By: Sayyed Mohamed Muhsin

Abstract
In the twenty first century of development in the reproductive technology and bio-medical science which rewrote the concept of traditional family and its rights and responsibilities, as usual, offered a number of complex issues for Islamic jurists (Fuqaha’) to find the rulings of Shari’ah. It is cleared by Islamic law of succession that the rights and responsibilities pertaining to, mainly, lineage and inheritance are determined by the legitimacy of a child. Here the right of succession of children born by artificial insemination or by any human assisted reproductive system becomes the point of great concern to be discussed. Moreover, the question of once the baby is illegitimate then to whom that child will be entitled to or from whom he will inherit also offers an area of study and requires some clear-cut answers. Test tube babies and children of surrogate are not a mere prediction of Alwin Toffler in his book future shock (1970), but millions of test tube babies and surrogate children have now been born and are active in social life. In this paper, the writer will discuss the different forms of artificial insemination, issues regarding the inheritance of children of IVF and surrogacy and possible ways of inheriting with a special reference to the traditional texts of Islamic jurisprudence.

Introduction
“It is He Who shapes you in the wombs of your mothers as He wills. And it is He, Who created man from water: then from him He caused two kinds of kindred, by blood and by marriage, your Lord is All Powerful.” We have enjoined man to treat his parents with kindness. His mother bore him with hardship and she gave him birth with hardship, and his bearing and his weaning took thirty months.

The drastic revolution in the bio-medical science already presented a large number of novel and undreamt experiments to human history; as a result the present world has now reached on the thoughts to realize the dreams of the male pregnancy and artificial uterus. Since the developments in the reproductive technology such as in vitro fertilization, Surrogacy and cloning, it is clear that those helped in length to fulfill the ‘child’ dreams of thousands of infertile spouses. Five million “test tube babies” have now been born around the world, according to research presented at a conference of fertility experts in Turkey. Meanwhile the process of Artificial Insemination (AI) is going on through various methods, it should not be overlooked the Islamic perspective in this regard. According to Islam, all parts and practices of life should be led and adjusted in the framework of the Islamic legal system. As it is a significant solution for many couples in the millennium family, the study related to the legality of the various forms of this type of insemination and Islamic juristic approaches to these processes with special reference to their right of inheritance would be relevant and highly appreciated.

Hundreds of thousands test tube babies have grown like usual and engage in different types of work in this modern world! In Islamic perspective, who are legitimate and who are illegitimate? If some of them are considered as illegitimate, then to whom they will be entitled to and inherited and who can receive from the bequest and who can’t be another area of great concern.

Inheritance, also called succession, is the devolution of property on an heir or heirs upon the death of its owner. Islam motivates the study and teaching of succession laws as the Prophet (peace be upon him) says: “Learn the laws of inheritance and teach them to the people for they are one-half of useful knowledge”. In the case of children who born by unusual ways of reproduction, i.e. artificial or medically assisted ways, it requires a special study scrutinizing on the laws of inheritance because of some strange situations they may face. Moreover, there are some false interpretations towards the legality of test tube babies and their right of inheritance, which are exposed in this paper and will try to clarify the exact juristic laws on them in the light of words of eminent scholars in Fiqh.

In this paper the writer will address the cases of IVF and Surrogacy distinguishing the legal ones from the illegitimate cases. Furthermore, it will be brought the discussion about the laws of inheritance on both legitimate and illegitimate cases referring to the observations of traditional and contemporary Islamic legal scholars.

Defition Of IVF And Surrogacy
Artificial Reproduction (AR) or Medically Assisted Conception (MAC) opened an absolutely different world before human beings and rewrote the concept of the traditional family. There are many types of AR. This paper will confine the discussion on In Vitro Fertilization (IVF) and Surrogacy.

Artificial insemination is the introduction of semen of a man into the vagina of a woman, or uterus using the modern technology; to produce a pregnancy when the couple wishes to have a child and apparently they cannot fulfil it by normal sexual intercourse. This method has been accepted widely throughout the world as a solution to the infertile couples who lack children because of certain reasons in their reproductive organs or medical problems.

IVF is a process of fertilization by combining an egg and sperm in a laboratory dish, and then the embryo will transfer to the uterus. The process starts by monitoring a woman’s ovulatory process then separating ovum from a woman’s ovary and facilitating sperm to fertilize in a fluid medium in the laboratory. “The process that gives rise to Louise brown is called In Vitro Fertilization. It has now become a standard medical procedure conducted in hundreds of clinics around the world. Many clinics perform in Vitro on more than 200 patients each year, although fewer than a quarter of these fertilization attempt are successful, thousands of babies are now alive who wouldn’t have born without this technique.”

