Chapter one/Introduction

The need for bearing children, feeding them, cuddling them, rearing them, participating in their future and sharing their dreams is immense; it is a basic human need, a necessity. It has been so since the birth of humanity, and will always be so. In a country like Pakistan, or any country for that matter, the lack of children can lead to broken homes, and up until the time the home is finally broken up the wife faces a constant threat of divorce. Even if divorce is not imminent, the prospect of becoming the neglected second wife of a Muslim husband is always present, not to speak of the constant bickering and ultimate miserable relationship to which divorce might be preferable. For these disillusioned parents, especially depressed wives, modern technology offers a ray of hope, just as it has revolutionized human life in almost every other area including health and fitness((Chukwu.S.O 2021; Critical Examination Of The Right Of Artificially Inseminated Child To Inherit Under Islamic Law . Published at https://projectstore.com.ng/critical-examination-of-the-right-of-artificially-inseminated-child-to-inherit-under-islamic-law/))

For these couples or women, assisted reproductive technology is an answer to their prayers and dwindling hopes. Their hopes are dashed, however, when a large group of Muslim scholars point out to them that this technology is the very foundation of sin, and employing it for the birth of a child will open the very gates of hell for them. If an unfortunate couple recovers from the onslaught of these scholars, they are confronted by a growing body of Muslim doctors who are eager to develop Islamic bioethics. Some of these doctors are even more enthusiastic in branding this reproductive technology as sinful and they confine the permitted form of technology to cases that may not even need the option granted to them by Islamic bioethics, as nature may take over and give them a child in the natural way. It is not polite to point out who these good intentioned men and women of learning are, and there are many, because a jurist always focuses on the reasoning advanced, the evidence adduced, the dalil, and not on who is making the argument or presenting the evidence. It may be indicated here that the Islamic Fiqh Academy at Jeddah is included in this learned group.

The concept of inheritance is being practicing from the very beginning of the world. It is present in all the religions in the world but different in shapes and in practice. The Law of Inheritance is buildup on the basis of the Islamic Law of Inheritance. A lot of studies have been done on inseminated child in Islam. But no paper the researcher has found where the solution to the conflict is provided. For this reason, limited literature review is available here. conflict among the scholars is increasing day by day and the nation is trying to find out the reasons behind this problem and also to find out the solution to this problem. ((Chukwu.S.O 2021; Critical Examination Of The Right Of Artificially Inseminated Child To Inherit Under Islamic Law . Published at https://projectstore.com.ng/critical-examination-of-the-right-of-artificially-inseminated-child-to-inherit-under-islamic-law/))

OBJECTIVE OF STUDY

It is against this backdrop that this paper examines the phenomenon of artificially inseminated child to inherit under Islamic law with a view to situating its strategic position and its  implications.

SCOPE OF THE STUDY

The enormity of the subject matter has led to the selection of some aspects of Islamic law. In general, reference is made to Section conditions for inheritance and succession.

METHODOLOGY

This research methodology is normative or doctrinal research (library research). Normative legal research is the legal researches which use the law as foundation of norm. The norm system in question is related to principle, norm, and rule from legislation, verdict, treaties, and doctrine concerned annulment of an arbitration award. First stage of normative research comprises a research with purposes to achieve objective law, by conducting research on legal issues. The second stage of normative legal research is aimed at obtaining subjective law (rights and obligations). It also concerns with critical review of legislation and of decisional processes and their underlying policy

LITERATURE REVIEW

This argument has two interrelated parts. The first is about attributing paternity to the husband where his fatherhood is doubtful. The second is about attributing paternity to the social mother when the ovum is hers, but is borne by the surrogate mother after fertilization.

Where the husband accuses his wife of unlawful intercourse, the couple has to undergo the procedure of li`an, which is the taking of oaths first by the husband and then by the wife. If both do so, it is the statement of the wife that is preferred. When a child is born, the husband has to deny paternity within seven days of birth according to some and within the postnatal period according to others. If he fails to do so within the prescribed time, paternity of the child is attributed to him. The attributing of paternity has the welfare of the child in view. The tradition above and this procedure are reflected in the principle, “al–waladlil–firash.” This is usually translated as “the child is attributed to the marriage bed.” In fact, the principle means that the child is attributed to the “man who had legal access for sexual relations.” The latter meaning includes the paternity of the child born to a slave girl too; where paternity is attributed to the master. It may be mentioned here that paternity of an illegitimate child can be claimed at any time by the father on the basis of earlier marriage or shubhah of marriage, but till such time that he does the child remains attributed to the mother.

