0706-Application of Maqasid Al Shariat & Qawaid Al Fiqh to Issues of Embalming, Cryopres. et. al.
presented at a Conference of Muslim Jurists held at Lucknow 15-17 May 2007 by Professor Dr Omar Hasan Kasule, Sr. Professor of Epidemiology and
Islamic Medicine, Institute of Medicine
Universiti Brunei Darussalam. EM firstname.lastname@example.org. WEB: http://omarkasule.tripod.com
The paper using the theory of purposes of the Law, maqasid
al shari’at, analyzes ethico-legal issues related to embalming, cryonics, autopsy, and research on dead corpses.
Embalming is repugnant to the Law because it wastes resources and can be undertaken only if the deceased died in a place where
a decent Islamic burial is not possible and the embalming is needed to enable transport of the body to Muslim territory. Cryopreservation
with the vision of denying the finality of earthly earth violates basic tenets of ‘aqidat. Cadaver dissection
and autopsy for educational or forensic purposes was permissible in the past under the principle of necessity, dharuurat.
Modern technological innovations on alternative methods of teaching anatomy cast doubt on the continuing validity of the necessity
argument for educational cadaver dissection and autopsy. Research on the recently dead can be permissible under the principle
of necessity if it is necessary for improved medical care. In cases of permissible cadaver dissection, autopsy, and research;
the following conditions must be fulfilled: proper informed consent from the family and the deceased (where feasible), a legal
opinion from a local jurist, treating the body with respect during the procedure, and proper burial of the body after the
1.1 Respect for the dead corpse
All four manipulations on the dead corpse (embalming, cryopreservation, autopsy, and research)
would violate the Law because they lead to delay of burial, involve disrespect, and physical violation of the body. The extreme
respect shown to the corpse can be derived from the hadith of the prophet forbidding damaging the corpse or breaking its bones
during washing. They could be forbidden
unless there is a necessity, dharurat, directly relevant to one of the 5 purposes of the Law, maqasid al shari’at.
In cases of permissible cadaver dissection, autopsy, and research; the following
conditions must be fulfilled: proper informed consent from the family and the deceased (where feasible), a legal opinion from
a local jurist, treating the body with respect during the procedure, and proper burial of the body after the procedure.
Immortality, educational and legal purposes
Embalming and cryonics share in varying degrees of intensity a desire for immortality or
extension of earthly existence. Autopsy and research on the other hand serve educational and legal purposes.
1.3 Analysis based on purposes of the Law, maqasid al shari’at.
The legality of the procedures is discussed based on the theory of the 5 Purposes of the
Law, that assure protection of ddiin, life & health, progeny, intellect, and wealth. Principles of the Law,
qawa’id al shari’at, are employed to support reasoning where there are apparent conflicts among the principles.
The opinions expressed in this paper are academic in nature. Legal rulings on actual cases should be sought from the relevant
authorities in the community.
1.4 Individualized and not omnibus fatwa
I also wish to clarify the process of issuing a legal interpretation, fatwa. Omnibus
fatwas can be issued by fatwa committees as academic guidance only and not as final solutions for practical problems that
arise in the community. The practice of issuing an omnibus fatwa that is then automatically applied to all situations as they
arise is not in accordance with Islamic practice. A fatwa should be individualized according to the person, time, and place.
This means in effect that a scholar of Law, faqiih, should be consulted on each case of embalming or autopsy that arises
in the community and he should give a specific legal opinion. This is motivated by two considerations. No case in its ingredients
and circumstances is exactly like any other case. Secondly Islamic Law is mostly private law in which an individual or a family
seeks a legal opinion and has the onus of implementing it. It is for this reason that having a faqiih in each community
is a communal obligation, fardhu kifaayah, to be able to solve people’s legal problems.
1.5 Respect for the dead body and human dignity:
human has dignity in both life and death. Respect for the dead body is the guidance of the prophet to stand up when a funeral
procession passes by, al qiyaam li al janaazat. It is dignity to be buried whole. Surgical operations on the body
are an affront to the dignity. The prophet forbade mutilation, nahyu al muthla. Removal of some parts is looked at with disfavor. In cases in which a body
is buried without some of its parts, the parts when found later are washed, prayed for and buried in the same grave.Post-mortem examination will lead to delay of burial when the sunnah is to bury as
soon as possible. Delay of the burial affects human dignity because of deteriorations in the body including a bad smell.
