Is Surrogacy Permissible in Islam?

Introduction:

Surrogacy is a process by which a woman carries and delivers a child for a couple or individual¹ who would otherwise be unable to have children. It has ancient roots dating back to the Code of Hammurabi around 1754 BCE,² where laws acknowledged arrangements for childbearing through concubines if a wife was infertile. This early legal recognition shows that surrogacy was a socially and legally accepted solution to infertility in ancient Mesopotamia.

Over time, surrogacy has evolved from informal arrangements rooted in necessity and tradition into more structured legal agreements, particularly with the advent of gestational surrogacy — where the surrogate carries an embryo to which she has no genetic connection — in the late 20th century. This differs from traditional surrogacy, in which the surrogate uses her own egg and is therefore genetically related to the child. Today, surrogacy is facilitated by advanced reproductive technologies and governed by complex ethical and legal frameworks that vary widely across countries, reflecting both scientific progress and ongoing debates over access, regulation, commodification, potential exploitation of surrogates, parental rights, and the long-term impact of the practice on all parties involved.

The practice of surrogacy, as well as the legislation governing it, varies dramatically across developed nations—from complete bans in countries such as France, Germany, Italy, and Spain, to the acceptance of altruistic surrogacy - where a surrogate carries a pregnancy without receiving payment beyond reasonable expenses, as seen in Greece and the UK. This contrasts with contract-based commercial surrogacy, where a surrogate is financially compensated for her services, which is permitted in parts of the United States.³ In the Muslim world, surrogacy policies also diverge sharply. Iran permits surrogacy, whereas many other countries, like Saudi Arabia, Indonesia and Pakistan, deem the practice illegal.⁴

Taking the UK as a case-study, we can see that altruistic surrogacy is legal and primarily governed by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. While there are no official statistics on how common it is, estimates suggest that in the UK, around 500 cases occur annually, with numbers steadily rising.⁵

Depending on the type of fertility treatment involved, the surrogacy process can be lengthy and emotionally complex. UK law prohibits surrogacy as a commercial activity, meaning surrogates cannot be paid for their services beyond reimbursement for ‘reasonable expenses incurred’ - a figure estimated to be between £20,000 and £80,000 during the pregnancy.⁶ According to UK law, the birth mother is recognised as the child’s mother, regardless of genetic relation. If she is married, her spouse is automatically considered the second legal parent; if she is unmarried, one of the intended parents can be registered as such. To transfer legal parenthood, a parental order must be obtained through the UK courts—this can only be applied for after the child is born and may take up to nine months to complete. Importantly, only two legal parents can be recognised at any one time under UK law.⁷

These laws vary in many other countries that permit surrogacy.

Ethical concerns around surrogacy

There are significant ethical concerns around surrogacy that bear mentioning so that a complete picture can emerge. According to research, commercial surrogacy in those countries that permit it, raises profound ethical concerns, particularly when local women carry pregnancies for wealthy international clients, potentially deepening gender, class, and race inequalities.⁸ A significant concern is that women in less than ideal socioeconomic circumstances may pursue surrogacy primarily to mitigate poverty, raising questions about whether their decisions are truly autonomous or driven by external economic pressures.⁹ The result of all this, coupled with a lack of regulation in this space, is that the surrogates may face less-than-ideal exploitation, with commercial agencies and middlemen reaping the profits as opposed to the women themselves, who often lack insurance coverage, post-pregnancy medical support, and compensation guarantees in cases of adverse pregnancy outcomes. These are precisely the reasons why commercial surrogacy was banned in India in 2015.¹⁰

Outside the context of countries where commercial surrogacy may be abused, ethical concerns focus on the commodification of women's bodies, with debates about whether commercial surrogacy inherently violates human dignity or whether non-commercial altruistic arrangements represent ethically acceptable alternatives for individuals unable to carry pregnancies.¹¹ Bans on surrogacy, whether just commercial or altruistic or both, have the unfortunate side-effect of increasing cross-border surrogacy cases, i.e., people leaving their native countries to pursue commercial surrogacy in other countries where it is permitted. This in turn can lead to issues around the citizenship of those children borne from surrogacy upon return to their parents’ home country.¹²

The European Society of Human Reproduction and Embryology Ethics Committefollowinge states that ‘commercial surrogacy arrangements are more likely to result in exploitation than non-commercial ones and therefore should be avoided.’¹³ It also offers the following recommendation:¹⁴

Forms of surrogacy

Surrogacy is not a simple or singular scenario; it can take several forms depending on the origin of the sperm and egg, as well as the relationship between the surrogate and the child. There are two main types of surrogacy: full and partial.