The assigning of paternity is not confined to this case alone. It is well known that the minimum period for gestation is six month on the basis of the Qur’an. It is, however, less well known that the maximum gestation period, where a woman has not claimed the termination of her waiting period on the basis of monthly cycles, is two years according to the Hanafi school. The maximum period is four years according to the Shafi`i and Hanbali schools, on the basis of which there have been a few judicial opinions in Saudi Arabia that have upheld this maximum period. The legal basis for this is the principle of `adah (the scientific and physical state observed) among women during the period of the Prophet (P.B.U.H). Those who rely on scientific facts alone today will say that this is not possible. The jurists were aware of this too, but the important point to note here is that it is the welfare of the child that takes over here and not the integrity or reputation of the parent. For the welfare of the child, who is likely to be declared illegitimate otherwise, the law assigns paternity to the husband. It may be noted that the illegitimate child cannot easily inherit from the genetic mother, because he is pushed to the last slot in the line, that is, even after the next of kin of the mother. The discrimination and hatred exhibited for such a child by society is very cruel as compared to the denial of inheritance. Paternity is, therefore, assigned to the husband.

The issue then is whether the social mother, who has knowingly contributed her ovum fertilized by the sperm of her lawfully wedded husband for development in the womb of the surrogate mother, can be assigned the maternity of the child, that is, can the law create a fiction in her favour that calls her the mother of the child borne by the surrogate mother along with all the legal effects. It is suggested that the law should create such a fiction on the basis of necessity and on the basis of analogy from the above cases for the social mother and the interests of the child to be born. Assume, for example, that the naturally born child of the social parents and their child born through the surrogate mother grow up and now want to get married to each other, will such a marriage be permitted by the scholars. If not, then on what grounds will such a marriage be prohibited?

A theological argument is also advanced with the complaint that Muslim scholars are relying solely on the law to answer the important issue of the surrogate mother, and very little attention is being paid to the theological foundations. We may quote the learned author:

More often than not, contemporary Muslim scholars, both the conservative minded and the liberal minded, do not consider the theological implications of using a legal discourse to determine an answer for contemporary issues. Issuing a fatwa assumes that both the theology – which is conclusive – and the ethical paradigms – which blossom from the theological discourse – are unshaken by the fatwa offered. If a fatwa dismantles the Islamic theological and ethical paradigms, then perhaps the question leading to the fatwa should be investigated first.

The main argument is advanced on the basis of the verses 49 and 50 of chapter 42 of the Qur’an: “To Allah belongs the dominion of the heavens and the earth. He creates what He wills.

He bestows (children) male or female according to His Will; or He bestows both males and females, and He leaves barren whom He wills: for He is full of Knowledge and Power.” The argument then is that the Muslims throughout have resorted to prayer and lawful (halal) cures rather than resorting to unlawful means. Resorting to unlawful means will amount to opposing the Will of Allah and this may upset the basic requirement of submission to His Will. The author goes into further details, but this appears to be the crux of what he has stated.

The response to these worthy arguments is that, first, it has been assumed that the procedure involved in reproduction through the surrogate mother is unlawful. We have tried to show above that there is little to indicate that the procedures are unlawful in their entirety. Second, in those early times, blood transfusion, transplants and other similar processes might have been deemed inconceivable if not unlawful. Today, technology has informed us that lives can be saved through these processes, and many scholars are inclined to declare most of these processes as lawful. In the same way, the making of babies through assisted reproductive technology has been made possible, and the jurists as well as experts on theology must reexamine many of these issues, although as we have claimed earlier that this is a legal issue.

 

 

LITERATURE REVIEW

 

Children are seen as important members of the society and they represent a certain level of achievement, especially in the Nigerian society which is essentially traditional in nature.¹The importance of children cannot be underscored as African names signify the circumstances surrounding the birth of a child.

Even in the Holy Scriptures, children take a very important position and the roles and duties of parents towards their children and vice-versa is spelt out therein. The Quran talks about the responsibility of parents over their children, the duty to be just, the rights of children to education, maintenance, equal treatment and also duty of children to obey and respect their parents.² The Bible also states the importance of obedience to parents and also the duty of parents to nurture and bring up their children in the way of the Lord.³

Apart from just the procreation significance of children, they also contribute to the development of the society as they provide a link between the present and the future. Every child goes through many stages of social development before being adapted into the stage of adulthood. Childhood is generally a natural biological state that has to be passed through and the boundary drawn between the roles of children and adults is significant within social, political, religious and legal concepts.

