vivo insemination, al talqiih al istinaa’e al daakhilii: Artificial intra-uterine insemination
with husband’s sperm, talqiih sina’i dhaati is permitted by the Law provided safeguards are taken to ensure
that spermatozoa do not get mixed up in the laboratory or the clinic. The Law prohibits artificial in vivo insemination of
a wife with donated sperm from a strange man or in vivo insemination of a strange woman with the husband’s sperm, talqiih
vitro fertilization, al talqiih al istinaa’e al khaariji: The Law permits in vitro fertilization if the sperm and ovum are from legally wedded husband and wife and the zygote is implanted
in the same wife. According to some jurists the Law permits in vitro fertilization if the sperm is from a husband and the
ovum is from a legally wedded wife, and the zygote is implanted in a second wife of the husband. In vitro fertilization is
prohibited if the sperm is from the husband and the ovum is from the wife and the zygote is implanted in a surrogate mother.
A married woman cannot have a zygote implanted into her uterus if a sperm from a donor who is not her husband fertilized it.
Sperm banks are a form of zina are not allowed. The Law prohibits implantation
of a fertilized zygote in a wife if another woman donated the ovum and the sperm is from her husband or a strange man
There is basic permissibility of contraception from the hadith on coitus interruptus, tarkhis fi al ‘azal. Decisions
on contraception must be by mutual consent of the spouses. If contraception is a dharuurat
for preserving the life of the mother, the husband’s agreement is not required. Choice of the method of contraception
must be based on the purposes of the Law (hifdh al ddiin, hifdh al nafs, hifdh al ‘aql,
& hifdh al nasl) and principles of the Law. There is no consensus among jurists on sterilization. Contraception as
part of a national population control policy is prohibited by Law.
contraception: The permissible reversible methods for males are the condom, coitus saxanicus, coitus reservatus, and coitus interruptus.
contraception: Permissible reversible methods for females are either mechanical (the diaphragm, the cervical cap, the
vaginal sponge) or chemical (spermicides, oral contraceptive pills). Some forms of IUD are not permitted because they cause
early abortion. The safest and perhaps the least effective is the rhythm method
impact: Availability of safe contraception removes the fear of pregnancy and encourages sexual promiscuity. It also encourages
temporary sexual unions devoid of child responsibilities. Wide spread use of contraception will eventually cause population
imbalance by age and gender.Widespread practice of birth control makes it easier to accept and practice genocide by decreasing
respect for human life.
to cloning: Cloning is a form of reproduction without male-female interaction. The clone is the exact replica of original.
Genetic recombinations that are responsible for the great variety of normal reproduction do not occur in cloning. Cloning
is not creation of new life from basic organic and non-organic matter since creation of life de novo is the prerogative of Allah alone. Cloning is a form of asexual reproduction that is common in plants
and animals. Adam and Isa were humans from asexual reproduction.
thinking: The Islamic tradition discourages speculative thinking about hypothetical events. Issues are discussed from
the legal and ethical aspects after they have occurred. We therefore cannot engage in a detailed discussion of cloning until
it has occurred and we see its implications in practice. The issue of quality of life arises in the case of cloning if ever
it becomes a reality. The product of cloning will not have the same quality, as we know it in humans today. This is because
a human is both matter and spirit. During the first trimester of intra-uterine development the soul, Allah inserts ruh into the body. There is one ruh for each being. Thus the cloned
product cannot have a ruh and will therefore not be human being, as we know. The
product of cloning will have all the biological properties of the ordinary human being but will not have the spiritual qualities.
Thus the life of the cloned product will be of little or no quality. We can only speculate how that cloned product will behave.
