ABSTRACT

The paper uses the theory of Purposes of the Law, maqasid al shari’at, to discuss contemporary ethico-legal issues in medicine relating to reproductive technology (assisted reproduction, contraception, abortion, sex selection, and genetic testing), end of life issues (artificial life support, euthanasia), transplantation (stem cells and solid organs), cosmetic and reconstructive surgery, post-mortem issues (embalming, cryopreservation, and autopsy), and research (human and animals). Ethical procedures conform to and do not violate the 5 maqasid al shari’at which are: preservation of diin, hifdh al ddiin; preservation of life, hifdh an nafs; preservation of progeny, hifdh al nasl; preservation of the intellect, hifdh al ‘aql; and preservation of resources, hifdh al maal. Also used in the discussion are legal axioms, qawa’id al shari’at, that assist in ethico-legal reasoning.

1.0 DERIVATION OF MEDICAL ETHICS FROM THE LAW

1.1 Introduction

Ethical theories and principles are derived from the basic Law but the detailed applications require further ijtihad by physicians. Islam has a parsimonious and rigorously defined ethical theory of Islam based on the 5 purposes of the Law, maqasid al shari’at. The five purposes are preservation of ddiin, life, progeny, intellect, and wealth. Any medical action must fulfill one of the above purposes if it is to be considered ethical. Legal axioms or principles, qawa’id al shari’at, guide reasoning about specific ethico-legal issues and are listed as intention, qasd; certainty, yaqiin; injury, dharar; hardship, mashaqqat; and custom or precedent, ‘urf or ‘aadat.

1.2 The 5 Purposes of the Law in Medicine, maqasid al shari’at fi al tibb

Protection of ddiin, hifdh al ddiin, essentially involves ‘ibadat in the wide sense that every human endeavor is a form of ‘ibadat. Thus medical treatment makes a direct contribution to ‘ibadat by protecting and promoting good health so that the worshipper will have the energy to undertake all the responsibilities of ‘ibadat. A sick or a weak body cannot perform physical ‘ibadat properly. Balanced mental health is necessary for understanding ‘aqidat and avoiding false ideas that violate true ‘aqidat.

Protection of life, hifdh al nafs: The primary purpose of medicine is to fulfill the second purpose of the Law, the preservation of life, hifdh al nafs. Medicine cannot prevent or postpone death since such matters are in the hands of Allah alone. It however tries to maintain as high a quality of life until the appointed time of death arrives. Medicine contributes to the preservation and continuation of life by making sure that physiological functions are maintained. Medical knowledge is used in the prevention of disease that impairs human health. Disease treatment and rehabilitation lead to better quality health.

Protection of progeny, hifdh al nasl: Medicine contributes to the fulfillment of the progeny function by making sure that children are cared for well so that they grow into healthy adults who can bear children. Treatment of infertility ensures successful child bearing. The care for the pregnant woman, peri-natal medicine, and pediatric medicine all ensure that children are born and grow healthy. Intra-partum care, infant and child care ensure survival of healthy children.

Protection of the mind, hifdh al ‘aql: Medical treatment plays a very important role in protection of the mind. Treatment of physical illnesses removes stress that affects the mental state. Treatment of neuroses and psychoses restores intellectual and emotional functions. Medical treatment of alcohol and drug abuse prevents deterioration of the intellect.

Protection of wealth, hifdh al mal: The wealth of any community depends on the productive activities of its healthy citizens. Medicine contributes to wealth generation by prevention of disease, promotion of health, and treatment of any diseases and their sequelae. Communities with general poor health are less productive than healthy vibrant communities. The principles of protection of life and protection of wealth may conflict in cases of terminal illness. Care for the terminally ill consumes a lot of resources that could have been used to treat other persons with treatable conditions.

