A non-traditional family’s looming collision with the patrilineal Pakistani state
AREEBA* MOVED TO Pakistan in 2014. Her parents were Pakistani, but she had been raised abroad and had made a life for herself there, working in social housing, and raising a young daughter. Creeping austerity and a sudden redundancy at work compelled her to look east; she had fond memories of her visits to Pakistan as a child and thought her daughter should experience that too. So she packed up her life, moved to Islamabad to start a business of her own, five-year-old Komal* in tow.
Areeba had given birth to Komal at 37, leaping through numerous hoops before she could bring her into the world: reluctant partners, skeptical parents, polycystic ovaries, and nearly seven years of fertility treatments. When she visited the Islamabad office of the National Database & Registration Authority (Nadra) to claim Pakistani citizenship, she realised there were more hoops to clear.
For Areeba, it was easy enough to obtain a national identity card. All she had to do was show her parents were Pakistani. For Komal, however, Nadra asked Areeba to provide marriage or divorce papers or the death certificate of Komal’s father. Areeba balked. Truth was, she’d never been married. Her daughter had been conceived using a sperm donor. How would Nadra react to this?
THE FIRST PAKISTANIconceived using assisted reproductive technology—that is, a test tube baby—was born in Lahore in 1989 but it wasn’t until 2013 that the practice received conditional approval from the Council of Islamic Ideology. No third party could be involved, said the CII; the matter must remain a strictly husband and wife affair. The ruling hewed closely to the first fatwa issued on the subject, by Egypt’s Al-Azhar University in 1980. The majority of Muslim countries have followed this Sunni school of thought or have remained unclear regarding their own positions; Iran and Lebanon, with their comparatively larger Shia populations, have an alternate discourse.
Dr Shaheen Zafar, director of the Sindh Institute of Reproductive Medicine, said patients have asked her to perform third-party inseminations but she refuses them outright, insisting it is prohibited on religious grounds. “Even if they are not Muslim or offer heaps of money,” she added.
Pakistani law remained relatively unconcerned with the matter until the Federal Shariat Court issued a sweeping edict on surrogacy in 2017—just two years ago. Farooq Siddiqui, an American fertility specialist of Pakistani origin, had advertised for a surrogate in Pakistani newspapers. Farzana Naheed responded. Siddiqui claimed he paid Naheed 25,000 rupees for a medical examination following which it was agreed—orally—that she would carry his child. To ward off raised eyebrows and wagging tongues in Pakistan, a ‘false marriage’ was orchestrated. But Naheed said the marriage was real: when the child was born, a girl, she refused to give her up and sued Siddiqui for maintenance.
“When they first moved to Pakistan, Areeba and her daughter entered the country on a visit visa. The application asked for Komal’s father and, without giving it much thought, Areeba wrote down a random name.”
The family unit was the foundation of a healthy society, proclaimed the FSC, and surrogacy was an axe that would weaken that foundation. It decided in favour of Farzana Naheed and outlawed third-party assisted reproduction, arguing it would lead to emotional attachment, exploitation of the surrogate mother, and destruction of inheritance laws. The FSC also proposed changes to the law: first it suggested an amendment to the Contract Act, so that any agreement concerning surrogacy would not be enforceable; it introduced surrogacy into the penal code as an offence punishable with imprisonment and fine for the couple, facilitator, surrogate, and doctor, and’ it prescribed punishment for doctors who maintain an egg or a sperm bank for future use.
What are the implications of this ruling for Areeba—and more crucially, for Komal? Anis Haroon, veteran activist and former chairperson of the National Commission on the Status of Women, said she hadn’t heard a case of this nature before, but that the issue must be resolved on legal grounds, not religious. “More and more women are opting to be single mothers abroad,” she said. “Will the government not accept them if they bring their children back?”
“The child is a reality, a living person,” she added. “We need to work on making her a part of society.”
WHEN THEY FIRSTmoved to Pakistan, Areeba and her daughter entered the country on a visit visa. The application asked for Komal’s father and, without giving it much thought, Areeba wrote down a random name. “To this day, I use the name for all her documents,” she says. She told Komal’s school-teachers that she was the only parent in the country and that the father was no longer involved Komal’s life. This had not been a problem in her previous country of residence; a father’s name wasn’t mandatory on official paperwork. “I’m single on my documents, and my daughter is under my name.”
