Every married couple wants to have children. However, some couples cannot be parents. The statu of nonoccurrence or discontinuity of pregnancy for one year despite the fact that couples in reproductive age want to have a baby is called medically infertility. The absence of their children deeply affects the couples and their families. Because having children does not only provide the continuation of the generation but also has a vital meaning with its sociological, psychological, spiritual and moral dimensions. For this reason, childless couples mobilize all opportunities to have baby. With the help of assisted reproductive methods, many of these couples can have one.
The first successful in vitro fertilization study was carried out in 1976 and it has made a great progress since then. This issue has been evaluated in many meetings and studies in terms of Islamic law since it has been a long time since application of IVF. However, the first successful fresh ovarian transplantation was performed in 2005 and the first successful uterus (uterus) transplantation was performed in 2011. For this, transplantation of reproductive organs is yet a new issue.
The general principle on the transplantation of reproductive organs has been determined at the sixth session of the 5th Jurisprudence Council and the Islamic Fiqh Academy on 14-20 March 1990 in Jeddah. According to these decisions, it is not permissible to transplant genetically engineered reproductive organs; as regards transplantation of those who do not have genetic characteristics, it is permissible on condition of providing general stipulations for organ transplantation. By evaluating the transplantation of female reproductive organs in accordance with this general principle, the following conclusions can be drawn:
a) Women with clogged of fallopian tube or have no tube may have a baby via IVF. For this reason, a fallopian tube transplant is not necessary for such women to become mother. As a matter of fact, one of the legitimacy conditions for organ transplantation in fiqh is that there is no other cure to save the patient’s life or a vital part. On the other hand, there are risks in terms of both donor and recipient in the surgery for tube transplantation. Accordingly, transplantation of fallopian tubes is not permissible.
b) In order to have a child, one of the methods of treatment for the women who does not have any ovaries, or who are infertile due to reasons such as cancer and premature menopause, is to transplant ovarian / ovarian tissue. This can take place of either the form of transferring frozen and stored ovarian tissue belonging to her (autotransplantation), or transplanting the the tissue from another woman.
In the ototranplantation of ovarian / ovarian tissue, the generation decay (lineage confusion) does not occur since the transplanted tissue belongs to the woman itself, Therefore it can be said that it is permissible. However, transplantation of ovarian / ovarian tissue is not permissible as it causes lineage confusion with the genetic characteristics of the female. This is so because, from adolescence to menopausal period, the matured egg cells which are taken into the fallopian tubes come from the congenital ovaries. For this purpose, when the ovary tissue is transplanted from one woman to another, the eggs are also transplanted. As a result, the person has a child who does not belong to his spouse.
It can be suggested here the transfer of the ovary tissue taken from one of the spouses, to the other one, as in the surrogate motherhood, But it is always possible for the husband to die or to leave his wife who has undergone an ovarian transplant. In this case, the egg cells in the ovaries belong to the the previous wife. If she later gets married and becomes pregnant by her new husband, she will be able to become pregnant with her new husband’s sperm and, egg of her former husband’s wife. This is haram, because it causes the the generation decay. Therefore, it is not permissible to transfer the ovarian tissue from one of the spouses to the other.
Although transplantation of the ovarian tissue of someone else is not permissible, if it is to be done some legal consequences arise on the child’s sub-lineage and marriage relationship. In Islamic law, the child’s mother is the woman who brought her to the world, and she cannot refuse the child. As a matter of fact, in the Qur’an, “Their mothers are only women who give birth them”. The child’s father is the person who has intercourse with the woman on the basis of a legal marriage, a corrupt (fasid) marriage or a suspicious marriage. Because the Prophet (p.u.h.) said, “The child belongs to the person who is legitimate to be with his mother; for the adulterer there is deprivation.” According to this, the birth of the child born after ovarian transplantation, the mother and the wife that gives birth to be fixed. However, since the original owner of the egg is the woman from whom the ovary received, a marriage barrier occurs with the child.
c) Although ovarian functions are adequate, the women who cannot have children due to uterine factor infertility can have children by uterine transplantation. In uterine transplantation, the transplanted organ do not carry the genetic characteristics of the donor to the child. Because of this, it is permissible to transfer the uterus from the dead or menopausal women to ones with infertility with uterine factor, with the permission of themselves or their parents. To be kinship of the donor with the receiving woman or her husband does not affect the provision.
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