0709-Ethico-Legal Issues for Discussion at the 17th Session of the Fiqh Academy of India March 2008

Proposed by Professor Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine University Brunei Darussalam and Visiting Professor of Epidemiology University of Malaya

1.0 CONSENT TO MEDICAL TREATMENT BY MINOR CHILDREN, al muwaafaqat ‘ala tatbiib al atfaal al sighaar

In normal circumstances adults with full capacity (ahliyyat kaamilat) cannot be examined and treated without their consent. The situation for children is different because they have deficient capacity (ahliyyat naaqisat) and cannot decide on medical examination and treatment. Parents normally make the necessary decisions. There are however complicated situations that arise and legal opinions are needed to resolve them. (a) If the father consent and the father refuses to consent or vice versa (b) If parents refuse medical examination and treatment that the physicians consider necessary for life and health. (c) If both parents are not available who makes the decisions. (d) If child who had reached the age of discrimination, mumayyiz, consents to treatment that physicians consider necessary but the parents refuse.


2.0 CONSENT TO MEDICAL TREATMENT FOR AN ADULT WHO LACKS FULL CAPACITY, al muwaafaqat ‘ala tatbiib al kabiir faaqid aw naaqisu al ahliyyat

An adult can lose capacity to consent due to unconsciousness or due to insanity. In both cases decisions on medical examination and treatment have to be made by a wali. There are legal issues that arise in the choice of the wali in a practical situation. (a) Which relatives qualify to be have wilayat and what is the order of precedence so that we can tell whose decision to take in case of disagreement in the family. (b) Does the husband or the wife have an automatic right of wilayat in deciding on medical matters (c) Can the doctor be a wali in the absence of any relative? (d) Can the doctor overrule the decision of a wali that he considers not in the best interests of the patient? (e) What is the role of the qadhi shara’e in disputes about wilayat? (f) What is the ruling on decisions about examination, treatment, and organ donation made by the patient while healthy before losing capacity to consent? (g) What is the ruling regarding the inheritance of a wali who makes the decision to terminate life support and thus is a factor in causing death in light of the legal ruling that the killer cannot inherit, la yarithu al qaatil.



The basic position of the Law about contraception is permissibility, ibaahat. If both husband and wife agree and they use a method not forbidden by the Law and for a valid reason there is no problem. A problem arises when both do not agree. Guidance of the Law is needed in the following situations: (a) A husband wants contraception for economic and social reasons and the wife refuses (b) the wife wants contraception for social or economic reasons and the husband refuses (c) The wife wants contraception for fear for her health and the husband refuses despite professional advice by a doctor. (d)  One parent wants contraception for fear of birth of more children with inherited congenital anomalies but the other parent refuses.



There are certain disease conditions in pregnancy in which continuation of the pregnancy will endanger the life of the mother and yet termination of the pregnancy will result in instant death of the fetus who is not yet viable. What is the guideline of the Law if the father refuses termination but the mother insists on termination while the doctor cannot say with certainty what the outcome will be if the pregnancy is allowed to continue.

ŠProfessor Omar Hasan Kasule, Sr. September 2007