Federal Shariat Court of Pakistan on Surrogacy: From Judicial Islamization of Laws to Judicial Legislation

Pakistan editor Zubair Abbasi examines the legality of surrogacy under Islamic law. In Farooq Siddiqui v Mst. Farzana Naheed, decided on 16 February 2017, the Federal Shariat Court (FSC) determined the legality of surrogacy under Islamic law. In this case note, Abbasi analyzes the judgment of the FSC on surrogacy. Based on this analysis, he argues that this judgment signifies a historical transformation in the approach of the judges of the FSC towards legislation.


Introduction

In Farooq Siddiqui v Mst. Farzana Naheed, decided on 16 February 2017, the Federal Shariat Court (FSC) determined the legality of surrogacy under Islamic law. A bench of three judges unanimously held that a baby produced through medical intervention by the sperm and egg of duly wedded couples (without involving a third party) is permissible under Islamic law. They, however, declared that surrogacy is unlawful under Islamic law, and recommended that the Government should declare surrogacy agreements unenforceable and amend the Penal Code to provide punishments for all the parties involved in a surrogacy arrangement.

This is an important judgment, not simply because of its subject matter, but also because it signifies transformation in the role of the FSC in the legal system of Pakistan. In this judgment, the FSC has moved beyond its mandate of Islamization of laws and has required the legislature to criminalize surrogacy. I describe this move as transformation from judicial Islamization of laws to judicial legislation.

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