CONTEMPORARY HALAL FAMILIES
COMBINING ISLAMIC NORMATIVITY AND HUMAN RIGHTS
To what extent the right to respect for private and family life (article 8 ECHR) can be enacted on European soil? Does this right impact on (potentially) Islamically-compliant creative forms of filiation and alternative routes to parenting?
In order to answer these questions light shall be shed upon the interaction between legally permitted biomedical protocols, on the one hand, and patients’ religious and/or ethnocultural interpretations, on the other. In particular, amongst the contemporary imaginative family constellations, European Muslim kinship arrangements are deemed worthy of specific attention since ethnographic investigations document increasing numbers among Muslim patients in fertility clinics.
Elaborating on the importance of procreation in classical Islām, and investigating the strategies developed by intended parents to cope with involuntary childlessness, the paper will thus analyse the manners in which the ECHR broad notion of private family life can encompass contemporary ḥalāl kinships. Ethnographic studies, in effects, indicate that “essentialist” and “Orientalist” approaches are to be avoided by paying careful attention to the European highly variegated and non-monolithic Muslim population.
The article 8 ECHR ‘broad notion of family life’
On European soil, the right to respect for private and family life is enshrined in the article 8 of the European Convention on Human Rights. As further clarified by the ‘Guide on Article 8 ECHR’ dated 31 August 2020 and 31 December 2020, the notion of family life is an ‘autonomous concept’ and the ‘broad notion of private life’ also encompasses the right of a couple to conceive a child and to make use of medically-assisted procreative or reproductive techniques for that purpose. Accordingly, both the notion of ‘private life’ and the notion of ‘family life’ incorporate the right to respect for decisions to become a parent also “in the genetic sense”, as well as the right of a couple to make use of fertility techniques.
In real terms, the possibility to resort to fertility treatments is of pivotal importance and highly impacts on family planning. Official statistics indicate that Europe is currently the largest market for assisted and reproductive technologies, as corroborated by the data analysed by the European IVF-monitoring Consortium (EIM) for the European Society of Human Reproduction and Embryology (ESHRE) and recently published (Human Reproduction Open, 2020, III). In point of fact, normative provisions greatly vary across European countries and these echo different approaches regarding accessibility to and efficacy of those techniques (Calhaz-Jorge et al., 2020).
To some, the article 8 ECHR obligations signify an acceleration in the privatization of family law and in the legitimatization of ‘untrammelled system shopping’, particularly in international commercial surrogacy (Ní Shúilleabháin, 2019). The right to respect for private and family life, however, can highly facilitate the respect for ethnocultural sensitivities and the accommodation of religiously-based family planning necessities within the framework of legally permitted fertility protocols.
In the described scenario, Islām – being the second largest religion in Europe – deserves specific attention. As a matter of fact, the Pew Research Center’s Forum on Religion and Public Life (2015:50) elucidated that ‘the share of Muslims in Europe’s population will nearly double between 2010 and 2050, from about 5.9% to 10.2%’; globally, the number of Muslims is projected to increase by 70% between 2015 and 2060, and babies born to Muslims will begin to outnumber Christian births by 2035 (ibidem, 2017). Accordingly, Muslims are becoming a consistent part of the XXI-century European society.
Whilst assisting at the passage from ‘Islām in Europe’ to ‘European Islām’, sharīʿah-compliant routes to parenting are therefore spreading across Europe. And, in order to overcome misunderstandings and stereotypes, creative forms of filiation deserve to be properly investigated also on the grounds of the constantly growing (indigenous) European Muslim population.
In actual facts, when specifically looking at contemporary family constellations, two dynamics emerge. Muslims intended parents are familiarising themselves with legally and medically permitted new procreative protocols. European clinics are developing and implementing rules of conduct to successfully manage various religious and ethnocultural specificities in family planning, on a daily basis. This new productive dialogue deserves thus to be properly investigated.
