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Lecture for the Msc (primary care) program on 04th September 2007 by Professor Omar Hasan Kasule, Sr.
OUTLINE
BASIC CONCEPTS AND ISSUES
1.0 CONCEPTUAL ISSUES
2.0 ETHICO-LEGAL ISSUES
PRE-MORTEM ISSUES
3.0 NORMAL CARE FOR THE DYING
4.0 PALLIATIVE CARE
5.0 ARTIFICIAL LIFE SUPPORT
6.0 EUTHANASIA
POST-MORTEM ISSUES
7.0 SOLID ORGAN TRANSPLANTATION
8.0 EMBALMING
9.0 CRYONICS
10.0 AUTOPSY
11.0 DEATH, BURIAL, and MOURNING
1.0 CONCEPTUAL ISSUES
1.1 Definition of terminal illness
Terminal illness is defined as illness from which recovery is not expected. In most cases patients determined to be terminal by experienced physicians die in a short period of time but exceptions do occur in which a patient deemed to be terminal recovers.
1.2 Definition of death
The manner in which death is defined affects the ruling, hukm, about medical procedures for the terminally ill including life support and organ harvesting. The following are various definitions of death: (a) traditional: cardio-respiratory arrest (b) Whole-brain death (c) Higher brain death. Each of these definitions has different implications for procedures such as withdrawal of life support and organ harvesting.
1.3 Concepts of illness/disease
Health is a condition in which all of the body functions are integrated and are being maintained within the limits of optimal design. Illness or disease is divergence from the normal.
The Qur’an used the terms maradh, maridh, and saqiim and treats illness as a physically disabling condition. The Qur’an, primarily a book of moral guidance, spends more time on moral than on physical diseases. Humans are argued to undertake the necessary research to understand the physical diseases. The physician must realize that prognosis is a human empirical estimate of the future course of the disease based on extrapolation from available data and knowledge. True knowledge of prognosis is with God alone since it is in the realm of the unseen, ‘ilm al ghaib.
Disease has positive aspects. Falling ill may be God’s way of forcing the person to take a desired rest or care for the body before it can deteriorate further. Disease can be an opportunity for personal redemption by expiation/atonement for previous sins. The trials that one goes through and the eventual patience can be rewarded by God’s forgiveness. Patience with chronic disease/disability is associated with high reward.
1.4 Concept of death
Death is inevitable; all humans will eventually die. There can be no exceptions now or at any time in the future. All death is by God's permission. It is futile to attempt to avoid death. The concept of finality of death implies that each human has only one death followed by eternal life in the hereafter. Death is a transitional event, rite de passage, to the better life of the hereafter. To both the patient and the relatives, death is a test, a trial, and a calamity.
The attitude to death varies according to the spiritual well-being of those involved. The righteous people welcome death as a rite de passage to a better existence in the hereafter. They look forward to death as a happy event.
Anxiety about death is a very human reaction to the unknown. Patients fear the process and circumstances but not the inevitable fact of death.
The process of death is long. It starts with the humanly-understood causes like infection or trauma. The body progressively fails until a point of no-return is reached. There is a point during this process when the angels take away the soul (nazak al ruh), thus separating the essence from the body.
1.5 Concept of Cure
It is God’s pre-determination that a person falls sick. Treatment/prevention of disease is not against pre-determination, qadar. Medical treatment is subsumed under the principle that qadar can reverse another qadar.
In the end all cure is from God. God's cure is through the agency of humans. Humans should not be arrogant by attributing cure to themselves and not God. In the same way humans can not refuse to take measures to cure disease claiming that God will take care of it. God did not reveal any disease without also revealing its cure. Humans are encouraged to search for these cures for all diseases.
The secularization of medicine has led to marginalization of spiritual treatment modalities such as supplication, dua, prayer, salat, and reciting the Qur'an. The spiritual cures are mediated through the physical processes of psychosomatic modulation or priming of the immune, and metabolic functions of the body.
Choice of what treatment modality to use should involve a careful weighing of benefits and possible harm or injury. It is a principal of Islamic Law, to give priority to preventing harm over accruing a benefit. The equilibrium between benefit and harm of treatment modalities should be looked at using three Islamic principles: tauhid, wasatiyyat, & shumuliyyat. The concept of tauhid motivates looking at the patient, the disease, and the environment as one system that is in equilibrium; thus all factors that are involved with the three elements are considered while making decisions. The concept of wastiyyat motivates the need for moderation and not doing anything in excess. The concept of shumiliyyat extends the tauhidi principle by requiring an overall comprehensive bird’s view of the disease and treatment situation.