Areeba finds herself caught between two issues: one, the legality of sperm donation, the other the right of a Pakistani woman to pass along her citizenship to her child. The 1952 Citizenship Act allows for this; an individual is eligible for citizenship if either parent is Pakistani. But, with the advent of the war on terror, as foreign fighters settled in the northwest and married local women, exceptions were made, ostensibly for reasons of national security, said Ms Haroon. “The Citizenship Act was never challenged before that. A father went missing and the mother, a Pakistani national, wanted her child to be Pakistani. The shariat court said the child had the right. But the interior ministry challenged it.”
In any case, Nadra’s familial database is patrilineal, which means information about the father is of paramount importance. If this weren’t the case, Komal’s case would become easier; the father’s details wouldn’t be asked. In late 2018, the Supreme Court of Pakistan heard a case on this matter, one that caught the national imagination. Twenty two-year-old Tatheer Fatima demanded an identity card without her father’s name: he had abandoned the family when Tatheer was born and played no role in her upbringing, so why should her identity be linked to his? Intriguingly, she did not demand her mother’s name on her papers. Instead, she wanted to be known as bint-e-Pakistan, daughter of Pakistan.
“An official from Nadra, who spoke on the condition of anonymity, says Nadra does not have any policies for single mothers: a father’s name is always needed to produce an ID card.”
Advocate Makhdoom Ali Khan, amicus curiae in the case, weighed both sides. Legal amendments would be required to eliminate the practice of including the father’s name in the official documents of children, he said, but it would be easy enough to modify the rules so that the father’s name was not visibly displayed. Seeking information for records was in the interest of the state but it was also the state’s duty to ensure that citizen’s fundamental rights—of dignity and privacy—were not violated. “This Hon’ble Court, therefore, must find the balance between the public interest in the state seeking and collecting certain personal information and the right of the individual to insist that certain personal information not be displayed, disseminated, publicised or circulated.”
The Supreme Court eventually ruled against Tatheer Fatima. Still, the crux of the problem continues cropping up in various guises. An official from Nadra, who spoke on the condition of anonymity, says Nadra does not have any policies for single mothers: a father’s name is always needed to produce an ID card. “We do get cases from abroad (where children are born out of wedlock). We either ask them to construct a fake marriage certificate or to go to the Guardian Court.”
Nominal exceptions have been made for members of the khwajasirah community, who can list their guru instead of their biological father. For orphans, a computer generates a random name. In cases of sexual assault, the woman can name the head of her family, in place of the rapist. “’Sometimes, we do get requests from abroad for same-sex marriages or to make ID cards for the children of same-sex couples,” said the Nadra official. Pakistan’s current laws compels them to refuse such requests.
“Mothers like Areeba can file an appeal in the Guardian Court to attain a guardianship letter,” he added. The problem is not gendered, he insists. A man in a similar situation would also have to go to the court to be able to strike off the mother’s column from the documents. “There is literally no legal history of such a case,” he said, referring to Areeba’s predicament. Whatever the court decrees, Nadra will oblige.
LAWYER MAHEEN AWANfears the process may prove traumatising. Areeba could petition the Guardian Court, she said, but it would first declare the child illegitimate, given the lack of father and absence of a wedding. Over the course of at least six months, the judge would ask Areeba to summon the father in court. If on three separate occasions, he did not respond, both custody and guardianship would be granted to Areeba. Another option is through the precedent of acknowledgment, which is different from adoption. Adoption occurs when the line of ancestors of the child is not hampered with; acknowledgment occurs when a child of unknown paternity is integrated into the family as if she was born through legitimate wedlock. An adopted child has restricted rights—with regard to inheritance, for instance. This is not the case for an ‘acknowledged’ child—family law experts have argued this principle can be applied in the cases of children born using donated eggs and sperm. But the crux of the matter—the state’s patriarchal conception of the family unit—would remain uncontested unless fought in the courts.
“We will only see changes in legislation and in Nadra’s system if such unique cases are heard in the Supreme Court and groundbreaking decisions are taken there,” said Awan
“Someone will have to stick their neck out,” agreed Anis Haroon.
Komal is 11 years old now. Her visa expired in December. So far, not having citizenship has had little material impact on her life. Privilege shields both mother and daughter from frequenting spheres where identity cards are required—say, a public hospital or a government school. Areeba recognises this. “I’m able to give my daughter the best education available, and her teachers are also very accommodating. But I don’t know how she’ll be treated if all this is public.” Would petitioning the courts be worth it? “I’m worried,” Areeba admitted. “What if they deport me? Or arrest me? One can’t ever guess how things might escalate in this country.” ￭
ANNAM LODHIis a former Soch staffer.
Header illustration by WAJEEHA ABBASI.
*Some names have been changed to protect privacy.