The importance of procreation
Classical Islām is conventionally categorised as a pro-natalist religion and, undoubtedly, it acknowledges great value and significance to human reproduction. Children are highly valued and adult married Muslims are invited to procreate. In effects, the Qur’ān (16:72; 18:46; 25:74) exhorts Muslims to produce offspring, and the sharīʿah favours high birth-rates among Muslim married partners. Therefore, birth control is usually prohibited or highly limited by some Islamic scholars. By way of illustration, a resolution issued by the Islamic Fiqh Council (Res. 23-30 Rabīʿ al-ʾĀkhir 1400 AH, 1/III) designates this practice as being contrary to human nature and violating the provisions of the Qur’ān and the Sunnah. Nonetheless, some methods of contraception are permitted, provided reproduction is only temporarily prevented – as elucidated by the European Council for Fatwa and Research (fatwā 10/3, X Ord. Session, Dublin, Dhul al-Qi'dah 1423 AH 19-26), a body created also to address specific needs of Muslims living in minority-contexts.
The desire of parenthood is described as an innate component of human nature in some analyses of contemporary Islamic bioethics. The study proposed by Al-Bar and Chamsi-Pasha (2015: 173-174), for instance, pinpoints the decisive role of the wish for offspring in Islām, a religion that ‘gives strong and unequivocal emphasis to high fertility’. Scholars have indeed broadly highlighted the pro-natalist attitude of Islamic and Muslim law. In point of fact, procreation is regarded as an act of worship (Qur’ān, 4:4; 16:72). When adopting a spiritual viewpoint, pregnancy is compared to the fullness of spirit Muslims acquire during the pilgrimage to the holy city of Mecca, or when they fast during the ninth month of the Islamic lunar calendar (ramaḍān).
Differently from other religious denominations, procreation is not the sole and the highest purpose of marriage in Islām, as clarified by the Qur’ān (2:187; 7:189; 30:21). Nonetheless, child-bearing is constantly described as a natural act and frequently perceived as a sort of “religious duty” by European Muslim communities.
Embracing a more pragmatic viewpoint, procreation is related to two main factors. First of all, Islām encourages the numerical increase of the world-wide Muslim population so-called Ummah (see inter alia Musallam, 1986 and Inhorn, 1994). Secondly, procreation is strongly intertwined with the issue of care within the extended kindred networks; to put it differently, bearing children is important since, once adults, they will be responsible for taking care of their elderly parents.
The XXI-century European Muslim intended parents
Muslim parents living in European environments may adjust the above-described sort of “sharīʿah-based natural procreative imperative” to their daily needs. And, in actual terms, the ideal family size is downsizing amongst Muslim households, in line with the European trend.
Infertility and sterility are nonetheless perceived as critically problematic matters and exceptionally contentious issues arise when adopting the Islamic perspective. Accordingly, as time passed, some fertility treatments were gradually included in the list of Islamically permitted alternative routes to parenting also in the Muslim world (Serour, Aboul-Ghar, and Mansour, 1991, 1995; Atighetchi, 2007). Naturally, worldwide, the actual offer of biomedical technologies is highly impacted on by scientific progress and legal regulations, which might also be affected by geographically relevant ethics and morals.
Specifically looking at Muslim contemporary families living on European soil, recently conducted ethnographic investigations (Sona, 2019 and 2020, where details can be found regarding the employed methodology and the research informants - this study is to be referred to also with respect to the field-collected data reported in the following paragraphs) unveiled increasingly independent and autonomous Muslim prospective mothers and fathers. In point of fact, reference to local religious figures for Islamic guidance on reproductive matters appeared reduced to a minimum. The required advice mostly regards worship practices, whereas counselling in reproductive matters was very rarely sought for, at least among locally-based religious bodies or Islamic worship centres.