Full surrogacy

Full (also known as gestational or host) surrogacy is when the surrogate merely carries the baby to full term but has no genetic link with it. The egg and sperm are from the intended parents and/or donors. This involves in-vitro fertilisation (IVF). Below are the different scenarios that can occur in full surrogacy.

Scenario 1 – Both parents are fertile, but the mother cannot carry the baby to term.

Scenario 2 – Neither parent is fertile, so they use a donor egg and sperm.

Scenario 3 – The father is infertile, so donor sperm is used with the mother’s own egg.

Scenario 4 – The mother is infertile, so a donor egg is used with the father’s sperm.

Partial surrogacy

Partial (also known as traditional or straight) surrogacy is when the surrogate’s own eggs are used alongside sperm from the intended father or a donor. The intended father provides a sperm sample for conception and through the process of artificial insemination, it is injected directly into the uterus of the surrogate.¹⁵ If either the surrogate or intended father has fertility issues or prefers a more clinical environment, then embryos may also be created in vitro and transferred into the uterus of the surrogate. Below are some scenarios seen in partial surrogacy.

Scenario 5 – The father’s own sperm is used with the surrogate’s egg.

Scenario 5A – Artificial Insemination

Scenario 5B – Invitro-fertilisation

Scenario 6 – Donor sperm is used with the surrogate’s own egg

Scenario 6A – Artificial Insemination

Scenario 6B – In vitro-fertilisation

With all these scenarios in mind, some very important questions arise relating to the acceptability of this practice in Sharia. Is IVF allowed? Is artificial insemination allowed? Does artificial insemination with donor sperm constitute zinā? Is it allowed to fertilise the woman’s egg with the sperm of a man other than her husband? And who is designated the mother in cases of surrogacy?

Opinions amongst Shia jurists on these issues vary. IVF using the parents' egg and sperm is deemed permissible, whether the embryo is implanted back into the mother¹⁶ or transferred to a surrogate (Scenario 1), provided no other forbidden elements take place.¹⁷ The issue arises when the sperm and egg come from a donor. In Shia Islam, surrogacy is not likened to zinā as it does not involve the physical act of sexual intercourse. Most Shia scholars state that fertilisation of a woman’s egg by a sperm not belonging to her husband is not allowed, however it is not in the category of zinā and the resulting child is not illegitimate.¹⁸

In the case of third-party donation, that is, the egg and sperm coming from another source than the parents, the opinions of jurists vary. Ayatollah Khamenei, Ayatollah Mohammad Shirazi and Ayatollah Mosawi Ardebilli state that in the case that the husband’s infertility leads to difficulties in marriage, fertilization of the woman’s egg with the sperm of a man other than her husband outside of the woman’s body and then the implantation in the woman’s uterus is allowed as long as no forbidden act, such as gaze or touch, has taken place.¹⁹ For the majority of scholars however, direct placement of the sperm into the uterus, i.e., artificial insemination is not allowed.

Iran represents an interesting case study in allowing third party donation in surrogacy cases. A 2003 Iranian law, approved by the Guardian Council, restricts gamete (egg and sperm) donation to married persons. Egg donation is permitted, provided the husband temporarily marries the egg donor, ensuring all parties are legally married. Sperm donation, however, is forbidden because a sperm donor cannot temporarily marry a woman who is already married to an infertile husband. Interestingly, embryo donation is allowed despite involving both egg and sperm from another couple. This is considered halal because the embryo transfers from one married couple to another, maintaining the requirement that all parties remain within the bounds of marriage.²⁰

With regards to assigning motherhood, a group of Shia scholars argue that the maternity of the child is assigned to the woman who carries the pregnancy and gives birth to the child. This includes the opinion of late Grand Ayatollah Khu’i and late Ayatollahs Ma’refat and Tabrizi.²¹ According to this view, motherhood is restricted to the birth-giver, i.e., the woman with the womb, excluding the egg donor.

In contrast to this, another group holds that maternity ought to be assigned to the owner of the egg. These include Ayatollah Khomeini, Ayatollah Yousef Sane’i, Ayatollah Safi Golpayegani, Ayatollah Naser Makarem Shirazi, Ayatollah Montazeri, Ayatollah Sistani, and Ayatollah Khamenei.

