Question — If a wife is unable to conceive, and so the husband and wife’s sperm and egg are taken and implanted in the womb of an unrelated woman, who then gives birth to the child, whose lineage (nasab) will the child be established under?
Will the child be considered the offspring of the husband and wife, or will the child’s motherhood be established with the woman who carried and gave birth to the child?
Answer — Implanting a husband and wife’s sperm and egg into the womb of an unrelated woman through this method is not permissible; rather, it is completely unlawful (haram). However, if a child is born this way, the child’s motherhood will be established with the woman who carried and gave birth to the child. If that woman is married, the child’s lineage will be established with her husband, based on the principle “al-walad lil-firash” (the child belongs to the marriage bed).
If that woman is unmarried, the child’s lineage will be established only with the woman who carried and gave birth to the child. The husband and wife whose sperm and egg formed the embryo will not have the child’s lineage established with them.
قال رسول الله صلى الله عليه وسلم: الولد للفراش وللعاهر الحجر (صحيح البخارى-1/276، رقم-2007، سنن الترمذى-1/219)
Meaning: The Messenger of Allah (peace be upon him) said, “The child belongs to the marriage bed (i.e., the lawful marital relationship), and for the fornicator is the stone” (i.e., he is deprived of the child, and gets only disappointment or punishment). — Sahih al-Bukhari 1/276, No. 2007; Sunan al-Tirmidhi 1/219.
الولد لصاحب الفراش لا ينتفى عنه أبداــــــــــــــ ولا بوجه من الوجوه إلا باللعان (أوجز المسالك، كتاب الأقضية، دار القلم دمشق-14/75/ تحت رقم الحديث-1445)
Meaning: The child belongs to the owner of the marriage bed (i.e., the lawful husband); the child’s lineage from him can never be severed or denied by any means, except through “li’an” (the special mutual-imprecation procedure between husband and wife under Islamic law). — Aujaz al-Masalik, Kitab al-Aqdiyah, Dar al-Qalam, Damascus, 14/75, under hadith No. 1445.
فنسب الولد من الرجل لا يثبت إلا بالفراش، وهو أن تصير المرأة فراشا له، لقوله عليه السلام “الولد للفراش وللعاهر الحجر” (بدائع الصنائع، زكريا-5/362)
Meaning: A child’s lineage from a man is established only through “firash” (a lawful marital relationship), meaning the woman is recognized as his lawful wife — because the Prophet (peace be upon him) said, “The child belongs to the marriage bed, and for the fornicator is the stone.” — Bada’i al-Sana’i, Zakariyya edition, 5/362.
فعلى هذا إذا زنى رجل بامرأة فجاءت بولد فادعاه الزانى لم يثبت نسبه منه لانعدام الفراش، وأما المرأة فيثبت نسبه منها (بدائع الصنائع، زكريا-5/363)
Based on this principle, if a man commits fornication with a woman and a child is born as a result, and the fornicating man then claims the child as his own, the child’s lineage will still not be established with him, because there was no lawful “firash” or marital relationship. However, the child’s lineage with the mother will indeed be established.