Document Type : Review Article
Authors
1 Faculty Member, Department of Fiqh and the Fundamentals of Law, Imam Sadiq University — Women’s Campus, Tehran, Iran.
2 Imam Sadiq University. Tehran. Iran
Abstract
Significant advances in assisted reproductive technologies especially the use of donated gametes have created deep and complex challenges in Shi‘i jurisprudential reasoning and family law. One of the most important of these challenges is the issue of lineage (nasab) in cases where the origin of the gamete does not belong to the couple. In such circumstances, questions regarding the legitimacy of attributing lineage to the legal parents and its consequences such as inheritance, custody, guardianship, kinship prohibitions, and religious and legal responsibilities have become matters of dispute based on jurisprudential and uṣūlī principles. In the absence of explicit textual evidence and considering multiple possibilities, this study seeks, by relying on the principle of precaution (iḥtiyāṭ) as one of the operative principles in Shi‘i legal theory, to analyze the issue from a jurisprudential-legal perspective.
The main discussions of the article include examining the basis of precaution according to major uṣūlī scholars such as al-Shahīd al-Ṣadr, Shaykh al-Anṣārī, and Ākhūnd al-Khurāsānī; its application to factual and legal doubts in matters of lineage; evaluating the relevant narrations and the rule of firāsh concerning children conceived through donated gametes; and reviewing the views of contemporary jurists in medical jurisprudence. Based on the analysis, the study shows that when doubt exists regarding lineage because the gamete is not from the couple, and where potential conflict arises among the rule of firāsh, the principle of non-establishment, and precaution, the principle of precaution prevails.
Keywords
- Principle of Precaution
- New Reproductive Technologies (Assisted Reproductive Technologies)
- Principle of Non-Establishment (Presumption of Non-Existence)
- Principle of Exemption (Principle of Bara’ah)
- Gamete Donation
Main Subjects
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