 

 

1 In the African society, children are seen as gifts from God and couples who do not have their own children strive to by any means possible so as to prove their fertility

2 Qur’an 17:23-24, Qur’an 52:21, Qur’an 66:6

3 Colossians 3:20-21, Ephesians 6:1-4, Exodus 20:12, Proverbs 22:6

 

The popular assumption in time past was that most adults and parents in particular had the best interest of children at heart. There were no laws or conventions recognising the separate rights of children rather they were only recognized as offspring of the parent and were under the protection and care of their parent or guardian. There was no reason therefore to think in terms of children rights. However with the reform movement of the nineteenth century,⁴ concern for the protection of the dignity, equality and basic human rights of children came to the forefront of public consciousness.

Children are a disadvantaged group in the society as they are overshadowed by adults.⁵ It is therefore necessary to protect the rights of children, this is done by the means of various international instruments⁶ which border on the protection of the child, the rights of the child to self-determination and the exercise of their rights with a certain degree of autonomy.⁷ Today, children’s rights are being advocated globally.

The adoption of the United Nations Convention on the Rights of the Child⁸ sought to see to the protection of the child’s life, the promotion of health and educational opportunities and the prevention of exploitation, physical and sexual abuse. They emphasised that every child is entitled to opportunities and facilities which guarantee healthy and normal development. The African charter on the Rights and Welfare of the Child which was adopted by the Summit of the Heads of State of the Organization of African Unity in 1990,⁹ stresses the need for the

 

 

4 The first ever documented law on the rights of the child is the Geneva Declaration of the Rights of the Child 1924, which was adopted by the League of Nation

5 Lansdown G, ‘Children’s Welfare and Children’s Rights’ in Hendrick H Child Welfare and Social Policy: An Essential Reader (The Policy Press 2005) 117

6 United Nations Convention on the Rights of the Child, African Charter on the Rights and Welfare of the Child, Convention against Torture and other Cruel or Degrading Treatment or Punishment

7 Ayua A.I and Okagbue I.E (eds), ‘The Rights of the child in Nigeria’ (2005) Lagos, Nigerian Institute of Advanced Legal Studies 3

8 The convention was adopted by the forty-fourth UN General Assembly on 20 November 1989. 174 countries adopted the convention and 172 have ratified it, South Sudan and USA are yet to ratify the convention

9 Now known as African Union

 

strengthening and preservation of African values in the child and also to discourage those practices that are harmful to the health and status of the child.

It is necessary to examine the basic rights of the child in the context whether the generally known and accepted definition of the child applies to children born through means of artificial insemination. Against whom does the child claim the right when talking of parental duties and who can exercise rights of the child when talking of parental rights. There may be no problems as to who can exercise these rights in the case of a married couple where the sperm of the husband is used to inseminate the wife but issues may arise where there is a use of donor sperm or egg or even where surrogacy is adopted.

Definition and Meaning of a Child:

 

There are different perception and understanding of who a child is. Who is considered to be a child or the age of childhood and the roles expected of them depends on the culture of the people. Societies have varying duties attached to a person based on his level of maturity, coming of age is usually denoted by the contribution to the development of the community and also puberty rites that have to be performed to signify adulthood.

Several theorists have given their opinion on the period of childhood. Jean-Jacques Rousseau (1712-1778) in constructing the ideal childhood described what he termed the ‘age of nature’ as occurring between birth and 12 years. According to Rudolf Steiner (1861-1925), “childhood is a state of physical and spiritual being roughly between the age of seven and fourteen years indicated initially by certain physiological changes such as the loss of the milk teeth”.¹⁰

A child is a descriptive terminology for a natural person who is an offspring of another (either by birth or adoption). It may also represent any human being from the moment of his birth (in a live state) until the attainment of the age of majority.((Ayo Oyajobi, ‘Better Protection for Women and Children Under the Law’ in A.U Kalu (ed), Women and Children Under the Law Federal Ministry of Justice Law Review Vol 6))

The Oxford Advanced Learner’s dictionary defines the child as a person- boy or girl right from birth to the age of full physical development.((Hornby A S (ed) Oxford Advanced Learner’s Dictionary (6^th edn, Oxford University Press 2001) 187)) The Black’s Law Dictionary defines a child as a person under the age of majority.((Garner; B.A. (ed) Black’s Law Dictionary (9^th edn, Thomson West 2009) 271)) At common law, a child is a person who has not reached the age of 14.((Brian Dickson in Ogg-Moss v R (1984) 2 SCR 173))

In Re Carlton,(((1945) 1 Ch. 372)) Cohen J. stated that the meaning of child must in every case depend on the context in which it applies.