Embalming is treating a dead corpse with substances that prevent it from decay or decomposition.
Embalming does not prevent but delays the decomposition process.
2.2 Historical background
The ancient Egyptians developed embalming techniques to a high level of sophistication.
Some of the mummies embalmed thousands of years ago still exist today. Other ancient people who embalmed their dead were the
Paraca Indians of Peru, the Guanches of the Canary Islands, the Jivaro of Ecuador, and the Tibetans. Embalming was rare among the ancient
Babylonians, the Sumerians, and the Greeks. Embalming was rare in the Roman Empire and Medieval
Europe. It seems that a favorable climate tended to favor development of embalming technology. Whereas the dry desert climate
of Egypt was favorable, the hot, humid, and rainy climate of the tropics
or the cold wintry climate of Europe did not.
2.3 Purposes of embalming
The purposes of embalming by the ancients were mostly religious based on belief in life
after death. They believed that the embalmed bodies would come back to life. The purposes of embalming in modern times are
generally to preserve the body for viewing or for transfer to a distant place before burial. In a few cases the ancient purpose
of trying to achieve immortality has been followed in embalming leaders and putting them on permanent display such as the
bodies of Vladmir Lenin, leader of the Russian communist revolution, and Jomo Kenyatta, the first president of the independent
state of Kenya.
2.4 The modern embalming procedure
The modern technique of embalming by arterial injection developed in England and spread to the US
and other countries. In arterial embalming blood is drained through a vein and is replaced by a preservative fluid injected
through the arteries. Cavity embalming involves removing fluid from body cavities using a trochar and is replacing it by a
preservative. Hypodermic embalming involves injecting preservatives under the skin. The fluid used is usually a mixture consisting
of formalin and other substances. Arterial embalming is not permanent and repeat treatments are required to maintain the body
in an embalmed state.
2.5 Ethico-legal analysis
and the purposes of the Law: Embalming does not fulfill any of the 5 purposes of the Law. It on the other hand violates
the 5th purpose of preserving wealth, hifdh al maal, because it is an expensive procedure that consumes
wealth. It also leads to violation of the hadith of the prophet about hastening the funeral, al ta'ajil bi al janazat. Embalming a body that died of a communicable disease carries a risk to the
funeral attendants and the community which would violate the second purpose of preserving life, hifdh al nafs. The prudent measure in cases of dead from contagious
disease is immediate burial.
Exceptional situations: In an exception
to the general rule, embalming could be a better alternative in a situation in which a person dies in a foreign place with
no Muslims knowledgeable or willing to give him an Islamic burial. It may be better in such a case to embalm the body and
transport it to where it can get a decent and honorable Islamic burial. Proper burial including salat al janazat is one of the 5 cardinal duties of brotherhood in Islam.
As many persons as possible should participate in salat al janazat because if f 100 persons pray for the dead,
the sins may be forgiven by Allah. Embalming could also be considered in a situation in which a Muslim
dies or is killed in hostile territory and it is feared that if the body is not transported to a Muslim land, it will be dishonored
by the enemies.
Cryonics is cryopreservation of the body by cooling it immediately to the temperature of
liquid nitrogen after death and keeping it at a low temperature. In some cases only the brain is removed and is cryopreserved
because it contains the essential information. The whole practice of cryonics is based on a speculation that future scientific
discoveries will be able to reverse death.
3.2 Historical background
Cryonics is a recent movement started in the 1960s and still regarded by many as not based
on solid science. There are however several for-profit and not-for-profit organizations engaged in the field and bodies are
being cryopreserved. The technology of slowing down metabolism using low temperatures and re-starting it by thawing has been
used in the laboratory for cells and tissues for a long time. However application of such technology to whole body preservation
is still controversial.
The practice of cryonics is based on the hope that one day medical technology will be able
to reverse the death process so that the clinically dead can come back to life. According to its advocates, cryonics does
not involve denial of death, nafiyu al mawt, or denial of resurrection, nafiyu al ba’ath, because its
advocates think that clinical death is not terminal death but is a process that can be reversed. The advocates of cryonics
do not consider the preserved bodies as dead and they call them patients.
