For most of its history, Islamic law has developed independently of the state, law-making being the sphere of legal scholars. Matters relating to family and childbearing were believed to belong to the realm of personal autonomy, necessitating little intervention by state authorities.

The state’s role in law-making changed considerably in Iran from the 1920s on, starting with a broad codification movement under the Pahlavis, which encompassed family and inheritance law in particular. Reza Shah, the first Pahlavi king, wanted to centralize the state, control legislation, and curb the legislative and judicial power of the religious establishment. National courts with secular-trained judges who would apply state law were established by the 1940s. All personal status matters had to be disclosed to the state through registration. Established in 1979, the Islamic Republic of Iran changed the structure of the state and the grounds for the legitimacy to rule, but it did not dismiss the concept of rule by law. Rather, state law reform remained the main mechanism by which family law and related social behavior was to be reformed and controlled. Also, the fusion of the head of state with the position of the highest religious authority in the person of the supreme leader led to the reemergence of the Shiite establishment’s legal authority.

Shiite Islam has neither a clergy nor a single authority. The faithful follow the teachings of individual scholars, especially the Grand Ayatollahs, who are clerics of high repute and great learning. Their number is not limited. Their relationship to one another is also not hierarchical. Only some Grand Ayatollahs are integrated into the state organization. Others live in countries other than Iran. They issue their opinions in the form of fatwas and maintain fatwa-issuing websites through which people can address inquiries to them online. While fatwas do not have direct legal force, Article 3 of the Iranian Code of Civil Procedure specifies that courts can base their decisions on fatwas issued by recognized mujtahids if there are gaps in the legislation. 

While fatwas have previously been used to justify legal reform, their use to legitimize assisted reproductive technologies (ART) is unprecedented in Iran. In the absence of state regulation, since the early 1990s, fertility clinics have used the fatwas of Shiite clerics to legitimize medical procedures and posted the fatwas in their reception halls for patients to verify which cleric had declared which procedure rightful. In fact, the development and legitimization of reproductive medicine in Iran was the result of a long-standing cooperation between physicians and clerics and a conspicuous absence of the state. By the turn of the millennium, the Iranian national reproductive industry had skyrocketed: over fifty fertility centers had been established—not only in large urban areas, such as Tehran, Isfahan and Yazd, but also in remote provinces and counties.

In 2000, the Iranian Parliament finally sought to clarify the legal situation and presented a bill to codify embryo donation regulations, emphasizing not only the suffering and hardship of infertile couples but also the exit of hard currency out of Iran, with infertile Iranian couples seeking treatments abroad. In 2003, the  Act on Embryo Donation (EDA) was enacted, followed in 2005 by its bylaw, a subsidiary law with further regulations. The market remains essentially unregulated, however, as the EDA is unclear and fails to address important issues. Assisted reproductive technology continues to rely on legitimization through fatwas. This showcases the emergence of a legal grey zone, where statutory law is basically absent, but norms abundant.

Shiite attitudes on ART

The opinions of Shiite Grand Ayatollahs differ widely with regard to third-party gamete donation, as this practice could legitimize prohibited sexual relations (zinā). Those who consider it to be permissible rely on an interpretation of zinā that requires that sexual intercourse has taken place. According to this view, since mixing sperm with an egg in a test tube does not amount to a corporal union, gamete donation does not amount to zinā. This view is most prominently held by the current supreme leader of Iran, Ayatollah Ali Khamene’i, yet it is being contested by some with differing opinions. Interestingly, all of these deliberations are consequential rather than, as one might expect from a religious debate, deontological, as they focus on the permissibility of the outcome of any given procedure rather than elucidating its basic rightness or wrongness. As a result, fatwas overlook important ethical issues regarding ART and give little guidance regarding the morality of any of these techniques. The Grand Ayatollahs also neglect to connect the religious permissibility of any of these procedures to their legal implications for the filiation of the donor-conceived child.

The Act on embryo donation

The EDA consists of five, its bylaw of ten, provisions only. This extreme brevity reflects its drafters primary aim: to make legal what had already been practiced for over a decade. The act legitimizes the implantation of an in vitro fertilized embryo donated by a married couple into the womb of a married woman with the consent of her husband. Fertility centers facilitate these procedures: the embryo is “donated” to the clinic, where it is then transferred into the womb of a married applicant woman. The donor couple must act with informed consent and agree to the donation in writing.