Considering the variety of opinions amongst Shia scholars, the following ICCI statement will be divided into two parts, the first one dealing with the permissibility of surrogacy itself and the second with the attribution of lineage in surrogacy.

ICCI Opinion:

Part I: Permissibility of Surrogacy

Majority Opinion

All the above mentioned scenarios of surrogacy are permissible if surrogacy does not involve any other forbidden element, is documented properly, and no rightful party’s rights are violated.

Justifications:

1. The Quran and hadith do not directly deal with the issue of surrogacy as a reproductive arrangement involving assisted reproductive technologies. However, some scholars have sought to prohibit surrogacy by extending the application of Qur'anic verses that prohibit zinā (fornication/adultery) to the arrangement of surrogacy, particularly the following verse:

The argument is that the use of reproductive material outside of the marital relationship constitutes a violation of chastity and the guarding of private parts. This interpretation, however, requires careful examination. Fornication or zinā, as understood in the Quran, Sunnah, linguistic usage, and historical contexts, refers specifically to full sexual intercourse with a person with whom such relations are not lawful. The Quranic injunctions regarding chastity and the guarding of private parts (ḥifẓ al-furūj) are understood, both in common usage and scholarly interpretation, to prohibit illicit sexual relations between men and women.

The application of such a verse in this context can therefore be disputed as in surrogacy arrangements involving artificial insemination or IVF:

• There is no physical contact of a sexual nature between the surrogate and the donor

• In many cases, the parties may never meet or see one another

• The procedure is conducted in a clinical, medical setting by healthcare professionals

Therefore, the Quranic verses concerning zinā and the preservation of chastity fall completely outside the context of surrogacy. At the very least, these texts lack any clear indication that they apply to medical reproductive procedures conducted without sexual contact. Furthermore, to extend the definition of zinā to include clinical reproductive procedures would be to expand a ḥadd offence one with severe prescribed punishments—beyond its established parameters, which Islamic legal methodology does not permit without explicit textual evidence. Such an extension would effectively criminalise medical procedures that bear no resemblance to the act that the prohibition was revealed to address.

Moreover, if we were to accept that any use of reproductive material outside direct marital intercourse constitutes a violation of "guarding the private parts," this would create numerous inconsistencies. For instance, it would potentially prohibit standard IVF procedures between married couples (where conception occurs outside the body), sperm collection for fertility testing, and other accepted medical procedures. Such an interpretation would impose restrictions that the Lawgiver did not intend.

2. Given this analysis, we can invoke the juristic principle of the primacy of permissibility (aṣalat al-ibāḥa). According to this principle, all actions are deemed permissible by the Sharia until proven to be impermissible through reliable evidence. Since the primary texts do not directly address surrogacy; the verses regarding zinā do not apply to clinical reproductive procedures; no other explicit prohibition exists, it can be concluded that the primacy of permissibility supports the position that surrogacy is permissible.

When primary texts are silent on a matter and attempts to apply related prohibitions prove unsuccessful, we return to human reasoning ('aql) and experiential knowledge (tajriba) to formulate laws in this area, ensuring that any regulations enacted do not contradict the Sharia and aim to fulfil the general objectives and higher intents of Islamic law. This approach is consistent with the broader Islamic legal tradition, which recognises that not every contemporary issue can or should be resolved through direct textual evidence alone, particularly when the matter did not exist in the time of revelation.

3. Surrogacy in some cases is undertaken by couples who are unable to have children due to various medical conditions—including uterine abnormalities, repeated pregnancy loss, severe health risks associated with pregnancy, or other fertility impediments. For such couples, surrogacy represents not merely a preference but a genuine need.

Islamic law recognises the alleviation of hardship (raf' al-ḥaraj) as a fundamental principle. The Quran states on two separate occasions:

The inability to have children can constitute severe emotional, psychological, and social hardship for many couples.

Surrogacy, when properly regulated and conducted ethically, can alleviate this hardship by enabling couples to fulfil their natural desire for children and family. This permissibility is contingent on proper evaluation of the level of hardship and medical necessity that justifies such interventions. The principle of hardship does not permit every desire but responds to genuine difficulties that significantly impact a person's wellbeing.