The possibilities are frightening as the brave new world of biotechnology unfolds.
and risks: Cloning has some medical benefits such as supply of organs for transplantation. Cloning may lead to new diseases
and medical problems.
implications: The major ethical issues in cloning are: loss of human uniqueness and individuality, hazardous unexpected
products from cloning, and criminal misuse of the cloning technology. Legal issues will arise in inheritance of the real son
and the cloned son.
implications: Likely socio-demographic implications are loss of human dignity, production of human monsters with no family
background, and destruction of lineage, nasab.
pregnancy’: concenptual issues: The issue of ‘unwanted pregnancy’ is a recent concept in human history
and is associated with social stresses of modern life. The purposes of the law, maqasid
al shari’at, and its principles, qawa’id a shari’at, focus
on preventing ‘unwanted pregnancy’, protecting the rights of the fetus and infant, and mitigating the adverse
effects of ‘unwanted pregnancy’ by social measures.
and causes of ‘unwanted pregnancy’: ‘Unwanted pregnancy’ is associated with general social determinants
(hedonistic life styles, sexual transgression, addiction to drugs, fear of poverty, and low female status) and specific antecedent
causes (sexual crimes, egoistic greed, maternal/fetal disease, and gender discrimination).
on feticide and infanticide: Life is sacred. All lives have equal worth whether in utero or in terminal illness. Taking
the life of any one person without legal justification is like killing the whole human race. Illegal feticide and infanticide are committed for various reasons: avoiding
consequences of sexual immorality, poverty, rape, gender preference, and serious disease of the mother and child. Abortion
is criminal homicide because life is considered to start at conception and not as claimed at ensoulment. Abortion is immoral
because it encourages sexual immorality and promiscuity without fear of pregnancy. Abortion is the lesser of two evils in
cases of serious maternal disease because one life is lost instead of two. In all forms of abortion whether legal or illegal,
the aborted fetus must be treated with respect. It must be washed, shrouded, and buried properly. The Law prescribes severe
punitive measures for causing abortion of a fetus. Diya is paid if the fetus comes out with signs of life and dies
thereafter. Ghurrat, which is less than diya, is paid if the fetus comes out dead. The physician or any other
accessory to abortion is guilty of the offense of causing abortion even if either or both parents consented to the procedures.
Infanticide can be in the form of child neglect and child abuse. Social injustice manifesting as poverty is responsible for
a lot of feticide and infanticide. Poor mothers who do not get adequate nutrition
and medical care have a higher rate of fetal loss and poor pregnancy outcomes. Their children are born pre-mature of small
for gestation age and succumb easily to disease and die. Children born in poor families and communities have higher morbidity
of ‘unwanted pregnancy’: It is prevented by sexual hygiene, marriage, contraception, deterring sexual crimes,
and raising the status of women.
and adverse consequences of ‘unwanted pregnancy’: The adverse sequelae of ‘unwanted pregnancy’
(feticide, infanticide, or child abuse and neglect) can be prevented by defending the basic human right of the fetus and infant
to life, promoting social institutions for child welfare (nuclear family, extended family, foster care, and open adoption).
Closed adoption is forbidden by law but care in a foster home is allowed and is encouraged if the nuclear and extended families
are unwilling or are unable to care for children. Abortion at any stage of pregnancy is a crime against humanity. It is not
a solution to the problem but is part of the problem. It will encourage more ‘unwanted pregnancies’.
and SEX CHANGE, al tahakkum fi al jins
is natural. Gender selection is by Allah (shura: 49) and no human efforts will contradict Allah’s will. Human efforts
can only succeed if Allah wills so. Efforts to get an offspring of a particular gender are in general permissible because
the dua that prophets made are considered part of the effort. Discussion centers on the methods used because some are permitted while others are prohibited. Natural methods (selecting
days of copulation before and after ovulation & changing upper vaginal chemistry artificially) are not effective. Rulings on other methods are still being discussed such as separation of male and
female sperms by centrifuging and in vitro insemination, gender pre-selection and implanting only zygotes of desired gender
in invitro fertilization, sex change by genetic engineering, exposure of fetuses to specific hormones, and sex change
operations for hermaphrodites. There are long-term consequences of gender selection that must be considered. Severe gender
imbalance will threaten marriage and lead to family breakdown. Eventually the purpose of the law to preserve progeny, hifdh al nasl, cannot be fulfilled.
