13/07/2020
P L D 2017 FederalShariat Court 78
Present: Riaz AhmadKhan, C.J., Allama Dr. Fida Muhammad Khan and Zahoor Ahmed Shahwani, JJ
FAROOQSIDDIQUI---Petitioner
Versus
Mst. FARZANANAHEED---Respondent
Shariat Petition No.2/I of2015, decided on 16th February, 2017.
Per Justice Riaz AhmadKhan, C.J.; Allama Dr. Fida Muhammad Khan and Zahoor Ahmed Shahwani, JJagreeing.
(a) Medicaljurisprudence--
----"Surrogacy"---Meaning---Surrogacymeant 'appointed to act in place of'---Surrogacy was a technique of assistedreproduction wherein woman bore and delivered child for other couples---Where aman was incapable of producing a child and the s***m was obtained from a thirdperson that could not be called a case of surrogacy for the simple reasons thatthe child did not belong to the father---Issue of surrogacy arose when thewoman was hired for carrying a child for a couple for some monetary or otherconsideration---Surrogate mother was paid certain amounts for carrying out thechild for nine months and then producing child for another woman---For allpractical purposes the surrogate mother gave her womb on rent.
(b) Constitution ofPakistan---
----Art. 203-D---Shariatpetition---Medical jurisprudence---Surrogacy---Repugnancy to Injunction ofIslam---Child produced through In Vitro Fertilization (IVF) procedure by usings***m of a third person---Where the husband was not in a position to produce achild or there was some problem in the s***m of the husband and the s***m wasobtained from a third person, in that case the child would belong to theperson, from whom the s***m had been obtained---Child would not belong to thehusband who had arranged the s***m from a third person---Even if the eggbelonged to the wife of the person who had arranged the s***m from a thirdperson, for all practical purposes the child would belong to the person fromwhom the s***m had been obtained---Such an arrangement would be illegal andagainst the injunction of Holy Qur'an and Sunnah---Shariat petition wasdisposed of accordingly.
(c) Constitution ofPakistan---
----Art. 203-D---Shariatpetition---Medical jurisprudence---Surrogacy---Repugnancy to Injunction ofIslam---Child produced through In Vitro Fertilization (IVF) procedure by usings***m of the husband, eggs of the wife, and placing the embryo in the womb ofthe wife---Where the s***m had been obtained from husband and the egg from thewife and the same had been fertilized in the test tube through medical processand the embryo was then placed in the womb of the wife, in that case the childwould belong to the actual husband and wife---Such process could not beconsidered as illegal or against the injunctions of Holy Qur'an andSunnah---Child in such a case by all means would be legal andlegitimate---Shariat petition was disposed of accordingly.
(d) Constitution ofPakistan---
----Art. 203-D---Shariatpetition---Medical jurisprudence---Surrogacy---Repugnancy to Injunction ofIslam---Producing a child through a surrogate mother [Per Riaz Ahmad Khan,C.J.]: Where a woman was arranged as a surrogate mother against a monetaryconsideration or some other reasons, the whole procedure as well as theresulting birth of the child would be illegal and against the Injunctions ofHoly Qur'an and Sunnah---Children born through surrogacy were not produced by acouple through the bond of Nikah---Object of producing children throughsurrogacy was to satisfy the desire of a woman who may not wish to marry a manor go through the pains of delivery or was infertile---Homosexual couples couldalso have such desires---Paternity and maternity of child would becomeirrelevant in case of surrogacy---Only if a baby was born throughmechanical/medical process where the s***m belonged to the husband and the eggto the wife and the child was born through the wife, in that case the procedurewould be legal and lawful---In all other cases surrogacy procedure would beunlawful and against the Injunctions of Holy Qur'an and Sunnah---His Lordshipobserved that surrogacy procedure was not only based on exploitation rather thewhole concept was illogical, cruel and absurd; that if a woman was asked tocarry a child for an unknown couple and then go through the pains of deliveryand deliver a child for another couple, it would be beyond human understandingthat the woman, who carried the child for nine months, would not developemotional feelings for the child to whom she gave birth; that in such a casethe woman became only a machine not having any feelings, emotions or love, andthat surrogacy also disturbed the settled principles of inheritance given bythe Holy Qur'an---[Per Allama Dr. Fida Muhammad Khan, J]---Use of a third partyin the process of pregnancy was prohibited, whether the subject was liquids***m or egg or embryo or a third party, and whether it was involved by way oflease or donation---Shariat petition was disposed of accordingly.
