KHARTOUM (Sudanow) - It is indeed a baffling occurrence: A woman mothers a baby from her ex-husband 18 months (one and a half years) after divorce!
As related to Sudanow Magazine by a medical doctor who witnessed the case, a married couple opted for a divorce because the wife failed to bear her husband a child after sometime in wedlock.
Before this the couple knocked all medical doors in search of a solution for this sterility problem. Doctors consulted said both husband and wife were perfect and can have children. The couple then tried an In Vitro Fertilization or IVF.
To cut a long story short, the husband decided to marry a second wife, in the hope of having offspring.
But this decision did not go down well with his wife who asked for a divorce, perhaps to force her husband to back from his decision of marrying a second wife. But he didn’t. He proceeded with the divorce arrangements and annulled her residence permit with him in the Arab country where he lived with her and worked and sent her back to Sudan. She had no choice but to bow down.
Then the threads of the unusual and sensational story began to unfold later on:
While the ex-husband was enjoying a settled life with his new wife, he all of a sudden received a court subpoena to answer his ex-wife’s plea for alimony. At first he thought his wife was asking for the usual legal remaining sum of her dowry and perhaps other trivial claims, in what naturally occurs between divorcees. Accordingly, he asked his attorney to go to court, pay what his ex-wife was asking for and close this chapter forever, now that his new wife had mothered him a baby boy.
But later on he received notice from his attorney that the issue was far bigger than that and asked him to come personally to court.
The husband rushed in wonder to the court and the first court hearing brought an astounding surprise: The attorney to the claimant asked for a recognition of ancestry for a baby his ex-wife said was his (her ex-husband). That is, his ex-wife was asking for an ancestry certificate for a son she said was her divorcee’s.
But how could that have happened?
The woman told the court that she and her ex-husband had, after knocking all doors of medicine, decided to and proceeded with an In Vitro Fertilization (IVF) process, to get what is commonly called a “test tube baby”.
But the ex-husband did not wait for this process to be completed and got married to his second wife and later on divorced her.
In simple terms, the IVF involves fertilizing a woman’s egg with a man’s sperm outside the body, in a laboratory dish, and then implanting the combination thus obtained in a woman's uterus.
Months after the divorce, the wife dug into her memory, recalled what they had started at the IVF center and immediately proceeded to the place and asked the doctors there to continue with the fertilization of the egg and sperm kept there.
And she got what she wanted: After two trials the center phone called, told her the fetus was now in its second month and asked her to come forward for implanting the fetus in her uterus.
And she complied, realizing the dream of her life of having a baby.
She became pregnant and then gave birth to a baby boy. She gave him a name preceding that of his father (her ex-husband), in anticipation of future legal procedures to confirm his ancestry.
All this drama was going on while her ex-husband was unawares.
During the court’s second hearing, the man argued that he had divorced the woman 18 months before and that the baby must be somebody else’s.
Here the judge called for a DNA test that proved, to the man’s astonishment, that the baby was his.
But the man kept denying, arguing that “how could I impregnate the woman while I was living far away from her for such a long time.”
Then after thinking it over with his attorney, he remembered that he and his ex-wife were in follow up with the fertility center.
His attorney advised him to check with the fertility center and, to his surprise, realized that the fertilization had occurred after the divorce. The center also told him the doctors forgot to ask the woman about the husband’s presence or signature.
The attorney returned to the judge and told him that the woman had used the husband’s sperm without his certified permission, a matter that renders the pregnancy unlawful.
The attorney General, to whom the papers were referred, indicted the woman for this unprecedented crime. And because there was no law that incriminates this novel crime, the Attorney General indicted the woman for “fraud in official papers” in order to complete the fertilization. The Attorney General also advised the baby to be attached to the woman’s ex-husband in a birth certificate.
The court was at pains what to do. It consequently adopted the result of the DNA. But it gave the man the right to appeal. It also referred the papers to the high jurisprudence council for ruling.
The council ruled that the couple were in agreement when they thought of an IVF. And when they separated none of the couple had asked the fertility center to do away with the egg and the sperm. It said this had given the woman the right to go ahead with the fertilization, to fulfill her wish for a baby. The council also said the woman did not take any sperms from her ex-husband after the divorce. And accordingly the pregnancy was lawful and that the boy was legally the man’s.
Conversely, Lawyer and Law Professor Hazim Awadalkarim charges that affiliating the boy to the ex-husband was legally null and void because the fertilization took place after the divorce. “Even if the fertilization had been performed with the man’s knowledge, it is not legally binding because of the absence of wedlock,” he said.
“But in the light of Islamic Sharia’a teachings, I think we need a ruling from specialists,” Barrister Hazim further argued.
“Personally Iam of the view that the boy should be affiliated to his father without obliging him (the father) to pay for his upbringing because the fertilization was not performed with the man’s consent nor of his knowledge,” he concluded.
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