مجله پایش
سال ششم شماره 4 (پیاپی 24، پاییز 1386)

Religious leaders in Iran have shown remarkable open-mindedness and flexibility towards embracing innovations in science and technology, including the use of modern reproductive technologies. New ‘fatwas’ and laws are being (respectively) decreed and passed to legitimise the use of technology and to adapt to change within an Islamic framework. New reproductive technologies, especially infertility treatment, are among recent technologies flourishing in Iran and which require Islamic interpretations to make their use possible. In this paper I examine the factors which determine the use of new reproductive technologies for infertile couples. I suggest that in this respect religion plays a predominant role and currently remains the ultimate authoritative source of reference. The interpretation of the divine law to use new procreative technologies is in turn driven and defined by the high demand for such technology. The race between re-interpreting the religious rules in order to keep pace with the technological innovations, the high demand for infertility treatment, and the ever-increasing range of options offered by new reproductive technologies, leads to situations whereby rapid decisions have to be made and the resourcefulness of all concerned in finding legitimate solutions often come to the rescue. I then suggest that the emerging relationships and new forms of kinship resulting from the combination of the practices described above may give rise to new situations which could exceed the realm of religion alone and require other moral, ethical and legal frameworks as well as their Islamic interpretations. It is only when the ‘new babies’ come of age that problems arising from this lag might emerge. Data used in this paper is drawn from a larger study in Yazd, research in clinics and infertility centres in Tehran, interviews with donors and recipients of gamete, and with medical doctors, obstetricians and counsellors.

Along with the emerged IVF technology in 1978, the possibility of fertilizing couples, who could produce gametes but were for one reason or another deprived of having children, was materialized. Assessment of applying ART methods in Iran, in particular from jurisprudential point of view, is among the main prerequisites to make such a therapeutic approach to this technology. Concepts like assisted reproductive techniques, IVF, direct transfer of donated gamete into the uterus and its comparison with formation of embryo from donated gamete after its culture, in the laboratory and the consequent embryo transfer to the uterine cavity are among the fundamental and initial concepts for familiarization of religious schools and jurisprudents with the application of donated gametes in treatment of infertile couples, which together have provided a new view point in Shiite jurisprudence in confronting treatment of infertility. The donors' and the recipients' physical and mental health are among the most important factors in assessing the process of donation which will not only increase the level of confidence in preventing transmission of genetic and non genetic diseases to the embryo but also insures a high level of compatibility in blood born, physical, cultural, social and even religious characteristics. Preparing the socio-cultural basement for application of these techniques for treatment of infertile couples calls for a comprehensive introduction of such issues in the society and also in the scientific community. For an infertile couple to volunteer to use these techniques, they need to be well aware of their different dimensions.

Any information that can affect the decision of the couple in applying these techniques must be discussed with them in comprehensive and even repeated consultation sessions and only after well educated and informed consent of the couple, application of these techniques may be allowed. It is the task of the infertility clinics to cover these issues with maximum caution.

Gamete and embryo donation is one of the important concepts with which law makers of developed countries have been engaged; this has lead to emergence of various laws in this regard. The same has happened in Iran. However Iranian law has differences with similar regulations, a fact that lays the ground for an amendment of the Iranian law. Regarding gamete donation - which means sperm or ovum donation carried on by a third person current IRI laws are silent and the situation could be revised in due course. Moreover, our Islamic scholars have arguments on the legitimacy of this issue. With regard to the Embryo Donation Law which was passed in 2003 and includes provisions on the condition and formalities of donation and embryo transferring, it seems to have deficiencies in some aspects. For instance, and from a comparative perspective, in France reproduction for third persons including surrogacy is forbidden. On the other hand this issue is not being considered in IRI laws and thus they could be revised in light of comparative studies.

Regarding filiation of the child resulted from embryo donation, the French code has accepted the connection of the child with the receiving parents and also all other related rights including heritage. On the contrary, IRI Code has only dealt with responsibilities of the recipient parents on the subject of caring, training, alimony. In this regard, IRI act suffers from major failures for the rectification of which there is an urgent need of debate and law reforms.