Holy Qur'an Surah Nisa Ayat 24; Surah Al-Baqarah AyatNo.223 and Islamic Fiqah Academy Jeddah established by the Organization of theIslamic Conference (OIC) i.e. ( ) in its meeting held in Mekka Mukarrma in 1985and another meeting held in Amman in 1986 ref.
(e) Contract Act (IX of1872)---
----S. 2---Penal Code (XLVof 1860), Preamble---Constitution of Pakistan, Art.203-D---Shariatpetition---Medical jurisprudence---Surrogacy---Repugnancy to Injunction ofIslam---Contract for producing a child through a surrogate mother---FederalShariat Court held that whole procedure of surrogacy as well as the resultingbirth of the child was illegal and against the Injunctions of Holy Qur'an, anddirected that suitable amendment should be made in S.2 of the Contract Act,1872 and it may be specifically provided that any agreement regarding surrogacywould not be enforceable by law as the same would contain unlawful proposalsand unlawful considerations; that the Penal Code, 1860 should also be amendedand suitable section of law be added regarding definition of surrogacy; thatsurrogacy should be declared as an offence punishable with imprisonment as wellas fine, that further amendment be made in the Penal Code, 1860 that the couplewho arranged a surrogate mother would be liable to punishment along withsurrogate and the doctor who carried on the surrogacy procedure; that the PenalCode, 1860 should provide punishable for the doctor who maintain a s***m bankor egg bank for future use, which should include imprisonment and fine, andthat it must also be provided that any doctor involved in the procedure ofsurrogacy should lose his license---Shariat petition was disposed ofaccordingly.
Petitioner in person.
Respondent in person.
M. Parvez Khan Tanoli Standing Counsel for FederalGovernment.
Syed Raza Abbas Naqvi, Asstt. Advocate General,Punjab for Government of Punjab.
Ahsan Hameed Dogar, on behalf of A.G. Sindh forGovernment of Sindh.
Arshad Ahmad Khan Asstt. Advocate General KPK forGovernment of Khyber Pakhtunkhwa.
Muhammad Ayaz Khan Swati, Addl. Advocate GeneralBalochistan for Government of Balochistan.
Dr. Muhammad Yousaf Farooqui and Dr. Muhammad AslamKhaki: Juris Consults.
Dates of hearing: 5th May, 21st September, 20thOctober, 17th November, 25th November, 2015; 12th January, 7th March, 19thApril, 4th October, 2016; 10th January, 1st February and 16th February, 2017.
JUDGMENT
RIAZ AHMAD KHAN, C.J.--Farooq Siddiqui son ofMuhammad Aslam Qureshi, petitioner herein, is a Pakistani born Americancitizen. According to his statement before the Court he is Doctor by professionand deals in surrogacy cases. Since his own wife was unable to give birth to achild so he gave an advertisement in the newspapers for a surrogate. Inresponse to the advertisement, the respondent Mst. Farzana Naheed offered herservices in exchange of money. According to the petitioner, Mst. Farzana Naheedwas paid Rs.25,000 for medical examination. After results of test she was foundfit for surrogacy procedure. She gave birth to a daughter namely FatimaSiddiqui. According to the petitioner, this surrogacy contract was oral butsince the whole procedure was to be carried out in Pakistan and there was everypossibility of reaction from the society and family of the respondent wife soin order to cover up the story a false drama of marriage was arranged. Aftergiving birth to the daughter, the respondent refused to hand over the baby tothe petitioner and refused to fulfill the contractual obligation.
2. On the other hand, the case of respondent is that the claimof the petitioner regarding surrogacy is totally false and fabricated. She waslawfully married to the petitioner and was and is his legally wedded wife. Outof the wedlock the daughter was born and the petitioner is bound to pay forexpenses regarding education and brought up of the minor daughter.
