ISLAMABAD: A Pakistani-American Farooq Siddiqui, a clinical technologist based in New York, last month, lost all legal battles in the country to win the custody of his 10-year-old (surrogate) daughter.

Despite unfailing efforts on part of Siddiqui to pursue the case from the local to top Islamic court – Federal Shariah Court (FSC) – of the country, a large bench of the FSC declared surrogacy against the injunctions of Islam. The court further directed the government to bring down strict punishments against the parents and doctors involved in this business in the country.

Siddiqui, whose wife was unable to conceive due to medical reasons, had come to Rawalpindi, Pakistan in 2004 to find a surrogate mother and offered huge sum of money, according to court documents. In Pakistan, he gave advertisement in local press and got consent of a poor woman Farzana Naheed in Rawalpindi to become a surrogate mother. However, following the birth of the girl-child Fatima, differences arose and both parties entered legal battles claiming the custody of the child.

The FSC, however, made it clear that any other condition for obtaining a child through surrogacy would be considered un-Islamic.

“If a baby is born through mechanical/medical process where the sperm belongs to the actual father and the egg to the actual mother and child is born by the actual mother, in that case the procedure would be legal and lawful. In all other cases surrogacy procedure would be unlawful and against Islam injunctions (Quran and Sunnah),” the judgment highlighted.

Moreover, the judgment stressed the need for amendment in the Pakistan Penal Code regarding the definition of surrogacy and it’s other procedure. It demanded that punitive measures such as fines and or incarceration should be enforced for participating in all types of surrogacy. “The parents who arrange a surrogate mother, surrogate mother, and doctors involved in this process would be liable for punishment along with the person(s) arranging that and do…,” stated the verdict.

The court heeded the government to take strict actions against the doctors setting up sperm/egg banks and carrying out this procedure. “It must also be provided that any doctor involved in surrogacy procedure would lose its license,” said the court, adding, “… becoming a surrogate mother is just like renting out a womb and later forgetting the fruit of pains she bore for money or pleasure of other family which is against nature.”

Dr Khalid Masud, a former chairman of Pakistan’s Council of Islamic Ideology believes that the artificial means of conceiving and surrogacy, except when the procedure involves original mother’s egg and father’s sperm, raises serious legal questions. “It is forbidden in Islam because it complicates the issue of paternity, maternity and inheritance,” he said, adding, “In such cases, if the child is not possible with original parents, there are options of adoption and permission of second Nikah in Islam.”

Masud noted that the aforementioned father would not have adopted this way of surrogacy because such provisions are misused in the society. He emphasised the only model of making a child in Islam is through Nikah because even in adoptions the question of paternity and inheritance remains unsolved.

According to court documents, Siddiquie claimed that he paid Farzana at least one million rupees for this service. Later, he also prepared a factious Nikahnama for his claim on the daughter as well. He, in all, gave $30,000 under the surrogacy agreement and for the possession of the baby.

As the dispute ensued, Siddiqui geared up for a legal battle. In 2005, a local court handed over the two-week old baby to the surrogate mother, Farzana. In 2012, four years after Siddqiui lost his case in the local court, the provincial high court also favoured the Farzana. In 2015, the Council of Islamic Ideology (CII) declared the act of renting the womb un-Islamic.

“It is a complicated issue. In Islam it is not allowed. And In Pakistan, there is no particular law about it too,” Anees Jilani, advocate and human rights activist said. He said in the west, surrogacy is treated as a contract but here we have issues of paternity and maternity. He viewed that adoption is also a way where childless parents can bring up a child as guardian.

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