Legitimacy and Legacy: Comparative Analysis of Sunni and Shi‘a Jurisprudence on the Inheritance Rights of Surrogate Children

Abstract

Assisted reproductive technologies (ARTs), particularly surrogacy, have reshaped global family dynamics, offering solutions to infertility while challenging Islamic law’s foundational principles of nasab (lineage) and mirāth (inheritance). This paper examines the compatibility of surrogacy with Shari’ah by analysing the determination of nasab and inheritance rights of surrogate children under Sunni and Shi‘a jurisprudence. Using doctrinal and comparative methodologies through Qur’anic verses, hadiths, classical juristic opinions, fatwās and resolutions of bodies such as Al-Azhar and the Islamic Fiqh Academy, the paper finds that Sunni scholars generally prohibit surrogacy due to ikhtilāṭ al-ansāb (lineage confusion), while Shi‘a jurists conditionally permit gestational surrogacy by prioritizing genetic parentage. The paper concludes that collective ijtihād and maqāṣid-based reforms are necessary to preserve lineage while protecting the rights and dignity of surrogate-born children. It recommends that Muslim Scholars develop broad legal and ethical frameworks regulating assisted reproductive technologies, supported by collective ijtihād involving medical experts and policymakers. It further recommends the harmonization of contemporary Islamic bioethical guidelines to safeguard nasab while ensuring that children born through assisted reproductive technologies are not deprived of their fundamental rights and legal protection.