Infertility as one of individual and social dilemmas sometimes result in significant expenditures, it also might weaken the family stability. Recent developments in assisted reproductive technologies have enabled the infertile couples to become pregnant. Although these methods were initially used only for women in premenopausal age, gamete donation has brought about the possibility of treating women beyond the age of menopause. In this article an attempt will be made to consider effects of ageing on natural and artificial reproduction. In this descriptive-analytic study we compare different views and policies relevant to various aspects of pregnancy in the aged. First we describe the changes in reproductive ability during the lifespan and the effect of ageing on the results of assisted reproductive technologies. This is discussed from medical, social and psychological points of view. Finally by regarding the different studies and the current status of Iranian society, we evaluate the access of middle-aged women to assisted reproductive technologies.

Our study displays the differences in policies defining an age limit and the results of donation in different societies. These policies differ based on the level of access to social welfare, supportive services, life expectancy and the medical, financial and social status of each individual. Regarding Iran’s current social standing, it is emphasized to limit the reproductive treatments to the age of fifty. There is a possibility that some individuals might be included in a younger or older age depending on their medical, financial and social situations and after a thorough and timely counseling. It is also essential to educate all advanced-aged women on the issues related to child-bearing in middle age and the likely consequences.

Children as members of the human community have certain rights, and all schools of law (religious or conventional) recognize these rights. So the way a child is born must not be held as a reason to deprive him/her of part of his/her rights. An important matter concerning donation of gamete (sperm or ovum) is restoration of the rights of those children who are produced from donated sperm or ovum, or, in some cases, born to a surrogate mother. Obviously, if we apply the traditional laws on the rights of naturally-born children in dealing with inheritance, custody, guardianship, alimony, and legitimacy of marriage of those children, we can hardly be successful in restoring their rights. The author in this paper will do his best to come up with appropriate ways of treating this modern phenomenon by reviewing the ideas of religious jurisprudents and, in some cases, jurists. The aim is to present a reasonable method and practical proposals. Hopefully, the results would help in formulating laws and drawing up the necessary bylaws.

Deficiencies of infertile women or women who want to have a child through gamete donation fall into the following categories: 1. the husband lacks fertile sperm and his wife possesses healthy ovum and womb (sperm donation); 2. The husband lacks fertile sperm and his wife lacks fertile ovum but possesses. Healthy womb (sperm and ovum or womb donation); 3. The husband possesses fertile sperm but his wife lacks fertile ovum (ovum donation).

In all the above cases the woman plays her key role in the child's birth: of course, in case (1) she fulfills her function totally (functions related to ovum and womb), and in case (2) she only fulfills the womb function and giving birth to the child. In this paper, the author will argue that both the owner of womb and the owner of ovum can be considered the child's mother. Based on this fact, in gamete donation the child will have a lineage through his/her mother and all his/her rights can be proved and restored. In such cases, the child's mother can assume some of the responsibilities which in case of naturally-born children fall on the father. A husband who is not considered the child's natural father in cases (1) and (2) but wants to have a child through sperm donation must accept some responsibilities for meeting the child's needs and protecting him/her, and even consider resources as a substitute for inheritance in his will. Of courses, this must be within one-third of the father's possessions, or grants in his lifetime. As for the issue of proximity and legitimacy of marriage, arguments concerning foster children can be applied.

In this article we study the concept of confidentiality in the treatment of infertility and the likely exceptions. We also attempt to study relevant laws and regulations in light of theoretical results. The paper is compiled in accordance with a legal descriptive and analytical method. None, of course, has priority over the other. Confidentiality is closely related to the concept of privacy. Privacy is a basic human right that protects human beings as “moral agents”. Although the public interest and third parties’ rights are the most popular exceptions limiting confidentiality, their force could be harnessed by the rule of law.

In infertility treatment as a branch of medical treatments, the principle of confidentiality applies to almost all relationships between treatment providers, donors and treatment receivers. In accordance with the nature of the medical information, the legal system is bound to enact new kinds of rules to protect confidentiality.

The opening part of the paper includes discussions on the following topics: I. History of donor gamete (sperm) insemination. 2. Definition of gamete donation, and its types. 3. Requirements of inheritance, and its conditions and restrictions. 4. Definition of relation: relation in literal usage, in common custom and practice, and in law and Sharia. Different types of gamete donation are mentioned and the inheritance of children born this way is examined. The following questions are addressed in this section: First, who are the legal parents of children born through donor gametes: the donors of the sperm and ovum, or the host and her husband? Second, does inheritance hold between them and their mothers' fathers or other ancestors? Thirds, as in certain types of gamete donation a lineage cannot be established and neither the man nor the wife (womb owner) bear any relation to the embryo, what rules do apply as far as inheritance, maintenance (nafaqa), and child custody are concerned? Fourth, if the man in the above example divorces his wife made pregnant through donor gamete, who will be legally bound to the maintenance during the waiting period of three months (known as eddah)? The assumption is that the contributors of the sperm and ovum are act known. In answering these questions, we have drawn on Islamic jurisprudential sources (the Quran, the Prophet's tradition, and literal meanings of the terms.