Parental care (spelled out in article 3 EDA as care, education, maintenance, and respect) is passed from the donor spouses to the receiving spouses. The parent-child relationship was one of the most contentious issues in the legislative process, touching on the vital question of filiation (nasab). The final wording of the article reveals plainly the disconnect between what is religiously permissible and what is legally desirable. The Iranian Civil Code, which regulates family law, is silent on the filiation of donor-conceived children. When the drafters of the EDA asked the Shiite Grand Ayatollahs about the issue of filiation, the majority of them regarded the donor-conceived child, as any child, to belong to the providers of the genetic material. Filiation, they maintained almost unanimously, is assigned upon conception, not birth.

This position is meant to preserve the biological genealogy of a child. It leaves the receiving spouses in a limbo, however, as they cannot assume full parental authority. Due to a lack of regulation, the donor-conceived child may not carry the name of its receiving parents, nor does it inherit from them. Instead, the donor-conceived child inherits alongside other children and heirs of the donor couple. Scholars, physicians, and lawmakers were well aware of these issues. But instead of addressing them, their solution lay in keeping ART secret. Interviews conducted by Shirin Garmaroudi Naef in Tehran, Yazd, and Qom with physicians and members of Parliament reveal how important secrecy and confidentiality were to them as a general concern. At a 2005 conference on ART in Tehran, participants unanimously emphasized the importance of keeping the donors and the receiving spouses apart. Medical specialists believe that mandatory disclosure of the recipient’s or donor’s identity would “result in underground (illegal) trade for sperm and egg donation.” Secrecy, they argue, benefits the child and society.

This attitude also found its way into the bylaw. Fertility centers are required to keep a registry of the personal data of embryo donors and recipients. This information is classified and must be dealt with in the same manner as state secrets. Furthermore, the disclosure of this data can only be ordered by a court in compliance with the legislation on state secrets. The bylaw does not, however, clarify who has the right to ask the courts for disclosure, nor on which grounds such a demand must be based. It is also unclear how information on donors and recipients fits into the concept of “state secret,” a notion that touches upon core issues of security and state stability. This ambiguity burdens medical facilities enormously, since illegal disclosure of state secrets could result in imprisonment for up to ten years.

Privatization of ART

One of the less obvious outcomes of this situation is a de facto privatization of ART with regard to access of information, organization, and control, as well as legitimization. The majority of clinics practicing ART in Iran are privately run and not linked to any public institution. The Grand Ayatollahs who issue the fatwas legitimizing ART are often not directly linked to the state, nor do they all belong to a state institution. A legal grey area now exists whereby private industries and Shiite clerics have created—unsupervised by any public body—new legal standards. The EDA does not bring relief: its provisions are superficial and silent on many important legal issues (i.e., naming, inheritance, and the right to know one’s origin) and fail to regulate less-invasive interventions such as egg donation, let alone sperm donation, although the practice of all kinds of ART treatments is widespread in Iran. Due to this lack of clarity, some clinics are reluctant to treat infertile couples; others choose to implement only procedures that match their own moral standpoint.

Thus, while the Shiite religious establishment has facilitated ART treatment in Iran, fertility treatments bear unforeseeable risks for their users. The variety of the Grand Ayatollahs’ opinions, their failure to link what they perceive as religiously permissible to what according to Islamic morality ought to be done as well as the inactivity of the state have created confusion and complicated the decision-making process for infertile spouses. They are left to balance their desire for a child with the religious, social, and cultural norms associated with childbearing, which are firmly based on blood relations. They must navigate a legal no man’s land, where their legal relation to their child is left uncertain and the status of the child is extremely vulnerable. Couples have deployed various strategies to overcome these uncertainties. Donor-conceived children are being registered as biological children under the family name of the husband of the gestational mother; infertile couples tend to ask relatives, often their siblings, to donate gametes to help overcome infertility, contributing ad absurdum to the culture of secrecy around these transactions. Thus, although sanctioned by the Grand Ayatollahs, the use of third-party gametes remains a topic of debate and a controversial option among Iranians. It appears that Shiite scholars, physicians, and patients alike have underestimated the social, legal, religious, and personal costs of leaving the regulation of ART to the free market.

Why is the Iranian legislature generally so keen to control family law through detailed codification yet not to intervene in the regulation of ART? More Iranian babies are surely in line with the state’s population policy since 2010 that aims to increase birth rates. Leaving the regulation of ART to the Shiite establishment possibly enables the state to avoid taking a firm position on such sensitive issues while at the same time profiting from an industry that generates income from a growing femtech market, whose economic volume globally is estimated to reach $50 billion by 2025.