IVF Treatment according to Islamic Law  In India

Following are a few questions answered on islamonline.com relating to permissible fertility treatments in Islam.

In the Name of Allah, Most Gracious, Most Merciful.

All praise and thanks are due to Allah, and peace and blessings be upon His Messenger. Dear questioner, thank you very much for having confidence in us, and we hope our efforts, which are purely for Allah’s Sake, meet your expectations.

In the first place, we would like to stress that in vitro fertilization is permissible as long as the semen and ovum are from a husband and wife who are legally married and the fertilization takes place during their marriage, not after divorce or the death of the husband.

Responding to the question, Dr. Muzammil Siddiqi, former President of the Islamic Society of North America, states the following: “In vitro fertilization is a new biomedical method to help couples who are otherwise not able to have a child through normal husband/wife relationship. Modern Muslim jurists did research on this method and in the light of the Shari`ah principles have given their opinions. In the following, I am going to give a summary of their modern ijtihad on this subject.

First of all let me explain briefly what is in vitro fertilization. It is a biomedical method that is generally used when, due to some obstruction, the sperm of the husband cannot reach the ovum. In this case the ovum is removed from her ovary at the time of ovulation….

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• The Jihaz in Islamic marriages

Hasan A. Yahya, Ph.D

Racism in its perfect sense: The spirit and reality of Islam in the Muslim world, I read this report news lately in a leading USA media journal, and I like to make a comment on that segment. In the April 9, 2002 issue, The Wall Street Journal published the concept of blood money in Saudi Arabia. If a person has been killed or caused to die by another, the latter has to pay blood money or compensation, as follow. 100,000 riyals if the victim is a Muslim man 50,000 riyals if a Muslim woman 50,000 riyals if a Christian man 25,000 riyals if a Christian woman 6,666 riyals if a Hindu man 3,333 riyals if a Hindu woman According to this hierarchy, a Muslim man’s life is worth 33 times that of a Hindu woman. This hierarchy is based on the Islamic definition of human rights and is rooted in the Quran and Sharia (Islamic law). How can we talk of democracy when the concept of equality in Islam is inexistent? Comment: Islamic Law (Shari’ah) does reflect on racism, discrimination, and prejudice, Islamic law deals with all people on equal basis. History of Islam shows many incidents were two people of different statuses to sit beside each other in the court, no privileges may be given for a social status or age, or sex, or belief. This Islamic law, The story above is cultural Bedouine rule in certain places in Saudi Arabia, but it is not a Shari’a Law. You cannot criticize a whole religion for human practices of cultural norms. Islam is a perfect constitution for humans anytime and everywhere, I wish the Wall Stree Journal read more about principles of Islamic Shari’ah Law and Islamic ethics, which I believe is ignored by many people who consider themselves journalists or editorial writers. Jews for instance for a long time consider women as sinners and isolated from social life when they have PMS or after birth. Cultures cannot be blamed for religion followed by the community. In the medieval age, the church was publicizing the idea that the Earth is the center of the universe and every thing moves around it. While nothing in Christianity shows that idea as true. As intellectuals and thinker, we in fact, astonished from such practices, which cover many areas of many cultures. Research have to be initiated to abolish such habits which negate basic human rights. Hasan Yahya is a columnist at wfol.tv, Malaysia and TINA International News Agency, Chicago, USA. www.hasanyahya.com

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• The Jihaz in Islamic marriages

Jihaz (dowry) or trousseau is the amount of clothes, household linen, furniture and other belongings contributed by the bride and/or her family to the marriage. It has to be distinguished from the mahr, which is an agreement between the wali (guardian) of the bride and her future husband by which the groom pays certain sum of money or its equivalent to the bride at the signing of the marriage agreement. The mahr is an obligation on the groom stipulated by the Quran to be given to the future wife, while the jihaz is not an obligation on the part of the bride or her family. (For more information on the mahr agreement.

The Jihaz is not the nafaqa (support) either, because nafaqa is the material support given by the husband to his wife as soon as the marriage is consummated. The nafaqa covers clothing, food and shelter of the wife. (For more on the nafaqa.

In the Middle East , as elsewhere, the brides are often given house furnishings and clothing by their parents or family members when embarking on marriage. There is no obligation in the Islamic Shari’a to fulfill the jihaz, however, in most cases, brides bring such jihaz to their houses once they get married.

