S p i r i t ua l i t y S t u d i e s 6 - 2 Fa l l 2 0 2 0 3 3 Monika Zaviš a) Sunni & Shi’a Jurisprudence . Different concepts of marriage, for instance, have a profound influence on the permissibility of third-party donation. Initially, the use of ARTs was restricted to married couples by both Sunnis and Shi’a. Later, the Shi’a scholars extended the definition of Muslim marriage to include temporary marriage – mut’a , which made third-party donation possible without the worry of committing adultery – zina (Tremayne and Inhorn 2012, 9). Tremayne explains its practical implications (Tremayne 2012, 152): “ In the case of the wife’s infertility, the husband would marry the egg donor without any sexual contact, to receive her egg to be fertilized with his sperm. Polygyny being allowed in Islam; this would not necessarily cause any complications. But, in the case of the husband’s infertility, the wife, not being able to be married to two men at the same time, would divorce her own husband, marry the sperm donor without any sexual contact taking place, receive his sperm, and remarry the first husband. In both cases the embryo is fertilized outside the womb and planted in the uterus. ” Today, the practice of temporary marriage in Iran is less common. For Shi’a, third-party donation is not a breach of the marital contract and it is not considered adultery as long as there is no physical contact between the donor and the recipient and no illicit gaze (Tremayne 2009, 148). Surely, having such loose guidelines for third-party donation means that Iran was included among the reproductive tourism destinations, just as Lebanon (Clarke 2008, 143–169) and Dubai (Inhorn, Shrivastav and Patrizio 2012, 249–265). b) Madhhabs in Sunni Jurisprudence . For instance, a list of legal requirements for a marriage contract to be valid. Al-Sbenaty argues that while all Sunnimadhhabs require simplicity of the ceremony, they differ regarding the validity of the marital contract when not recited in the desired grammar tense: “ Shafi’i and Hanbali madhhabs allow a conclusion of marriage only if the consent to the marital contract is recited in the past tense. Maliki and Hanafi madhhabs stipulate that marriage is valid when recited in either the present or future tenses. It has to be clear from the recitation, however, that it is not just a promise to some future marriage or entering into a time-limited marriage. ” (Al-Sbenaty 2012, 27). Another example of variation inmadhhabs is associated with the presence of a bride’s guardian, waliwhose role is very important, especially when a girl is married off early in her life. He is there to protect her rights. Shafi’i, Hanbali and Malikimadhhabs require the presence of wali , for the marriage contract to be valid; Hanafimadhhab , on the other hand, does not insist onwali’s pres - ence (Al-Sbenaty 2012, 37–38). Stark difference can also be found in matters of kinship. Eich studied what Sunnimadhhabshave to say about issues concerning kinship in relation to zina (adultery) andnasab (genealogy). When asked if zina causes marriage prohibitions, Hanafis and Hanbalis answered yes, while Shafi’is and Malikis answered no. When asked if zina establishes a nasabHanafis, Shafi’is and Malikis answered no, while Hanbalis answer was yes (Eich 2012, 31). c) Fatwas . Although these authoritative legal opinions distinguishing, which practices arehalal orharam for todays’ believers are not legally binding, they still serve as such in practice. When addressing individual matters in which the personal faith merges with practice, the rulings ofmuftis are considered determinative in the absence of clear references in the Qur’an and oth - er written sources on reproductive bioethics in Islam and they become a law for the believing Muslim. When studying individual fatwas , it is very important to pay attention to their issuance date and the region in which they are considered relevant and valid.
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