As part of the process that has been described as “nuclearisation of migrant families”, Muslim prospective parents are therefore increasingly opting for self-determining decisions. In particular, by stressing the autonomy of their nuclear family settled in a minority-context, intendent parents tend to emphasise the importance of their own (non)-sharīʿah-compliant reproductive choices and family planning. As a matter of fact, the gap between the lived realities of Muslim practices and theological discourses on Islām may be widened, especially in European scenarios. Regrettably, in the broader society, this can foster stereotypes and misunderstandings, which this essay intends to scatter.
As far as Muslim family constellations are concerned, the above-mentioned approach implies two main consequences. First of all, a high percentage of Muslims do access fertility clinics, thus favouring the process of “medicalisation of infertility or sterility”. In this case, prospective parents regard the examined traditional Islamically-compliant routes to parenting as the second-best choice. Secondly, sharīʿah can be flexibly interpreted in order to legitimise medical assistance in human reproduction. Searching for Islamically-compliant solutions to Muslim couples’ procreative problems, old provisions are thus construed in a new light by intended parents, whilst acting within the boundaries of the ECHR. These novel and thought-provoking attitudes remains often conceal in the folds of social practices and deserve to be properly unpacked in the following paragraphs.
Coping with involuntary childlessness
According to classical Islām, in the event that Muslim spouses face procreative problems, they can rely upon a number of sharīʿah-compliant remedies to involuntary childlessness. These encompass more traditional remedies such as prayers and acts of worship. Although invited to pray for intercession, Muslims are most of all asked to willingly accept their fate and to be content with what God has given to them in a predeterministic manner.
Foster care and (cross-family) child custody are also permitted by sharīʿah; adoption is however forbidden by Islamic law, whereas kafālah can be recommended. In real terms, the Qur’ān (see, for instance, 2:177,215; 4:2,6,10,127; 6:152; 76:7-10; 89:15-18; 93:9; 96:6) exhorts pious Muslims to take care of orphans and abandoned children, but indicates that the child’s lineage is to be protected and preserved. Therefore, fictive parent-child relationships through naming and endowment of biological child’s rights and duties are to be avoided.
Additional Islamically compliant solutions to involuntary childlessness imply changes to the intended parents’ nuclear families. In particular, in case of (supposedly) female/male infertility or sterility, two other Islamic traditional remedies are named by Islamic authorities, that is to say polygyny or divorce. With regard to the first solution, it should be mentioned that, according to Islamic law, a Muslim husband can marry more than one wife (e.g. Qur’ān 4:2-3, 21), consequently becoming a polygynous man. When applying mentioned provision to family planning, this implies that the spouses can choose not to divorce because of the lack of progeny, rather they can continue their married life together while another person enters the nuclear family, namely a second wife.
When adopting the perspective of the interviewed Muslim (religious scholars, local clerics and intended parents), in case of unplanned childlessness, polygyny can be resorted to in three hypotheses: (1) if the wife is affected by primary or secondary infertility/sterility, (2) if the husband wishes to have a very large number of offspring without putting at risk the woman’s health, and (3) if the wife had borne only daughters whereas the husband wants to father a son. Not only medical sterility, but also additional internal factors - such as ‘gender selective infertility’ - can therefore explain intended Muslim parents’ polygynous choices, although being strongly condemned by some Islamic scholars.
An alternative sharīʿah-compliant route to parenting indicates that a Muslim man can divorce (also through unilateral repudiation) his infertile/sterile wife. This imbalance in gender relations is rectified by the fact that a woman can also submit an application for (judicial) divorce in case of infertile/sterile husbands. In some cases, this condition is required to be inserted in the partners’ Islamic nuptial contract, which the majority of Western Muslim couples do actually sign, privately or before foreign authorities aboard or in diplomatic premises on European soil.
Legally permitted protocols and ethnocultural provisions
In light of the described Islamically-compliant kinship paths, the dynamic interplay between legally permitted medical protocols on European and domestic soil - on the one hand - and patients’ religious and/or ethnocultural interpretations of their right to private and family life - on the other hand - are to be specifically explored. In actual facts, indeed, Muslim intended parents can fully enact the rights enshrined in the ECHR by reinterpreting traditional Islamic provisions.