2.0 ETHICO LEGAL ISSUES
2.1 Autonomy and informed consent:
The terminal patient who is competent retains control over decision regarding normal nutrition, hydration, treatment and withdrawal of treatment. If the patient is incompetent a proxy can make the necessary decisions. There are special guidelines for consent for small children. Parental refusal can be overridden by court orders if that is in the best interests of the child. Young persons can consent to treatment but cannot refuse life-sustaining measures.
2.2 Disclosure
The terminal patient is entitled to full and honest disclosure. Only information that the patient wants to know should be disclosed. Some patients do not want to know some types of information.
2.3 Confidentiality:
The usual rules about confidentiality also hold in terminal illness. No information should be disclosed even to relatives without patient consent.
2.3 Advance consent/wishes:
Advance decisions of the patient whether oral or written can be respected when he/she is incompetent and is no longer able to make decisions. Such decisions can cover issues such as life support, DNAR orders, post-mortem examination, DNA diagnosis, research on the dead corpse etc.
2.4 Balance of benefit and harm
In many procedures on the terminally ill, decisions have to be made that involve balancing potential benefit against potential harm. The guidance of the Law on such matters is as follows.
The Law gives us very clear guidelines on the balance between risks and benefits. A disease, considered an injury, should be relieved. Before occurrence attempts must be made to prevent its injury as much as is possible. The injury should however not be relieved by inflicting an injury of the same or higher degree. In cases of doubt about the relative importance of the benefits of treatment and the side-effects of the treatment, we follow the principle that prevention of 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.
The Law also gives guidelines on dealing with 2 evils at the same time: lesser evil vs greater evil.
If we cannot empirically compare the harm of continuing untreated disease and the possible harm from medical care, we follow the principle of selecting the lesser of two evils. If confronted with 2 actions both of which are harmful and there is no way but to choose one of them, the one with lesser harm is committed in order to block the way for the bigger harm. A lesser harm is committed in order to prevent a bigger harm.
3.0 NORMAL CARE FOR THE DYING
3.1 Comfort:
The patient must be made as comfortable as possible. Narcotics are given for severe pain. Drugs are used to allay anxiety and fears. The caregivers should maintain as much communication as possible with the dying. They should attend to needs and complaints and not give up in the supposition that the end was near. Attention should be paid to the patient's hygiene such as cutting nails, shaving hair, and dressing in clean clothes. As much as possible the dying patient should be in a state of ritual purity, wudhu, all the time.
3.2 Bed-side etiquette
Visiting a patient is an obligation. The physician rounds fulfill the social obligations of visiting the sick in addition to the professional care given. Physicians and other health care workers should not neglect a terminal patient on the assumption that he is dying anyway. The physician should interact with the patient as a fellow human and should keep in mind the fact that the human relation has priority over the patient-physician relation. Some bed-side visits should therefore be purely social with no medical procedures or medical discussions.
The following are recommended visiting etiquette: dua for the patient, reading Qur'an for the patient, and asking the patient for dua, asking about the patient’s feelings, being careful about what is said in the presence of the patient, doing good/pleasing things for the patient, making the patient happy, encouraging the patient to be patient, and discouraging wishing for death wishing death.
3.3 Professional care
Medical care must be professionally competent and considerate. The caregiver should listen to and solve outstanding medical and non-medical problems of the patient.
The patient retains freedom to accept treatment or to reject it. The patient cannot be forced to take any medication or to be treated by any physician. Treatment with new/experimental drugs or procedures requires informed consent. If the patient has lost legal capacity, ahliyat, by being unconscious or by losing mental capacity, the legal guardian, waliy, will take binding decisions on behalf of the patient.
3.4 Acts of worship, ‘ibadat:
The dying patient should as far as is possible be helped to fulfill acts of worship especially the 5 canonical prayers. Tayammum can be performed if wudhu is impossible. Physical movements of salat should be restricted to what the patient's health condition will allow. The prophet gave guidelines on salat even for the semi-conscious patient. The terminal patient is exempted from puasa because of the medical condition. It is wrong for a patient in terminal illness to start puasa on the grounds that he will die anyway whether he ate enough food or not. Illness does not interfere with the payment of zakat since zakat is a duty related to the wealth and not the person. The terminal patient is excused from the obligation of hajj. It is also wrong for a patient in terminal illness to go for hajj with the intention of dying and being buried in Hejaz.