The views of Islamic jurisprudents, and jurists, for and against, and their arguments are examined. The opinions of respected contemporary sources of emulation, and jurisprudents are included in the concluding part of the paper.

Descriptive reports suggest that couples with fertility problems undergo various forms of psychoemotional stress which may render them susceptible to depression. Such stress may further decrease the likelihood of conception. On the other hand, reported that happiness scores were lower among people who fail to conceive as compared with those who had successfully done so. In review of articles most of studies have categorized women into two infertile and controled groups. Infertile group comprise women awating for ART. The other group consistes of women ( similar age distribution) who are ready had at least one child of their own and had no history of ART. The survey was carried out using questionnaires of the self – administration type.

The prevalence of negative emotional feelings was higher in infertile group (37%-69%). Reported more changes interpartner relationship and sexuality. At the time of consultation, the infertiles had less favorable scores than controls on scales for depressed mood, memory/concentration, anxiety/feares and attractiveness. One in 4 of the infertiles had scores indicating depressive disorders as compared with only 6/8% of the controls.

It has emerged from the studies that many of those facing fetility problems may experience turmoil of negative feelings in particular at the time when they are attempting to conceive but realize they are not succeeding. Psychosocial consultation has significant role for preparation of these pre-, during and post ART.

The last two decades have witnessed the secularization of bioethics. The religious influence on bioethics subsequently declined. Bioethics today is no longer dominated by religion and medical traditions as it used to be in the past. Unfortunately, it has become dominated more by philosophical, social and legal concepts. In the Islamic countries, religion still influences a lot of behaviors, practices and policies. Science without conscience ruins the soul. It is therefore not surprising that science and religion have been interrelated since the beginning of human history. The Holy Quraan encouraged marriage, family formation and reproduction. The Verse says: “We did send apostles, before thee, and appointed for them wives and children (Sura Al Ra´d, 13:38, Holy Quraan). Another Verse says: “And Allah has made for you mates of your own nature, and made for you, out of them, sons and daughters and grandchildren, and provided for you sustenance of the best (Sura Al-Nahl, 16:27, Holy Quraan). Regarding infertility among many couples it says: “He bestows (children) male and female, according to His will (and Plan), or He bestows both males and females, and He leaves barren whom He will (Sura Al-Shura, 42:49-50, Holy Quraan). Through the advances in assisted reproduction, it became possible to separate the bonding of reproduction from sexual act. These advances enabled women to conceive without having sex, either in vivo or in-vitro. This enables also the involvement of a third party in the process of reproduction whether by providing an oocyte, a sperm, an embryo or a uterus. In the Suni Muslim world, the basic guidelines for assisted reproduction are as follows. If ART is indicated in a married coupleas a necessary line of treatment, it is permitted during validity of marriage contract with no mixing of genes. If the marriage contract has come to an end because of divorce or death of the husband, artifical reproduction cannot be performed on the female partner even using sperms of the former husband. Besides, the oocyte and sperm donation are also not allowed because of mixing the genes. In case of Bigamy (in case of marriage of two wifes or more), there was a Fatwa allowing the oocyte or embryo donation within the same family, but this Fatwa was retarded and now even in Bigamy this possibility is not permitted.

In Germany there is a law, which was legislated in 1991 which regulates the assisted reproduction technology. The law does not allow the oocyte and embryo donation while sperm donation in case of artificial insemination is allowed. The oocyte and embryo donations are not permitted just because of the possible legal problems which might follow this procedure. But this restriction in the law is not based on the religious or moral issue.

One of the differences between an ethical proposition and a legal/jurisprudential (fiqhi) one lies in their predicates. Although all three propositions concern free actions of human being, ethical rules are about goodness or badness of those actions, that is, of them being virtuous or vice, while fiqhi rulings deal with their permissiveness or forbidden-ness. Thus it is possible for a given action to be permissive (halal) from a fiqhi stance, but vice from an ethical point of view. For example, it may be halal for all to wear some kind of clothes, while it is ethically bad for some to wear them. This distinction urges us to consider the issue of gamete donation from an ethical perspective.