3. Since the respondent had refused to hand over the custody ofthe minor to the petitioner so the petitioner filed a petition for custody ofminor in the Court of Guardian Judge/Senior Civil Judge, Rawalpindi. The saidpetition was dismissed vide Order dated 24-12-2011. The petitioner failed toget the custody of the minor up to the Hon'ble Supreme Court of Pakistan.During these proceedings the petitioner filed a petition before this Court,which was also dismissed. On the other hand, decree for maintenance of minorwas passed in favour of wife of the petitioner. The petitioner then filed thepresent petition before this Court as according to him his claim regardingsurrogacy was not accepted and he was not handed over custody of the minor butwas ordered to pay for maintenance of the minor. His claim is that if he isaccepted as father of the minor then custody of the minor be handed over tohim. Since a very important question of surrogacy was involved and according tothe petitioner there was an oral agreement between him and the respondent so itwas decided that the issue of surrogacy vis-a-vis the contractual obligation isrequired to be examined and the petition was admitted on the followinggrounds:--
"The issues involved in the case are (i) as towhether the agreement executed between the parties for producing a child as asurrogate mother is in accordance with the Injunctions of Qua'an and Sunnah?(ii) if it is presumed that the agreement is lawful contract under the ContractAct, whether the same would also be in accordance with the Injunctions ofQur'an and Sunnah? (iii) In absence of any law if a child is produced by asurrogate mother under which law the custody of that minor is to be governed?(iv) any other question raised by the parties."
4. In response to issuance of Notices, the respondent as wellas Federal Government, Government of Balochistan, Government of Sindh,Government of Khyber Pakhtunkhwa and Government of Punjab filed their comments.Professor Dr. Muhammad Yousaf Farooqui and Dr. Muhammad Aslam Khaki wereappointed Jurist-Consults. They have also submitted their reports. SardarGhazanfar Khan, Advocate appeared on his own, and in order to assist the Court,filed his comments. The petitioner, in addition to his written reply, made oralsubmissions. We have also heard the Juris-Consults, Standing Counsel forFederal Government and the learned Counsel appearing on behalf of all the fourprovinces.
5. Surrogacy is a new way of producing children, however,originally it started with the concept of test tube baby. It is a naturalphenomenon that people usually want to have their own children and do not wishto adopt other children. People usually prefer the continuation of their ownlineage. It is because of this urge that the concept of test tube babydeveloped. In the normal set of circumstances a young woman produces an egg inmonthly menstrual cycle which is released from the o***y. This egg duringsexual in*******se is fertilized into an embryo after meeting with the s***mreleased by the male partner. The embryo through a particular process reachesthe uterus of the woman and in that way she gets pregnant in the normal course.
6. Unfortunately some women are incapable of fertilizing as***m and as a result to do not get pregnant. In such a case s***m is obtainedfrom the husband and egg from the wife which is fertilized in a test tube andthen it becomes an embryo. This embryo is placed in the womb of the wife and innatural process she produces child. The process of fertilization by manuallycombining an egg and s***m in a laboratory and then transferring the embryo tothe uterus is called In Vitro Fertilization.
7. Apart from the above said situation, there may be othersituations where either the husband may not be in a position to produce ahealthy s***m or the wife due to age or some other medical problems may not beable to maintain a pregnancy, all these cases can be summarized in thefollowing manner:--
(i) Male S***m fused with female egg by IVF method.
(a)
Donor s***m
Wife Egg
In wife womb
(b)
Husband s***m
Donor egg
In wife womb
(c)
Donor s***m
Donor egg
In wife womb
(ii)Male s***m fused with female eggs by IVF method
(a)
Husband s***m
Wife egg
In surrogate mother
(b)
Husband s***m
Donor egg
In surrogate mother
(c)
Donor s***m
Wife egg
In surrogate mother
(iii)Male s***m fused with female eggs single parents/couple.
(a)
Father s***m
Surrogate mother egg (artificial insemination)
In surrogate mother womb
(b)
Donor s***m
Mother egg
In surrogate mother womb
8. All the above said situation may result into the followingfour categories of cases;-
i) Thes***m does not belong to the father but the egg is obtained from the mother;
ii) Thes***m and the egg belong to actual married couple but the embryo is placed in thewomb of third lady who gives birth to child;
iii) Thes***m belongs to the father but the egg to the donor and the child is alsoproduced by the donor; and
iv) Neitherthe s***m belongs to the father nor the egg to the mother but the child isproduced by the donor for the couple;
All the above said cases are, in fact, the cases ofsurrogacy.