1.3 The 5 Principles of the Law in Medicine, qawa’id al shari’at fi al tibb

The principle of intention, qa’idat al qasd: The Principle of intention comprises several sub principles. The sub principle ‘each action is judged by the intention behind it’ calls upon the physician to consult his inner conscience and make sure that his actions, seen or not seen, are based on good intentions. The sub principle ‘what matters is the intention and not the letter of the law’ rejects the wrong use of data to justify wrong or immoral actions. The sub principle ‘means are judged with the same criteria as the intentions’ implies that no useful medical purpose should be achieved by using immoral methods.

The principle of certainty, qa’idat al yaqeen: Medical diagnosis cannot reach the legal standard of absolute certainty, yaqeen. Treatment decisions are based on a balance of probabilities. The most probable diagnosis is treated as the working while those with lower probabilities are kept in mind as alternatives. Each diagnosis is treated as a working diagnosis that is changed and refined as new information emerges. This provides for stability and a situation of quasi-certainty without which practical procedures will be taken reluctantly and inefficiently. The principle of certainty asserts that uncertainty cannot abrogate an existing certainty. Existing assertions should continue in force until there is compelling evidence to change them. All medical procedures are considered permissible unless there is evidence to prove their prohibition.

The principle of injury, qa’idat al dharar: Medical intervention is justified on the basic principle is that injury, if it occurs, should be relieved. An injury should not be relieved by a medical procedure that leads to an injury of the same magnitude as a side effect. In a situation in which the proposed medical intervention has side effects, we follow the principle that prevention of an injury has priority over pursuit of a benefit of equal worth. If the benefit has far more importance and worth than the injury, then the pursuit of the benefit has priority. Physicians sometimes are confronted with medical interventions that are double edged; they have both prohibited and permitted effects. The guidance of the Law is that the prohibited has priority of recognition over the permitted if the two occur together and a choice has to be made. If confronted with 2 medical situations both of which are injurious and there is no way but to choose one of them, the lesser injury is committed. A lesser injury is committed in order to prevent a bigger injury. In the same way medical interventions that are in the public interest have priority over consideration of individual interest. The individual may have to sustain an injury in order to protect public interest. In many situations, the line between benefit and injury is very fine.

The principle of hardship, qaidat al mashaqqat: Medical interventions that would otherwise be prohibited actions are permitted under the principle of hardship if there is a necessity. Necessities legalize the prohibited, al daruuraat tubiihu al mahdhuuraat, and mitigate easing of legal rules and obligations. In the medical setting a hardship is defined as any condition that will seriously impair physical and mental health if not relieved promptly. Committing the otherwise prohibited action should not extend beyond the limits needed to preserve the purpose of the Law that is the basis for the legalization. The temporary legalization of prohibited medical action ends with the end of the necessity that justified it in the first place.

The principle of custom or precedent, qaidat al urf: The standard of medical care is defined by custom. The basic principle is that custom or precedent has legal force. What is considered customary is what is uniform, widespread, and predominant and not rare. The customary must also be old and not a recent phenomenon to give chance for a medical consensus to be formed.

1.3 Evolution of medical jurisprudence, tatawwur al fiqh al tibbi

There are three stages in the evolution of fiqh tibbi. In the first period (0 to circa 1370H) it was derived directly from the Qur’an and sunnat. In the second period (1370-1420) rulings on the many novel problems arising from drastic changes in medical technology were derived from secondary sources of the Law either transmitted (such as analogy, qiyaas, or scholarly consensus, ijma) or rational (such as istishaab, istihsaan, and istirsaal). The failure of the tools of qiyaas to deal with many new problems led to the modern era (1420H onwards) characterized by use of the Theory of Purposes of the Law, maqasid al shari’at, to derive robust and consistent rulings. Ijtihad maqasidi is becoming popular and will be more popular in the foreseeable future.