4. A legitimate concern in Islamic law is the preservation of lineage (ḥifẓ al-nasab). Critics of surrogacy sometimes argue that it causes confusion of lineage (ikhtilaṭ al-ansāb). However, this concern applies to situations where parentage is unknown or deliberately obscured—not to situations where it is clearly documented and transparent. When surrogacy is conducted within a proper regulatory framework that includes complete medical documentation of egg/sperm sources, legal contracts specifying all parties' roles and relationships, official registration with relevant authorities, and genetic testing capabilities to confirm parentage when needed, then no confusion of lineage occurs. Both the genetic father and genetic mother can be identified with certainty. The child's biological origins are known and recorded. This is fundamentally different from scenarios that Islamic law prohibits, such as denying or obscuring a child's true parentage.

5. Some scenarios involve anonymous sperm donation, which raises concerns about potential future consanguineous marriages—a child unknowingly marrying a half-sibling or other close relative born from the same donor.

Islamic law recognises different categories of doubt. A specific, confined doubt (shubha muḥaṣṣara) exists when there is a real, identifiable possibility of prohibition—for example, if two children from the same small, closed community were born from the same anonymous donor. In such cases, caution would indeed be warranted. However, when sperm come from large, widely dispersed donor pools—with donors and recipients spread across different cities, regions, or even countries—the doubt becomes a non-specific, unconfined doubt (shubha ghayr muḥaṣṣara). The doubt is so diluted across countless possibilities that it is not practically feasible to identify any specific risk of prohibition.

Islamic jurisprudence recognises that such diffuse, non-specific doubts do not carry the same weight as specific, identifiable risks. The principle is that when doubt is spread across a vast number of possibilities, the presumption of permissibility remains intact. This is analogous to other accepted practices in Islamic law where theoretical risks exist but are too diffuse to warrant prohibition.

That said, where possible and practical, maintaining some level of tracking or limitation on the number of children born from a single donor within a given geographic area represents a prudent safeguard, even if not strictly required.

6. The permissibility of surrogacy is not absolute or unconditional. Rather, it is contingent upon the preservation of all parties' rights, which is a fundamental principle in Islamic law. A significant ethical concern surrounding surrogacy is the potential for exploitation and the commodification of women's bodies and motherhood. Islamic law is fundamentally opposed to the reduction of human beings or their bodily functions to mere commodities. The dignity (karāma) of the human person is a cornerstone principle in Islam, as reflected in the Qur'anic verse:

Therefore, surrogacy arrangements must be structured in ways that they prevent the following:

- treatment of women as mere vessels or rental wombs

- ensure that surrogates are not driven by desperate economic circumstances that compromise genuine consent

- avoid commercial arrangements where profit-seeking intermediaries exploit vulnerable women

- protect surrogates from inadequate medical care, insurance, or compensation in case of adverse outcomes

- ensure that children are not treated as commodities to be bought and sold.

This is why altruistic surrogacy with proper safeguards is strongly preferred over commercial surrogacy, and why many scholars and ethicists—including the European Society of Human Reproduction and Embryology—have concluded that commercial arrangements are more likely to result in exploitation. Where surrogacy has devolved into a purely commercial enterprise—particularly in contexts where vulnerable women from disadvantaged socioeconomic backgrounds carry pregnancies for wealthy clients—the arrangement may become impermissible due to exploitation, even if the technical procedure itself is not inherently prohibited. It is important that the following rights are considered:

- The surrogate's husband's rights: A married woman may not enter into a surrogacy agreement without her husband's knowledge and explicit consent. Her reproductive capacity is not hers alone to offer in a surrogacy arrangement, as it affects the marital relationship. The husband's consent is essential to avoid violating his rights.

- The surrogate's own rights: She must enter into the arrangement freely, with full informed consent, understanding all medical risks, procedures, and implications. She must have the right to appropriate medical care, compensation for legitimate expenses, and protection from exploitation. Her decision must not be the result of coercion, desperation, or exploitative economic pressure.

- The intended parents' rights: They must have clarity regarding the legal transfer of parental rights and responsibilities, and assurance that agreements will be honoured.

- The child's rights: The child has a right to known parentage, to be raised in a stable environment, and not to be treated as a commodity.

It is important to note that these concerns do not necessitate prohibiting surrogacy altogether. Rather, they call for the imposition of specific conditions, safeguards, and regulatory frameworks. Proper contracts, legal oversight, ethical guidelines, and strong anti-exploitation measures can ensure that surrogacy arrangements respect the rights of all parties involved and uphold human dignity. Where such safeguards are absent or inadequate, where commercial exploitation is occurring, or where there is no genuine medical necessity, individual arrangements may become impermissible—but this does not render the practice itself inherently prohibited when conducted appropriately.

