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Paper presented by Dr Omar Hasan Kasule MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine at the Institute of Medicine Universiti Brunei Darussalam at the 7th Biennial International Nursing Conference under the theme: ‘Innovation in Nursing and Midwifery Practice, Education, Research, and Management’ Rizqun International Hotel Gadong Brunei Darussalam 04-06 December 2006
ABSTRACT
Overview: The paper summarizes legal rulings about various aspects of midwifery practice during pregnancy and the post-partum period.
Pregnancy: Pre-natal diagnosis, screening, or genetic testing with the intention of terminating a congenitally abnormal pregnancy are not allowed. Maternal lifestyles like smoking or neglect of pre-natal care are illegal. The minimum legal period of normal gestation for resolving parenthood disputes is 6 months. Physical acts of salat are modified to what is convenient for mothers in advanced pregnancy. Puasa is excused in consideration of fetal risk. Coitus and breast feeding are allowed in pregnancy. A divorced pregnant mother cannot be forced out of her house. Legal punishments are postponed until after weaning. Life support for a brain-dead mother is continued if beneficial for the fetus. The Law recognizes fetal rights to life and inheritance and maternal, infant rights to health care and nutrition, and maternal rights to health care, nutrition, and shelter.
Labor and delivery: A mother in labor may perform tayammum for salat when wudhu is not possible. The wudhu of the midwife is nullified by touching the perineum during delivery. Obstetric measures require informed consent. Advance directives should be obtained where possible to cover emergency situations. Maternal request for Cesarean birth by a mother who can deliver safely vaginally and maternal refusal of Cesarean section if the fetus is in distress are considered according to the criteria of the principle of injury, qa’idat al dharar.
Post-partum period
Post natal and post-abortal vaginal bleeding are considered nifaas and impose the same restrictions as those in menstruation. If there is no vaginal bleeding at all in cases of Cesarean delivery, salat can be resumed almost immediately after birth. The maximum period of nifaas is 40 days. The mothers are exempted from both salat and puasa but will have to make up the puasa later. The following are done for the newborn: adhan and iqamat at birth, naming with a good name; circumcision, shaving the hair, and ‘aqiiqah. The Qur'an set the statutory period of breast-feeding as 2 full years but set no maximum period. Breastfeeding by a foster mother creates legal relations with regard to marriage that in the regard of the Law is no different from that that of a son or a daughter. The relation encompasses the wet nurse, the children of the wet nurse, and the husband of the wet nurse. A nursing mother may not fast and make up later. Intercourse with suckling woman, al ghayla, is allowed. New ijtihad about maternity leave and work for lactating mothers is needed in view of the statutory breast feeding period of 2 years.
1.0 ETHICO-LEGAL ISSUES DURING PREGNANCY
1.1 Overview:
The Qur’an has mentioned pregnancy, haml[1], in various verses that is an indication of its importance in human life. Discussions of pregnancy cover 4 successive stages: the Pre embryonic period (pre-fertilization), the embryonic period (fertilization to 8 weeks), the fetal period (9 weeks to term), and the postpartum period. During pregnancy physical and psychological changes occur in the mother due to the impact of the developing embryo. These changes have biological, legal and ethical implications that have to be considered. The changes in pregnancy are physical, emotional, and psychological stresses on the mother that can change some of her legal obligations.
1.2 Diagnosis of pregnancy
Traditional methods of pregnancy diagnosis: The traditional diagnosis of pregnancy was based on amenorrhea, morning nausea, breast tenderness, and enlargement and tenderness of the lower abdomen. Other non-specific indicators of early are elevation of temperature, frequent urination because of the pressure of the enlarging uterus, feeling heaviness in the lower abdomen, feeling tired and drowsy, change in food appetite and sometimes developing idiosyncratic food fads, and vomiting. These symptoms subside by the 12th week.
Medical methods of pregnancy diagnosis: Earlier diagnosis of pregnancy based on medical technology is possible. The fetal heart beat can be heard in the 16-20th weeks of pregnancy. Fetal movements occur by the 18-20th weeks of pregnancy. Pregnancy tests are based on detection of chorionic gonadotrophins that are released from the placenta. Signs of pregnancy are darkening around the areola around the nipple of the breast, prominence of Montgomery’s glands at the nipple, change in color of the vulva, vaginal, and cervical tissues, softening of the cervix and the lower uterus, and uterine enlargement that can be detected by internal vaginal examination.