9. Surrogacy has been derived from a Latin word, which meansappointed to act in place of. It is a technique of assisted reproductionwherein a women bears and delivers child for other couples. In case, if a manis incapable of producing child and the s***m is obtained from the third personthat cannot be called a case of surrogacy for the simple reason that the childdoes not belong to the father. The issue arises when the woman is hired forcarrying child for a couple for some monetary or other consideration.
10. In all the above said processes the surrogate mother, who isarranged, is paid certain amounts for carrying out the child for nine monthsand then producing child for another woman. So far all practical purposes thesurrogate mother gives her womb on rent.
11. Due to advanced medical technology in some countries at onetime different eggs are obtained from the body of a woman and when one egg isused the remaining eggs are frozen and kept in bank so that those may be usedin future. The surrogate mother is compensated financially for going throughthe pains and agonies of producing a child. In advanced countries the surrogatemother is also protected through insurance so that if any untoward incidenthappens she may be compensated adequately and in addition to that medicalexpenses are also borne by the hiring couple.
12. The first case of such nature which came to light was of BabyM. In this case a woman by the name of Mary Beth Whitehead had agreed to becomea surrogate mother for a couple. As a result of child was born. In this cases***m was obtained from the husband and the egg from Mary Beth Whitehead. Afterbirth of a daughter Mary Beth Whitehead refused to hand over the child to thecouple and she declared that her own husband was the father of the child. Sheaccepted that she had entered into a contract of surrogacy with the couple andhad received the amount but she offered to pay back the money as during theperiod of pregnancy she had developed emotional attachment to the child. On herrefusal the couple went to the Court of New Jersey. In the trial Court the casewas decided against Mary Beth Whitehead but in appeal the judgment wasreversed. She was declared as real mother and the hiring couple were given thevisitation rights. The child was handed over to Mary Beth Whitehead. Since itwas a first case, so became talk of the town not only in United States butstruck the headlines of the newspapers the world over. Afterwards the lady MaryBeth Whitehead also wrote a book titled "A Mother's Story". This casefollowed by certain other cases which became quite famous and necessitatedproper legislation. In every country it was realized that there should be somelaw regarding surrogacy but it was not an easy task. In a similar case a ladyby the name of Crystal of USA entered into an agreement of surrogacy with acouple. She was paid $22000 and an embryo was placed in her womb. Unfortunatelybefore birth of the child it was found that the upcoming child had certaindeformities. The couple asked her for abortion but she refused and gave birthto a deformed child. This case was reported in daily Mail dated 24th August,2015.
13. In U.K. a gay couple had entered into an agreement with awoman who had agreed to become a surrogate mother for gay couple, whose s***mwas used for producing a child. After the birth of the child the surrogatemother refused to hand over the custody of the child to gay couple. The case,however, was decided in favour of the gay couple. The case was also reported inDaily Mail, 24th August, 2015. The references of different cases have beengiven to show complexity of the issue and the background which requireslegislation on the subject in different countries. In United States every Statehas got its own law regarding surrogacy, however, generally surrogacy is notprohibited and almost daily in the newspapers there are some advertisementsregarding the need of surrogate mother. In U.K. surrogacy agreements arelegally binding in the Court, even without a formal written contract. However,the custody of the child is decided by the Family Courts keeping in view thebest interest of the minor. In Canada there are two types of laws. In one partof the country surrogacy is partly allowed but in other part that is Quebecsurrogacy agreements are not recognized and the mother who gives birth to a childis considered as a legal mother of the child. In Finland also surrogacyagreements are illegal. The same is the case with France, Georgia, Hong Kong,Hungary, Iceland, Italy and Japan where even the doctors, agents and theirclients are to be punished for arranging commercial surrogacy.
14. The above stated situation has created serious problems forthe poor developing countries. In most of the developed countries surrogacy iseither not permitted or illegal or extremely expensive. As a result most of thedeveloped countries have turned towards the poor undeveloped countries, wherepoverty is order of the day, are on high risk of becoming markets forsurrogacy. We should, therefore, make arrangements before it is too late.
