domestic life, not to mention undermine the objective Shiite jurisprudential debate, at a time when the 4. Interviews with Ayatollah Muhammad of undertaking such a procedure in the first place. However, Shiite doc- Western media are just waking up to the vibrant Husayn Fadlallah and Shaykh Muhsin tors working within circles following Khamene’i assured me that these engagement Shiite scholars have had with other ‘Atwi, head of Ayatollah Fadlallah’s fatwa rulings are followed, and that there are ways of obviating the problems: such new technologies, as witnessed by last year’s department, Beirut, 2004. in the case of inheritance through gifts and bequests; and in the case of interest in Britain and the United States in Ayatol- 5. I am drawing on email correspondence and veiling, through the institutions of rida‘ (milk kinship) and the rulings lah Khomeini’s permission of transgender surgery interviews with representatives in Beirut, as associated with being the guardian of a rabibah (foster-daughter), both some forty years ago.7 These debates are not just well as published sources here: Ayatollah of which entail marriage prohibitions and hence obviate the need for important in terms of “medical ethics,” defining ‘Ali al-Sistani, al-Fiqh lil-Mughtaribin (Beirut: veiling. I should say that, whatever the case, where Shiites in Lebanon the boundaries of medical practice for Muslims, Dar al-Mu’arrikh al-‘Arabi, 2000); Ayatollah are using these permissions and procedures, they are for now keep- but touch on much more general and important Muhammad Sa‘id al-Hakim, Fiqh al-Istinsakh ing their actions completely secret. Public opinion is lagging behind issues. They bear witness to the continuing dia- al-Bashari (Beirut: al-, 2001). that of these religious specialists here, and the extent to which these lectic between revealed religious knowledge and 6. Muhammad Rida al-Sistani, Wasa’il al-Injab complex ramifications of kinship may unfold is an open question for the propositions of modern science, and test the al-Sina‘iyah (Beirut: Dar al-Mu’arrikh al- the future. ability of religious specialists to push the thinking ‘Arabi, 2004). Clearly, the adoption of such a “biological” principle of relation has of their followers regarding the most fundamen- 7. See, for example, Frances Harrison’s BBC profound consequences, and cannot easily be squared with all the rul- tal of social categories in new and unexpected Newsnight report of 6 January 2005, and ings of nasab (filiation) of classical Islamic jurisprudence, formulated directions. Nazila Fathi’s piece in the New York Times, at a time when the existence of the female egg, if suspected, was not 2 August 2004. known for certain. While for the most part the literature available for interested parties is rather schematic, following the fatwa (response) format or the somewhat bare presentation of the risalah ‘amaliyah Morgan Clarke has recently completed his D.Phil. at the Institute of Social and Cultural (legal handbook), Ayatollah ‘Ali al-Sistani’s son, Muhammad Rida al- Anthropology, University of Oxford, funded by the ESRC. Sistani, has chosen to devote an entire volume of richly documented Email: [email protected]

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