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Presented at the Training Workshop for Judges and Jurists held at Patna Bihar India on 7-8 July 2007 at the Higher Institute for Training Judges and Jurists a division of the Law Directorate for the States of Bihar, Orissa, and Jarkhand by Professor Omar Hasan Kasule Sr MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine.
ABSTRACT
Marrying and getting offspring are obligatory, wajib, for the community to fulfill the purpose of protecting and preserving progeny, hifdh al nasl. Procreation for the individual couple is permissible, mubaah, in normal circumstances but becomes obligatory, wajib, in situations of military or economic weakness. There is basic permissibility of reversible contraception from the hadith on coitus interruptus. There is no consensus among jurists on sterilization. Decisions on contraception must be by mutual consent of the spouses. Choice of the method of contraception must be based on the 5 purposes of the Law, maqasid al shari’at. Legal rulings on contraception must also take the socio-demographic impact in consideration.
1.0 PURPOSES OF HUMAN REPRODUCTION vs. CONTRACEPTION
The purposes of the human reproductive function can be considered at the individual, family, community, and human levels. Reproduction at an individual level fulfils a deeply felt human desire for self-perpetuation in order to achieve a form of immortality. Parents are proud of their children, al tafakhur bi al awlaad[1] and naturally desire to have many, al takathur bi al awlaad[2]. Children help cement and strengthen the marital bond.
As regards the community level, the prophet encouraged Muslims to have as many offspring as possible to give glory to the ummat so that it may be the largest of communities. When righteous people have many children and bring them up to be righteous they will be spreading light and truth in the next generation in a very effective demographic strategy. At the level of the human species, reproduction is necessary to ensure survival of the human race.
Contraception in all its forms runs contrary to the objectives of human reproduction mentioned above especially the human survival instinct. Contraception is against basic human nature. Only very strong reasons and motivators can make humans limit their reproductive capacity.
Contraception is sometimes marketed under the label of family planning. Family planning practice is imbalanced because it deals with spacing births and thus decreasing the total number of births. We however do not hear of the third purpose of family planning which is increasing the number of births because many societies have demographic circumstances today that necessitate more children. The imbalance in family planning practice reflects ideological orientations that have to be exposed and be discussed by all so that a clear vision may emerge.
2.0 PROCREATION FROM THE COMMUNITY PERSPECTIVE
Marrying and getting offspring is obligatory, wajib, for the community to prevent it from weakening, shrinking, and disappearing. This fulfils the purpose of the Law, maqsad al shari’at, to protect and preserve progeny, hifdh al nasl. Any policy or practice at the community or national level to control births is repugnant to the Law. It is highly recommended that each individual couple play their role in fulfilling the purpose of the Law by having children.
3.0 CONTRACEPTION FROM THE INDIVIDUAL PERSPECTIVE
Thus procreation for the individual is under the legal rubric of permissibility, ibaahat, and not obligation, dharuurat. In any special situation of low Muslim population and there is an economic or military need for more births, then procreation becomes a personal obligation, fardh ‘ain, on every couple.
4.0 PERMISSIBILITY OF TEMPORARY OR REVERSIBLE CONTRACEPTION
Temporary and reversible contraception, ta’aqiim muaqqat, is generally permissible based on the Prophet’s allowing coitus interruptus. There are however many conditions and restrictions that have to be observed.
Coitus interruptus may be permissible, mubaah; offensive, makruuh; or prohibited, haraam. There is a basic permissibility of contraception as is clear from the hadith of the prophet on coitus interruptus, tarkhis fi al ‘azal[3]. It is however considered offensive, karaahiyat al ‘azal[4], because it goes counter to the purpose of preserving human progeny by procreation. This offensiveness can be overcome only if there are good justifying circumstances. Coitus interruptus is prohibited without the wife’s permission, nahyu al ‘azal ma’a al hurrat illa bi idhniha[5].
The textual evidence from the sunnat is only about coitus interruptus but on the basis of analogy, qiyaas, other modern methods of contraception can be included. In a hadith reported from Jabir we learn that the purpose of coitus interruptus for the express reason of preventing pregnancy is allowed[6].
Since child-bearing is one of the purposes of marriage, any decisions on contraception require mutual agreement between the two spouses otherwise one can claim denial of parenthood rights in marriage. In cases in which contraception is a necessity, dharuurat, for preserving the life of the mother, the agreement of the husband is not required but he has the option of recourse to divorce.
5.0 PRINCIPLES GUIDING CHOICE OF CONTRACEPTIVE METHODS
Choice of the method of contraception must be based on the purposes of the Law, maqasid al shari’at. It should not encourage immorality or in any way be conducive to spread of evil, fasaad, in violation of the purpose of preserving religion, hifdh al ddiin. It should not be harmful to the life and health of any of the parents under the purpose of preserving life, hifdh al nafs. It should also not destroy life of the zygote or fetus because it is life preserved under the purpose of preserving life, hifdh al nafs. It should not be a cause of stress that can lead to severe psychological disturbance in violation of the purpose of preservation of intellect, hifdh al ‘aql. It should not be permanent and irreversible because it would violate the principle of preservation of progeny, hifdh al nasl.
As discussed previously, reversible contraceptive methods are generally permissible subject to conditions and restrictions. The conditions for allowing modern contraceptive methods are: (a) the method is similar to coitus inerruptus, ‘azl, under the doctrine of analogy, qiyaas. (b) Consent by both spouses (c) no harm to the body and psyche (d) the method does not operate after fertilization resulting in destroying life (e) use by individual couples and not as a general community or national policy.