This Article attempts to consider the issue in accordance to Islamic ethics, presupposing jurisprudential fatwas. First, I will investigate the rational (independent) basis for gamete donation, then compare the results with various fatwas.

Nowadays, the four principles of medical ethics having the advantage of cultural impartiality are widely used for guidance of decision making regarding ethical issues in medicine. This article is aimed to review the practical implications of each one of these principles in gamete and embryo donation, and gives a general and practical overview regarding of those ethical issues. The following topics are discussed regarding each principle: Respect for Autonomy: Informed consent of donor and recipient (s) of the gamete or embryo; inhibition of coercion; issues regarding sex (or other characteristics) selection; using dead bodies or aborted fetuses as donor; cases of conflict between physician and recipient opinions about discontinuing of the achieved pregnancy. Beneficence: Inclusion of this principle to In Vitro produced embryos and possibility of considering any “benefit” for a human embryo before transferring to a uterus. Nonmaleficence: Right of recipients to receiving a healthy gamete or embryo (without any known or detectable abnormality), its differences with eugenics, and right of transferred embryo to life.

Justice: Distributive justice in allocation of donated gametes or embryos and public access to such services, insurance coverage, and right of access to gamete donation for postmenopausal women or couples without normal or apparently persistent relations.

Nowadays with the help of modern technology and science the case of people with infertility physical or genetic defects, shall be resolved .One solution is to donate gamete and embryoto infertile people under specific condition. The principles and conditions of this process have been predicted in related law and executive by-law. In this article the above motioned law and by-law will be reviewed and juristic opinions along with fundamental view will be explained. Then the relevant rules and regulations will be put under criticism and scrutiny. In order to make the issue clear, the history of legislation in Iran and other countries will be explained. According to the legalization fetus donation methods, there seems to be no legal constrain for such acting any more. However, the law is still substantially ambiguous and formally involves repetition in article No 4. Therefore the related provisions deserve criticism in terms of laboratory gestation (AID) with sperm of husband and also with sperm of a stranger. A: laboratory gestation via husband's sperm. The issue of intercourse reviewed within chapter of 1158, 1150, 1160 .1167 of civil law for adoption of offspring. Therefore the issue of intercourse as quantified agent and inferred as authoritative reasoning with no constraints, hence, the legislature has not referred to that point. B: laboratory gestation with sperm of a stranger. 1/ supporters of forbidden-ness: Since we urge recognition of sperm produced from non couple and apply it to another person then the issue of respect is critical for publicity, further intercourse either formally or by implantation is banned meanwhile it causes unsounded generation or blood. 2/ supporters of permissiveness: in principle the child is filiated to the parents except it is forbidden explicitly.

Civil Law in article 1167 for the issue of AID received legitimacy under principle of generalization and restrictive interpretation. The formula of birth on one’s home and non-refuse by the husband apply here.

The procedure of embryo transfer that is originated from Gametes of infertile couple or Third party usually lasts about 4 months (and sometimes more). The Consent and agreement of infertile couple are incisively announced and delivered before stepping into the process. At the time being, it should be confirmed whether husband in the relevant medical process -that is concerned as embryo or sperm transferring - plays no role and in the cases the concern is egg donation or no problem in gametes, the presence of the husband is necessary just one time for providing sperm. In a case that during therapeutically microinjection process, the dissolution of matrimony occurred what is the task of the transferring procedure? Is the woman that – that is continuously in contact with clinic – responsible of information the marital status to the clinic and in a case she does not observe the mentioned point is liability toward the clinic? In other words, is the initial consent for therapeutically procedure - that includes transferring process - executive and comfortable? Is the clinic responsible to view the consistence of the marital status? In a case the clinic does not consider this duty, is it liability toward the clinic?

The editors believe that in a case of dissolution of marital status, the infertile couple that are candidate for treatment with embryo transferring after announcement of agreement for starting the procedure and before transferring process, the resulted infant or infants are not privileged of expected family support and their birth causes the route of familial disagreements. Considering above mentioned it seems that for prevention of this occurrence the presence of the couple is inevitable during transferring process and never and under no condition even enforced conditions, transferring process must be conducted in absence of the couple and confirmation of the constancy of the marital status and this procedure is obliged to be realized to the couple.