Empirical investigations, in effect, disclosed that changes affecting the composition and structure of the nuclear family (such as divorce and polygyny) are socially and religiously perceived as a less desirable option in the search for sharīʿah-compliant solutions for childless Muslim partners. Nonetheless, (temporary) nuptial dissolutions, as well as polygynous matrimonial unions, might also be relied upon in order to (partly) legitimise the contribution of third-party/ies (e.g. donors) in Islamically-compliant medically-assisted procreative treatments.
A traditional Islamic provision - such as the one permitting polygyny – can indeed be creatively relied upon by some Muslim intended parents in order to facilitate the formation of so-called ḥalāl families within the human rights framework specifically grating the possibility to have recourse to medically-assisted reproductive and procreative methods. By way of illustration, an (Islamic only) marriage can be entered into by the intended father and the oocyte’s donor in order to legitimise the conceived offspring, hopefully delivered by the (first) wife. In other words, an Islamic provision permitting Muslim men to marry more than one wife can be reinterpreted in order for the childless Muslim couple to reoccur to modern biotechnologies and, at the same time, abide by Islamic norms. Naturally, the scenario is very much variegated and not every single Muslim intended parent might feel comfortable in abiding by certain provisions; whilst other Muslims would refrain from some fertility treatments made available by the contemporary biomedical technologies.
As it happens in all religious traditions, the above mentioned ‘privatised approach to religious norms’ can however be described as double-edged sword. In facts, it might entail some major potential dangers, particularly in the everyday implementation of the cultural understanding of Islamic provisions. As disclosed by some local Islamic scholars, clinic staff members and Muslim women, for instance, some Muslim men felt comfortable in stressing their right to divorce, also via unilateral repudiation, a (supposedly) infertile wife, or a wife who bore only daughters. In the described case scenario, Muslim women were thus put under significant pressure to get pregnant and therefore they were recurring to fertility clinics as a matter of urgency. It should be pinpointed and highlighted that this attitude is strongly condemned by both clinicians and European Islamic scholars, who highly discourage Muslim believers from D.I.Y. when dealing with Islamic normativity on the grounds that this “bricolage” can lead to potentially problematic outcomes.
We can thus stress that, although a combination of marriage/s and divorce/s might be necessary for a Muslim couple to undergo sharīʿah-compliant heterologous procedures (namely, medically-assisted reproductive and procreative techniques involving third parties as gamete-donors or surrogate mothers), the fact that Muslim husbands can alone resort to some Islamic traditional remedies highly impacts on the willingness of Muslim women to be subjected to fertility treatments. In actual terms, the social burden of infertility is traditionally liked to women, who are particularly affected by childlessness, and this happens not only among Muslim intended parents. However, in Islām, offspring is not only a means of personal achievement, but it is a tool for social and familial legitimisation; the search for parenthood can thus become more “desperate” in some contexts also due to the pressure exerted by the partners’ extended kindred.
Traditional Islamic principles and newly created family constellations
When the Muslim couple agrees to undergo fertility treatments, traditional Islamic principles can be relied upon in order to justify and to regulate newly created family constellations. In actual facts, when looking at family planning, medically-assisted procreation gradually attracted more attention by Islamic scholars and infertile/sterile Muslim partners; over time, stricter views on fertility treatments were noticeably softened.
As a rule of thumb, the child’s lineage and paternal bloodlines are to be protected and zināʾ (unlawful sexual intercourse such as fornication and adultery) is to be avoided. This means that (A) the prospective parents undergoing fertility treatments must have entered into a valid sharīʿah-compliant nuptial contract, and (B) any third-party is not intruded in the matrimonial relationship of husband and wife. This provision is deemed necessary to protect and safeguard the mother, the father and the offspring alike.