There is no uniform provision in the law as to who a child is as it will be observed by looking at various statutes that touch on who a child is, they give different and conflicting age levels. Under the Nigerian law, in various statutes there are different ages ascribed to childhood. The ages adopted in these statutes are relevant to the purposes of the legislation.

For employment purposes, generally the minimum age adopted by the ILO is 15 years for general work((ILO Minimum Age Convention (1973) No 138 ILO Convention, art 2)) 13-15 years for light work¹⁷ and 18 years for hazardous work.¹⁸ The Labour Act provides that no person under the age of 15 shall be employed to work in industrial undertaking,((Labour Act Cap L1 LFN 2004, s 59(2))) no person under 16 years shall be engaged in night work.((Ibid, s 60))

For the purposes of marriage, the Child Rights Act states that no person under 18 years of age can marry.((Child Rights Act 2003, s 81)) The Infant relief Act 1874 states that an infant or child is a person who has not attained the age of 21 years.

It is clear from some of these provisions under our local statutes that there is a relationship between the particular physical age limit and the purpose of the statute.

Apart from the customary and statutory definitions of a child which has been given, there are other several international treaties (that Nigeria is a party to) which give their own working definitions of who a child is.

According to the United Nations Convention on the Rights of the Child, a child means every human being below the age of 18 years, unless under the law applicable to the child the age of majority is attained earlier.((Article 1)) Similarly, the African Charter((African Charter on the Rights and Welfare of the Child, art 2)) also adopts 18 years as the age of majority. The United Nations Children’s Fund (UNICEF) has for its purposes identified childhood as that stage of life experienced by any person between birth and 15 years.

It is important to define who a child is because the definition of child is usually the offspring of a man and woman. In case of homosexual couple, does the definition of child cover a child born through artificial insemination of one of the partner, does the other couple if married qualified to be called the mother or father. In places where preference is given to the biological children of an individual, a child of a couple where the egg and sperm used are from donors, does such child qualify to be called the biological child of such individuals

There are lot of controversies surrounding children born by means of artificial insemination because sometimes it is difficult to assert who the parents of the child are or there may also be instances of multiple parentages.

It is only when the status of being a child is attributed to a person that we can talk of the rights that will follow. A child is not only defined in the context of age but also the relationship that exists as a result of birth or adoption.

Rights of Children under Nigerian law:

 

Child’s rights are human rights too, they are entitled to the basic rights guaranteed to every individual. Children generally have fewer rights than adults and are classed as unable to make serious decisions and legally must always be under the care of a responsible adult. Children have two types of rights under international human rights which is the fundamental human rights they share with adults and those that are specific to children for their protection. Looking at these rights broadly, some of them are towards the recognition of children as autonomous persons and the other is placing a duty on the society at large for the protection of the child.

As minors by law, children do not have autonomy or the right to make decisions on their own for themselves in any known jurisdiction of the world. Despite the fact that children are seen to be incapable of making important decisions, researchers have identified the need of children to be recognized as participants in the society whose rights and responsibilities need to recognized at all stages.((Lansdown G ‘Children’s rights’ in B. Mayall (ed), Children’s childhood: observed and experienced (The Falmer Press 1994) 34))

There are certain rights that should be inherent in every child even in the absence of legislations to the effect. Parents and persons who come into contact with children should learn to adopt and respect these rights.

Although, many laws that guarantee the rights of children have incorporated these rights into their various instruments. Certain rights such as right to life, right to health, right to education, right to home, right to expression and liberty are essential to the existence of every person which without them they can be regarded as less than a person.

Right to Life

 

There is a general belief that every human is entitled to the right to life and should not be deprived of it by any person. Right to life is the basis for the actualization of all other rights because when a person is denied his right to live then he does not have access to all other fundamental rights.

Children’s right to life does not just about entail that they be protected from birth, but as a living person they are entitled to the fundamental rights guaranteed to all persons which include right to dignity of the human person. It also entails that their right to life cannot be intentionally taken, the exclusion of children from death penalty and their protection by the government against infanticide. A child should not be deprived of his life merely because of disability or on the ground that the child is of a particular gender.²⁵

The right to life of children also entails that their developmental rights be protected and also making of policies that will aid them to grow into healthy and responsible adults.

25 In some societies, female children are not desired so they may be neglected or killed just on the basis of being a girl-child.

