Critical Examination of the Right of Artificially Inseminated Child to Inherit Under Islamic Law
CHAPTER ONE
OBJECTIVE OF STUDY
It is against this backdrop that this paper examines the phenomenon of artificially inseminated child to inherit under Islamic law with a view to situating its strategic position and its implications.
CHAPTER TWO
AN OVERVIEW OF THE ISLAMIC LAW OF INHERITANCE
INTRODUCTION
Inheritance is basically the transfer of status to the living person from the deceased with respect to the specific estate/property objects. Generally the laws of succession are divided into two groups: testamentary and intestate. Majority of the modern systems of succession are based on the individual’s freedom to decide the future of devolution his estate upon his death. These are known as testamentary systems of succession. The case in which there is compulsory imposition of succession rules by requiring that on the death of a person his property be transmitted in a foreseeable way to those entitled to it is known as the intestate succession system.
DEFINITION OF INHERITANCE
Inheritance particularly in the Islamic world is one of the commonest ways of acquiring land or access to land. There is no specific definition of the word inheritance in the Holy Quran but has been defined by the Muslim jurists in different ways. Sir Abdur Rahim’s definition of inheritance is that it is the transfer to the heir of the deceased’s rights and obligations.
Inheritance is basically the transfer of the deceased person property to the living person along with any other transferable rights. Inheritance has a different meaning in Islam. There is no particular definition of the word Inheritance in Qur’an but various scholars have defined it in their own ways.
According to Sir Abdur Rahim inheritance is the transfer of the rights and obligations from the deceased person to his/her heirs. Coulson’s definition of inheritance is the distribution of estate of the deceased’s person among the heirs after the payment of funeral expenses, debts and valid bequest.
In Islam, the rules of inheritance are generally described as both an entrance of the heirs into the possession of the estate of the dead person, and a succession to any transferable rights of the dead person. These rights which are transferring comprises of property rights and other such rights as debts and to receive compensation on behalf of the dead person.
Therefore, law of Inheritance is an essential element of Islam and its application in Muslims is mandatory due to the Devine teachings. As per Qur’anic teachings, the Muslims inherit from one another as per described share mentioned in the Holy Qur’an for the heirs of the decedent in his/her all assets. Majority of the rules relating to inheritance are explained in the Holy Qur’an, Hadith of the Holy Prophet (P.B.U.M.) and Fiqh.
CHAPTER THREE
SUCCINT ANALYSIS OF THE ISLAMIC CONCEPT OF INHERITANCE
INTRODUCTION
GROUNDS OF INHERITANCE
Succession or inheritance known in the technical term as Mirath or fara’id is the knowledge and technicalities of the jurisprudence of inheritance and the calculations therein. In other words; it is the knowledge that explains who inherit and who does not as well as the share of all entitled successors
The importance and significance of the law of succession could be drawn from the nature and the procedure upon which the laws were made. Almighty Allah himself took the responsibility of fixing the non-negotiable fractional shares for the qualified heirs. It was not vested in the powers of either a close Angel or a noble prophet, but the one half, one fourth, and one eighth, one sixth, one, third and two thirds, were conspicuously stated by Almighty Allah in the textual wordings of the Glorious Qur’an. This approach is contrary to the conventional dealings of other aspects of Islamic Law in the Qur’an. For instance, the Salat, Zakat and Hajj were introduced in a generic manner while leaving the detailed explanations for the Messengers in different epochs and venues.
It is in this direction that the three famous verses of inheritance were revealed. To show the importance of these rules, after the narration of the verses Almighty Allah named the rules discussed therein as his limits and whosever adheres with them will be admitted to the Gardens with rivers flowing beneath to abide therein forever, like wise whoever disobey and transgress the limits will be admitted to hell fire to abide therein forever.
CHAPTER FOUR
ARTIFICIAL INSEMINATION; ITS LEGALITY UNDER ISLAMIC LAW
DEFINITION OF ARTIFICIAL INSEMINATION
Artificial insemination (AI) is a technique in which sperms are placed in the female reproductive tract (uterus) by mechanical methods that precludes sexual ejaculation into the woman’s vagina) About 10% of all married couples are incapable of conceiving and having a child. of these, 40% are due to male infertility. Male infertility can result from (a) inability to produce any sperm (azoospermia); (b) the production oftoo few sperms to make impregnation likely (oligospermia); (c) the production of an adequate number of sperm but the sperm not being sufficiently motile to make their way past the vaginal canal and through the fallopian tubes. As a result, their chances of reaching and penetrating an ovum are diminished; (d) neurological conditions that make ejaculation impossible; (e) impotence due to diseases such as diabetes mellitus) In these circumstances, AI can help the male partner overcome childlessness.
Female infertility can result from (a) a vaginal environment that is biochemically inhospitable to sperm; (b) an unusually small cervical opening that prevents further progression ofthe sperm; and (c) an abnormal uterine position (retroverted uterus). In these cases, AI is a suitable aid to conceive. In the first instance, the sperm not having to pass through the vagina has a better chance of surviving. In the second and third instances, AI may be used to deliver the sperm to an advantageous position for fertilization, a position they otherwise might not reach on their own accord.
CHAPTER FIVE
GENERAL CONCLUSION
CONCLUSION
Islamic guidelines permit AIH provided that proper precautions are taken so that no foreign element other than the sperm ofthe husband is used. It prohibits AID for the greatest welfare of the society. Avery coherent and logical form of social justice is reflected here. AID from the Islamic standpoint presupposes that goodness is not a narrow concept; the ontology of good bears an all-inclusive character. The Islamic prohibition of AIH is based on the fact that the longterm good is more beneficial than temporary satisfaction of desires.
RECOMMENDATION
Based on the aforementioned findings, this paper humbly recommends the following:
Muslims should be fully allowed to practice their faith in accordance with the beautiful provisions of the Holy Qur’an specifically the principles regarding the distribution of inheritance, because any violation of such rules amounts to violation of Muslims freedom of worship as guaranteed by the Nigerian Constitution.
Those advocating for equal Opportunity Bill or any other means should be introduced to appreciate the favour done by Islamic law to children and avoid the attitude of castigating the concessions of Islamic law.
Nigerian legislators should always be ready to abandon any Bill of such kind and be truthful, effective and honest representatives of their various constituencies. They should as well focus their minds thoughts and efforts in legislating for laws that will bring humanitarian development and national progress, not what will create chaos, disharmony and controversy.
The present position of Nigerian law concerning succession should be left the way it is. As there is no any laudable complaint as to the system neither from the Muslim women, nor from the local and International Muslim Community.
Muslim leaders at different levels should come out without fear or favour to speak on behalf of their subordinates against any attempt to strike out the remaining scanty issues in Islamic personal law left as the only jurisdiction of sharia courts in Nigeria.
Relevant institutions and organizations should organize several seminars, conferences and workshops to sensitize the stake holders on the danger of folding hands and allowing such laws to be enacted and introduced into national laws. In the same vein jurists, scholars and academics should at various mediums emphasize on the just and fair nature of the Islamic law of succession regarding the share of females logically and statistically.
REFERENCES
BOOKS
- Glorious Qur’an, Chapter 4, Verse 1.
- Glorious Qur’an, Chapter14, Verse 46
- Glorious Qur’an, Chapter 23, Verse 5-7.
- Glorious Qur’an, Chapter 2, Verse 143.
- Glorious Qur’an, Chapter 25, Verse 54.