3.5 Spiritual preparation.
Spiritual preparation involves allaying anxiety, presenting death as a positive event, thinking of Allah, and repentance. Caregivers should allay fear and anxiety about impending death. Death of the believer is an easy process that should not be faced with fear or apprehension. Believers will look at death pleasantly as an opportunity to go to Allah. Allah loves to receive those who love going to Him. The patient should be told that Allah looks forward to meeting those who want to meet Him. Dying with Allah's pleasure is the best of death and is a culmination of a life-time of good work. Thinking well of Allah is part of faith and is very necessary in the last moments when the pain and anxiety of the terminal illness may distract the patient's thoughts away from Allah. Having hope in Allah at the moment of death makes the process of dying more acceptable. The dying patient should be encouraged to repent because Allah accepts repentance until the last moment.
3.6 Legal preparation
During the long period of hospitalization, the health care givers develop a close rapport with the patient. A relationship of mutual trust can develop. It is therefore not surprising that the patient turns to the care givers in confidential matters like drawing a will. The health care givers as witnesses to the will must have some elementary knowledge of the law of wills and the conditions of a valid will. One of these conditions is that the patient is mentally competent. The law accepts clear signs by nodding or using any other sign language as valid expressions of the patient's wishes. The law allows bequeathing a maximum of one third of the total estate to charitable trusts, waqf, or gifts. More than one third of the estate can be bequeathed with consent of the inheritors.
A terminal patient can make living will regarding donation of his organs for transplantation. The caregiver must explain all what is involved so that an informed decision is made. The caregiver may be a witness. It is however preferable that in addition some members of the family witness the will to ensure that there will be no disputes later.
The caregiver may be a witness to pronouncement of divorce by a terminally ill patient. The pronouncement has no legal effect if the patient is judged legally incompetent on account of his illness. If the patient is legally competent, the divorce will be effective but the divorcee will not lose her inheritance rights.
The caregiver should advise the terminal patient to remember all his outstanding debts and to settle them. The prophet used to desist from offering the funeral prayer for anyone who died leaving behind debts and no assets to settle them. He however would offer the prayer if someone undertook to pay the debt. If the deceased has some property, the debts are settled before any distribution of the property among the inheritor.
4.0 PALLIATIVE CARE
4.1 Aim of palliative care
Palliative care recognizes that cure is not possible and it focuses on relief of pain and other distressing symptoms. The aim of palliative care is good death which includes: pain control, psychological support, emotional support, and spiritual support. By its essence palliative care is holistic focusing on the whole person.
Death can be made a pleasant experience with good and effective 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.
Palliative care is provided in a hospices unit of a hospital, a free-standing hospice, or at home. General palliation can be carried out by anybody. Specialist palliation requires a multi-disciplinary team.
4.2 Principles of palliative care
(a) Focus on quality and not quantity of life
(b) Holistic approach
(c) Involvement of both the patient and the family
(d) Respect for patient autonomy
(e) Open communication with the patient
4.3 Use of pain killers
The principle of double effects operates in control of pain. Some of the pain killers may actually cause death by causing respiratory depression. The physician should always consult his conscience and intentions when prescribing sedation or analgesia.
Some patients may prefer some pain to being heavily sedated and their wishes should be respected.
5.0 ARTIFICIAL LIFE SUPPORT
5.1 Implications of the definition of death
The way death is defined has implications for life support decisions. If death is defined in the traditional way, life support cannot be withheld and should not be withdrawn for brain-dead persons or persons in a vegetative state. If death is defined as brain death, life support cannot be initiated and should be immediately removed for such patients.
5.2 The principle of certainty
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 lightly. The Law strictly forbids action based on uncertainty, shakk. At least 3 specialist and trusted physicians should examine the patient and concur that further treatment is futile before life support can be withdrawn.
5.2 The purposes of life and resources
The purpose of preserving life may contradict the purpose of preserving resources. Life comes before material resources in the 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 resources, israaf, that has been condemned.
5.3 The principle of autonomy
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. Others may make decisions influenced by self-interest and not in the best interests of the patient.
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 decisions about withdrawing life support without losing their rights of inheritance.
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.
The patient's choices about food and medical treatment may contradict the purpose of preserving life. Where life is under immediate threat, the patient's desires may be overridden usually with a court order.
5.4 Artificial nutrition and hydration
The discussions above are related to cardio-respiratory support and active treatment. However nutrition and hydration need not be removed from a terminal patient
5.5 Cardiopulmonary resuscitation
A DNAR order can be made not to carry out CPS for a terminal patient in case of cardiac arrest.
5.6 Difference between withholding and withdrawal
There are disputes on the difference between withholding and withdrawal. The differences may be legal or psychological. There is generally no unanimity on this matter.
A distinction in Islamic 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. Life support withdrawal like other controversial issues in better prevented than waiting to resolve its attendant problems.