Serious legal problems arise in discussion of permanent or irreversible methods of contraception otherwise called sterilization. There is ongoing discussion with no consensus yet on invoking the principle of public interest in the sterilization of mentally retarded persons or persons with transmissible genetic defects.
Jurists have discussed sterilization of both males and females and have not reached a consensus. The crux of the argument is that sterilization as a permanent method of contraception violates the principle of preserving progeny. My opinion is to allow selected methods of sterilization if there is certainty that they can be reversed should the need arise. This is based on the consideration that many of what used to be considered methods of sterilization are now actually reversible but with difficulty. Any sterilization must not be undertaken lightly. There must be strong indications acceptable in Law. Jurists have considered several indications of sterilization but have not reached a consensus. Among these indications are: prevention of hereditary diseases, high maternal obstetric risk at a subsequent pregnancy, medical conditions aggravated by pregnancy, mental instability, and purely economic considerations.
6.0 MALE CONTRACEPTIVE METHODS
The permissible reversible methods for males are the condom, coitus saxanicus, coitus reservatus, and coitus interruptus.
Vasectomy is the only available irreversible contraceptive method for males. It has minimal medical side effects that must be considered. The psychological side effects are more severe: regret over missed births, inability to have children after sterilization, need for more children after divorce and remarriage or when all children die.
Male castration for any reason is prohibited by Law. The prophet forbade Othman bin Madh’uun from castration[7]. The prophet forbade a group of companions, sahabat, from castration and recited the verse 5:87 for them that they should not deny themselves of the halaal[8].
7.0 FEMALE CONTRACEPTIVE METHODS
Permissible reversible methods for females are either mechanical or chemical. The mechanical barriers are: the post-coital vaginal douche, the diaphragm, the cervical cap, and the vaginal sponge. The chemical methods are spermicides, oral contraceptives, and injectable contraceptives. Some forms of intra-uterine devices prevent implantation of a fertilized ovum and is considered an early form of abortion since life starts at conception. Often neglected and not mentioned are the traditional non-invasive methods of sexual abstinence and using the natural rhythm of menstruation to avoid coitus during the fertile days of the menstrual cycle. Each of these methods has advantages and side effects that are either physical or psychosocial.
There are two main irreversible methods for females: tubal ligation and hysterectomy. Tubal ligation is a simple surgical procedure that is reversible with much difficulty. Hysterectomy is not done deliberately for purposes of contraception. It is carried out for some other purpose and it serves the additional purpose of contraception. Ovariectomy is also not carried out for contraception but can serve as a contraceptive if carried out for some other purpose.
8.0 SOCIO-DEMOGRAPHIC IMPACT
Availability of safe contraception removes the fear of pregnancy and encourages more people to engage in illegal extra-marital sexual activity such as teenage sex, pre-marital sex, and adultery. The spread of sexual promiscuity is a direct cause of failure of family formation or of family breakdown.
Availability of safe contraceptives encourages temporary unstable unions because people are not worried about child responsibilities. Thus couples will marry with a secret intention to divorce, zawaaj bi niyyat al talaaq
Extensive contraceptive practice especially as official policy could cause serious demographic disequilibrium with equally serious social consequences such as military and economic weakness. Population equilibrium cannot be predicted by mathematical equations and cannot be controlled by policies and regulations. Attempts at population engineering lead to imbalances. It is therefore safest to leave contraception decisions to individual couples to avoid imbalances.
Widespread practice of birth control makes it easier to accept and practice genocide. This is because people preventing conception becomes common and familiar making people falsely believe that they have control over life and thus start killing whom they do not like. Some illegal forms of contraception involve destroying formed life and are forms of homicide.
9.0 DISSCUSSION OF CASE SCENARIO #1
Case report: Mrs. AD, a 40 year-old teacher has just delivered her 5th child a month ago. Her pregnancy was complicated with diabetes mellitus and hypertension, requiring several hospital admissions. She was keen to consider sterilization (bitubal ligation –BTL) as her contraceptive choice. From your religion’s point of view, does Mrs. AD have enough reason to choose BTL and not any other method of contraception?
Discussion: The Law allows Mrs AD to practice contraception under the purpose of preserving life and good health, hifdh al nafs, and under the principle of hardship, mashaqqat, since she is at high obstetric risk if she becomes pregnant again. The Law however requires careful review of her medical profile to reach a level of near certainty, ghalabat al dhann, that she is a high obstetric risk case. As regards choice of method, jurists discourage sterilization and would prefer a temporary and reversible method which need not be used for long since she is near menopause anyway.
10.0 DISCUSSION OF CASE SCENARIO #2
Case report: Miss ZR is a single, 18 year-old college student. She has been sexually active for the past two years. She is keen to use oral contraceptive pills to prevent unwanted pregnancy. She admitted to have aborted one pregnancy one year ago. Does your religion allow the usage of contraception in an unmarried young lady who is sexually active?
Discussion: It is a unanimous view of all Muslim jurists following the text of the Qur’an and sunnat that pre-marital or extra-marital sex is forbidden. It is a major sin with severe moral sanctions and is also a major crime with severe deterrent punishments. Miss ZR should be advised to desist from her lifestyle and should get married. A health care worker who advises or provides contraceptive pills to her while still unmarried is guilty of a moral and criminal offense of opening the door to evil.