Legal purposes of pregnancy diagnosis: definitive diagnosis of pregnancy must be as early as possible because of several legal implications. Once a woman is pregnant she acquires additional rights of care that must be exercised without delay in the fetal and maternal interests. Pregnancy also automatically results in delay of legal sanctions and punishments until delivery. The period of post-divorce waiting, ‘iddat, for a pregnant mother is set until birth whereas for the non-pregnant woman it is set at 3 menstrual cycles. A negative pregnancy test does not terminate the period of post-divorce waiting because the waiting period has objectives other than ascertaining absence of pregnancy from the prior marriage. Pregnancy also automatically imposes additional obligations of financial and material support, nafaqat, on the husband because a pregnant woman has increased medical and dietary needs.
1.3 Duration of pregnancy
Normal gestation: The usual period of gestation is 266-270 days. Gestation for males is 3-4 days longer than for females. Extremes of 250 – 285 days are also possible. Bleeding or spotting in early pregnancy[2] that is thought to be an abortion or a menstruation can be the cause of the confusion in computing the period of gestation. For legal purposes the period of gestation has been defined differently by different legal systems.
Legal need to determine the period of gestation: Legal situations arise in which the court must reach a decision based on knowledge of the minimum and maximum periods of gestation. These include delivery after divorce with disputed parenthood and accusation of adultery, zina. A situation may arise in which paternity is disputed for a pregnant woman who recently divorced and remarried. The issue can be resolved by having a legal definition of gestation such that when the baby is born it is easy to determine paternity. A father may deny paternity on the grounds that his wife became pregnant in his absence. The claim can be sustained if the baby is born outside the legal gestation period counting from the last coital contact between the husband and wife.
Determination of gestation period: The early jurists using medical knowledge available in their times had reached conclusions about the minimum and maximum durations of gestation. The early jurists had set the minimum period for gestation as 6 months based on their interpretation of 2 verses of the Qur’an. The verse in surat al ahaqaaf defined the period of pregnancy and breastfeeding as 30 months[3]. The verse in surat baqara defined the period of breast feeding as 2 years[4]. By subtraction the minimum period of gestation was determined as 6 months. This minimum period of gestation is now becoming a reality because modern technology is enabling delivery and survival of very small pre-term babies.
1.4 Ante-natal care (ANC)
Obligation of ANC: The objectives of ANC are health promotion and early detection of problems. The recommended ANC visits are monthly 0-28 weeks, bimonthly 28-36 weeks, and weekly thereafter to term. The Law makes ante-natal visits obligatory, waajib, in the interests of both mother and fetus. This is based on the legal maxim that what is necessary for fulfillment of an obligation is also a legal obligation, ma la yatimmmu al waajib illa bihi fa huwa waajib. By extension of this legal maxim, some aspects of pregnancy preparation necessary for successful ANC are also a legal obligation. Refusal of ANC care by the mother or failure of the husband to assure adequate ANC are legal offenses. Any lifestyle or behavior during the ante-natal period that has adverse effects on the mother or the fetus is prohibited by the Law under the legal maxim of preventing injury, qa’idat al dharar. This includes maternal or paternal smoking, use of drugs that are potentially teratogenic.
Contents of ANC: Routine ANC examinations cover BP, urine, body weight, and fetal growth. Laboratory assessments include Hemoglobin levels, blood grouping (ABO and Rh), VDRL test for syphilis, HIV, serum AFP for congenital anomalies, ultrasound for anomalies, pre-natal genetic screening and counseling. Amniocentesis and chorihnic villi sampling can be offered when indicated. An ANC visit is also an opportunity for health education, dietary education, and advice, nasiihat, about parenthood.
Pre-natal diagnosis: The reasons for pre-natal diagnosis are: reassurance, desire for termination, preparation for abnormal birth (financially, psychologically), and in utero treatment. Pre-natal diagnosis, screening, or genetic testing with the intention of terminating a congenitally abnormal pregnancy are not allowed because they will lead to violation of the Purpose of the Law to preserve life, hifdh al nafs. These procedures are allowed for purposes of intra-uterine therapy or planning post-natal management. Methods of pre-natal diagnosis are: amniocentesis, chorionic villi sampling, percutaneous umbilical cord sampling, ultrasonography, CT and MRI. Amniocentesis is feasible after week 16 and the cells obtained can be cultured. The Law allows modern medical technologies that enable intra-uterine treatment for example intra-uterine fetal transfusion, intra-uterine surgery, and intrauterine drug treatment of cardiac arrhythmias and thyroid disorders. However the benefits, maslahat, and injuries, madharrat, of each procedure must be weighed carefully before proceeding. The Law technological interventions if the benefits far outweigh the side potential injuries to both the mother and the fetus.