Right to Health

 

Health has been defined as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.²⁶ Health is a very important aspect of the human life as a person needs to be in good health to be able to appreciate all other rights granted to him.

Children need protection so there should adequate measures put in place to ensure that they are in good physical and mental state. Children are more receptive to illness and diseases so there should be preventive measures put in place to ensure that they are adequately protected. There should be provisions put in place to combat infant mortality by ensuring that there is adequate nutrition for the child, provision of necessary medical assistance and parents should always ensure the good health of their children as it is paramount to their physical, social and mental development.

Right to Education

 

Education may be described as all activities by which a human group transmits to its descendants a body of knowledge and skills and a moral code which enable the group to subsist.²⁷ Education is one of the most important legacies that can be bequeathed to a person. Education can be formal or informal, that is, within an organized and structured environment of learning or the one acquired within the family or community.

Education includes learning the skills that are needed to develop a person’s identity, it is a form of developmental right that should be granted to children as it builds them up to be able to contribute to the society’s development socially, culturally and economically.

27 Beiter Klaus Dieter, ‘The Protection of the right to education by international law’ (Martinus Nijhoff publishers 2005) 19

Education should be made available by the government by making it universal, free and compulsory. There should be adequate facility to encourage learning and a duty should be placed on parents to ensure that their children are given an education. There should be equal accessibility of education to all children irrespective of status, sex, race or other discriminatory factors.

The Nigerian constitution provides education as one of the fundamental objectives of the government. Education falls within the legislative competence of both the Federal and State governments. The Constitution directs that the government shall direct its policy towards education giving equal and adequate opportunities.

The Child Rights Act provides that the government has a duty to provide compulsory and free universal basic education to every child and places a duty on every parent and guardian to ensure the completion of primary and junior secondary education and also endeavour to send the child to a senior secondary school or put them in vocational training, the law sets sanction for failure to comply with the provisions.²⁸

The child should have access to information that concerns him and be allowed to participate in the life of their society. The child should not be denied his freedom and should not be denied this right except in circumstances that will be in the best interest of the child to do so.

There are different legal framework guiding the rights guaranteed to children and on examination of these laws and treaties, we can see the purpose, aim and objective to which the law is to be put into use.

Convention on the Rights of the Child

 

The rights outlined in the convention may be outlined under: Provision, Protection and Participation.

Provision: The rights of children to an adequate standard of living, provision for their basic needs which is dependent on the means and capacity of the parent, a balanced and healthy life.

Protection: The duty on parents, guardians or other people who are in charge of the care of children to protect them from abuse, exploitation and harm.

Participation: These are the rights that seek to internalize children as active members of the society, their right to be involved in activities in the community and respect of their opinions on certain issues.

The United Nations 1989 Convention on the Rights of a Child, being one of the most widely ratified conventions on human rights with the exception of South Sudan and USA being the only countries yet to ratify the convention. The international community has shown a commitment towards the application of the provisions of the convention in their various countries as they have all seen the importance of having a legislation that embody the civil, cultural, political, economic and social rights of children rather than leave it to the mercy of adults who have shown over the time the non-recognition of children as autonomous persons.

The CRC is based on four core principles, namely the principle of non-discrimination, the best interests of the child, the right to life, survival and development, and considering the views of the child in decisions which affect them (according to their age and maturity).

The convention addresses a wide range of issues touching the lives of children and the protection of family values and provides a balance between the rights and duties of children in relation to the rights and duties of parents.

 

The CRC provides that the rights set out will apply to children without discrimination of any kind irrespective of the child or parent’s sex, race, opinion or religion.²⁹ That the best interests of the child will be taken into consideration in any action that concerns them, there will be regard for their protection and provision of care. ³⁰ The rights of the child to an identity, that is, the duty on parents to give the child a name and do the necessary registrations required under their local legislations.³¹ The rights of the child to hold their own opinion and also their freedom of expression.³² The freedom of the child to association and peaceful assembly.³³ The duty on the state and parents to protect the child against abuse, neglect and harm.³⁴

There is also the right of the child to the best medical care available and prohibition of harmful traditional practices that are prejudicial to the health and development of the child.³⁵ The right of the child to education and also the duty on the state to make provisions for the free and compulsory education of children to a particular level and also the promotion of educational activities which are directed towards the development of the child.³⁶ It provides for the protection of the child against economic exploitation and any form of sexual exploitation or abuse.³⁷ The convention also provides for the treatment of children where it has been alleged that they have breached the criminal or penal laws of the state and to ensure that they are not treated in the same way as adult offenders.