Current Issue

Volume 11, Number 3, Oct-Dec 2017 Pages: 226-233

Personhood and Moral Status of The Embryo: It’s Effect on Validity of Surrogacy Contract Revocation according to Shia Jurisprudence Perspective


Saeid Nazari Tavakkoli, Ph.D.,
Department of Jurisprudence and Principles of Islamic Law, Faculty of Theology and Islamic Studies, Tehran University, Tehran, Iran
*Corresponding Address: P.O.Box: 15766-1-3111 Department of Jurisprudence and Principles of Islamic Law Faculty of Theology and Islamic Studies Tehran University Motahari Street Tehran Iran Email: sntavakkoli@ut.ac.ir

Abstract

Background

One of the most controversial issues related to the human embryo is the determination of the moment when an embryo is considered a human being and acquires a moral status. Although personhood and moral status are frequently mentioned in medical ethics, they are considered interdisciplinary as concepts that shape the debate in medical law (fiqh) since their consequences are influential in the way which the parents and other individuals behave towards the embryo.

Materials and Methods

This analytical-descriptive research gathered relevant data in a literature search. After a description of the fundamentals and definitions, we subsequently analyzed juridical texts and selected one of the viewpoints that regarded the surrogacy contract revocation.

Results

The surrogacy contract is a contract based upon which two sides (infertile couple and surrogate mother) involved in making the contract are obligated to fulfill its terms. Therefore, contract revocation can be surveyed from three perspectives: mutual revocation (iqala), legal unilateral wills (khiar al-majlis, khiar al-ayb), and contractual wills (khiar al-shart).

Conclusion

Revocation of a surrogacy contract either by the genetic parents, surrogate or the fertility clinic is allowed by Muslim jurists only when the embryo lacks personhood. Based on Islamic teachings, the termination of a surrogacy contract in and after the sixteenth week of pregnancy, when the embryo acquires a human soul (ensoulment), is not allowed. However religious thought emphasizes the moral status of the fetus before the sixteenth week and states that optional termination of the surrogacy contract is not permitted while the fetus becomes a human being.