SURROGACY REGULATIONS UNDER COMMON LAW: AN ISLAMIC LEGAL PERSPECTIVE

Abstract

Surrogacy has emerged as one of the most controversial aspects of assisted reproductive technology because it raises complex legal, ethical, social, and religious questions. This study examines the regulation of surrogacy under Common Law from an Islamic legal perspective. It analyses the concept and forms of surrogacy, explores the regulatory approaches adopted in selected Common Law jurisdictions, and evaluates the Islamic legal position on the practice. The study adopts a doctrinal and comparative legal methodology to examine relevant legislation, judicial decisions, international legal instruments, primary sources of Islamic law, and contemporary scholarly opinions. The findings reveal that Common Law jurisdictions adopt different regulatory models, including prohibition, restrictive regulation, and liberal regulation. In contrast, Islamic law generally prohibits all forms of surrogacy because of concerns relating to lineage (nasab), maternity, inheritance, and the preservation of family relationships. The study further reveals that the absence of a comprehensive international framework has contributed to increasing legal disputes, particularly in cases involving cross-border surrogacy. The study concludes that although both Common Law and Islamic law seek to protect children and preserve family stability, they differ fundamentally regarding the permissibility of surrogacy and the determination of parentage. It recommends the adoption of clearer regulatory frameworks, stronger international cooperation, greater protection of children's rights, and increased consideration of Islamic principles relating to lineage and family preservation.