15. In the present case, the petitioner had approached therespondent lady for producing a child. According to him, she had agreed toproduce a child for him. The embryo was created with his s***m and the egg ofthe lady whereas no sexual in*******se had taken place. This assertion has beenstrongly denied by the respondent lady as according to her a proper marriagehad taken place. The contention of the petitioner is that the marriage was, infact, only arranged for face saving but no actual marriage had taken place. Itwas, however, contended by the petitioner that the contract was oral and he hadpaid certain amounts to the lady respondent. Without stepping into the factualcontroversy the fact remains that there is dire need of legislation in respectof surrogacy in Pakistan. At present if there is some contract regardingsurrogacy that would be scrutinized at the touchstone of Contract Act. So themain question would be as to whether the contract regarding surrogacy would bea valid contract and whether surrogacy by itself is in accordance with theInjunctions of Holy Quran and Sunnah or not.
16. In the first category of cases where the father is not in aposition to produce a child or there is some problem in the s***m of the fatherand the s***m is obtained from a third person, in that case the child wouldbelong to the person from whom the s***m has been obtained. The child would notbelong to the person who had arranged the s***m from a third person. Even ifthe egg belongs to the wife of the person who has arranged the s***m from athird person, for all practical purposes the child would belong to the motherwhose egg has been used and the person from whom the s***m has been obtained.In such a case the whole arrangement would be illegal and against theInjunctions of Holy Qur'an and Sunnah.
17. In the second category of cases where the s***m has beenobtained from the father and the egg from the mother and the same has beenfertilized in the test tube through medical process and the embryo is thenplaced in the womb of the actual mother in that case the child would belong tothe actual mother and father. This process cannot be considered as illegal oragainst the Injunctions of Holy Qur'an and Sunnah. The reason is that the s***mand the egg actually belong to the actual father and mother. If the coupleagrees to go through the prescribed medical procedure then in that case legallyno question can be raised in respect of the birth of the child. The child insuch a case by all means would be legal and legitimate.
18. In all other cases where a woman is arranged as a surrogatemother against the monetary consideration or some other reasons. The wholeprocedure as well as the resulting birth of the child would be illegal andagainst the Injunctions of Holy Qur'an and Sunnah.
19. Before coming to the Qura'nic concept, it cannot be ignoredthat surrogacy procedure is not only based on exploitation rather the wholeconcept is illogical, cruel and absurd. If a woman is asked to carry a childfor an unknown couple and then go through the pains of delivery and deliver achild for another couple, it would be beyond human understanding that thewoman, who carries the child for nine months, would not develop emotionalfeelings for the child to whom she gives birth. In such a case the woman becomesonly a machine not having any feelings, emotions or love. Converting humanbeings into feeling-less machines is the worst sort of cruelty that anybody canthink of. The question is that whether the feelings of love, the pains ofmaintaining a child in womb and then delivery of child can be weighed in termsof money. This exploitation becomes worst when it is seen that people in thedeveloped countries come to third world countries like India, Pakistan andThailand where the rates are cheap, no medical protection is provided and otherrelated facilities are also not available. If this process is allowed, it wouldbe a new exploitation of the poor third world countries by the developedEuropean as well as American countries.
20. The surrogacy procedure also involves another horrible aspectthat is when a deformed baby is born, usually the couple, who has hired a womanto become a surrogate mother, do not develop love for the coming baby and whena deformed baby is born the hired couple usually do not own the baby. In mostcases the woman who delivers the baby would not go for abortion, particularly,if the woman is a religious one she would hardly agree for abortion and thatwould create a new problem. If we put it in an ordinary example, it would meanas if a couple hires a taxicab and on the way something goes wrong with thetaxicab the couple would leave the taxicab and hire another one. In a similarway the surrogate mother is useful as long as she delivers a baby. If she failsto deliver a health baby the hired couple would leave her to her own fate.
21. We have already seen that in one case a gay couple wanted tohave a child and the s***m of the gay partner was kept in the womb of a girlwho afterwards refused to hand over the child to the gay couple. Now it is tobe seen as to whether the gay couple would be in a position to bring up a childand make him a useful member of the society. The situation would become morehorrible if the s***m of a male is placed in the womb of near relative likesister mother etc. although such like cases have been reported in the press.