Genetic testing is used for disease diagnosis, pre natal diagnosis, genetic screening, criminal investigations,
and settling paternity issues.
carried out before and after genetic testing. The objective of counseling before testing is to provide information about the
genetic disorders and the risks of disease to individuals and families so that they may make informed decisions. It also provides
information about the genetic test (reliability, validity, and method of testing). Pre marital counseling is recommended for
close relatives. Genetic testing can be carried only if there is informed consent of competent adults. Genetic data is confidential
and canot be disclosed except following guidelines. Genetic information can be misused to stigmatize individuals, families
and entire ethnic groups. Genetic data of an individual discloses genetic information about other members of the family. Genetic
data should not be released to third parties without agreement of the subject tested. Genetic data can be misused for discrimination
in employment and insurance.
definitions of terminal illness and death: Terminal illness is defined as illness from which recovery is not expected.
The manner in which death is defined affects the ruling, hukm, about life support.
The following are various definitions of death: (a) traditional: cardio-respiratory arrest (b) Whole-brain death (c) Higher
brain death. If death is defined in the traditional way, life support cannot be withdrawn at any stage. If the definition
of higher brain death is accepted, life support will be removed from persons who still have many life functions (like respiration,
circulation, sensation). The question of quality of life is also raised in the definition of life. The assumption is that
there must be some quality to human life for it to be worth living. The exact definition of quality is still elusive. It is
argued that euthanasia saves the terminally ill from a painful and miserable death. This considers only those aspects of the
death process that ordinary humans can perceive. We learn from the Qur'an that the death of non-believers is stressful in
the spiritual sense. Believers can have a good death even if there is pain.
care: The aim of palliative care is good death which includes: pain control, psychological support, emotional support,
and spiritual support. Death can be made a pleasant experience. Palliative care was traditionally in the family but it has
recently moved to institutions. Lessons about palliative care can be learned from the terminal illness of the prophet and
his companions. The Quran has taught the etiquette of caring for old parents.
of certainty and autonomy: Since the definition of death and the exact time of its occurrence are still matters of dispute,
a major irreversible decision like withdrawing life support cannot be taken. Islamic law strictly forbids action based on
of life and wealth: The purpose of preserving life may contradict the purpose of preserving wealth. Life comes before
wealth in order of priorities. This however applies to expenditure on ordinary medical procedures and not heroic ones of doubtful
value because that would be waste of wealth, israaf, that has been condemned.
rulings on initiating and withdrawing life support: The patient's choices about food and medical treatment my contradict
the purpose of preserving life. Where life is under immediate threat, the patient's desires may be overridden. The terminally
ill patient, who takes a major risk, should make the final informed decisions after clarification of the medical, legal, and
ethical issues by physicians and fuqaha. The family may request that life support
be terminated if the patient is in pain or coma. Self-interest may motivate some members of the family and others with personal interest to hasten the legal death of the terminally ill patient. According
to Islamic law, any inheritor who plays any role direct or indirect in the death of an inheritee cannot be an inheritor, mirath al qaatil. It is therefore impossible for any member of the close family to
take part in euthanasia decisions. Physicians and other health care givers may abuse euthanasia and kill whom they want. They
could be bribed to kill people by either family members or others.
Euthanasia is carried out illegally for patients in persistent vegetative states or those in terminal illness with a lot of
pain and suffering. Active euthanasia, an act of commission that causes death, is taking some action that leads to death like
a fatal injection. Passive euthanasia, an act of omission, is letting a person die by taking no action to maintain life. Terminal
sedation has the dual effect of controlling pain and causing respiratory failure. Islamic Law views all forms of euthanasia,
active and passive, as murder. Those who give advice and those who assist in any way with suicide are guilty of homicide.
A physician is legally liable for any euthanasia actions performed even if instructed by the patient.
using purposes of the law, maqasid al shariat: Euthanasia violates the Purpose of the Law to preserve Life by taking
life. It violates the purpose of religion by assuming Allah’s prerogative of causing death. It violates the purpose
of preserving progeny by cheapening human life making genocide more acceptable.
using principles of the law, qawaid al shari’at: According to the principle of intention, there is
no distinction between active and passive euthanasia because the end-result is the same. The principle of injury makes euthanasia
illegal because it tries to resolve the pain and suffering of terminal illness by causing a bigger injury which is killing.