Immediately after death the body is infused with glycerol (a cryoprotectant fluid) and
is then cooled to a very low temperature. The fluid prevents formation of ice crystals that could damage cells. The body is
kept at the low temperature indefinitely.
3.5 Ethico-legal analysis
Cryonics and purposes of the Law: Cryonics
is repugnant to the Law because it involves waste of resources, a violation of the 5th Purpose of the Law. ‘Patients’
as the cryopreserved bodies are referred to have to set aside large sums of money as investments such that the returns on
the investment can cover the annual costs of cryopreservation for an indefinite period of time.
Speculative thought, dhann: The other
aspect of cryonics that is repugnant to the Law is the speculative thought, dhann, that science will one day develop
a method of reversing clinical death. According to the principle of certainty, qa’idat al yaqeen, the Law requires
decisions based on actual realities and not speculative or hypothetical conjectures. Advocates of cryonics have been arguing
that the cryopreservation would be more effective if started before the point at which clinical death is legally recognized.
If this were to be put in practice, the Law would recognize occurrence of a criminal act of murder.
Definition and timeline of death: An outstanding ethico-legal issue relating to cryonics
is definition of death and determining the point in time at which death is said to occur. This is because death is a process
and not an isolated event. Depending on the definitional criteria used, there are several points on the time line of the death
process than could be considered the point of death. Definition of legal death is based on the legal principle of precedent
or custom, qa’idat al ‘urf or qa’idat al ‘aadat. The customary definition changes with
changes of knowledge and available medical technology. Therefore cryonic procedures carried out after the point considered
legal death are repugnant to the Law because they involve denial of death or attempting to artificially prolong life.
the body before clinical death: Another outstanding issue that deserves further
discussion is cooling the body to lower metabolism and decrease tissue damage in a patient who is not yet clinically or terminally
Cryonics and violation of ‘aqidat:
The most serious consideration in cryonics relates to ‘aqidat. A person without the correct ‘aqidat
does not believe in life in the hereafter and wants to achieve immortality on earth and is therefore wont to turn to cryonics.
Cryonics seen from such a perspective should be prohibited absolutely. The relevant Islamic teachings on death are very clear
and leave no room for doubts about the prohibition of cryonics. We summarize these teachings for re-emphasis below.
Qur’anic facts about death: All humans will eventually die, shumuliyat al
mawt. There can be no exceptions now or at any time in the future. All death is by Allah's permission. In view of the inevitability of death,
hatmiyyat al mawt, it is futile to attempt to avoid death or think of its removal, istihalat
daf'u al mawt. However much the humans try to escape it, death catches up with them, lihaaq al mawt bi al insaan.Human death has finality to it. Each human has only one death. There is
no reincarnation. There is only resurrection in the hereafter. There will be no more death after the day of Judgment. Life after the Day of Judgment will be eternal. Humans in their arrogance and folly find it difficult to accept the finality
of death. They try various means to achieve some form of immortality such as cryonics, leaving behind physical monuments that
will remind future generations of their achievements, and engagement with illusionary supernatural phenomena like belief in
ghosts. Death could be looked at a transitional event or rite de passage. It is a transition to another life in the hereafter, al hayat ba'da al mawt. The only way to life after death is through physical death on earth. Life in the hereafter is better than earthly life.
Death could therefore be a welcome event for good people who look forward to a better life in the future. It is a frightening
event for the sinners.
The term autopsy or necropsy is used to refer to dissection and examination of a dead body
to determine the cause(s) of death. It may be carried out for legal or for educational purposes.
4.2 Historical background
Autopsies were carried out by 2 Greek physicians, Herophilus and Eraststratus, in Alexandria around 300 BC. The famous Roman physician Galen carried out
autopsies in the 2nd century AD to correlate symptoms and pathology. However autopsy did not become popular until
the European Renaissance when taboos against dissecting the human body were breached. Autopsy enabled more detailed understanding
of anatomy and disease that opened new horizons for medicine. By the 18th and 19th centuries AD autopsies
were carried out in Europe and new techniques of examination were introduced.
