Journal Information Journal ID (publisher-id): JRI Journal ID (pmc): JRI Journal ID (nlm-ta): Journal of Reproduction and Infertility ISSN: 2228-5482 ISSN: 2251-676X Publisher: Avicenna Research Institute |
Article Information Copyright© 2015, Avicenna Research Institute. License: This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 Unported License which allows users to read, copy, distribute and make derivative works for non-commercial purposes from the material, as long as the author of the original work is cited properly. ReceivedDay: 17Month: 10Year: 2014 AcceptedDay: 3Month: 3Year: 2015 Print publication date: Season: Jul-SepYear: 2015 Volume: 16Issue: 3 First Page: 130Last Page: 137 Publisher Id: jri-16-130 |
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Embryo Donation in Iranian Legal System: A Critical Review | |
ZohrehBehjati-Ardakani1 | |
Mohammad TaghiKaroubi2 | |
AlirezaMilanifar1 | |
RoudabehMasrouri1 | |
Mohammad MehdiAkhondi1* | |
1-Reproductive Biotechnology Research Centre, Avicenna Research Institute, ACECR, Tehran, Iran |
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2-Department of law, Science and Culture University, Tehran, Iran |
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*Corresponding Author: Mohammad Mehdi Akhondi, Reproductive Biotechnology Research Centre, Avicenna Research Institute, ACECR, Iran, P.O box: 19615-1177, Postal code: 1936773493, E-mail:akhondi@avicenna.ac.ir |
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Abstract |
Recent developments and newly-discovered methods for infertility treatment including in vitro fertilization and third party reproduction raise many questions and challenges with different ethical, legal, sociological and psychological dimensions. In Islamic countries, despite great developments in using this technology, the questions concerned with recognition of IVF methods and third party reproduction and legalization of this method are still the challenging ones. The approach of a few Shiite clerics to this issue has facilitated the legalisation of infertility treatment in Iran. The Iranian Parliament, with reference to Shiite clerics' opinions (Fatwa), enacted the Act concerning Embryo Donation to Infertile Couples and its bylaw which can be considered as a successful example of legalization of third party reproduction in an Islamic country. The aforementioned Act permits embryo donation through artificial insemination from legally married couples to infertile couples. However, many of the legal aspects of this event are not specified in this Act and in many cases it added several uncertainties. This uncertainty, especially regarding the rights and duties of recipients and the child, causes important problems which generate more concerns. This article aimed to review the advantages and flaws of the Act. It is believed that the enactment of the aforementioned Act is an important step but an insufficient measure in this field. Important issues have been left unanswered and unclear in this Act which should be considered by legislators in any future revision of it. |
Scientific advances in the field of reproductive medicine over the past few decades have led to new method of infertility treatment including third party reproduction which provided new opportunities for infertile couples. However, the application of these methods has raised issues and questions which require the intervention of legislators for addressing them and consequently the relationship between the relevant parties should be redefined.
Third party reproduction through IVF can be used when one or both of the spouses is/are incapable of conceiving with their own embryo as a result of problems such as the lack of or defect in the sperm, oocytes or embryo, or having a genetically transmitted disease (1, 2).
Sperm donation has been used for the treatment of male infertility for a century. However, egg donation for female infertility treatment was only employed after the invention of IVF (3). Embryo donation is also another, more recent, method of infertility treatment whereby IVF can be carried out using the embryo of third persons under special circumstances. This method involves controlled ovarian stimulation in female donor, harvesting the oocytes at appropriate time and fertilizing them with the sperm of a third party in an embryology lab. In this method, after the reproductive phase and at most 3 days after fertilization the embryo will be transferred to the infertile woman's uterus. It is very rare to find a couple who have all of the disorders mentioned above; therefore, in most cases, the donation of one of the gametes would be enough to treat the couple (4).
Despite the undeniable benefits resulted from recent medical developments in treatment of infertility (such as IVF and third party reproduction), there remains several questions and challenges toward different moral, ethical, sociological and psychological dimensions which demand multidisciplinary studies and research (5). That is the reason why the countries which use a variety of fertilization methods have imposed various legal limitations on third party reproduction (6, 7). The use of IVF technology in Iran, an Islamic country which follows Shiite rules, dates back to 1988.
