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1984-PRESENT WITH RESPECT TO CONSISTENCE WITH MAQASID AL SHARIÁT AND KULLIYYAT AL FIQH AL KHAMSAT: (www.fiqhacademy.org.sa): August 2009
ABSTRACT
INTRODUCTION
History and activities of the Academy
Methods of the Academy
The purpose is to (a) bring fatwas to medical professionals in English (b) analyse patterns and trends and also consistency in decision making over a period of 25 years with regard to consistency with author's theory for basis of ethics as maqasid and qawaid..
METHODS
Decisions of the Academy were obtained from it website www.fiqhacademy.org.sa. They were translated with liberal paraphrasing and rearrangement by the author to make them easy to read in English. The preambles to the decisions and unnecessary details were eliminated. The decisions were classified according to be consistent with the author's scheme used in other publications into broad categories: fiqh al aadaat, adab al tabiib, fiqh al amraadh, fiqh al mustajiddaat, fiqh al jamaat. The author did not refer to the original research papers presented to the Academy and on which the decisions were made. The author made comments on each decision in terms of its consistency with his understanding of maqasid al shariát, applicable principles of fiqh, and medical practice.
RESULTS
Tables #1 and #2 show that in the period under review there was a total of decisions by the academy of which related directly to medical issues and related indirectly to health.
DISCUSSION
SUB-THEME VIII: FIQH AL ‘AADAAT (Activities of Daily Living)
MODULE 21.0: TAHARAT & SALAT
MODULE 22.0: OTHER PHYSICAL ACTS OF WORSHIP
NATURAL REPRODUCTION, izdiyaad
Family planning
Summary of the decision: The International Fiqh Academy in its 5th session held in Kuwait 10-15 December 1988 issued its decision on family planning No 39(5/1) published in the Academy Journal Volume 4 Part 1 page 73. It decided that no public law can be made restricting the rights of a married couple from reproduction. Permanent contraception (sterilization) of both men and women is prohibited unless there is a legally sanctioned necessity. Temporary contraception is allowed if there is a legally recognized necessity, if both spouses mutually agree, if there is no attendant harm, if the contraceptive method used is sanctioned legally, and if no harm will result to any existing pregnancy.
Comment on the decision:
Milk Banks
Summary of the decision: The International Fiqh Academy in its 2nd session held in Jeddah 22-28 December 1985 issued its decision No 6(2/6) published in the Academy Journal Volume 2 Part 1 page 383 ruled prohibition of establishing milk banks in the Muslim World and also prohibited feeding infants from milk banks.
Comment on the decision:
MODULE 24.0: ACTIVITIES OF NORMAL LIVING
SUB-THEME IX: AKHLAAQ al TIBB (Ethics of Medicine)
MODULE 25.0: PURPOSES, PRINCIPLES, and REGULATIONS OF MEDICINE, maqasid, qawa’id, wa dhawaabit al tibaabat
MODULE 26.0: ETIQUETTE OF THE PHYSICIAN, adab al tabiib
Medical treatment
Summary of the decision: The 7th Session of the International Fiqh Academy meeting in Jeddah 9-10 May 1992 discussed medical treatment and issued decision No 67(7/5) published in the Academy Journal Volume 7 part 3 page 563. Seeking treatment is obligatory, wajib, if non-treatment will destroy his body or any part of it or if the disease is infectious. Seeking treatment is recommended, manduub, if non-treatment will result only in weakening the body. Seeking treatment is permitted, mubaah, if neither of the two situations above applies. Seeking treatment is offensive, makruh, if it will result into worse side effects. Healthcare givers and family members should not give up hope, they should encourage the patient and raise his morale and seek to care for him and alleviate his psychological and physical distress whether cure is expected or not. Determination that any further treatment is futile is based on the physician assessment of physical condition of the patient and the available medical facilities. Consent by a competent patient is necessary before treatment. If the patient is not competent the legal guardian as defined by Law will make consent decisions. If the guardian unreasonably withholds consent, the consent authority is transferred to another guardian or to the government. The government can order compulsory treatment in cases of epidemic disease and preventive measures. Consent is not necessary in emergency cases. Consent of needed for medical research on competent persons with no coercion and provided the research has no harmful consequences. Research cannot be carried out on those who lack competence or have deficient competence even if their guardians consent.