Continuation of pain in terminal illness is a lesser evil than euthanasia. Prohibition of euthanasia closes the door to corrupt
relatives and physicians killing patients for the sake of inheritance by claiming euthanasia. Euthanasia reverses the customary
role of the physician as a preserver into a destroyer of life. A distinction in law exists between withholding life support
and withdrawing it. The issue is legally easier if life support is not started at all according to a pre-set policy and criteria.
Once it is started, discontinuation raises legal or ethical issues. The principle of the law that applies here is that continuation
is excused where commencing is not. Continuation is easier that starting. Euthanasia
like other controversial issues in better prevented than waiting to resolve its attendant problems. The patient cannot legally
agree to termination of life because life belongs to Allah and humans are mere temporary custodians. The determination of
ajal is in the hands of Allah. A patient who has legal competence, ahliyyat, makes final decisions about medical treatment and nutritional support. Patients in terminal illness
often lose ahliyyat and cannot make decisions on their treatment. A living will
is a non-binding recommendation and it can be reversed by the family. They however cannot make the decision for euthanasia.
precedents: The prophet condemned as a hypocrite a man who killed himself because of severely painful battle wounds
conclusions: Our analysis has shown that there is no legal basis for euthanasia. Physicians have not right to interfere
with ajal that was fixed by Allah. Disease will take its natural course until death.
Physicians for each individual patient do not know this course. It is therefore necessary that they concentrate on the quality
of the remaining life and not reversal of death. Life support measures should be taken with the intention of quality in mind.
Instead of discussing euthanasia, we should undertake research to find out how to make the remaining life of as high a quality
as is possible. The most that can be done is not to undertake any heroic measures for a terminally ill patient. However ordinary
medical care and nutrition cannot be stopped. This can best be achieved by the hospital having a clear and public policy on
life support with clear admission criteria and application to all patients without regard for age, gender, SES, race, or diagnosis.
SOLID ORGAN TRANSPLANTATION
The first organs involved in transplantations were the skin, the bone, the teeth, and the cornea. Later kidney, heart, lung,
and liver transplants were achieved. Glandular and neurohumoral organs will be transplantable in the future. Transplantation
decisions are a balance between risk and benefit. Ethical and legal problems of transplantation are temporary, they will disappear
with the use of xenografts, artificial organs, and cloned organs.
rulings about transplantation: Uses of textual, nass, evidence has limited success because the issues involved
in transplantation are new and were not dealt with before. General Purposes of the Law, maqasid
al sharia, and the General Principles of Fiqh, al qawaid al fiqhiyyat are the
more appropriate tools. The main guide about transplantation is the purpose of maintaining life of the donor and the recipient. Under the principle of hardship,
necessity and hardship legalize what would otherwise be objectionable or risky lowering donor risk has precedence over benefit
to the recipient the complications and side-effects to the recipient must be a lesser harm than the original disease. Under
the principle of injury, transplantation relieves an injury to the body in as far as is possible but its complications and
side-effects should be of lesser degree than the original injury. Abuse of transplantation by abducting or assassinating people
for their organs could lead to complete prohibition under the principles of dominance of public over individual interest prevention
of harm has priority over getting a benefit and pre-empting evil.
could open the door to criminal commercial exploitation and may be forbidden under the purpose of maintaining life, the principle
of preventing injury, the principle of closing the door to evil and the principle of motive. Protecting innocent people from
criminal exploitation is a public interest that has priority over the health interests of the organ recipient. Principle of
motive will have to be invoked to forbid transplantation altogether if it is abused
and is commercialized for individual benefit because the purpose will no longer be noble but selfish. Matters are to be judged
by the underlying motive and not the outward appearances.
side effects, and complications: The indications of transplantation are irreversible organ failure and sub-optimal organ
function. Transplantation on the basis of preventive maintenance of organs in good condition is not allowed. The associated
side effects and complications of immune suppression, infection, neoplasia, graft rejection, and drug toxicity are treated
under 2 principles of the Law: hardship, mashaqqa, and injury, dharar.
and harvesting organs: The demand for organs is more than the supply. Human organs could be obtained either as voluntary
gifts or voluntary sale. The donor may be living or may be dead. Living donors could be free persons or prisoners condemned
to death. Harvesting organs from an individual without his or her free consent is not allowed by the law.