Minority Opinion:

Surrogacy is not permissible in any of the above-mentioned scenarios.

Justifications:

1. The Quran establishes a clear injunction regarding the preservation and guarding of chastity (ḥifẓ al-furūj) in the following verses:

Insemination with semen other than that of the husband, or introduction of a donor egg into a surrogate, although not constituting adultery in either case, would nevertheless contravene this Quranic injunction to guard chastity.

Furthermore, the Quran also describes the believers as those:

The general remit of these verses encompasses any utilisation of the sexual organs outside the marital bond and explicitly limits reproductive relations to the marital bond. Surrogacy, by its very nature, involves the use of another woman's womb outside this divinely sanctioned relationship, thereby transgressing these boundaries regardless of whether physical intimacy occurs or not. As such, various forms of insemination and surrogacy constitute acts beyond the framework of the spousal relationship and are therefore not permissible.

2. Surrogacy raises significant concerns regarding the preservation of lineage (nasab) resulting from the use of anonymous donor sperm and eggs. The Quran explicitly addresses the importance of attributing children to their rightful parents:

In the case of anonymous donors, there are then significant implications around violations of inheritance rights, marriage prohibitions between relatives and the fundamental right of a child to know their true parentage. In the case of known donors, surrogacy can lead to ambiguity is determining who the mother is. The Quran states that:

This verse establishes that the woman who carries and delivers the child is recognised as the mother in Islamic law. When a surrogate carries a child conceived from another woman's egg, a conflict arises between genetic and gestational motherhood, thereby introducing confusion into lineage. To avoid this confusion in lineage then it is best to avoid all forms of surrogacy.

3. Surrogacy, in certain contexts, raises profound ethical concerns, including the exploitation of women in difficult socioeconomic circumstances whose consent may be coerced by economic desperation rather than truly autonomous. Inadequate regulation often leaves surrogates without insurance, medical support, or compensation guarantees. These concerns, alongside the commodification of women's bodies and the deepening of gender and class inequalities would suggest that surrogacy be deemed impermissible.

Part II: Lineage of child and attribution of parenthood

One of the most complex questions arising from surrogacy concerns the attribution of parenthood, particularly motherhood. In traditional conception, the genetic mother, gestational mother, and birth mother are one and the same person. Surrogacy separates these roles, creating a novel situation that Islamic law must address. The central question here is that in gestational surrogacy involving three distinct women—the intended mother (who may or may not provide the egg), the egg donor (if different from the intended mother), and the surrogate (who carries and delivers the child)—who is recognised as the legal mother in Islamic law? It is important to know that this question has significant practical implications for:

- Inheritance rights

- Maḥram relationships (who the child can and cannot marry)

- Custody and guardianship

- Maintenance obligations

- Social and familial identity

Majority Opinion

The owner of the egg and the owner of the sperm are considered the mother and father, and no other party is recognised as having parenthood.

Justification:

1. The Quran uses language that emphasises biological origin and descent when discussing parenthood. Several verses point to this understanding:

This verse emphasises creation from both male and female contributions, suggesting the generative, originating contribution of both parents.

Again, the emphasis on creation "from" (min) suggests origin, substance, and the source from which something comes forth. In modern scientific terms, this corresponds to genetic contribution—the egg and sperm that form the child's very essence.

This verse, revealed in the context of adoption, emphasises biological lineage and origin. While it explicitly addresses paternity, it establishes a broader principle that biological origin matters for legal kinship and identity. The child should be attributed to their true biological origins, not to arbitrary social or legal arrangements that obscure this reality.

These verses collectively suggest that parenthood in Islamic law is rooted in the biological contribution that creates the child—what we now understand as genetic material.

2. In Islamic law, paternity is established through the legal relationship of marriage, which presumptively identifies the husband as the biological father. The underlying assumption is that the husband's genetic contribution (sperm) created the child. While classical jurists did not have modern genetic knowledge, the legal structure they developed was designed to identify the biological father. Maternity should follow the same principle. Just as paternity ultimately traces back to biological contribution (even if established through legal presumptions), maternity should trace back to the woman whose genetic contribution (egg) created the child. To say that maternity is established by gestation rather than genetic contribution would create an inconsistency: paternity would be based on genetic origin, while maternity would be based on gestation. This asymmetry lacks justification. If biological origin determines fatherhood, it should likewise determine motherhood.