Life support measures should be taken with the intention of quality in mind. 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.
6.0 EUTHANASIA
6.1 Definitions
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.
Euthanasia can be voluntary (with consent by a competent patient), involuntary (against the wishes of a competent patient), and non-voluntary (the patient is incompetent).
Supporters of voluntary euthanasia claim that it is based on patient autonomy. I however think that autonomy is the right of the patient to make decisions on his medical care which is beneficial. Using autonomy to cause death is an unacceptable interpretation of the concept of autonomy.
Supporters of euthanasia also argue that euthanasia should be allowed on the basis of human rights. Humans are endowed with rights so that they can live happily and derive benefit from their life. An action that leads to destruction of life is not an acceptable understanding of human rights.
Euthanasia can be carried out in the guise of sedation of controlling pain. Terminal sedation has the dual effect of controlling pain and causing respiratory failure. In such cases it is the physician’s conscience that is the final arbiter because only he knows the inner intentions.
The question of quality of life is also raised in the definition of life relating to euthanasia decisions. 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 and suffering.
Euthanasia reverses the customary role of the physician as a preserver into a destroyer of life.
6.2 Analysis using purposes of the Law
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.
6.3 Analysis using principles of the Law
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.
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 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.
6.4 Historical precedent
The prophet condemned as a hypocrite a man who killed himself because of severely painful battle wounds
6.5 The slippery slope argument
An argument against euthanasia is that it will make it easier for people to commit other acts of killing like genocide. This is the slippery slope. Once you start, you will go all the way to catastrophic ends.
6.7 Physician assisted suicide (PAS)
PAS is a form of euthanasia in which the physician or other person helping prepares all what is needed for taking life and leaves the patient to perform the last act. There is therefore no moral difference between euthanasia and PAS.
6.8 General conclusions
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
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.
7.0 SOLID ORGAN TRANSPLANTATION
7.1 Background
Terminally ill patients can be considered sources of organs for transplantation. The organs can be removed only after death. The organs are viable if death is defined as brain death. They will not be viable if death is defined using traditional cardio-respiratory criteria.
7.2 Legal rulings about transplantation
Uses of textual evidence, nass, 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.
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.
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. 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
8.0 EMBALMING
8.1 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.
8.2 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.
8.3 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.
8.4 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.
8.5 Ethico-legal analysis
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 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 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.
9.0 CRYONICS
9.1 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.
9.2 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.
9.3 Purposes
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.
9.4 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.
9.5 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.
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.
10.0 AUTOPSY
10.1 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.
10.2 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.
10.3 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.
10.4 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.
10.5 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 that fulfills 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.
10.6 Ethico-legal issues in autopsy for educational purposes
Permissibility 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.
Alternatives 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.
10.7 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.
11.0 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 in investigating crimes such as homicide to be able to predict the time of death[i]. 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 to it.
12.0 DEATH, BURIAL, AND MOURNING
12.1 The last moments
The last moments are very important. The patient should be instructed such that the last words pronounced are the kalimat, the testament of the faith. Once death has occurred the body is placed in such a way that it is facing the qiblat. Eyes are closed and the body is covered. Qur'an and dua are then recited.
12.2 Informing the relatives
The health care giver should take the initiative to inform the relatives and friends. They should be advised about the shariah rules on mourning. Weeping and dropping tears are allowed. On receiving the news of death it suffices to say 'we are for Allah and to Him we will return'. The following are not allowed: tearing garments, shaving the head, slapping the cheek, wailing, and crying aloud. Relatives are comforted by telling them hadiths of the prophet about death. These hadiths talk about the reward of the person who loses his beloved one and he is patient.
12.3 Preparation for burial
The health care team should practice total care by being involved and concerned about the processes of mourning, preparation for burial and the actual burial. They should participate along with relatives as much as is possible. The preparation of the body for burial can be carried out in the hospital. The body must be washed and shrouded before burial. Perfume can be put in the water used for washing the body. The washing should start with the right. The organs normally washed in wudhu are washed first then the rest of the body is washed. Perfume can be used except for those who died while in a state of ihram. Women's hair has to be undone. After washing the body is shrouded, kafn, in 2 pieces of cloth preferably white in color. As many persons as possible should participate in salat al janazat.
12.4 Burial
Burial should be hastened. Following the procession is enjoined There is more reward for accompanying the funeral procession and staying until burial is completed. The funeral bier is carried by men. Hurrying in marching to the grave is recommended. The body should be buried in a deep grave facing Makka.
12.5 After burial
After burial, the relatives are consoled and food is made for them. Only good things should be said about the deceased.