Consequently, the groom cannot force his future wife to bring the jihaz as part of the household, and if her family is asked to contribute such jihaz, they may decline the demand.

Once the jihaz is given to the bride, it becomes her own property. Her family cannot claim it as part of their estate unless the jihaz was given as a loan agreement to the bride. Under such circumstance, they may demand the return of the jihaz.

The groom cannot have claim on the jihaz, unless it was purchased by the bride or her family, with monies given by the groom as part of the mahr agreement, where the jihaz becomes a mahr and therefore belongs to the groom.

The bride’s father may have a legal agreement with his daughter stating that certain pieces of the jihaz she took with her upon marriage were in fact a loan, and therefore revert to her family upon death. Otherwise the jihaz is considered a private property of the bride and becomes part of her estate.

The jihaz contributed by the bride and /or her family endorses the idea that she enters into marriage as an empowered individual. The marriage arrangements in the Middle East involving jihaz, predated the rise of Islam.

There is no provision in Islamic Shari’a that forbids the exercise of women’s right to contribute jihaz to their marriages. In fact, under Islamic law, married women have legal rights to share in family estate. They may own properties, or be named as beneficiaries of religious waqf (endowment) assets.

Gabriel Sawma is a lawyer with Middle East background, professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant in matters related to recognition and enforcement of Islamic divorce, child custody, banking and finance in US courts. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor of http://www.gabrielsawma.blogspot.com

Author of the Aramaic Language of the Qur’an http://www.syriacaramaicquran.com

Author of an upcoming book on Islamic Divorce in US Courts.

Email: gabrielsawma@yahoo.com , gabygms@gmail.com

Republishing and reprinting this article is hereby granted by the author.

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U.S. Courts do not apply Islamic Shari’a law because it violates the Establishment Clause set in the United States Constitution; they apply foreign law when necessary. American Courts do apply foreign law in certain cases involving international principle known as “conflict of Laws,” or “Private International Law.” This is referred to in U.S. courts as “the doctrine of comity“.

In the area of Private International Law, Comity is a courtesy, amity, and reciprocity by U.S. courts towards court decision issued in other nations.  Such a consideration by U.S. courts does not entail an obligation to agree with the rulings of foreign judgments. There is therefore a distinction between the doctrine of comity and law.

Public International Law can become part of the national law when the country has its signature on that law, Private international Law however, does not have the same level of recognition by U.S. Courts. The issue of comity is raised in Islamic divorce cases when a person who resides legally in the United States travels to a foreign country and obtain a certificate of divorce from a religious court.

The intent is to obtain an instant divorce by pronouncing triple talaq (divorcing his wife three times in a few minutes.) Such an action leaves the wife with nothing more than a nominal deferred mahr, and takes advantage of the child custody, which discriminates against the women and to label the wife as bad Muslim.

The man then returns to the United States and serves his wife with divorce papers demanding the implementation of the divorce according to the Islamic Shari’a, claiming that the “doctrine of comity” applies to his case.

Generally, a judgment of divorce for example issued in a foreign country is recognized in the U.S. on the basis of comity, provided both parties to the divorce received adequate notice, i.e. service of process and, generally, provided one of the parties has a domicile in the foreign nation at the time of divorce, and the foreign court has given opportunity to both parties to present their case, and the trial was conducted upon regular proceedings after due citation or voluntary appearance of the litigants, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country, and those of other countries, an no prejudice towards either party and should not violate a strong U.S. principle of law, and the parties were present in court. The court may deny the application of comity if the judges deem the foreign laws is “repugnant” to U.S. principle of law.

An Islamic triple talaq differs substantially with respect to property division. Under Islamic Shari’a, wives may be entitled to a deferred mahr, which is, in most cases, much less than what U.S. courts order; above all, U.S. courts will not accept an Islamic divorce certificate obtained in a foreign country if the cause of action on which the divorce is based is “repugnant” to the public policy of the State in which the case is litigated.

Gabriel Sawma is Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert on Islamic marriage contracts, Islamic divorce, child custody, inheritance, Islamic banking and finance. Editor of an International Law website: http://www.gabrielsawma.blogspot.com . Author of “The Qur’an: Misinterpreted, Mistranslated and Misread. The Aramaic Language of the Qur’an.” http://www.syriacaramaicquran.com. Author of an upcoming book on Islamic Divorce in US Courts. Email: gabrielsawma@yahoo.com

Republication of this article is permitted.

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