February 24, 2024

Surrogacy and polygamy: a volatile mix

A bitter custody dispute in Pakistan.

Every culture, it seems, has distinctive permutations of the conundrums of surrogate motherhood. A dispute from Pakistan illustrates the thorny issue of surrogacy in a Muslim society which allows polygamy.

A US-based Pakistani, Farooq Siddiqui, is suing to recover his 7-year-old daughter Fatima from the woman who gave birth to her, Farzana Naheed. The case has reached Pakistan’s Supreme Court.

At issue is whether Farzana is his wife or simply a surrogate mother. It appears that he married her after his first wife was unable to bear children.

Siddiqui claims that Farzana was only a surrogate mother who became pregnant through artificial insemination. She was responded to a newspaper advertisement in 2004 and agreed to bear his child in exchange for money. Farzana also signed an agreement that that she would not claim custody of the child.

Siddiqui’s view  is that this relationship was not a marriage. He says his first wife Yasmin had paid his second wife to have a child, and therefore should not be regarded as the mother.

Farzana counters that their relationship had been an arranged marriage. When the couple divorced, she retained custody of the child. A lower court civil judge agreed with her. He concluded that Farzana was the real mother and had been married to Siddiqui. He awarded custody to Farzana because, he said, the baby should not be deprived of a mother’s love and care.

Dr Aslam Khaki, an expert on Islamic jurisprudence, said “In my opinion, as for as the custody of child is concerned, surrogate mother has preference over the father because Qur’an points out and appreciates the three roles of a mother: That she bears the child in her womb, that she delivers the child with pain and that she breastfeeds the child for two years.”

The Surpreme Court will hear the matter on November 2. ~ Express Tribune, Oct 21

Michael Cook
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