Comment on the decisions:
Medical professional confidentiality
Summary of the decision: The 8th Session of the International Fiqh Academy meeting in Bandar Seri Begawan in Brunei Darussalam 21-27 June 1993 discussed professional medical confidentiality and issued decision No 79(8/10) published in the Academy Journal Volume 9 Part 3 Page 15). A secret is defined by local custom or by any defect or characteristic of a person which he does not want disclosed to others. A secret is a trust that must be kept. Secrets must not be disclosed without a recognized reason.
Comment on the decision:
SUB-THEME X: FIQH AL AMRAADH (Disease Conditions)
MODULE 27.0: DISORDERS OF ORGAN SYSTEMS
MODULE 28.0: SYSTEMIC DISORDERS
AIDS
Summary of decision: The 8th Session of the International Fiqh Academy meeting in Bandar Seri Begawan Brunei 21-27 June 1993 discussed AIDS and issued decision No 82(8/13) published in the Academy Journal Volume 8 Part 5 page 9. A spouse infected with the disease has to inform the other one and cooperate in undertaking all necessary preventive measures.
Comment on decisions:
SUB-THEME XI: FIQH MUSTAJIDDAAT al TIBB (Modern Medicine)
REPRODUCTIVE & GENETIC TECHNOLOGY
Assisted Reproduction
Summary of the Academy decisions: The 6th session of the Academy held in Jeddah 22-28 Dec 1985 in its decision No 5 (2/5) published in the Academy's journal Volume 2 Part 1 page 233 decided to defer discussion of the IVF issues to the next session and directed the President of the Academy to prepare research studies on the issue covering medical and fiqhi issues. The 3rd session of the Academy held in Oman 11-16 Oct 1986 in its decision No 16 (3/4) published in the Academy's Journal Volume 3 Part 1 Page 423 reviewed 7 methods of assisted reproduction, 1-6 being in vitro fertilization and the 7th being artificial insemination. Five methods were prohibited and 2 were allowed with conditions. The forbidden methods were: 1. the sperm is from the husband and ovum is from a donor and the zygote implanted in the wife, 2. sperm from a donor and the ovum from the wife and the zygote is implanted in the wife, 3. the sperm is from the husband and the ovum is from the wife but the zygote is implanted in a surrogate mother, 4. the sperm is from a donor and the ovum is from a donor and the zygote is implanted in the wife, 5. the sperm is from the husband and the ovum is from the wife but the zygote is implanted in another wife of the husband. The allowed methods were: 6. the ovum is from the husband and the ovum is from the wife and the zygote is implanted in the wife, and 7. artificial insemination of the wife using the husband's sperm.
Comments on the decisions:
Extra Zygotes / Embryos
Summary of the decision: The 6th session of the International Fiqh Academy held in Jeddah 14-20 Mar 1990 in its decision No 55(6/6) published in the Academy Journal Volume 6 Part 3 page 179 ruled that that no more than the needed number of zygotes should be fertilized but if extra zygotes are produced they should be left with no special medical care until their natural life ends. Implantation of the extra zygotes in another woman is prohibited.