1.5 Activities in pregnancy
Taharat: Bleeding (spotting) in early pregnancy and the bleeding of threatened abortion are not considered menstruation, haidh, and are not reasons for stopping salat or puasa.
Salat: Standing up, qiyaam; bowing, rukuu; prostration, sujuud, and sitting down, juluus al tashahhud, may be difficult for a woman in advanced pregnancy. It may also be difficult for her to put her hands on her abdomen. The guidance of the Law is that a pregnant woman prays in the manner and positions that are comfortable and appropriate to her physical condition. She should not undertake physical exertion that may have adverse consequences for her and for the fetus.
Puasa: A pregnant woman may be excused from puasa. If the excuse is based on fear of nutritional deficiency in the mother or in both the mother and the fetus, the missed puasa must be made up. If the exemption is based on fear of harm to the fetus alone, expiation is by feeding the poor.
Pilgrimage to Makka, hajj: The hustles of movement in hajj may be too strenuous for a woman with advanced pregnancy.
Strenuous physical work: A woman in advanced pregnancy has limited ability to do physical work, at home or outside the home, and has to be excused. Reasonable physical exercise can be undertaken but overexertion must be avoided.
Activities of daily living: Activities of daily living necessary for maintaining optimum health are a legal obligation on the pregnant mother. This includes personal hygiene, eating, drinking, and seeking medical diagnosis and treatment
Coitus in pregnancy: Sexual intercourse is physically cumbersome in advanced pregnancy. It may also introduce infections in the birth canal. In the rare instance of placenta previa it may provoke potentially fatal bleeding. Under the legal maxim of preventing injury, qa’idat al dharar, coitus should be avoided if there is threatened abortion, a history of recurrent abortion or ante-partum hemorrhage, and early rupture of membranes.
Breast feeding in pregnancy: There is no ruling against breast-feeding in pregnancy. It is a medical necessity since breast milk is the best food for a baby.
1.6 Civil, Financial, and Legal Transactions, mu’amalaat, During Pregnancy.
Marriage: A divorced pregnant woman cannot conclude a contract of marriage because she is in the period of post-divorce waiting, ‘iddat, until delivery of the fetus.
Divorce: A pregnant woman can be divorced but cannot be forced out of her house until after delivery. The ex-husband is responsible for financial support during pregnancy and breast feeding for a minimum duration of 2 years.
Inheritance: The fetus has rights of inheritance if it can be ascertained that it was living at the time of the death of the father
Rights of the fetus: The Law considers a fetus a legal personality with legal property rights under the doctrine of ahliyyat al wujuub. The fetus however has no legal obligations. For example if the father dies during pregnancy, the fetus inherits and has ownership of part of the father’s estate but is under no obligation for example to pay subsistence for his mother as would occur in post-natal life under the legal doctrine of ahliyyat al adaa.
Court proceedings: Legal competence /capacity of the pregnant woman is upheld unless complications of the pregnancy such as severe depression impair her competence
Punishments: Criminal legal punishments, huduud, cannot be carried out in pregnancy until after delivery and suckling of the baby
1.7 Ethico-legal Controversies in Pregnancy
Maternal rights: The mother has rights to food, shelter, and medical care throughout pregnancy and breast feeding. Many restrictions are placed on the mother’s rights in order to safeguard the welfare of the fetus. The Law does not accept the argument advanced in modern European circles that the mother has a human right to control her body and can do whatever she wants with. The Islamic position is that the body belongs to Allah and the human is a temporary custodian who is enjoined by the Law to take good care of the body and not harm it. Causing harm to the unborn fetus by risky lifestyle behaviors is a serious legal infraction because according to the Law, life exists from the time of conception. Harming this life in any way violates of the 5 purposes of the Law, maqasid al shari’at, which is preservation of life, hifdh al nafs. The human is liable for any harm to the body or any violation of the rights of the body. Maternal behavior that is injurious to her body or the body of the fetus is thus forbidden. Smoking and alcohol harm the fetus. The carbon monoxide in tobacco smoke prevents oxygen transport by binding to hemoglobin. Alcohol causes several fetal abnormalities defined under the Feto-alcohol syndrome. The mother cannot refuse immunization or nutritional supplementation deemed necessary for her welfare and that of the fetus.