According to Article 4 of the Iranian Constitution, all laws and regulations must be consistent with Islamic principles. The Guardian Council supervises this conformity. The sources of Islamic law are as follows:
The Qur'an, the principal source of Islamic law, is believed by Muslims to be the absolute and final word revealed by God to Prophet Mohammad. It is therefore immutable and considered to be the first and most important source of legislation (8). To Muslim, it is the backbone of the fiqh, Islamic jurisprudence, the ultimate reference, and the whole of Sharia. Muslims treat the Qur'an not only as a source of law, but also as the main director of human life and any human rights regime must conform to those rights and duties, privileges and obligations enjoined upon believers in the Qur'anic verses (9). A second source of Islamic law is Sunna, which in Arabic means “way” or “custom”. Sunna is defined by Sunni Muslims as the deeds, sayings and approvals of the Prophet Mohammad, while in the belief of Shi'a Muslims, Sunna means the deeds, sayings and approvals of Prophet Mohammad and his descendants (the twelve Imams) who were chosen by God to succeed the Prophet and to lead mankind in every aspect of life (10). To both schools of thought, Sunna as a second source of Islamic law consists of the Prophet's sayings and deeds during his lifetime and his tacit approvals on different issues, both spiritual and temporal (11). Apart from the Qur'an and Sunna as primary sources of Islamic law, there are other juristic techniques such as Ijma- juristic consensus, Qiyas- analogical reasoning and Aql- human reason which are accepted as its secondary sources by both schools of thought.
When new questions arise that are needed to be answered from the Islamic point of view, Faqih (Islamic scholar) infer the answer from the sources mentioned above and gives his Fatwa (religious decree). Due to the importance and sensitivity of using third party reproduction techniques, Shiite clerics issued their Fatwa for the application of this innovative technology and provided the ground for enactment of new law in the field. Based on Shiite clerics' Fatwa, embryo donation as one of the methods of third party reproduction is only legitimate when the embryo is formed by the sperm and egg of a legally married couple (12). Therefore, through extensive studies in the field in terms of scientific, ethical and legal aspects and obtaining the Fatwa of Shiite clerics, the “Act concerning Embryo Donation to Infertile Couples” (hereinafter the Act 2005) was enacted by Iranian Parliament (13). This Act, containing five Articles and its bylaw which comprises ten Articles was drafted jointly by the Iranian Ministry of Health and Medical Education and the Ministry of Justice and passed by the Council of Ministers on 9 March 2005 (14).
Shiite clerics have different Fatwas about gamete donation. Many clerics consider fertilization as illegal if the sperm or egg is provided by an unmarried couple (15–17). Others believe that there is not any prohibition for use of this method in Islamic law and it is not considered as adultery; hence, they permit it (18–20). Unlike embryo donation, Iranian law is silent on gamete donation and no provision indicating prohibition or permission of this method exists in Iranian legal system.
Gamete donation is already done in some infertility clinics in Iran (based on some Fatwas which consider it legitimate). It seems that due to the importance of the issue and its personal and social consequences, careful surveillance in regulating this process is essential. It is necessary that the legislator proclaims its view regarding prohibition or permission of this method and if decides to permit it, legal terms and conditions of gamete donation and its consequences should be determined.
This article aimed to review the Act concerning Embryo Donation to Infertile Couples and its bylaw. Both the advantages and flaws of this legislation were examined.
The provisions of the Act and its bylaw can be categorized and studied under 4 titles including:
The Ministry of Health and Medical Education has authorized all licensed infertility clinics to do embryo transfer procedure according to the Act. Moreover, the Ministry continuously monitors infertility clinics and issues certification for health care services.
As mentioned in the Act, the practice needs to comply with religious criteria for both embryo formation and embryo transfer stages. Shiite clerics state that legally married couples who did not have forbidden sex and abide by the Islamic law are permitted to donate their qualified embryos. Forbidden prerequisites are specifically defined as forbidden gaze or physical contact with a non-mahram person or ejaculation through masturbation. Therefore, under religious reservations as mentioned above, the formation of embryo through the egg and sperm of the donors is permitted. According to Shiite clerics view, forbidden gaze and physical contact should also be avoided during embryo transfer.
There are different methods for artificial insemination; however, in vitro fertilization as an alternative for embryo formation and its transfer to the uterus is the one approved by the Act, since Shiite clerics have recognized it permissible. Meanwhile, it has been specified in the Act that there should be a marital relationship between egg and sperm owners. Hence, the general trend in infertility clinics is that they are permitted to use the excess embryos remaining from in vitro fertilization treatments of the infertile couples. For donating the remaining embryos to infertile applicants, a written consent form should be signed by the donors.
