A Jurisprudential and Ethical Analysis of Spouses’ Right to Procreation and Population Growth

Abstract

Procreation occupies a central yet contested position in Islamic family law, situated between moral aspiration, legal structure, and personal autonomy. Contemporary demographic concerns and expanding reproductive technologies have intensified longstanding questions about whether procreation within marriage constitutes an enforceable obligation, a discretionary choice, or a legally protected right. This article offers an integrated jurisprudential and ethical analysis of spouses’ right to procreation (istīlād) within Imāmī Islamic jurisprudence. It first clarifies the conceptual distinction between ḥaqq (right) and ḥukm (rule), demonstrating that not every normative directive in Islamic law amounts to a personal entitlement. Building on this framework, the study examines classical and contemporary juristic positions on the attribution of reproductive rights to the husband or the wife, critically assessing arguments based on guardianship, bodily sovereignty, and analogies drawn from sexual permissibility. The analysis shows that unilateral models of reproductive authority are doctrinally weak and ethically problematic. The article then advances a relational understanding of procreation as a non-financial, personal, and reciprocal right embedded within the cooperative structure of marriage. Such a right is waivable under certain conditions, non-transferable, and resistant to coercive enforcement, yet ethically guided by considerations of responsibility, dignity, and mutual consent. The study further argues that procreation is not an essential element of marriage but a default implication that may be shaped by the spouses’ circumstances and agreements, with important distinctions between permanent and temporary marriage. By integrating fiqhī analysis with ethical reasoning, the article provides a coherent framework for addressing contemporary reproductive disputes in family law and bioethics while preserving the moral significance of childbearing and the dignity of spouses.