regarded as coming under the heading of "stud fees of a stallion"?
Praise be to Allah.
We do not think there is anything wrong with artificial insemination
of cows in veterinary clinics. That does not come under the heading of
"stud fees of a stallion" (charging fees for natural covering of the
female animal by the male), which is prohibited. We have previously
discussed this matter on our website, in fatwa no. 150367. and we do
not see anything wrong with artificial insemination, for a number of
reasons:
Firstly:
There is no report of any prohibition on insemination by means other
than covering by a male. The basic principle concerning actions is
that they are permissible so long as there is no report of any
prohibition on them.
Secondly:
The work done by the veterinarian, the experience he has acquired and
the time he has devoted to that are all services which it is
permissible to pay fees for. Just as the veterinarian may be paid to
treating animals and ridding them of defects and sickness, he may also
be paid for undertaking the process of artificial insemination in his
clinic.
Thirdly:
The proven prohibition on stud fees of a stallion is mentioned in the
hadeeth of Ibn 'Umar (may Allah be pleased with him): The Prophet
(blessings and peace of Allah be upon him) forbade the stud fees of a
stallion. Narrated by al-Bukhaari, 2284. This prohibition does not
include the veterinarian at all; the prohibition refers specifically
to when there is a stallion which is brought to cover the female,
which is not applicable in the case mentioned in the question.
Moreover, there is a clear reason for the prohibition, which was
stated by the scholars who followed the apparent meaning of the
report, because it is a case in which delivery of the service is not
under the individual's control, so it is more like renting out a
runaway slave, as it is connected to the stallion or bull and his
desire. The focus of the contract is the semen, which is something
that cannot be subject to a contract, because there is ambiguity
concerning it.
Seeal-Mughniby Ibn Qudaamah, 4/159
All these problems which constitute reasons that make it disallowed
are not applicable in the case of artificial insemination in the
veterinary clinic by mechanical means, for example. In this case, it
is possible to deliver what is required, which is the procedure and
insemination, and the bull has nothing to do with this procedure. The
contract is not about the semen; rather the contract is about the work
and effort of the veterinarian, using the semen of the bull. The fiqhi
principle states: something may be permissible as a secondary matter
that is not permissible on its own. Ibn Hajar al-Haytami (may Allah
have mercy on him) said: That which it is not permissible to rent or
hire on its own may be permissible if it is secondary to another
matter. See:az-Zawaajir, 1/382. Whether pregnancy occurs or not is not
the focus of the deal here; rather the focus of the deal is doing the
procedure, because pregnancy is not guaranteed and it is not
permissible to make pregnancy the focus of the contract, so as to
avoid the risk of ambiguity.
Even though the Shaafa'is stated that the prohibition applies to
taking payment in return for covering by the stallion or bull, some of
them stated that what is prohibited is hiring the male to cover the
female, which is something that may not happen. The bull may or may
not do it. But if one hires the owner of the bull to help him make
sure that the bull covers the female, there is nothing wrong with
that.
It says inHawaashi ash-Sharwaani 'ala Tuhfat al-Muhtaaj, 4/292:
From the above it is known that the scenario is hiring a person to
ensure that covering occurs. If he hires him to make his stallion or
bull cover one or more females, that is valid, as was stated by
al-Qaadi, because his work is permissible and his work is usually
clearly defined, and a particular stallion or bull may be identified
in the contract, because different males are used for different
purposes. If the male dies or it is not possible to make it cover the
female, then the job is not done. But one may say that even though
ensuring that covering occurs by the efforts of the owner, this could
not be done unless the bull or stallion chooses to do it, and there is
no guarantee that the owner will be able to make him do it. The
response to that is that the owner is hired to do a specific job,
which is to ensure that the male covers the female in the natural
manner; even though the action of the stallion or bull is the intended
goal, it is not the focus of the contract, thus the owner deserves to
be paid, once covering has occurred, but if it does not occur, he does
not deserve to get paid. End quote.
And Allah knows best.
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