The theory of maqasid al shari’at is not new but many people had not heard about it because its time had not yet come. By the 5-6^th centuries of hijra the basic work on the closed part of the Law derived directly from primary sources was complete. Any further developments in the law required opening up new the flexible part of the law which necessitated discussion of the purposes of the law. It was at this time that al Ghazali and his teacher Imaam al Haramain al Juwayni introduced the ideas that underlie the concept of maqasid al shari’at. Other pioneers of the theory of maqasid al shari’at were Imaam an Haramain al Juwayni and his student Abu Hamid al Ghazzali (d. 505 H), Sheikh al Islam Ahmad Ibn Taymiyyah (d. 728H) and his student Ibn al Qayyim al Jawziyyat (d. 751H). The field of the purposes of the law witnessed little development until revived by the Abdalusian Maliki scholar Imaam Abu Ishaq al Shatibi in the 8th century AH who elaborated Ghazzali's theory. Our subsequent discussion of the purposes of the law is from al Shatibi's book al muwafaqaat fi usuul al shariat

2.0 ETHICO-LEGAL ISSUES IN REPRODUCTIVE TECHNOLOGIES

2.1 Assisted Reproduction

Overview: The Law allows assisted reproduction in fulfillment of the purpose of preservation of progeny, hifdh al nasl, provided it does not violate the purpose of preserving lineage, hifdh al nasab, and does not cause injury that violates the purpose of life, hifdh al nafs, or introduce any immorality into society.

In 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 because that would violate the principle of preserving lineage, hifdh al nasab.

In vitro fertilization, al talqiih al istinaa’e al khaariji: The Law permits in vitro fertilization (IVF) if the sperm and ovum are from legally wedded husband and wife and the zygote is implanted in the same wife. All other forms of IVF involving ovum or sperm donation are prohibited because they violate the principle of hifdh al nasab.

Ethical and legal issues: Several ethical issues arise in assisted reproduction: disclosure of infertility before marriage, artificial insemination after death of the husband, legality of masturbation for obtaining sperms, paternity and maternity of children born of illegal procedures, disposal and use of unused fertilized ova, sex selection and selective fetal reduction, embryo splitting, developing embryos  for purposes other than their use in assisted reproduction, using embryos to produce a clone, using fetal gametes for fertilization, trans-species fertilization (mixing human and animal gametes), mixing of gametes or embryos of different parentage to confuse biological parentage, implanting the embryo in a non-human species uterus, replacing the nucleus of the embryo, embryo flushing, commercial trading in sperms, gametes, or embryos, and use of gametes from cadavers. All these can be resolved by using the relevant Purpose of the Law and consideration of the specific circumstances of each case.

2.2 Contraception

Overview: There is basic permissibility of contraception from the hadith on coitus interruptus, tarkhis fi al ‘azal. This is permission for each individual couple. Contraception as a national or community policy is repugnant to the purposes of the Law and could lead to demographic disequilibrium. 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 and Principles of the Law. There is no consensus among jurists on sterilization as a method of contraception. Contraception as part of a national population control policy is prohibited by Law.

Male contraception: The permissible reversible methods for males are the condom, coitus saxanicus, coitus reservatus, and coitus interruptus.

Female 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.

Socio-demographic 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.

2.3 Reproductive cloning

Overview: We must start by distinguishing cloning of individual cells and tissues from cloning of a whole organism. 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 (PBUH) had neither a mother nor a father. Isa (PBUH) was reproduced asexually. The clone is the exact replica of the original. Genetic recombinations that are responsible for the great variety of normal reproduction do not occur in cloning.

Rulings on cloning: 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 human cloning until it has occurred and we see its implications in practice. We can only review general ideas from what we already know about cloning with no definitive conclusions.

Spiritual quality of a clone: 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.

Ethical 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.

Social implications: Likely socio-demographic implications are loss of human dignity, production of human monsters with no family background, and destruction of lineage, nasab.

2.4 Abortion

Unwanted pregnancy: 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.

The law on feticide: 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. Abortion is criminal homicide because life is considered to start at conception. 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.