22. There is one more horrible aspect of surrogacy and that isrelationship of the real children of surrogate mother vis- -vis the child towhom she gives birth as surrogate mother for another couple. Obviously suchlike situation may create unimaginable problems in future for the children aswell. Particularly in Islamic countries surrogacy would disturb the settledShari shares of heirs as settled by the Holy Qur'an. It would destroy the principlesof inheritance given by the Holy Qur'an. Keeping in view all these facts itbecomes clear that surrogacy even on the scale of human wisdom, is somethingwhich is aimed at the destruction of a healthy human society.
23. This fact cannot be ignored that in all societies,irrespective of religious background, certain values of good or bad aremaintained as human values which are universal. Nevertheless, human values stemout of divine law as human mind is not capable of developing universal valuesgood for all times to come. There is no doubt that certain derived principlesand practices are different in different societies but the basic values remainthe same. The basic aim and object of these universal values is that man shouldbehave like a human being by distinguishing himself from animals and develop ahealthy and peaceful society. Nobody can even think of a healthy society if hedestroys the family unit as family by itself is the basic brick on which thestructure of society is built. Surrogacy, in fact, is an axe which breaks thebasic unit of society, that is the family.
24. Family is, in fact, the first institution where new born childgets natural love, affection and care. For the proper brought up of a childreal family bonds are a prerequisite. When a child is given birth by asurrogate mother and handed over to a third party, the third party can neversubstitute the mother who has given birth to a child. This, in fact, is a fightwith nature and man can never succeed in a tussle against nature. Family unitand every society is recognized and distinguished by the values it maintains.Surrogacy, in fact, destroys a healthy society.
25. It may be mentioned that the Qura'nic Concept on family andreproduction of children is quite simple and straight forward. Placing certainrestrictions regarding marriage, the Holy Qur'an has given detailedInjunctions. Prohibiting the marriage contract between those who fall into theprohibited degrees and adding a few other conditions like that of dower,presence of witnesses, maintenance etc., Islam has allowed Muslims - a man anda woman - to enter into a bond of marriage through valid Nikah and reproducechildren. According to the Injunctions contained in the Holy Qur'an and Sunnahof the Holy Prophet, no other way is provided for reproduction of children. Anyefforts made to reproduce children through other means would be against theInjunctions of Qur'an and Sunnah, as highlighted in the subsequent paras.
26. Holy Qur'an says in Surah Nisa Ayat 24:--
But it is lawful for you to seek out all women exceptthese, offering them your wealth and the protection of wedlock rather thanusing them for the unfettered satisfaction of lust.
27. Here Allah Almighty explains in clear words as to how and withwhom a man can tie the knot of marriage but the overall instructions of theHoly Qur'an are that man and woman can establish marital obligations only inthe case of Nikah provided the same is not forbidden as provided in the HolyQur'an.
28. The Holy Qur'an further says in Surah Al-Muminun Ayaat 5 to7:--
Who strictly guard their private parts save from theirwives, or those whom their right hands possess, for with regard to them theyare free from blame - As for those who seek beyond that, they aretransgressors--
In other words Qur'anpermits the sexual relations between man and woman within the bond of Nikah andnot otherwise.
29. The object of Nikah and sexusal relations is reproduction ofchildren. Qur'an says in Surah Al-Baqarah Ayat No.223:--
Your wives are your tilth; go, then, into your tilth asyou wish but take heed of your ultimate future and avoid incurring the wrath ofAllah. Know well that one Day you shall face Him. Announce good tidings to thebelievers.
30. In such a way women have been symbolized as agriculturalfields and obviously a person enters an agricultural field for the purpose ofreproduction so the object of sexual relations is reproduction of children butit has to be within the bond of Nikah and not otherwise. The purpose of Nikahis to determine the paternity and maternity of the child and in such a waydevelop and maintain a health society.
31. In surrogacy children are not produced by a couple th roughthe bond of Nikah. The object of producing children through surrogacy is tosatisfy the desire of a woman who may not wish to marry a man or go through thepains of delivery or is infertile. This desire may even be of a gay couple. Thepaternity and maternity of child would become irrelevant. As such the wholeconcept of surrogacy, as is generally in vogue in many countries, is againstthe Injunctions of Qur'an and Sunnah. Innumerable problems, which the societywould face, cannot even be imagined.
32. In the above said circumstances, we hold that if a baby isborn through mechanical/medical process where the s***m belongs to the actualfather and the egg to the actual mother and the child is born by the actualmother, in that case the procedure would be legal and lawful. In all othercases surrogacy procedure would be unlawful and against the Injunctions of HolyQur'an and Sunnah.
