The Status of ‘Mother’ in Gestational Surrogacy: the Shiʿi Jurisprudential Perspective

Abstract

Shiʿi jurists have three different theories with regard to gestational surrogacy and who should be recognized as the mother of the newborn: (1) the surrogate mother (2) or the ovum provider (biological mother) (3) or both of them. The religious law (al-Aḥkam al-sharʿi) regarding the title of ‘mother’ and issues such as inheritance, will (Waṣiya), marriage, and custody have been discussed by Shiʿi jurists but no exact definition of this term has been provided by them. Because the fertilized ovum is considered the origin of humans and the formation of an embryo also determines the kinship of the newborn, the mother of the child is the woman that fetus created by her ovum. It is this woman who has all the rights and responsibilities of a mother; even if the surrogate mother is considered the mother of the child, she has no rights over the child nor does she have any duties towards him/her.