Comment on the decision:
MODERN MEDICAL and SURGICAL TECHNOLOGIES
Artificial Life Support
Summary of the decision: The 2nd Session of the International Fiqh Academy held in Jeddah 22-28 December 1985 issued decision NO 7(2/7) published in the Academy Journal Volume 2 Part 1 page 383 and decided to defer the discussion of artificial life support to the next session and asked the Academy Secretariat to collect research studies on the subject by the International Islamic Organization on Medical Sciences and distribute them among members of the Academy. The 3rd session of the International Fiqh Academy held in Amman 11-16 Oct 1986 issues decision No 17(3/5) published in the Academy Journal Volume 3 Part 2 page 523. It ruled that a person is considered legally dead in either of 2 situations (a) complete cardiac or respiratory arrest considered by physicians to be irreversible and (b) complete brain death considered by specialist physicians to be irreversible. In either of these 2 conditions artificial life support equipment can be stopped even if some organs are still functional because of life support.
Comment on the decision:
Solid Organ Transplantation
Summary of the decision: The 4th Session of the International Fiqh Academy held in Jeddah 6-11 February 1988 issued decision No 26(4/1) published in the Academy Journal Volume 4 Part 1 page 89. The following were permitted: transplantation of tissue from one part of the body to another part of the body of the same person, transplanting renewable tissue like blood from one person to another, and transplanting tissue from an organ removed from a person for medical reason to another person, transplanting an organ from a dead person to a living person with permission by the deceased during his life or permission by the family or by the ruler of Muslims if there are no family members. The following were prohibited: transplanting a vital an organ vital for life like the heart from a living person, transplanting an organ or tissue from a living person with total loss of physiological function, trading in organs. The following were not resolved and will require further discussion: transplanting a tissue or organ from a living person with partial loss of physiological function, the recipient giving money to the donor under the necessity of obtaining the organ or giving money as compensation or appreciation.
Comment on the decision:
Transplanting organs removed as punishment from condemned criminals
Summary of the decision: The 6th session of the International Fiqh Academy meeting in Jeddah 14-20 March 1990 issued decision No 58(6/9) published in the Academy Journal Volume 6 part 3 page 2161 regarding organs removed as part of legal punishments. An organ removed from a condemned person as a hadd punishment cannot be re-implanted. If the organ is removed for retribution for destroying the victim's organ, re-implantation is permitted if the victim consents or if the victim's destroyed organ was restored. The organ can be re-implanted if it was removed due to judicial error in both hadd and qisas cases.
Comment on the decision:
Transplantation of gonads
Summary of decision: The 6th session of the International Fiqh Academy held in Jeddah 14-20 March 1990 issued decision No 57(6/8) published in the Academy journal Volume 6 part 3 page 1975 regarding transplantation of gonads. Transplantation of the testis and the ovary is prohibited because they carry permanent hereditary characteristics of the donor. Also prohibited is transplantation of the penis and vagina. Other parts of the reproductive system can be transplanted since they do not carry permanent hereditary characteristics provided provisions of decision 26(4/1) are observed.
Comment on the decision:
Transplantation of neuronal cells
Summary of the decision: The 6th session of the International Fiqh Academy meeting in Jeddah 14-20 March 1990 issued decision on neuronal cell transplantation No 54(6/5) published in the Academy journal Volume 6 Part 2 page 1739. Transplantation is permitted using cells from the patient, an animal, a dead embryo from natural spontaneous abortion or an abortion induced to save the mother's life, a dead anencephalic fetus, or cultured neuronal cells obtained legally. Transplantation of neuronal cells obtained from a living embryo or from a living anencephalic fetus is prohibited. It is permitted to keep an anencephalic fetus on artificial life support to maintain the viability of organs with the purpose of using those organs for transplantation once the fetus dies as evidenced by brain stem death.
Comment on the decision:
Use of Zygotes for Organ Transplantation
Summary of the decision: The 6th session of the International Fiqh Academy held in Jeddah 14-20 Mar 1990 issued decision No 55(6/6) published in the Academy Journal Volume 6 Part 3 page 1791. It ruled that embryos / zygotes cannot be used as sources of organs for transplantation except in the special and specific circumstance in which the embryo is not viable and can be used as a source of transplantation only after its natural death and according to conditions stipulated in the Academy's decision No 26 (4/1). Measures should be taken to preserve the life of viable embryos and not use them for transplantation purposes. Abortion can occur naturally or can be induced to save the mother's life. Induction of abortion for purposes of obtaining embryos for transplantation purposes is forbidden. Commercialization of organ transplantation is absolutely forbidden. Organ transplantation procedures must be under the control of a trusted and specialized body.