3. It is true that Islamic law recognises nursing (riḍā') as creating a form of maternal relationship—milk kinship (maḥramiyya bi-l-raḍā'). However, this is a specific, limited legal institution with clearly defined parameters and consequences.

Crucially, milk kinship does not grant the wet nurse full parental status. She does not inherit from the child, nor does the child inherit from her. She does not have custody rights or guardianship authority. The relationship establishes only certain maḥram prohibitions—the child cannot marry the wet nurse or her descendants in certain degrees. The existence of this limited exception does not provide grounds for creating additional forms of motherhood with full legal parentage. The wet nurse's limited maternal status demonstrates that Islamic law distinguishes between full biological parentage (with all its legal consequences) and other forms of kinship (with limited specific effects).

If gestation alone could establish full motherhood, this would be creating a new category of parentage without textual foundation. We have clear textual evidence for milk kinship with its limited scope; we do not have textual evidence that gestation alone—separate from genetic contribution—creates full legal motherhood.

4. Lineage (nasab) is one of the most carefully protected areas of Islamic law. Classical Shia sources emphasise the gravity of lineage issues and the prohibition against falsely attributing or denying lineage. When there is ambiguity or uncertainty in matters of lineage, Islamic jurisprudence resorts to the primacy of precaution (aṣālat al-iḥtiyāṭ). The present case involves significant ambiguity. Classical jurists do not explicitly address the separation of genetic and gestational motherhood. The Quranic emphasis appears to be on origin and creation "from" parents. There is no clear textual evidence establishing gestation alone as sufficient for full legal motherhood. In such circumstances, the precautionary approach—one that maintains consistency with how parenthood is fundamentally understood—is to follow genetic contribution as the basis for legal parenthood.

Minority Opinion

Motherhood can be established through multiple ways, including the owner of the egg (genetic mother) and the carrier of the pregnancy (gestational mother). Both can be recognised as having maternal status, creating a situation where the child has two mothers with distinct but complementary legal relationships.

Justification:,

1. The Quran associates motherhood with different aspects of the maternal role. In several verses, motherhood is explicitly linked to gestation and childbirth, for instance:

These verses emphasise the gestational and birth aspects of motherhood—the physical carrying (ḥamalathu) and delivering (waḍa'athu) of the child. The repeated emphasis on the mother's hardship in pregnancy and childbirth suggests that these acts themselves establish a maternal relationship deserving of special recognition and honour. The Quran commands children to honour their mothers specifically because of the suffering endured in pregnancy and birth. This suggests that the gestational experience creates a claim upon the child—a bond that carries moral weight.

2. Islamic law already recognises that a child can have multiple mother-figures with different legal statuses; a biological mother (umm) and a milk mother (umm min al-raḍā'a). The existence of milk kinship demonstrates that the Sharia does not operate on a principle of "one child, one mother." Rather, it recognises that maternal relationships can be established through different means, each with its own legal implications, as can be seen in the following hadith:

This hadith is widely narrated in Shia sources and establishes that nursing creates genuine kinship with real legal consequences, particularly regarding maḥram relationships. If Islamic law can recognise a wet nurse as having a form of motherhood—establishing kinship that prohibits marriage between the nursed child and the wet nurse's descendants—then it essentially demonstrates flexibility in recognising multiple bases for maternal relationships.

3. The legal reasoning behind milk kinship provides insight into why gestation on its own should establish maternal status as well. Jurists maintain that nursing establishes kinship because the wet nurse's milk nourishes the child and contributes to the child's physical development. This is when the bones are strengthened, and the flesh is formed through the milk.

Now consider the role of the gestational mother in surrogacy. The surrogate also nourishes the foetus through her blood via the umbilical cord for nine months and contributes to its physical development far more extensively and fundamentally than a wet nurse. She also undergoes the hardships of pregnancy and childbirth repeatedly referenced in Quranic verses and experiences profound physical, hormonal, and emotional changes throughout pregnancy

If nursing—which provides nutrition after birth for a limited period—can establish a maternal relationship, then gestation—which provides nutrition and literally forms the child's body before birth for nine months—has an even stronger claim to establishing maternal kinship.