2.5 Sex selection, al tahakkum fi al jins

Sex preference 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 are still being discussed on methods such as separation of male and female sperms by centrifuging followed by in vivo insemination and gender pre-selection and implanting only zygotes of desired gender in in vitro fertilization. Some jurists consider sex selection permissible for the couple but are prohibited when they are part of community or national policy. There are long-term consequences 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.

2.5 Genetic testing and genetic counseling

Genetic testing is used for disease diagnosis, pre natal diagnosis, genetic screening, criminal investigations, and settling paternity issues. Genetic counseling is carried out before and after genetic testing. The objective of counseling before testing is to provide information about genetic disorders and the risks of disease to individuals and families so that they may make informed decisions. 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 cannot be disclosed except following guidelines.

3.0 ETHICO-LEGAL ISSUES IN MEDICAL AND SURGICAL TECHNOLOGIES

3.1 Artificial Life Support

Legal 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. Death can be defined using the traditional criteria of cardio-respiratory arrest. It can also be defined as brain death either higher brain death or death of the brain stem or whole 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.

Palliative care: The aim of palliative care is pain control, psychological support, emotional support, and spiritual support. Death can be made a pleasant experience with appropriate palliative care. 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.

Principles of certainty and autonomy: When 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 uncertainty, shakk.

The purposes 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.

Legal rulings on initiating and withdrawing life support: 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 jurists, 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. It is therefore impossible for any member of the close family to take part in life support withdrawal decisions. Physicians and other health care givers may abuse withdrawal of life support and kill people for various motives.

3.2 Euthanasia

Concepts: 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 with very high doses has the dual effect of controlling pain and causing respiratory failure. Islamic Law views all forms of euthanasia, active and passive, as homicide. 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.

Analysis using purposes of the law, maqasid al shariat: Euthanasia violates the Purpose of the Law to preserve Life by taking life and it leads to cheapening human life making genocide more acceptable. It violates the purpose of religion by assuming Allah’s prerogative of causing death.

Analysis 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. According to the legal principle of sadd al dhari’at, 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. Continuation is easier that starting. Euthanasia like other controversial issues is 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.

General 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, socio-economic status, race, or diagnosis.

3.3 Solid organ transplantation

Background: 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.

Legal rulings about transplantation: Transplanting animal or artificial organs or auto-transplantation raise fewer ethical issues than transplantation from a donor. The evidence for transplantation from a human donor, living or dead, is by qiyaas with permission to eat flesh of a dead person in case of dharuurat. 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. Mutilation of a dead corpse is normally objectionable but where transplantation can preserve good health this objection is set aside. Under the principle of injury, 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. 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. Under the principle of custom brain death fulfills the criteria of being a widespread, uniform, and predominant customary definition of death that is considered a valid custom. Selling organs 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 preventing motive. Protecting innocent people from criminal exploitation is a public interest that has priority over the health interests of the organ recipient. The 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. Other considerations in transplantation are free informed consent, respect for the dignity of the human, ownership and sale of organs, taharat of the organs, sadaqat and iithaar of the organ donor.

Indications, 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 because the Law does not allow action based on uncertainty. 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.

3.4 Embryonic stem cell transplantation

Description of stem cells: A stem cell is able to divide and replicate itself almost indefinitely and can be grown to produce a more specialized or differentiated cell. Some stem cells are already differentiated or specialized and can be grown to produce only specific specialized cells. Other stem cells are less specialized or differentiated and can be grown into a wide range of specific cell types. These are called multi-potent or pluripotent cells. The third type of stem cells is called totipotent. These are completely undifferentiated and can be grown into any cell type.

Sources of stem cells: Multipotent cells can be found in adult blood, adult bone marrow, and umbilical blood. They can also be derived from cancer tissues and from fetal cells and embryonic cells (either pre-implantation or post-implantation). Embryonic stem cells are totipotent. They are able to develop into any type of body cell or tissue. The nucleus of the stem cell can be removed and can be replaced by the nucleus of a patient who has a damaged tissue. The cell can grow into the desired tissue. Embryonic stem cells are more efficient than adult stem cells.

