Examining Surrogacy Process in Iranian Law and Imami Jurisprudence with Look at in International Law

Today, the tremendous progress in reproductive technologies in recent years has revealed a window of hope for infertile couples, because the desire to have a child is a universal desire and becoming a parent is one of the most important stages of a person's life. One of the new medical phenomena used in the treatment of infertility is the use of a surrogate uterus. The contract of using a woman's womb is a contract by which a woman agrees to carry the embryo resulting from the egg and sperm of a couple and deliver it to them after giving birth. Studies show that choosing a familiar surrogate, such as relatives, friends or close ones, provides the context to reduce or eliminate the problems caused by the operation of surrogacy. In this contract, the parties form the marriage, on the one hand, the infertile husband and wife, and on the other hand, the mother who accepts the fetus, ((surrogate mother)). According to the principle of relativity of contracts, the effects of the surrogate mother contract should be limited to the contractors themselves (husband and wife of the applicant and surrogate mother). The condition of contractual liability is that there is a valid contract between the victim and the cause of the loss and the loss is due to breach of contractual obligations. Today, the opinions of contemporary Imamiyya jurists are different about the validity of this contract, and some jurists consider the use of another woman's womb as permissible for reproduction, while others consider this action to be haram and the contract invalid. The views of Iranian lawyers are also different in this matter, some lawyers consider this contract to be valid and valid, while others consider it invalid due to the conflict with public order. For the validity of the womb contract, it is an alternative to refer to Article 10 of the Civil Code (principle of the sovereignty of the will of the parties and freedom of contracts) and the general rules of the contract are not sufficient in terms of correctness. Because all the effects of the contract cannot be determined based on the will of the parties, and some of them are coercive effects, and the most important effect is kinship and descent resulting from the contract. It seems that possible complications and consequences can be prevented by passing laws and forming special committees to investigate cases of infertility treatment with surrogacy.