CHANGE OF FITRA
of change of Allah’s creation: The Qur’an mentions stability of creation and stability of Allah’s laws. The unchanging creation mentioned is constancy of the laws that govern the
universe, sunan, as expounded in the Qur’an. Change is allowed if it follows the Laws. Any changes that do not follow
these laws are repudiated. Desire to undertake reconstructive or cosmetic surgery arises out of dissatisfaction with defects
and the associated embarrassing appearance. The defects are due to injuries that
according to the principle of injury must be removed. Thus technology to remove or correct defects is not opposing or denying
Allah’s creation. A serious issue of ‘aqidat would arise if a human
were to be dissatisfied with Allah’s primary creation because it is optimal and perfect. Humans cannot conceptualize
a better creation that they then prefer. Deliberate effort to change Allah’s primary creation without valid reasons
is due to shaitan. There is risk in tampering with fitra without following the sunan.
Allah made humans in a perfect image. He however also allowed them to enhance their
physical appearance by wearing clothes, using perfumes. These measures improve appearance do not change fitra. Humans in disobedience undertake other forms of beautification that change basic fitra or do not follow the sunan. Prohibited procedures are tattooing,
shortening teeth, widening gaps between teeth, and plucking eyebrows. Circumcision is an allowed procedure although it involves
change of fitra. Male circumcision is mustahabb and is recommended on hygienic
grounds. Opinions differ about female circumcision. Fraudulent procedures that are prohibited are wearing wigs, dyeing
hair to hide age, and hymenal reconstruction. There are other forms of beautification. Increasing body weight and changing
body shape by dieting is common and was practiced by women at the time of the prophet without objection.
surgery: Reconstructive/restorative surgery is carried out to correct natural deformities, deformities due to disease,
and deformities due to complications of disease treatment. Malformations may be congenital or acquired. The distinction is
not important because many of the congenital malformations are due to environmental factors operating in utero. The
purposes of surgery on congenital malformations are: restoration of the normal appearance to relieve psychological pressure
of embarrassment and to restore function. These purposes do not involve change of fitra
but restoration of fitra to its state before the injury. Similarly restorative
surgery for deformities due to disease or treatment does not involve change of fitra
since it is returning to what was normal. A surgical operation to reveal the true gender of an apparent hermaphrodite is not
change of fitra but an attempt to restore fitra
altered by hormonal or chromosomal damage. Such operations have another objective of trying to preserve or restore the reproductive
surgery: Cosmetic surgery has a sole purpose of enhancing beauty with no medical or surgical indication. It can fulfill
the purpose of preserving progeny, hifdh al nasl, if carried out for beautification in order to find a marriage partner.
Expensive cosmetic surgery violates the purpose of preserving wealth, hifdh al maal. It violated the principle of preservation
of religion, hifdh al ddiin if carried out with the belief that Allah’s
creation was ugly. Under the principle of motive, qasd, we look at each individual case of cosmetic surgery
and judge it based on the intention. As mentioned above a simple cosmetic surgery operation may lead to the noble purpose
of marriage. We however must consider the benefits of cosmetic surgery against its harm under the principle of injury. The
Law gives priority to prevention of injury over accruing a benefit. The principle of hardship cannot be applied to cosmetic
surgery because there is no life-threatening situation necessity to justify putting aside normal prohibitions. Pursuit of
beauty in not necessary for life and good health. Beauty is in any case a nebulous intangible entity that is very subjective.