Diseases likely to be treated using embryonic stem cells: The following serious medical conditions are candidates for cure using stem cells: diabetes, stroke, spinal cord injury, and neurodegenerative disorders such as Parkinson's disease. Stem cells could be grafted at a site of spinal cord injury. Stem cells grafted in the pancreas could produce insulin that is deficient or lacking in diabetics.

Advantages of stem cells: Stem cells have two main advantages. They can be a source of tissue or organs thus helping overcome the shortage of organs for transplantation. Stem cells generated under the patient’s own genetic control will be fully immunologically compatible unlike donated organs that can be rejected by the patient.

Ethical controversy about embryonic stem cells: The use of adult stem cells or cells from the umbilical cord raises few ethical controversies. Embryonic stem cells, unlike adult stem cells, are a source of ethical controversy because they are obtained from embryonic tissue, either pre-implantation or post-implantation. Use of such tissue involves violation of the purpose of preserving life. Since the cell is a potential human life its use in research or transplantation involves denial of that life.

3.5 Cosmetic and reconstructive surgery

The concept of change of Allah’s creation: The Qur’an mentions stability of creation (30:30) and stability of Allah’s laws (35:43). The unchanging creation mentioned is constancy of the laws that govern the universe, sunan, as expounded in the Qur’an (35:43). 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.

Beautification: 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.

Reconstructive/restorative 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 or embarrassment and 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 do not involve change of fitra since they are returning to the normal. Surgery for hiding identity of a witness is allowed. 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 function.

Cosmetic 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, qai’dat al 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. 

4.0 ISSUES AFTER DEATH

4.1 Embalming

Definition: Embalming is treating a dead corpse with substances that prevent it from decay or decomposition. Embalming does not prevent but delays the decomposition process.

The embalming procedure: 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 replacing it with 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.

Embalming 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 5^th 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[i]. 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 death 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 100 persons pray for the dead, the sins may be forgiven by Allah[ii]. 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.

4.2 CRYONICS

Definition: 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. 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.

Procedures: 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.

Cryonics and purposes of the Law: Cryonics is repugnant to the Law because it involves waste of resources, a violation of the 5^th 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.

Cooling 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 dead.

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.

4.3 Autopsy

Definition: 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. 

Purposes of autopsy: Post-mortem 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.

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.

Permissibility of autopsy for educational purposes under the principle of necessity, qa’idat 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 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. 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.

Alternative ways of achieving the educational objectives of autopsy: 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. The necessity of educational autopsies can be reduced by modern endoscopic and imaging technology that can enable inspecting internal structures of a corpse 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

The necessity 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.

4.4 Research on dead corpse

There 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 to estimate time since death in cases of criminal homicide.

5.0 ETHICO-LEGAL ISSUES IN RESEARCH

5.1 Research on Humans

Purposes of the law in human experimentation: The Islamic ethical theory on research is based on the 5 purposes of the Law, maqasid al shari’at, religion, life, progeny, the mind, and wealth. If any of the 5 necessities is at risk permission is given to undertake human experiments that would otherwise be legally prohibited. Therapeutic research fulfills the purpose of protecting health and life. Infertility research fulfils the purpose of protecting progeny. Psychiatric research fulfills the purpose of protecting the mind. The search for cheaper treatments fulfills the purpose of protecting wealth.

Principles of the law in human experimentation: The 5 principles of the Law guide research. Research is judged by its underlying and not expressed intentions. Research is prohibited if certainty exists about beneficial existing treatment. Research is allowed if benefit outweighs the risk or if public interest outweighs individual interest. If the risk is equal to the benefit, prevention of an injury has priority over pursuit of a benefit of equal worth. The Law chooses the lesser of the two evils, injury due to disease or risk of experimentation. The principle of custom is used to define standards of good clinical practice as what the majority of reasonable physicians consider as reasonable. Under the doctrine of istishaab, an existing treatment is continued until there is evidence to the contrary. Under the doctrine of istihsaan a physician can ignore results of a new experiment because of some inclination in his mind. Under the doctrine of istislaah preventing an injury has priority over obtaining a benefit.