In Vitro Fertilization (IVF) is the joining of a woman’s egg and a man’s sperm in a laboratory dish. In Vitro means “outside the body.” Fertilization means the sperm has attached to and entered the egg. IVF is a form of Assisted Reproductive Technology (ART). This means special medical techniques are used to help a woman become pregnant. IVF has been successfully used since 1978. It is most often tried when other, less expensive fertility techniques have failed.

Surrogacy is a process in which a woman bears a child for a couple unable to produce children by the normal way. “Surrogate mother is a woman who bears a child as substitute of another woman, whether the egg is from her or the wife itself, or she is the woman from whom the egg is taken for the insemination to the uterus of the wife or to the uterus of another woman”. In the case of surrogacy the activities are same for IVF, but instead of inserting the embryo inside the uterus of the wife, it will be placed in the uterus of alien female and the child grows in the womb of this surrogate mother until the delivery.

There are two types of surrogacy, gestational and traditional. Traditional is where the baby is conceived through artificial insemination and is genetically related to the surrogate and the intended father. Gestational is where the baby is conceived through in Vitro Fertilization. The baby is created from the intended father’s (or a donor’s) sperm and the intended mother’s (or a donor’s) egg in Vitro and then transferred into the gestational surrogate (or carrier). The surrogate is not genetically related to the baby at all. She just carries the baby for 9 months because the intended mother is unable to carry a pregnancy.

It is obvious here that the methods, IVF and surrogacy, are not in the normal cases in regard of conception and reproduction. As far as IVF is concerned, the combination of egg and sperm is being occurred outside of the body while it is free from the third party introduction or inclusion from the human side. But the surrogacy brings with share of third party (other than husband and wife) which is the central core of discussion in the Islamic legal system regarding the legitimacy of a child.

Legitimacy And Inheritance
“And it is He, Who created man from water: then from him He caused two kinds of kindred, by blood and by marriage, your Lord is All Powerful.”

In the Islamic laws of inheritance, there are some situations which may cause the disqualification of inheritance. Those situations are differences of religion, illegitimacy, slavery and homicide. A child born without marriage introduced by Islamic law is an illegitimate child. The rules of presumption of legitimacy under Islamic law may be stated as follows:

• A child born within less than 6 months after marriage is illegitimate.
• A child born after six months from the date of marriage is presumed to be legitimate; in less the putative father disclaims the child.
• A child born within four years after termination of the marriage is presumed to be legitimate, unless disclaimed by the father in case of separation by divorce.

For legal valid parent –child relationship to exist, the basis of its existence must be present. Legitimacy is the basis. Legality is the legal concept whereby a couple’s child is entitled to full recognition as a member of their family group, enjoying the legal rights which statutes involve. The fact of legitimacy affects the child in many aspects of his rights and obligation. Among them are inter alia:

• In relation to the entitlement of a child to maintenance and inheritance from his father.
• In relation to the right of father to custody, guardianship and inheritance.
• In relation to maintenance in cases of extreme hardship.

From the above mentioned importance of legitimacy in Islam, one can conclude as the duties and responsibilities between parents and child depend upon the legitimacy of a child. That is because the methods of IVF and surrogacy weather it is accepted and approved by Islamic legal scholars or not have great deal of importance in this discussion. There are about eight methods of artificial insemination going to be discussed in this paper. Before coming to the debate on inheritance on each method, to bring the Islamic scholars’ views on that method based on the legality would be very important, that work also has been done in this paper.

Extracts From Classical Texts
There is no room for doubt that the concept and idea of IVF and surrogacy had only the history of about 40 years and had not arisen at the time of writing our classical texts from the four schools of Islamic jurisprudence. Almost all of the classical texts had been written before hundreds of years ago while the first successful birth of a “test tube baby”, Louise Brown, occurred in 1978, i.e. just 35 years only. So it is not wise to try to find the Islamic rulings upon IVF and surrogacy directly from classical texts. But some of their finding and rulings are very closely related to the activities and processes of this human assisted reproductive system and they give a partial answer to our question regarding the legality and inheritance. The writer tried to find out some of them and will describe very relevant in below. The writer as an example will bring from the classical texts of the Shafi School of jurisprudence but it does not mean that other schools are excluded from this type of rulings. Rather it can be found in all schools of Islamic jurisprudence.