Would surrogacy ever be accepted in Pakistan?

Published: November 14, 2014
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Surrogacy is considered illegal in Pakistan since it is done with someone who a person is not bound by law in matrimony.

Divorce in Pakistan has become a common occurrence in Pakistan. There are various reasons why couples are inclined to go down that path – sometimes it’s the couple’s inability to understand one another, other times it is because of issues related to dowry; and in some cases, it is because the woman is unable to bear a child, for which the husband divorces his wife and marries someone else, someone more fertile.

Personally, I felt that last reason was a completely baseless one to leave someone. If a couple, for some reason, cannot conceive, adoption is always an exceedingly viable option. Whilst discussing the issue with a friend of mine, he retorted,

“But it won’t be their child. The father would want the child to be his own, who has his blood.”

This thought bothered me and I decided to do a little bit of research to see what could be done to prevent such kind of divorces. After much deliberation, I stumbled upon a rather unconventional idea – an idea that is almost taboo in our society – surrogacy.

Surrogacy is the practice by which a woman (surrogate mother) becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children. And when I learnt of surrogacy, I did not see why this couldn’t be used to save a woman from a divorce. I don’t understand why she should suffer for something that is not in her hands.

Little did I know just how taboo this concept was in Pakistan.

For Pakistan, surrogacy is not an alien term. We have come across multiple cases regarding the practise. However, it is important to understand surrogacy with three different perspectives. The first being Pakistan’s weak legal structure and law and order situation; the second being Pakistan’s claims to being an Islamic state and adhering to Islamic principles; and third being Pakistan’s lack of advancement in medical sciences. In order for surrogacy to work, the parents should first be able to accept a surrogate mother as righteous and secondly, they should be well protected by the law in case things go wrong. That is why the consideration of the first two perspectives is essential.

An example of why a strong legal structure is needed for surrogacy to survive in Pakistan is the case of Farooq Siddiqui and his wife Yasmin versus Farzana Naheed, Pakistan’s first court-decided case. In the mentioned couple’s case, the contract was not followed correctly and the custody of the child went to the surrogate mother. The parents, who chose the surrogate mother, were not protected by any law.

I believe that while the option of surrogacy seems quite simple, its implementation is not. Just to clarify the concept of surrogacy further, it is when a woman allows another woman to carry her husband’s child. The process often involves In Vitro Fertilisation (IVF) where the wife’s eggs are fertilised and are injected in another woman, along with the husband’s sperm. So, while the pregnancy is essentially the product of the intended parents, the body used to conceive the child is that of a surrogate mother.

But the case mentioned above shows that, despite the parents having invested themselves so fully in the pregnancy, the court still sided with the surrogate mother. The lack of protection for the parents shows that Pakistan’s legal system has still not developed any concrete methods of protecting both the parties involved; this, in my opinion, is due to the lack of awareness surrounding such a practise in Pakistan. Here, the surrogate mother is still given precedence over the biological mother.

The other aspect that has kept this practise in the wraps is its unclear status in religion; the common question that arises is: does Islam even allow surrogacy?

Many people believe that religious extremists would be inclined to label such a practise as adultery, in which case the practise in itself would become completely un-Islamic. If we take a look at verse 58:2 from Surah al-Mujadalah, we come across the notion that a mother is the only one who conceives a child and gives birth to one. But then again, the question remains, is the mother the woman who donates the eggs or the woman who conceives and gives birth to the child? Therefore, when it comes to religion, a lot of questions need to be dealt with carefully in order for surrogacy to work in an Islamic state such as ours. But these concerns need to be dealt and not just be swept under a rug, leaving thousands of women to suffer at the hands of divorce for something that’s out of their control.

In light of that, I decided to speak to doctors and religious scholars to deliberate upon whether this was a viable option, medically and religiously, or not. In terms of Pakistan’s lack of advancement in medical sciences, I spoke to Dr Sitwat Rizwan, a former doctor at Liaquat National Hospital. According to her,

“It is considered un-Islamic. Therefore, it doesn’t stand a chance here.”

She also explained how, even if someone does think of undergoing surrogacy, they will be unable to opt for it as it is not practised in Pakistan. It is considered illegal here because the surrogate mother is not bound by law in matrimony to the man whose sperm is being used. Unlike abortion, which is also considered illegal and yet many people opt for it, one cannot conceal the effects of surrogacy; a woman is bound to show signs of pregnancy at some point whereas an abortion can be concealed. The surrogate mother has to be kept under the doctor’s observation and it becomes hard for any couple to successfully attempt this without sparking curiosity. That is why there haven’t been many cases for surrogacy in Pakistan.

While the idea of surrogacy is uncommon in Pakistan, other countries have openly embraced it, so much so that it has now become somewhat a norm; a prime example of this is the United States. According to Dr Rizwan,

“Surrogacy in America isn’t treated the same way it is in Pakistan. It’s openly practiced in America.”

We have heard of many cases regarding famous American celebrities opting for this option with the likes of Sarah Jessica Parker and Matthew Broderick, Ricky Martin, Nicole Kidman and Keith Urban, and Neil Patrick Harris and David Bertha.

As a woman, I see the option of surrogacy as a viable one. But as a Muslim, I am forced to think otherwise. According to a Sufi Scholar, Dr Qazi Burhanuddin Ahmed Saeedi,

“There is no space for surrogacy in Islam. It is simply forbidden. If you say that the divorce rate is increasing because of this, the man can marry twice, instead of divorcing the woman and this is acceptable in Islam. No need for surrogacy at all. This topic is such a taboo that many (scholars) avoid talking about it until it’s absolutely necessary.”

For him, surrogacy is a big ‘no’ in Islam. However, still undeterred, I decided to get the views of people around me, just to see what they thought of this practise. The first person I spoke to was my maid who belongs to a village in Rahimyar Khan, Punjab. She told me that in her village, if a girl is unable to give birth, she is treated for it first. I asked her what kind of ‘treatment’ was given to which she said that the woman is given a taveez (talisman) with Quranic verses written on it, which she has to wear or keep on her person at all times so she may become better. But, with this, she also said that the girl is put through a lot of ridicule for not being ‘normal’ or ‘blessed’. The husband, having seen all this, is then forced to protect his ‘honour’ and marry another woman who can conceive; he gets to keep both wives.

While discussing surrogacy with married couples, those who had children of their own as well as those who didn’t, I asked if they would ever consider surrogacy as an option. After talking to several couples, I got two main responses – they might adopt and if not, then they would be content with what they have. For the latter, the reason they gave was that if God didn’t want them to have children then it must be for their own betterment.

One can deduce from these different perspectives that even if surrogacy, by some miracle, becomes acceptable and accessible in Pakistan, the religion-oriented strata of this country will never completely accept it. But seeing how the divorce rates and domestic violence cases are increasing day by day, due to a woman’s inability to conceive, it is important that we think of alternate ways to help keep the institution of marriage safe and whole in our society.

I am not endorsing surrogacy, but I do not believe it is fair to berate a woman for something she has no control over and then divorce her. A woman is not a baby-making machine and calling off a marriage contract based on infertility should not be permitted under any circumstance – and if that cannot be done, then it is time to explore other options that can safeguard the constitution of marriage and the rights of a woman.

Tuba Hassan

Tuba Hassan

She is a History major at the University of Karachi, who is specializing in contemporary history and is mainly interested in the study of culture and gender.

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.