Feto-maternal conflict: There are maternal or fetal disorders whose treatment will injure either the mother or the fetus. A conflict situation exists in which benefit for one party is an injury for the other party. This is even more serious when the injury could lead to death of either the mother or the fetus. The Law considers the life of the fetus and the life of the mother to be of equal worth. It is therefore not possible to use the argument that saving the mother’s life is more worthwhile than saving the life of the fetus. The correct approach is to compare loss / compromise of 2 lives to loss of only one life. Severe disease in the mother if not treated will lead to the death of both the mother and the fetus because the fetus is fully dependent on the mother. It is therefore preferable to preserve maternal life at the expense of fetal life because the fetus would not survive on its own without the mother. The issue becomes more complicated if the fetus can survive independent of the mother after a procedure that could potentially kill the mother. This will be discussed in another paper.
Liabilities for fetal injury: In cases of culpable paternal or maternal behavior that causes injury or death of the fetus, the Law of Retribution, qisaas, is not applied. They are punished under the alternative provisions of ghurrat that carry a lighter sanction.
Research: In order to get knowledge that will improve care for pregnant women and their babies, research has to be carried out on pregnant women. Examples of such research are study of placental perfusion and study of diffusion of drugs across the blood-placental barrier. Under the legal maxim of dharuurat, the Law can allow such research if there is informed consent and if all ethico-legal requirements for human research are fulfilled.
1.8 Case studies for discussion
Case #1: a 20-year old unmarried woman pregnant for the first time refuses to go for ante-natal examination and care. She also refuses to follow advice by the doctor on diet in pregnancy. She claims that she has full control over her body and that nobody should tell her what to do with it.
Case #2: a 30-year old unmarried woman pregnant for the second time refuses to give up smoking 10 cigarette packs a day and drinking heavily every day. She also abuses drugs and has served time in prison for petty theft. She refuses to listen to all medical advice and insists that she will continue with her habits. She claims that it is her right to decide what to do with her body.
Case #3: a 35-year old married woman with 5 living children is 4 months pregnant. While on a routine ante-natal visit, a diagnosis of stage II cancer of the cervix is made. The doctor advises immediate surgery to remove the uterus (hysterectomy) before the cancer can spread even further. She refuses surgery because that would kill her baby.
Case #4: A 40-year old woman with severe cardiac disease is 2 months pregnant. She is advised that she risks dying if the pregnancy is carried to term.
Case #5: A 30-year old woman with 2 living children is 5 months pregnant. The fetus has some anomalies that can be corrected by intra-uterine surgery. She is advised that such surgery while beneficial to the fetus, carries a significant risk of death for her.
Case #6: a 20-year old woman with frequent severe asthmatic attacks since childhood is pregnant for the first time. She is advised that her asthma will worsen as the pregnancy progresses.
Case #7: Withdrawing life support from a terminally ill mother will lead to her death and that of the fetus. Delaying withdrawal of life support will accrue no benefit to the mother but can give the fetus a chance to grow further and may reach viability
2.0 LABOR AND DELIVERY
Overview: The Qur’an mentioned childbirth, wilaadat[5], in several verses signifying its importance. There are some ethico-legal issues that arise and are discussed below.
Taharat: Blood before delivery is fresh blood and is therefore not considered najs that invalidates wudhu. However passage of urine and feces during delivery invalidate the wudhu of the mother. The midwife is not obliged to make wudhu or ghusl because of delivering a baby if they did not touch the perineum. Touching the perineum invalidates the wudhu. The midwife will have to repeat wudhu before praying.
Salat is not physically difficult in the advanced stages of labor. The obligation of salat drops temporarily immediately after delivery for the duration of postpartum bleeding, nifaas.
Puasa: Puasa in labor is not recommended because of medical requirements of medication and procedures.