Comment on the decision:
SUB-THEME XII: ARKAAN wa HUMUUM al JAMA’AT (Institutions and Concerns of the Community)
MODULE 31.0: THE FAMILY INSTITUTION, muassassat al bayt
MODULE 32.0 COMMUNITY INSTITUTIONS, muassasaat al jama’at
MODULE 33.0: COMMUNITY PROBLEMS, mashaakil al jama’at
MODULE 34.0: COMMUNITY ACTION, al ‘amal al ijtima’e
SUB-THEME XIII: FIQH al MU’AMALAAT (Transactions)
MODULE 35.0: CIVIL TRANSACTIONS, mu’amalaat madaniyyat
MODULE 36.0: FINANCIAL TRANSACTIONS, mu’amalaat maaliyyat
MODULE 37.0: JUDICIAL TRANSACTIONS, mu’amalaat qadha’iyyat
MODULE 38.0: LEGAL MEDICINE, tibb shara’e
TABLE #1: SHOWING DECISIONS OF THE INTERNATIONAL FIQH ACADEMY 1984-2009 WITH DIRECT RELATIONSHIP TO HEALTH
Session, place, and Dates | Total Decisions | Medical Ethico-legal-fiqh decisions | |
No | No | Listing | |
1st session 19-22 Nov 1984 | 4 | 0 | |
2nd Session 22-28 Dec 1985 | 12 | 3 | 1. IVF, 2. Milk banks, 3. Life support |
13 | 2 | 1. IVF, 2. Life support | |
4th session 6-11 Feb 1988 | 10 | 1 | 1. Solid Org transplantation, |
5th session 10-15 Dec 1988 | 10 | 1 | 1. Fam plan |
6th session 14-20 Mar 1990 | 13 | 5 | 1. Extra zygotes, 2. Tran neural tissue, 3. zygotes for transplantation, 4. transplantation of gonads, 5. trans organ cut in qisas or hadd |
7th session 9-14 May 1992 | 7 | 1 | Medical treatment |
8th session 21-27 June 1993 | 14 | 4 | 1. Professional confidentiality, 2. physician etiquette, 3. treatment by person of opposite gender, 4. AIDS |
9th session 1-6 Apr 1995 | 9 | 1 | 1. AIDS |
10th session 28 Jun – 3 Jul 1997 | 5 | 2 | 1. Medication and saum, 2. human cloning |
11th session 14-19 Nov 1998 | 9 | 1 | 1. Genetics, genetic engineering, and the human genome project |
12th session 23-28 Sep 2000 | 12 | 0 | |
13th session 22-27 Dec 2001 | 8 | 1 | 1. Medical insurance |
14th session 11-15 Jan 2003 | 9 | 0 | |
15th session 14-19 Mar 2004 | 10 | 1 | 1. Physician liability |
16th session 9-14 Apr 2005 | 11 | 1 | 1. Health insurance |
17th session 24-28 June 2006 | 12 | 1. biomedical research 2. diabetes and saum ramadhan | |
18th session 14 July 2007 | 12 | 1. Consent for emergency surgery 2. Cosmetic surgery 3. Violations of saum | |
19th session 26-30 Apr 2009 | 19 | 1. diabetes and saum 2. Consent for emergency operations | |
TABLE #2: SHOWING DECISIONS OF THE INTERNATIONAL FIQH ACADEMY 1984-2009 WITH INDIRECT RELATIONSHIP TO HEALTH
Session, place, and Dates | Total Decisions | Decisions with indirect relationship to health | |
No | No | Listing | |