Treatment of Infertility applying Gamete and Embryo has been considered as one of the approaches in infertility treatment and in this regard there are advertising and capitalization process; all of the discussions have been focused on the medical approaches, juridical and legal authorizations and the impressive effects of the transferring however, unfortunately fundamental conditions of validity of the contract has been disregarded and have not been studied as a research subject.

In this study, fundamental conditions of the validity of the contracts for transferring Embryo and Gamete for treatment of infertility have been analyzed and explored.

This article includes four sections dealing with various aspects of a research in this field. The first section contains the essential and main contracts. The second section includes elementary and relevant contracts. In the third section, also, attention will be made to the contracts of extract the semen and make it productive and protect Gamete and Embryo. The fourth section, finally, studies conditions and preventions of formation of the contracts in this field. This article is based upon a descriptive method and library research. In transferring Gamete and Embryo of a third party to the uterine cavity of the infertile woman, the intention of the donor and receiver plays fundamental role since it invokes that delivery of Gametes is forbidden, unless there is an agreement or consent of the both contracting parties. On the other hand, the consent of receiver is also essential and, therefore, the Gamete or Embryo of the third party cannot be transferred to other's uterus; Moreover, in a case that woman is married legally the consent of the husband is essential, too. Physician or clinician can practice as intermediary.

In this situation, if the physician or clinician practices as intermediary and consequently facilitate their affairs, then he/she is deserved for payment regarding any relevant expense. The issue of selling gamete and embryo approved by relevant common customs; thus, receiving money for such donation, transferring, protecting and making it productive are not forbidden.

Court verdicts that include rights, duties, permission and the like are issued with the aim of preserving public interests and delivering justice. These verdicts are highly valued in all legal regimes. In this regard, law experts have addressed the court final decision from different aspects especially through a procedural approach. The researchers intend to assess the court permission which must be accorded on the basis of article 2 of embryo donation act 2003 from a civil procedural perspective.

The court final decision is indeed permission in the field of personal status law. This decision is similar to the declaratory judgments where it points to the couple’s infertility and to establishing ones where pointing to a permission to benefit from the infertility treatment facilities. This decision could be appealed if depriving the couples from the facilities, though in absent hearing is not accepted. Further appeal and re-hearing is not accepted as well.

Based on the text of the act, decision of the court is considered as permission and in this regard it is one of power conferring rules allowing the claimants to do what they have applied for. Therefore, the decision cannot be enforced against an infertility treatment centre. Other important point is that according to the Act, the assessment of couples' qualifications is done out of formalities of Civil procedure and by implication after acceptance of the qualification or the rejection, the decision and its review will be according to Civil procedure too.

Development of Assisted Reproductive Technologies (ART) and the successful birth of the first child in 1978, new therapeutic options have become available for infertile couples. Development of IVF methods made conception and embryo formation possible for the infertile, something impossible by then. ART has also brought about the possibility of third party involvement in the process of reproduction. This may occur by providing an egg, a sperm, an embryo or a uterus by a third party.

To use a donated gamete requires an evaluation and screening of the health of both donors and recipients in order to make any necessary adjustment regarding physical characteristics and specifications, blood group, social and cultural traits and religious requirements. All these ought to be in accordance with relevant rules and regulations. As ART methods enables women over 40 to conceive and bear child, meticulous evaluations of physical health, pregnancy risk factors and in particular emotional readiness of the couples is necessary. The very first step in the treatment of infertility using a substitute gamete is to inform the couple of the method of gamete and embryo supplement and the way the embryo will form in vitro. This may lessen their worries, make the procedure safer, reduce possible ethnic hazards, increase the success rate and finally bring the expenses involved to an efficient level. Other aspects that should be considered, since they may give the couple a sense of confidence are a religious and legal counseling, technique explanation, confidentiality of identities of recipients and donors None of the said aspects should be overlooked. Health evaluation could be undertaken by a history review, physical examination, infection tests, genetics and general medicine consultation.

Phonotypical characteristics of the recipient such as height, weight, skin color; hair color will be matched with donor according upon recipient’s request. Although, in most cases, matching blood group is not medically compulsory but it might be required in some cases. In many cases, recipients are interested in raising questions regarding particularities of the donor like their beliefs, social and cultural status, intelligence quota education on which a donation clinic should be cooperate.