The principle here is one of priority (awlawiyya): if the lesser case (nursing after birth) establishes kinship, then the greater case (gestation and formation of the child's body before birth) should certainly do so. Classical jurisprudence could not have anticipated the separation of genetic and gestational motherhood because this situation did not exist in their time. However, the principles it established regarding milk kinship—that physical nourishment and contribution to bodily formation create kinship—apply even more compellingly to gestational surrogacy.

4. The gestational mother (surrogate) undergoes significant physical, emotional, and health-related challenges that nine months of pregnancy would entail and is exposed to many potential complications, many of which can be life-threatening. In addition, she is exposed to the pain and risks of childbirth and post-partum recovery. To deny any legal maternal status to the woman who has carried and delivered the child appears inconsistent with the Quranic recognition of pregnancy and childbirth as establishing a special relationship. The verses commanding kindness to parents specifically emphasise the mother's suffering in pregnancy and birth as grounds for honour, respect, and special obligations from the child. For instance, the Quran states:

The gratitude owed to the mother is directly linked to her having carried the child. If carrying the child creates moral obligations of gratitude and kindness, it suggests that the gestational relationship has legal significance that should be recognised.

5. As established in Part I, when Islamic texts do not explicitly address a new situation, we apply the principle of the primacy of permissibility (aṣālat al-ibāḥa). The question of how to attribute parenthood when genetic and gestational motherhood are separated did not exist in classical Islamic societies and is not directly addressed in the texts.

There is no explicit textual prohibition against recognising both genetic and gestational mothers. The Quran recognises both genetic lineage and gestational labour as significant. The precedent of milk kinship demonstrates that multiple forms of motherhood can coexist within Islamic law. Furthermore, the principle that physical nourishment and bodily formation can create kinship is already well-established. Together, these considerations support recognising both forms of motherhood as a reasonable application of Islamic legal principles to a new situation, consistent with the principle of permissibility in matters not explicitly prohibited.

6. If both genetic and gestational motherhood are recognised, questions arise about inheritance, maḥram relationships, custody, and other legal matters. However, the existence of practical complexities does not negate a sound legal principle. Islamic law has successfully managed complex kinship situations before (such as with milk kinship) and can develop appropriate frameworks here.

Since this opinion recognises both the genetic mother and the gestational mother as having maternal status, issues related to maḥramiyya, inheritance, custody, and maintenance would need to be worked out based on Quranic principles of fairness and justice, ensuring that each mother is given her rightful dues according to her contribution and relationship to the child.

References:

1. https://www.yalemedicine.org/conditions/gestational-surrogacy
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3. Writing Group on behalf of the ESHRE Ethics Committee, Francoise Shenfield, Basil Tarlatzis, Guiliana Baccino, Theofano Bounartzi, Lucy Frith, Guido Pennings, Veerle Provoost, Nathalie Vermeulen, Heidi Mertes, Ethical considerations on surrogacy, Human Reproduction, Volume 40, Issue 3, March 2025, Pages 421.
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6. Ibid.
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11. Shenfield et al., Ethical considerations on surrogacy, 423.
12. Ibid, 421.
13. Ibid, 423.
14. Ibid, 424.
15. https://www.gov.uk/government/publications/having-a-child-through-surrogacy/care-in-surrogacy-guidance-for-the-care-of-surrogates-and-intended-parents-in-surrogate-births-in-england-and-wales
16. Medical Issues: Leader.ir
17. Artificial Insemination - Question & Answer - The Official Website of the Office of His Eminence Al-Sayyid Ali Al-Husseini Al-Sistani. See also Clarke, Morgan. “Children of the Revolution: ’Ali Khamene’i’s ‘Liberal’ Views on in Vitro Fertilization.” British Journal of Middle Eastern Studies 34, no. 3 (2007): 287–303. http://www.jstor.org/stable/20455531.
18. Ibid.
19. Ibid.
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21. al-Masā’il al-Shar‘iyya, vol. 2, p. 320
22. Quran 24:30.
23. Quran 2:185
24. Quran 22:78
25. Quran 17:70
26. Quran 24:30-31
27. Quran 23:5-6
28. Quran 33:5
29. Quran 58:2
30. Quran 49:13
31. Quran 4:1
32. Quran 33:5
33. Quran 46:15
34. Quran 31:14
35. Wasa'il al-Shia Vol. 20, Section 5, Chapter 1, Hadith 25850
36. Quran 31:14