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Background material by Professor Omar Hasan Kasule Sr. for Year 3 Semester 1 Medical PPSD session on 14th August 2008
ABSTRACT
The paper using the theory of purposes of the Law, analyzes ethico-legal issues related to autopsy. Cadaver dissection and autopsy for educational or forensic purposes was permissible in the past under the principle of necessity, dharuurat. Modern technological innovations on alternative methods of teaching anatomy cast doubt on the continuing validity of the necessity argument for educational cadaver dissection and autopsy. Research on the recently dead can be permissible under the principle of necessity if it is necessary for improved medical care. In cases of permissible cadaver dissection, autopsy, and research; the following conditions must be fulfilled: proper informed consent from the family and the deceased (where feasible), a legal opinion from a local jurist, treating the body with respect during the procedure, and proper burial of the body after the procedure.
1.0 INTRODUCTION
1.1 Respect for the dead corpse
All four manipulations on the dead corpse (embalming, cryopreservation, autopsy, and research) would violate the Law because they lead to delay of burial, involve disrespect, and physical violation of the body. The extreme respect shown to the corpse can be derived from the hadith of the prophet forbidding damaging the corpse or breaking its bones during washing[1]. They could be forbidden unless there is a necessity, dharurat, directly relevant to one of the 5 purposes of the Law, maqasid al shari’at. In cases of permissible cadaver dissection, autopsy, and research; the following conditions must be fulfilled: proper informed consent from the family and the deceased (where feasible), a legal opinion from a local jurist, treating the body with respect during the procedure, and proper burial of the body after the procedure.
1.3 Analysis based on purposes of the Law, maqasid al shari’at.
The legality of the procedures is discussed based on the theory of the 5 Purposes of the Law, that assure protection of ddiin, life & health, progeny, intellect, and wealth. Principles of the Law, qawa’id al shari’at, are employed to support reasoning where there are apparent conflicts among the principles. The opinions expressed in this paper are academic in nature. Legal rulings on actual cases should be sought from the relevant authorities in the community.
1.5 Respect for the dead body and human dignity:
The human has dignity in both life and death. Respect for the dead body is the guidance of the prophet to stand up when a funeral procession passes by, al qiyaam li al janaazat[2]. It is dignity to be buried whole. Surgical operations on the body are an affront to the dignity. The prophet forbade mutilation, nahyu al muthla[3]. Removal of some parts is looked at with disfavor. In cases in which a body is buried without some of its parts, the parts when found later are washed, prayed for and buried in the same grave. Post-mortem examination will lead to delay of burial when the sunnah is to bury as soon as possible. Delay of the burial affects human dignity because of deteriorations in the body including a bad smell.
2.0 AUTOPSY[4]
2.1 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.
2.2 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.
2.3 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.
2.4 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.
2.5 Ethico-legal issues cadaver dissection for medical education
Permissibility under the principle of necessity, dharuurat: Dissection of cadavers has been very important for medical education over the past decades when there was really no alternatives to dissection. Cadaver dissection was therefore permissible under the legal principle of necessity, dharuurat. The reasoning is that cadaver dissection enables future doctors to be trained well to treat patients which fulfils the second purpose of the Law, preservation of life or hifdh al nafs. The situation of necessity explained above takes precedence over considerations of violating human dignity by dissecting the body under the general principle of the Law that necessities legalize what would otherwise be prohibited, al dharuuraat tubiihu al mahdhuuraat. However human dignity cannot be violated more than necessary. The body should still be handled with respect and consideration. All tissues cut away should be buried properly and the remaining skeleton should also be buried in a respectful way. There are issues of consent, sale of bodies, wills etc that we need not discuss here because there are legal doubts about the necessity of cadaver dissection in the traditional way.
Alternative ways of achieving the educational objectives: The following arguments cast doubt on the degree of necessity for cadaver dissection in medical education. The cadaver is treated before dissection and does not truly represent the structure or appearance of tissues in a living person. Secondly with availability of computer graphics and anatomical models, medical students can learn human anatomy very conveniently and more efficiently.
2.6 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.
2.7 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.
[1] (Hadith no 468 in Buloogh al Maraam fi adillat al ahkaam by Imaam ‘Asqalani and reported by Muslim)
[2] (Bukhari K23 B47)
[3] (Abudaud K15 B110)
[4] (http://en.wikipedia.org/wiki/Autopsy - accessed on June 30, 2006)