ABSTRACT

Reproductive rights attained recognition at the 1994 Cairo International Conference on Population and Development (ICPD) with the proclamation that reproductive rights embraces “the right to attain the highest standard of sexual and reproductive health and the right to make decisions on reproduction free from discrimination, coercion or violence” to the effect that women should be free to decide whether and when to have children, exercise their choices without coercion, and be able to obtain the best reproductive health care available, regardless of their personal circumstances. Reproductive rights therefore, has generated intense discourse and ignited controversies that really seem to dissect all human endeavours. Muslim as an integral part of this discourse have had recourse to Islamic Law to show how it differs from these so-called reproductive rights as enshrined in the various conventions especially the use of artificial methods in human reproduction as they affect the rights and responsibilities between the parents and the resulting child. This research work is particularly concerned with the right to reproductive self-determination especially as represented by the concept of Assisted Reproductive Technology (ART) which is methods used via scientifically assisted means of possessing progeny. However, the principal aim of this study is to analyze the Islamic perspective to ART and doctrinal methodology was adopted in the study. Thus, study has attempted an analysis on the concept of Artificial Human Reproduction (AHR) with particular reference to its legal position in Islamic law. It has been highlighted that only certain artificial human reproduction methods can lawfully stand under Islamic law, i.e., artificial insemination and in-vitro fertilization on condition that they are to be used as a form of infertility treatment. Thus, Islamic law has provided for the need as well as the legality of employing ART to cure infertility ailment. The study found that ART methods have challenged the traditional notion of the family. They assault the meaning of parenthood by transforming procreation into reproduction and manufacturing of children. These techniques bring about the problem of legitimacy (Nasaba) of the resulting child, right to inheritance (waratha) and maintenance (nafaqa), custody (hadhana) and fosterage (radha’a) – all of which arise out of kinship or legitimate relations. In view of the legal challenges posed by ART, it has been opined that certain methods such as surrogacy could cause confusion under Islamic law as to the determination of the rights of the child towards its parent and the corresponding responsibilities of the parents towards their children respectively. Consequently, it has been amply recommended that as far Islamic law is concerned, couples are not on a freelance of their own to seek to alleviate their infertility problem by all means possible through surrogacy but regard must be heard to the established principles of the sharia on the integrity of the institution of marriage. Thus, neither the contractual agreement of the couples nor the wishes of the parties to procreate artificially could be allowed to alter the established principles of the sharia on the preservation of lineage just to satisfy infertility grief.

TABLE OF CONTENTS Title Page – – – – – – – – – – i Declaration – – – – – – – – – – ii Certification – – – – – – – – – – iii Dedication – – – – – – – – – – iv Acknowledgement – – – – – – – – – v Table of Abbreviations – – – – – – – – – vi Table of Statutes – – – – – – – – – vii Table of Cases – – – – – – – – – – viii Abstract – – – – – – – – – – iv Table of Contents – – – – – – – – – x CHAPTER ONE: GENERAL INTRODUCTION 1.1 Background of the Study – – – – – – – 1 1.2 Statement of the Research Problem(s) – – – – – – 5 1.3 Aim and Objectives of the Study – – – – – – 7 1.4 Significance of the Study – – – – – – – – 7 1.5 Scope of the Study – – – – – – – – – 8 1.6 Methodology – – – – – – – – – 8 1.7 Literature Review – – – – – – – – 8-15 1.8 Organizational Layout – – – – – – – 15 CHAPTER TWO NATURE AND PHILOSOPHY OF ARTIFICIAL HUMAN REPRODUCTION 2.1 Introduction – – – – – – – – – 16 2.2 Meaning and Nature of Artificial Reproduction – – – – 16 2.2.1 Artificial Insemination – – – – – – – – 17 2.2.2 In-vitro Fertilisation (IVF) – – – – – – – 18 2.2.3 Sperm Donor/Ova Bank – – – – – – – 18 2.2.4 Artificial Embryonation/Embryo Adoption – – – – – 19 2.2.5 Surrogate Parenting – – – – – – – – 20 2.2.5.1 Juridical Views on Surrogacy – – – – – – – 21 2.2.5.2 Ethical Issues on Surrogacy – – – – – – – 23 2.2.5.3 The Legal Position of Surrogacy in Other Jurisdictions – – – 24 2.2.6 Human Cloning – – – – – – – – 29 2.2.7 Ectogenesis – – – – – – – – – 29 2.2.8 Genetic Engineering – – – – – – – – 29 2.3 The Causes of Infertility and Philosophy of the Concept of Artificial Reproduction – – – – – – – 31 2.3.1 The Causes of Infertility – – – – – – – 31 2.3.2 The Philosophy of the Concept of Artificial Reproduction Methods – – 32 2.4. An Examination of the Procedures Involved in ART – – – – – 32 2.4.1 The Processes of In-Vitro Fertilization (IVF) – – – – – – -32 2.4.2 The Procedures of Artificial Insemination (AI) – – – – – – -34 2.4.3 Intracytoplasmic Sperm Injection- – – – – – – 35 2.4.4 Gamete or Zygote Intrafallopian Transfer – – – – – – – 36 2.4.5 Surrogacy – – – – – – – – – – 36 2.4.6 Post-Humous Conception (PHC) – – – – – – – 37 2.4.7 Cryogenic Preservation – – – – – – – – – 38 2.5 The Legal Position in Nigeria – – – – – – – 39 2.5.1 The Constitutional Requirements for Implementing International Treaty in Nigeria – – – – – – – – – – 40 CHAPTER THREE: ARTIFICIAL HUMAN REPRODUCTION: AN ISLAMIC LAW PERSPECTIVE 3.1 Introduction – – – – – – – – – 48 3.2 General Overview on the Perspective of Islamic Law on ART – – – – 48 3.3 Islamic Position on the Use of ART by Fertile Men and Women – – – 53 3.4 Surrogacy in Islamic Law Perspective – – – – – – 54 3.5 The Position of Islamic law on Artificial Insemination- – – – – 58 3.6 The Position of Islamic Law on Procedures of In-vitro Fertilization – – 60 3.7 The Position of Islamic Law on Sperm Donor/Ova Bank – – – – 62 3.8 The Position of Islamic Law on Ectogenesis – – – – – 66 3.9 The Position of Islamic Law on Artificial Embryonation/Embryo Adoption – 67 3.10 The Position of Islamic Law on Egg Transfer- – – – – 68 3.11 Islamic Perspective on the Procedures of ART – – – – – 69 CHAPTER FOUR: THE RIGHTS OF CHILDREN VIS-À-VIS PARENTS IN RELATION TO ARTIFICIAL HUMAN REPRODUCTION UNDER ISLAMIC LAW 4.1 Introduction – – – – – – – – – 77 4.2 Right to Lineage (Nasab) – – – – – – – 78 4.2 Right to Suckling (Rada’a) – – – – – – – – 82 4.4 Child‟s Right to Inheritance (Waratha) – – – – – 87 4.5 Child‟s Right to Custody (Hadana) – – – – – – – 90 4.6 Child‟s Right to Maintenance (Nafaqa) – – – – – 94 CHAPTER FIVE SUMMARY AND CONCLUSION 5.2 Summary – – – – – – – – – 97 5.2 Findings – – – – – – – – – 99 5.3 Recommendations – – – – – – – – 102 Bibliography – – – – – – – – – 104