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Background material by Professor Omar Hasan Kasule for session for 4th year medical students at the faculty of medicine King Fahd Medical City
1.0 Assisted Reproduction
Overview: The Law allows assisted reproduction in fulfillment of the purpose of preservation of progeny, hifdh al nasl, provided it does not violate the purpose of preserving lineage, hifdh al nasab, and does not cause injury that violates the purpose of life, hifdh al nafs, or introduce any immorality into society.
In vivo insemination, al talqiih al istinaa’e al daakhilii: Artificial intra-uterine insemination with 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 because that would violate the principle of preserving lineage, hifdh al nasab.
In vitro fertilization, al talqiih al istinaa’e al khaariji: The Law permits in vitro fertilization (IVF) if the sperm and ovum are from legally wedded husband and wife and the zygote is implanted in the same wife. All other forms of IVF involving ovum or sperm donation are prohibited because they violate the principle of hifdh al nasab.
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. All these can be resolved by using the relevant Purpose of the Law and consideration of the specific circumstances of each case.
2.0 Contraception
Overview: There is basic permissibility of contraception from the hadith on coitus interruptus, tarkhis fi al ‘azal. This is permission for each individual couple. Contraception as a national or community policy is repugnant to the purposes of the Law and could lead to demographic disequilibrium. 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 and Principles of the Law. There is no consensus among jurists on sterilization as a method of contraception. Contraception as part of a national population control policy is prohibited by Law.
Male contraception: The permissible reversible methods for males are the condom, coitus saxanicus, coitus reservatus, and coitus interruptus.
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.
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
Overview: We must start by distinguishing cloning of individual cells and tissues from cloning of a whole organism. Cloning 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 (PBUH) had neither a mother nor a father. Isa (PBUH) was reproduced asexually. The clone is the exact replica of the original. Genetic recombinations that are responsible for the great variety of normal reproduction do not occur in cloning.
Rulings on 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 human cloning until it has occurred and we see its implications in practice. We can only review general ideas from what we already know about cloning with no definitive conclusions.
Spiritual quality of a clone: 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.
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.
Social 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
Unwanted pregnancy: 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.
The law on feticide: 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. 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.
5.0 Sex selection, al tahakkum fi al jins
Sex preference is natural. Gender selection is by Allah (shura: 49) and no human efforts will contradict Allah’s will. Human efforts can only succeed if Allah wills so. Efforts to get an offspring of a particular gender are in general permissible because the dua that prophets made are considered part of the effort. Discussion centers on the methods used because some are permitted while others are prohibited. Natural methods (selecting days of copulation before and after ovulation & changing upper vaginal chemistry artificially) are not effective. Rulings are still being discussed on methods such as separation of male and female sperms by centrifuging followed by in vivo insemination and gender pre-selection and implanting only zygotes of desired gender in in vitro fertilization. Some jurists consider sex selection permissible for the couple but are prohibited when they are part of community or national policy. There are long-term consequences that must be considered. Severe gender imbalance will threaten marriage and lead to family breakdown. Eventually the purpose of the law to preserve progeny, hifdh al nasl, cannot be fulfilled.
6.0 Genetic testing and genetic counseling
Genetic testing is used for disease diagnosis, pre natal diagnosis, genetic screening, criminal investigations, and settling paternity issues. Genetic counseling is carried out before and after genetic testing. The objective of counseling before testing is to provide information about genetic disorders and the risks of disease to individuals and families so that they may make informed decisions. Pre marital counseling is recommended for close relatives. Genetic testing can be carried only if there is informed consent of competent adults. Genetic data is confidential and cannot be disclosed except following guidelines.
7.0 Genetic Engineering
The term genetic engineering is used to refer to manipulation of genes and is widely used in many industries. For example synthetic insulin is produced by genetic engineering techniques. It can potentially be used to treat human disease by manipulation of the genes associated with disease. It can also potentially be used to change basic human characteristics such as behavior and appearance.
Genetic engineering is ethically controversial because of this potential to change basic creation. At the moment we have little knowledge and experience with manipulations of the human genome and therefore ulama have not yet developed all the required legal opinions. In the future we shall be challenged by more issues as medical technology grows more.
There are 2 basic approaches to issues of human genetic engineering: use of the principle of dharar, qai'dat al dharar, and the prohibition of unnecessary changes in Allah's creation. Genetic engineering will be judged according to the balance of its benefits and adverse results. Manipulations that help treat or prevent disease will be encouraged if the adverse effects are judged minimal.
The more serious issue is when the human genome is manipulated for social or psychological satisfaction. The Qur’an mentions stability of creation (30:30) and stability of Allah’s laws (35:43). The unchanging creation mentioned is constancy of the laws that govern the universe, sunan, as expounded in the Qur’an (35:43). Change is allowed if it follows the Laws. Any changes that do not follow these laws are repudiated. Desire to undertake changes to the human genes 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 it is optimal and 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. There is risk in tampering with fitra without following the sunan.