4.3 Purposes of autopsy
examination serves several purposes. It can be done for scientific research to understand the natural history, complications,
and treatment of a disease condition. It can be done for further education of physicians and medical students especially when
they compare their clinical diagnosis with the evidence from autopsy a process usually referred to as clinico-pathological
correlation. The lessons learned will improve their diagnostic and treatment skills in the future and decrease the incidence
of clinical mistakes. Post mortems are also undertaken for forensic purposes to provide evidence on the timing, manner, and
cause of death. Legally the courts may require scientific proof of the cause of death
in order to make decisions regarding various forms of legal liability.
4.4 The procedure of the autopsy
The first step in an autopsy is examination of the exterior of the body. Then the body
cavity is opened to examine the internal organs. Organs may be removed for examination or may be examined in situ. After the
examination removed organs are returned and the external incision is sewed up restoring the body to almost its original appearance
with the sole exception of having an incision. During the examination tissues and fluids are removed for further examination
that may include histological, microbiological, or serological procedures.
4.5 Ethico-legal issues cadaver dissection for medical education
Permissibility under the principle of necessity, dharuurat: Dissection of cadavers has been very important for medical education
over the past decades when there was really no alternatives to dissection. Cadaver dissection was therefore permissible under
the legal principle of necessity, dharuurat. The reasoning is that cadaver dissection enables future doctors to be
trained well to treat patients which fulfils the second purpose of the Law, preservation of life or hifdh al nafs.
The situation of necessity explained above takes precedence over considerations of violating human dignity by dissecting the
body under the general principle of the Law that necessities legalize what would otherwise be prohibited, al dharuuraat
tubiihu al mahdhuuraat. However human dignity cannot be violated more than necessary. The body should still be handled
with respect and consideration. All tissues cut away should be buried properly and the remaining skeleton should also be buried
in a respectful way. There are issues of consent, sale of bodies, wills etc that we need not discuss here because there are
legal doubts about the necessity of cadaver dissection in the traditional way.
Alternative ways of achieving the educational objectives: The following arguments cast doubt on the degree of necessity for cadaver
dissection in medical education. The cadaver is treated before dissection and does not truly represent the structure or appearance
of tissues in a living person. Secondly with availability of computer graphics and anatomical models, medical students can
learn human anatomy very conveniently and more efficiently.
Ethico-legal issues in autopsy for educational purposes
under the principle of necessity, dharuurat: Autopsy for educational purposes can be permitted under the principle
of necessity, dharuurat, as argued above for cadaver dissection. However this can only be carried out if there is informed
consent from the family members who have the authority to consent as prescribed by the Law. As far as possible this consent
should take into consideration the will of the deceased on this matter if it was known before death.
to autopsy: The necessity of educational autopsies can be reduced by modern endoscopic and imaging technology that can
enable inspecting internal structures without the making an incision to inspect internal tissues. If the educational objective
can be achieved fully using such technology then the rational for the necessity will disappear and educational autopsies will
be considered repugnant to the Law.
Ethico-legal issues in autopsy for legal or forensic purposes
of a forensic post-mortem is based on the paramount paradigm of Islamic Law to ensure justice. If the only way evidence about
a crime on a deceased is by an autopsy then it becomes a necessity to carry put the autopsy. A forensic or medico-legal autopsy
is more detailed in that it tries to look for clues to the motivation and method of death. It is equally important to record
some findings as it is to record negative findings. The deceased should be identified accurately. Documentation is very thorough.
The time of death must be estimated. The postmortem record is a legal document that can be produced in a court of law.
RESEARCH ON DEAD CORPSE
are several types of research on the recently dead that can be permitted under the principle of necessity if they will result
in better health care that fulfills the second purpose of the Law, preservation of life or hifdh al nafs. Forensic
pathologists may carry out research to study the process of decomposition of the body. They then can use that information
in investigating crimes such as homicide to be able to predict the time of death. Physiological, pharmacological, and surgical research can be carried
out on the tissues or organs of the recently dead instead of living subjects. This type of research is becoming common and universities in the US have got together to draw up ethical guidelines
for it.Experiments using cadavers
to study the effects of auto crashes on humans are repugnant due to the cruel treatment of the body and total respect
 (Hadith no 468 in Buloogh al Maraam fi adillat al ahkaam by Imaam ‘Asqalani
and reported by Muslim)