In addition to the written consent of donors which has been specified as the main requirement in the Act (Article 2), the bylaw accentuates the importance of issues like physical and mental health of donors, non-addiction to alcohol and drug and non-suffering from AIDS or Hepatitis which require the attentive consideration of infertility clinics at the early stages of embryo donation (Article 2). The bylaw also stresses that donor and applicant information will be registered on a confidential basis (Article 3).
Legally married couples are just eligible to request for receiving a donated embryo. A single woman or a widow is not permitted to apply for this method.
The most controversial section of the Act is the clarification of the relationship between embryo recipient and the child born through embryo donation. Article 3 of the Act states that “All parental rights, duties and responsibilities such as guardianship, respect, protection and alimony in biologic parent- child relationship should be observed in parent- IVF child relationship as well”. The Article is similar to Protection of Orphan Children Act 1974, Article 11. Accordingly, the legislator has complied with the traditional view of the Shiite clerics who consider the egg and sperm owners as the biologic parent of the child. According to Islamic rulings, kinship would be ascertained through three ways: consanguinity (relationship by birth in the same family), marriage, and fostering (relationship by breast-feeding in infancy). Marrying close relatives (parents, siblings, offspring, aunts, uncles, grandparents, and foster brothers or sisters) is unlawful in Islam. In Islamic law, inheritance relationship is created through marriage and consanguinity. Accordingly, the parentage (Nasab) is an important issue in Islamic law which has important implications and determines issues such as inheritance relationship, kinship and marriage forbiddance. According to Islamic law, the parentage is determined by biological relationship. So, based on this Islamic teaching, the Act has not recognized parentage relationship between the child and embryo recipients and it has limited rights and duties of recipients and child to guardianship, up-bringing, alimony and respect.
The application for embryo donation should be signed by both partners and submitted to the Court. As specified in the Act, the court must rule in favor of embryo donation. According to Article 4, the court should investigate the request urgently without going through the formalities of the Law of Civil Procedure. If the qualification of applicants is not approved by the court, they can appeal against the court's decision. Article 4 also implies that the court's verdict regarding qualification of the recipients and the permission for embryo transfer is irrevocable. Therefore, the Act has not predicted any right for other beneficiaries or monitoring authorities like the Ministry of Health and Medical Education to object the court's decision (21).
Embryo donation to infertile couples was legalized in Iran because of famous Shiite clerics' opinions (Fatwa), though there are a variety of opinions among Shiite clerics in this regard. That is the reason why some methods of IVF have been accepted in Iran while they are not legalized in some other countries, including many other Islamic countries (22). The aforementioned opinions can contribute to the expansion and development of fertilization technology in Islamic countries and can play a significant role in saving many families (23).
This Act, despite many advantages, contains some ambiguity and creates certain problems which need to be addressed. However, before addressing those concerns, the advantages of the Act will be reviewed in brief:
Despite the aforementioned benefits of the Act concerning Embryo Donation to Infertile Couples and its bylaw, one should note that there are serious ambiguities and flaws in these provisions which create difficulties and have important implications. A good piece of legislation should clarify, as far as possible, any ambiguity and therefore prevent the possibility of any misuses. One would expect that a good bylaw would explain and interpret the provisions of law in order to facilitate better implementation. Some of the ambiguities and flaws of the Act concerning Embryo Donation to Infertile Couples and its bylaw are addressed in brief as follows:
The enactment of the Act concerning Embryo Donation to Infertile Couples and its bylaw was an important step for resolving legal problems of infertile couples who can be assisted by the use of IVF methods. The aforementioned Act can be considered as an important development in Islamic law. Undoubtedly, one of the most important reasons for enactment of this Act was confirmation of the legitimacy of infertility treatment (through the use of third party reproduction) by many Shiite clerics. This Act, despite many advantages, contains some ambiguity and creates certain practical problems. One of the most important of these flaws is the lack of recognition of legal parentage relation between the child and recipients. This traditional approach, on the one hand, unfairly deprives recipients and the child of some of their rights and on the other hand, imposes a constant legal relationship between the child and the donors against their intention. In fact, according to the theory of “Intention and Waiver” as both parties intend the donors would have no relationship with the new born child, imposing an inheritance relationship on donors does not seem logical or fair, while an inheritance relationship between the new born child and the recipients can serve the best interest of the society and the child in question. While this problem exists, it can be suggested that a formal will or a life insurance in favor of the child can be used as a temporary solution to protect the child's interests. However, according to the aforementioned arguments, a revision of the Act and its bylaw in view of modern approaches in Islamic jurisprudence seems appropriate.
The authors declare no conflict of interest.
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Article Categories:
Keywords: Embryo donation, Infertility treatment, Islamic law, Legislation, Third party reproduction. |