بررسي وضعيت حقوقي و فقهي قرارداد استفاده از رحم زن

Assessing Legal Status and Islamic Jurisprudence View on Surrogate Womb Contracts

Contract for using a surrogate womb, is a bilateral agreement on the basis of which a woman would carry an embryo generated from sperm and ovum of other man and woman. The surrogate mother agrees to deliver the child to his (her) biological parents after the delivery.Regarding this contract, there are different opinions of Imamia Jurists. A number of jurists see this contract permissible and valid to take advantage of the utility of a surrogate mother. However other Jurists believe that it is unlawful and discreditable. Moreover, the Iranian lawyers have conflicting opinions on this issue. As a bilateral agreement, some of the lawyers find this contract valid, but others view it null and void due to its contradiction with public order. In order to be valid this contract should have special conditions other than that stated in article 190 of the Civil Code. Thus doubts are cast on certainty, possibility, and legitimacy of the subject matter and as a result the validity of this contract has come under questioning. As a result it cannot be used a as basis for parties, rights and duties. However some compulsory results could be derived, most important of which is relativity and potentiality. It is believed that the embryo carries parental traits, but there are different views regarding the embryoʹs maternal relationship because the child is related to two women: a biological and a surrogate mother. While some jurists consider the biological mother as the real mother of child, others believe the surrogate woman who gives birth to the child should be considered as the mother. However there are few jurists, who believe both of them to be the mother of the child.