33. In Pakistan such an agreement, oral or written, wouldordinarily be governed by the Contract Act, so suitable amendment be made insection 2 of the Contract Act, 1872 and it may be specifically provided thatany agreement regarding surrogacy would not be enforceable by law as the samewould contain unlawful proposals and unlawful considerations.
34. Pakistan Penal Code be also amended and suitable section oflaw be added regarding definition of surrogacy. The same be declared as anoffence punishable with imprisonment as well as fine. Further amendment be madein the Pakistan Penal Code that the couple who arranges a surrogate motherwould be liable to punishment along with surrogate and the doctor who carrieson the surrogacy procedure. Another amendment be made in Pakistan Penal Code toprovide punishment of the doctor who maintains the s***m bank or egg bank forusing in future, which should include imprisonment and fine. It must also beprovided that any doctor involved in the procedure of surrogacy shall loose hislicense.
35. As far as the case of the petitioner is concerned, we wouldrestrain from passing any comments on that as under Article 203-D of theConstitution of Islamic Republic of Pakistan, this Court cannot provide anypersonal relief. His case has already been decided by the Civil Courts and wecannot interfere in the findings of those Courts.
36. In above terms, the Shariat Petition stands disposed of. Theoffice is directed to send copies of this judgment to the Federal Government,Chief Secretaries and Secretaries of Home Department of all the ProvincialGovernments for necessary compliance.
37. The required amendments be made latest by 15th August, 2017.
(Sd.)
Riaz Ahmad, Khan, C.J.
(Sd.)
Allama Dr. Fida Muhammad Khan,J
(Sd.)
Zahoor Ahmed Shahwani, J
ALLAMA DR. FIDA MUHAMMAD KHAN, J.-I have the privilegeof going through the judgment proposed to be delivered by the Hon'ble ChiefJustice regarding surrogacy which has been elaborately defined and explained ingreat detail. I fully agree and concur with the same.
I would however, like to add that the issue in questionis very sensitive and complicated and entails several practical legal issuesregarding the Muslim Personal Law, particularly, like matters pertaining toinheritance, prohibited degrees for the purpose of inter se marriage andprivacy etc.
I may also mention that this issue had been considered bythe Islamic Fiqah Academy Jedda which has been established by the Organizationof the Islamic Conference (OIC) i.e.. It is the world's highest Islamic forumfor resolving various modern issues, arising from time to time, in the light ofIslamic Injunctions. The said Academy in its meeting held in Makka Mukarrma in1985 as well as in its another meeting held in Amman in 1986, passed thefollowing resolution in respect of surrogacy:
"All the five types are strictly prohibited inIslam because it corrupts lineages and results loss of maternity and othershar'i prohibition".
"The use of a third party in the process ofpregnancy is prohibited, whether the subject was liquid s***m or egg or embryoand the third party, whether involved by way of lease or donation."
The Islamic Research Academy in Cario also adopted theopinion of the Academy in 2001.
The opinion of the majority of the contemporary scholarsalso supported the same. The most prominent scholars having this opinion are:
Dr. Jad al-Haq; the Ex-Grand M***i of Al-Azhar.
Dr. Sheikh Syed Wafa: Secretary General of theIslamic Research Academy in Cairo.
Dr. Ali Juma, M***i of Egypt.
Dr. Mohammad Sayed Tantawi: The Ex-Vice Chancellor ofAl-Azhar.
Dr. Yusuf al-Qadradawi: Professor of Jurisprudence at theUniversity of Qatar.
Dr. Mustafa Zarqa: a Member of the Islamic Fiqa Academy.
Dr. Mohammad Rafat Othman: Dean of the Faculty ofSharia at Al-Azhar University and a Member of the Islamic Research Academy.
Dr. Ahmed bin 'Abdul' Aziz Al-Haddad: grand M***i,Department of Awqaf and Islamic Affairs in Dubai.
Dr. 'Abla Kahlawi' Professor of jurisprudence at Al-AzharUniversity.
Dr. Souad Saleh: Dean Faculty of Islamic Studies atAl-Azhar University and others.
(Sd.)
Allama Dr. Fida Muhammad Khan,J
MWA/4/FSC Order accordingly
