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Paper Presented at the Joint 1st Annual Scientific Congress of the Islamic Medical Association and Network of Indonesia (IMANI), the 2nd Islamic Hospital Consortium Meeting, the Annual Scientific Meeting of al-Islam Hospital Bandung, and the Islamic Development Bank Meeting on Funding Socialization held at Horison Hotel Bandung on 18-20 February 2005 by Professor Dr Omar Hasan Kasule Sr. MB ChB (MUK), MPH & DrPH (Harvard) Deputy Dean Faculty of Medicine UIA Malaysia http://omarkasule.tripod.com
ABSTRACT
This paper summarizes legal rulings on ethical issues that arise in the use of the following modern medical technologies:assisted reproduction, contraception, reproductive cloning, artificial life support, euthanasia, solid organ transplantation, and change of fitra. The rulings are derived from textual evidence, nass, where applicable. Purposes of the Law, maqasid al shari’at, and Principles of the Law, qawa’id al shari’at, are used for the majority of cases where there is no direct textual reference.
1.0 ASSISTED REPRODUCTION
1.1 Infertility
Infertility is considered a serious condition because it could lead to psychological distress, marital problems, and even marital failure. At the ummatic level widespread infertility could spell demographic weakness, a security threat. Causes of infertility may be natural, may be related to lifestyle, or may be complications of medical or surgical procedures. Traditional methods of treating male and female infertility may be medical or surgical. Treatment of infertility fulfils the purpose of hifdh al nasl
1.2 In vivo insemination, al talqiih al istinaa’e al daakhilii
Artificial intra-uterine insemination with the 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, talqiih sinna’i ajnabi.
1.3 In vitro fertilization, al talqiih al istinaa’e al khaariji
The Law permits in vitro fertilization if the sperm and ovum are from legally wedded husband and wife and the zygote is implanted in the same wife. According to some jurists the Law permits in vitro fertilization if the sperm is from a husband and the ovum is from a legally wedded wife, and the zygote is implanted in a second wife of the husband. In vitro fertilization is prohibited if the sperm is from the husband and the ovum is from the wife and the zygote is implanted in a surrogate mother. A married woman cannot have a zygote implanted into her uterus if a sperm from a donor who is not her husband fertilized it. Sperm banks are a form of zina are not allowed. The Law prohibits implantation of a fertilized zygote in a wife if another woman donated the ovum and the sperm is from her husband or a strange man
1.4 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. These issues are resolved on a case by case basis with reference to maqasid, qawa’id, and nass as applicable.
2.0 CONTRACEPTION
2.1 Fertility
Reproduction fulfils a human desire for self-perpetuation, enjoyment of children, and strengthening the ummat. Contraception negates these objectives and is undertaken for very strong reasons. Marrying and getting offspring are obligatory, wajib, for the community and fulfil the purpose of protecting and preserving progeny, hifdh al nasl. Procreation for the individual couple is mubaah or mustahabb in normal circumstances but becomes wajib in situations of military or economic weakness.
There is basic permissibility of contraception from the hadith on coitus interruptus, tarkhis fi al ‘azal. 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, maqasid, and principles of the Law, qawa’id. There is no consensus among jurists on sterilization. Contraception as part of a national population control policy is prohibited by Law.
2.2 Male contraception
The permissible reversible methods for males are the condom, coitus saxanicus, coitus reservatus, and coitus interruptus.
2.3 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. The safest and perhaps the least effective is the rhythm method
2.4 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.
3.0 REPRODUCTIVE CLONING
3.1 Background to cloning
Cloning was achieved in sheep. It seems technically feasible in humans. It 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 and Isa were humans from asexual reproduction.
Cloning is a form of reproduction without male-female interaction. The clone is the exact replica of original. Genetic recombinations that are responsible for the great variety of normal reproduction do not occur in 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 cloning until it has occurred and we see its implications in practice.
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.
3.2 Benefits and risks
Cloning has some medical benefits such as supply of organs for transplantation. Cloning may also lead to new diseases and medical problems.
3.4 Legal –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.
3.5 Socio-demographic implications
Likely socio-demographic implications are loss of human dignity, production of human monsters with no family background, and destruction of lineage, nasab.
4.0 ABORTION
4.1 ‘Unwanted pregnancy’: concenptual issues
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.
4.2 Determinants and causes of ‘unwanted pregnancy’
‘Unwanted pregnancy’ is associated with general social determinants (hedonistic life styles, sexual transgression, addiction to drugs, fear of poverty, and low female status) and specific antecedent causes (sexual crimes, egoistic greed, maternal/fetal disease, and gender discrimination).
4.3 The Law on feticide
Illegal feticide is committed for various reasons: avoiding consequences of sexual immorality, poverty, rape, and gender preference. 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 and not as claimed at ensoulment. 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.
4.4 Prevention of ‘unwanted pregnancy’
Unwanted pregnancy is prevented by sexual hygiene, marriage, contraception, deterring sexual crimes, and raising the status of women.