When adopting the point of view of Islamic and Muslim sources, however, the spectrum of possible Islamically-compliant interpretations significantly varies with respect to medically-assisted procreation and reproduction, particularly among the two main Muslim denominations – namely, Sunnī and Shī’ī Muslims (for further details see for instance Inhorn and Tremayne, 2012). More specifically, some Shī’ī Muslim scholars have been legitimising, at least to some extent, various fertility techniques, including the contribution of third parties – the so-called heterologous fertility treatments. Donor's female/male gametes and embryos, as well as surrogacy, can thus be Islamically permitted when embracing these viewpoints.
As a result, a medicalised approach to the intended parents’ infertility is permitted and Muslim prospective parents can resort to Islamically-compliant fertility treatments. In the case of homologous assisted reproductive technologies among (Islamically) married partners, no further Islamic requirements are to be satisfied. In other contexts, a combination of ‘old’ and ‘new’ Islamic remedies to childlessness are to be merged by Muslim intended parents in order to undergo sharīʿah-compliant, homologous or heterologous, fertility medical procedures.
To put it differently, traditional remedies to Muslims’ infertility/sterility can be strategically and skilfully used as tools to facilitate the usage of otherwise Islamically forbidden biomedical treatments. And, in this case scenario, polygyny and divorce (as examined above) are not the sole options. By way of illustration, in order to create an unusual and yet ḥalāl family, some Shī’ī Muslims regard the surrogate mother as the offspring’s milk-mother (similarly to the child’s wet-nurse), or permit gamete donations (sometimes even sperm donors may be allowed), provided the donor and the intended parents are (temporarily) Islamically married.
Naturally, these potential remedies to involuntary childlessness can be either endorsed or disapproved by prospective Muslim parents. In actual facts, fieldwork observations disclosed contrasting views. To some, traditional Islamic principles are the key to fully enact the right to family life “in the genetic sense” on European soil. As a result, some provisions – such as polygyny - can be implemented to legitimise for a couple to benefit from oocytes given by a donor, who might be (temporarily) regarded as the husband’s second wife. Whereas studies indicate that these dynamics are put into practice to a different extent in the Muslims world, on European soil these mostly unfold on a private level, where each human being expresses his/her own religiosity by interpreting the manners in which family planning enfolds.
The above-mentioned different interpretations of Islamic provisions add further layers of complexity to the current biomedical and ethnoreligious debates. In actual terms, Muslims intended parents can also refer to different Islamic sources. By way of illustration, the Shī’ī creative ways to legitimise medically-assisted procreative treatments might be relied upon also by Sunnī Muslims, particularly when living in non-Muslim-majority contexts. Muslim patients are in fact currently undergoing heterologous fertility procedures in European countries. This practice is condemned by some Islamic scholars. Nonetheless, to some Muslim parents, this conduct enacts a sharīʿah-complaint behaviour and leads to the formation of contemporary ḥalāl families within the boundaries of legally permitted biomedical treatments and human rights protected family life.
Currently, the list of (potentially) Islamically-compliant alternative routes to parenting is expanding and more creative kinship arrangements are emerging worldwide, also in light of the increased availability of advanced biomedical technologies.
In a sensitive domain such as medically-assisted procreation and reproduction, social acceptability as well as ethical and moral considerations are to be taken very seriously, as stated by the European Court of Human Rights. Accordingly, the state official legal framework devised for this purpose ‘must be shaped in a coherent manner’ allowing the different parties’ legitimate interests involved to be adequately taken into account.
When specifically looking at Islām, it appears that, drawing upon the flexibility of sharīʿah, Muslim prospective parents might establish rather imaginative family constellations, whilst acting in compliance to both Muslim law and the ECHR right to respect for private and family life.
It can thus be said that by combining Human Rights and Islamic normativity, religiously- and culturally- sensitive family planning can be fostered on European soil.