Informed Consent for Obstetric Procedures: Labor and delivery are emergencies that require immediate decisions but the mother because of the pain and anxiety may not be competent to give informed consent. The nature of the emergency may also not leave enough time to go through the procedures of informed consent before taking action. Advance directives in the form of birth plans made with the patient consent before labor are a very useful legal device for avoiding ethico-legal complications. If time is available informed consent is obtained for instituting analgesia and for any obstetric procedure including cesarean section. A serious ethico-legal issue arises if there is a medical indication for a cesarean section but a competent mother refuses. A decision has to be made on surgical intervention in fetal interests. When time allows the matter can be referred to a court for a decision. If there is no time the midwife does what is in the best interests of both the mother and the fetus. If the mother is incompetent to make a decision Islamic Law allows a next of kin to act as a guardian, waliy, and make the decision. Some European legislations allow the midwife to do what is in the best interests of the mother and fetus. There is a stronger argument for ceserean section without informed consent of a competent mother if the fetus is viable. Decisions about emergency obstetric interventions are guided by the purpose of the Law to preserve life, hifdh al nafs, and the principle of preventing injury, qa’idat al dharar.
3.0 POSTPARTUM PERIOD
3.1 Post-partum bleeding, nifaas
Definition of nifaas: Any vaginal bleeding postpartum is considered nifaas. Vaginal bleeding post abortion is also considered nifaas provided the diagnosis of a prior pregnancy was confirmed. In some cases of ceserean section in which the cervix was not opened, there is no vaginal bleeding and the mother can wash and pray immediately after birth.
Minimum and maximum periods of post-natal bleeding: The majority of jurists consider 40 days and nights to be the maximum period of nifaas basing on a hadith narrated by Abudaud and Tirmidhi from Umm Salmah. Darqutni also reported from Umm Salmah that if the flow ceases before 40 days, she can wash, pray, and engage in coitus.
Physical ‘ibadat: Women in post-natal bleeding are excused from salat like those in menstruation. Post-natal mothers are excused from fasting but they have to make up later. The rules pertaining to menstruation apply to post-natal bleeding.
Coitus: Sexual intercourse is forbidden during the period of nifaas
3.2 The newborn
Rights of the fetus: The Law guarantees rights for the new born: the right to life, the right of inheritance, the right to be given a good name by the 7th day, and the right to general health care and nutrition.
Rights of the mother: The mother has rights to health care and nutrition, a suitable shelter, and payment for breast-feeding if divorced
What is done for the new born: Adhan and iqamat are made immediately after birth. This is followed by naming the newborn, tasmiyat. Circumcision, khitaan, is carried out for boys. Also carried out is hair shaving, halq al sha’r, and 'aqiiqat.
3.3 Breastfeeding
Overview: the onset, continuation, and end of lactation are under neuro-humoral control. It can be affected by the psychological state of the mother. Drugs can also affect lactation so care must be taken in any prescriptions for the mother. Some drugs suppress lactation as a side effect. Some drugs may be taken with the deliberate purpose of suppressing lactation. Drugs given to the mother can be excreted in breast milk and can affect the baby.
Period of breast feeding: Breast feeding is an obligation. The Qur’an tells us that Allah instructed Musa’s mother to breastfeed him[6]. The Qur'an set the statutory period of breast-feeding, muddat al ridha'a[7], as 2 full years. No maximum period was set for breastfeeding. However maternal milk is not sufficient as a sole nutrient after 6 months and has to be supplemented. Artificial feeding is not a substitute for natural feeding because breast feeding involves emotional and psychological aspects in addition to providing food.
Payment for breast feeding: The father has to give financial compensation to a divorced wife who is breast-feeding his child[8]. Any other woman can be paid to breast feed the baby as a wet nurse
.
3.4 Activities during breast feeding
There are legal rulings about salat and puasa for the breastfeeding mother that need to be discussed for each individual case. Intercourse with the wife during the period of breast feeding, al ghayla, is allowed. New ijtihad is needed regarding maternity leave since the Qur’an sets a statutory limit of 2 years for breastfeeding.
3.5 Foster breast feeding
[1] Qur’an 3:6, 3:35, 7:189, 13:8, 16:78, 19:22, 22:2, 22:5, 23:14, 31:14, 31:34, 39:6, 46:15, 53:32, 65:4, 65:6
[2] Darimi K1 B97, Muwatta K2 H101
[3] Qur’an 46: 15
[4] Qur’an 2: 233
[5] Qur’an 3:36, 19:15, 19:33, 22:3, 35:11, 41:47, 46:15, 65:4, 65:6
[6] Qur’an 27:7
[7] Qur’an 2:233, 31:14, 46:15
[8] Qur’an 65:6
[9] Qur’an 4:23
[10] Bukhari 5:253 H2645, Bukhari 9:149 H5100, Muslim 2:1071 H1447
[11] Abudaud 6:61, Bayhaqi 7:461, Muwatta 2:117, Darqutni 4:174
[12] Qur’an 4:23