4.5 The Law and adverse consequences of ‘unwanted pregnancy’
The adverse sequelae of ‘unwanted pregnancy’ (feticide, infanticide, or child abuse and neglect) can be prevented by defending the basic human right of the fetus and infant to life, promoting social institutions for child welfare (nuclear family, extended family, foster care, and open adoption). Closed adoption is forbidden by law but care in a foster home is allowed and is encouraged if the nuclear and extended families are unwilling or are unable to care for children. Abortion at any stage of pregnancy is a crime against humanity. It is not a solution to the problem but is part of the problem. It will encourage more ‘unwanted pregnancies’.
5.0 ARTIFICIAL LIFE SUPPORT
5.1 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. The following are various definitions of death: (a) traditional cardio-respiratory arrest (b) Whole-brain death (c) Higher 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.
5.2 Palliative care
The aim of palliative care is good death which includes: pain control, psychological support, emotional support, and spiritual support. Death can be made a pleasant experience. 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.
5.3 Principles of certainty and autonomy
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. Islamic law strictly forbids action based on uncertainty, shakk.
5.3 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, israaf, that has been condemned.
5.4 Legal rulings on initiating and withdrawing life support
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. 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.
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. Physicians and other health care givers may be bribed or can be coerced to kill people by either family members or others.
6.0 EUTHANASIA
6.1 Concepts
Euthanasia is carried out illegally for patients in persistent vegetative states or those in terminal illness with a lot of pain and suffering.
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.
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 has the dual effect of controlling pain and causing respiratory failure. Islamic Law views all forms of euthanasia, active and passive, as murder. The Law equates acts of commission with acts of omission since the intentions and the consequences are the same.
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.
6.2 Analysis using purposes of the law, maqasid al shari’at
Euthanasia violates the Purpose of the Law to preserve life by taking life illegally. It reverses the customary role of the physician as a preserver into a destroyer of life. It violates the purpose of ddiin 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, 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. Prohibition of euthanasia closes the door to corrupt relatives and physicians killing patients for the sake of inheritance by claiming euthanasia.
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. The principle of the Law that continuation is easier that starting.
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.
6.4 Historical precedents
The prophet condemned as a hypocrite a man who killed himself because of severely painful battle wounds
6.5 General conclusions
Our analysis has shown that there is no legal basis for euthanasia. Physicians have no 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. The hospital should have a clear and publicly declared policy on life support with clear admission criteria and application to all patients without regard for age, gender, SES, race, or diagnosis.
7.0 SOLID ORGAN TRANSPLANTATION
7.1 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 could be 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.
7.2 Legal rulings about transplantation
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.
Uses of textualevidence, nass, has limited success for most controversial issues in transplantation 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.
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 intention. Protecting innocent people from criminal exploitation is a public interest that has priority over the health interests of the organ recipient. The principle of intention 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.
7.3 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. 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.
7.4 Procuring and harvesting organs
The demand for organs is more than the supply. Human organs could be obtained either as voluntary gifts or voluntary sale. The donor may be living or may be dead. Living donors could be free persons or prisoners condemned to death. Harvesting organs from an individual without his or her free consent is not allowed by the law.
7.5 Definition and timing of death
The customary definition of death is based on cardiac arrest, respiratory arrest, and late signs such as rigor mortis and loss of body heat due to cessation of metabolism. The modern definition is based on signs of brain death. The customary definition of death would preclude transplantation altogether because by the time a person is certified dead, the organs have already started deteriorating.
Definition of death as brain death is not yet widespread and is still controversial. My personal view which is clearly in the minority is that under the principle of custom, brain death may not fulfill the criteria of being a widespread, uniform, and predominant customary definition of death that is considered a valid custom. The successes of biotechnology in transplantation and other fields introduce a strong doubt in the irreversibility of brain death.
There is uncertainty that organs are being harvested from a living person who is thereby killed. The motive behind using brain death as a definition of death is also questionable. It could be argued that the need to harvest organs is behind the adoption of brain death as a definition of death. Under the principle of closing the door to evil, we may have to consider that using brain death as a definition of death will make it conducive to organized crime to assault people so that they are declared brain dead and their organs are legally removed.
8.0 CHANGE OF FITRA
8.1 The concept of change of Allah’s creation
The Qur’an mentions stability of creation[1] and stability of Allah’s laws[2]. The unchanging creation mentioned is constancy of the laws that govern the universe, sunan, as expounded in the Qur’an2. Change is allowed if it follows the Laws. Any changes that do not follow these laws are repudiated. There is risk in tampering with fitra without following the sunan.
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 Allah’s creation is optimal and is 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.
8.2 Beautification
Allah made humans in a perfect image. He however also allowed them to enhance their physical appearance by wearing clothes and using perfumes. These measures improve appearance and 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.
Increasing body weight and changing body shape by dieting is common and was practiced by women at the time of the prophet without objection.
8.3 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 between the two 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 & embarrassment and restore function. These purposes do not involve change of fitra but are 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 who may be killed by criminals 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.
8.4 Cosmetic surgery
Cosmetic surgery has the 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 intention, qa’idat 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.