Informed consent: Informed consent by a legally competent research subject is mandatory. Informed consent does not legalize risky non-therapeutic research with no potential benefit. It is illegal to force participation of the weak (prisoners, children, the ignorant, mentally incapacitated, and the poor) in clinical trials even if they sign informed consent forms.

Outstanding ethico-legal issues: Research on fetal human tissues may encourage abortion. Cadaver dissection and post mortem examination are permitted under necessity. Use of human bodies in auto crass experiments violates human dignity. Genetic experiments may cause diseases hitherto unknown. The Law allows research on ageing as long as the aim is not prolongation of life or preventing death because those aspects are under Allah’s control. 

5.2 Research on animals

Enjoining kindness to animals: The prophet enjoined kindness to animals. Saving animals from danger is a noble act. There is reward for kindness to animals.

Prohibiting cruelty to animals: Cruelty and physical abuse of animals are prohibited. There is severe punishment is reserved for cruel treatment if animals. Face branding, beating, cursing, sexual abuse, sexual abuse, and wanton killing of animals were forbidden.

Animal research: purpose and relevance: The purpose of animal research is to spare humans from risk. Findings in animals are relevant to humans because of similarities in physiology and biochemistry. However findings in animals cannot be directly transferred to humans; research on humans is still necessary for a definitive conclusion. Animal research is exploratory and not definitive.

The Law and animal experimentation: The position of the Law is that animal experiments are allowed if a prima facie case can be established that the result of the research is a necessity, dharuurat. Dharuurat under the Law is what is necessary for human life. The regulations of necessity require that no more than the absolute minimum necessary should be done, al dharurat tuqaddar bi qadiriha. Animal research has definite risks for the animals that are not balanced by any benefits: pain, suffering, permanent injury, inhumane treatment and operations, and being killed (sacrificed). Thus use of animals in justifiable on the basis of taskhiir and not any benefits that accrue to the animals. The risks to humans from animal research are minimal in the short term; long-term effects are difficult to fathom. The purposes and principles of the Law can be used to analyze all legal aspects of animal experimentation.

Outstanding ethico-legal issues: There are limits to taskhiir. Humans were not given a carte blanche to exploit animals in any way they liked. They have to conform to the Law and moral guidelines. If the results of animal experimentation will lead to protection of human life, then research is allowed to proceed because then it is a necessity. This is similar to killing animals for food, a necessity for human life. If research is for general scientific curiosity unrelated to any tangible human benefit, then it is beyond the authorization of taskhiir. There are differences among animals. Animals considered dangerous and must be killed. Use of such animals for research should therefore raise fewer ethical objections than other animals. All types of animals used in research cannot be subjected to unnecessary pain and suffering. Animals whose flesh is edible are preferably used in research. Use of animals that are haram like the pig should be avoided as much as possible and should be considered only in cases of dharuurat. Animals, like humans, have rights to enjoyment of life and good health. The researcher must therefore follow Islamic etiquette to minimize animal suffering. The basmalah is said at the start of an animal experiment, similar to slaughter of animals for food, in recognition of the fact that the experiment is carried out with the permission of the creator under the requirements of taskhiir. The animals must be shown kindness and respect. They should not be subjected to the psychological pain of seeing other animals in pain or being sacrificed. Pain must be minimized both during the experiment and when the animal is being terminally sacrificed. This is based on the legal requirement of slaughtering animals using a sharp knife and as quickly as possible to prevent pain and suffering. The long-term effects of the experiment on the animal must be considered and efforts made to decrease suffering and pain. The nutritional and medical needs of the animal must be taken care of before, during, and after the research.