Home 
Contact 
Profile 
Videos 
Lecture for 4th year students on 6th November 2010 by Professor Omar Hasan Kasule Sr.
Summary
This lecture covers ethico-legal-fiqhi issues immediately before and after death. The issues before death are artificial life support and euthanasia. Issues after death are: embalming, cryonics, autopsy and research on dead corpses. This paper lays out general principles. There are cases at the end that will be open for discussion by all. The lecture aims at equipping students with ethical reasoning skills rather than prescribing fixed solutions.
1.0 Artificial Life Support
1.1 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. Death can be defined using the traditional criteria of cardio-respiratory arrest. It can also be defined as brain death either higher brain death or death of the brain stem or whole 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 If death is defined in the traditional way, life support cannot be withdrawn at any stage.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. 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.
1.2 Palliative care: The aim of palliative care is pain control, psychological support, emotional support, and spiritual support. Death can be made a pleasant experience with appropriate palliative care. 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.
1.3 Principles of certainty and autonomy: When 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.
1.4 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.
1.5 Legal rulings on initiating and withdrawing life support: 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 jurists, fuqaha. The family may request that life support be terminated if the patient is in pain or coma. 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. It is therefore impossible for any member of the close family to take part in life support withdrawal decisions. Physicians and other health care givers may abuse withdrawal of life support and kill people for various motives.
2.0 EUTHANASIA
2.1 Concepts: Euthanasia is carried out illegally for patients in persistent vegetative states or those in terminal illness with a lot of pain and suffering. 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 with very high doses has the dual effect of controlling pain and causing respiratory failure. Islamic Law views all forms of euthanasia, active and passive, as homicide. 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.
2.2 Analysis using purposes of the law, maqasid al shariat: Euthanasia violates the Purpose of the Law to preserve Life by taking life and it leads to cheapening human life making genocide more acceptable. It violates the purpose of religion by assuming Allah’s prerogative of causing death.
2.3 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. According to the legal principle of sadd al dhari’at, prohibition of euthanasia closes the door to corrupt relatives and physicians killing patients for the sake of inheritance by claiming euthanasia. Euthanasia reverses the customary role of the physician as a preserver into a destroyer of life. 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. Continuation is easier that starting. Euthanasia like other controversial issues is better prevented than waiting to resolve its attendant problems. 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.
2.4 General conclusions: Our analysis has shown that there is no legal basis for euthanasia. Physicians have not 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. This can best be achieved by the hospital having a clear and public policy on life support with clear admission criteria and application to all patients without regard for age, gender, socio-economic status, race, or diagnosis.
3.0 Embalming
3.1 Definition: Embalming is treating a dead corpse with substances that prevent it from decay or decomposition. Embalming does not prevent but delays the decomposition process.
3.2 The embalming procedure: In arterial embalming blood is drained through a vein and is replaced by a preservative fluid injected through the arteries. Cavity embalming involves removing fluid from body cavities using a trochar and replacing it with a preservative. Hypodermic embalming involves injecting preservatives under the skin. The fluid used is usually a mixture consisting of formalin and other substances. Arterial embalming is not permanent and repeat treatments are required to maintain the body in an embalmed state.
3.3 Embalming and the purposes of the Law: Embalming does not fulfill any of the 5 purposes of the Law. It on the other hand violates the 5th purpose of preserving wealth, hifdh al maal, because it is an expensive procedure that consumes wealth. It also leads to violation of the hadith of the prophet about hastening the funeral, al ta'ajil bi al janazat[i]. Embalming a body that died of a communicable disease carries a risk to the funeral attendants and the community which would violate the second purpose of preserving life, hifdh al nafs. The prudent measure in cases of death from contagious disease is immediate burial.
3.4 Exceptional situations: In an exception to the general rule, embalming could be a better alternative in a situation in which a person dies in a foreign place with no Muslims knowledgeable or willing to give him an Islamic burial. It may be better in such a case to embalm the body and transport it to where it can get a decent and honorable Islamic burial. Proper burial including salat al janazat is one of the 5 cardinal duties of brotherhood in Islam. As many persons as possible should participate in salat al janazat because if 100 persons pray for the dead, the sins may be forgiven by Allah[ii]. Embalming could also be considered in a situation in which a Muslim dies or is killed in hostile territory and it is feared that if the body is not transported to a Muslim land, it will be dishonored by the enemies.
4.0 CRYONICS
4.1 Definition: Cryonics is cryopreservation of the body by cooling it immediately to the temperature of liquid nitrogen after death and keeping it at a low temperature. In some cases only the brain is removed and is cryopreserved because it contains the essential information. The whole practice of cryonics is based on a speculation that future scientific discoveries will be able to reverse death. The practice of cryonics is based on the hope that one day medical technology will be able to reverse the death process so that the clinically dead can come back to life. According to its advocates, cryonics does not involve denial of death, nafiyu al mawt, or denial of resurrection, nafiyu al ba’ath, because its advocates think that clinical death is not terminal death but is a process that can be reversed. The advocates of cryonics do not consider the preserved bodies as dead and they call them patients.
4.2 Procedures: Immediately after death the body is infused with glycerol (a cryoprotectant fluid) and is then cooled to a very low temperature. The fluid prevents formation of ice crystals that could damage cells. The body is kept at the low temperature indefinitely.
4.3 Cryonics and purposes of the Law: Cryonics is repugnant to the Law because it involves waste of resources, a violation of the 5th Purpose of the Law. ‘Patients’ as the cryopreserved bodies are referred to have to set aside large sums of money as investments such that the returns on the investment can cover the annual costs of cryopreservation for an indefinite period of time.
4.4 Speculative thought, dhann: The other aspect of cryonics that is repugnant to the Law is the speculative thought, dhann, that science will one day develop a method of reversing clinical death. According to the principle of certainty, qa’idat al yaqeen, the Law requires decisions based on actual realities and not speculative or hypothetical conjectures. Advocates of cryonics have been arguing that the cryopreservation would be more effective if started before the point at which clinical death is legally recognized. If this were to be put in practice, the Law would recognize occurrence of a criminal act of murder.
4.5 Definition and timeline of death: An outstanding ethico-legal issue relating to cryonics is definition of death and determining the point in time at which death is said to occur. This is because death is a process and not an isolated event. Depending on the definitional criteria used, there are several points on the time line of the death process than could be considered the point of death. Definition of legal death is based on the legal principle of precedent or custom, qa’idat al ‘urf or qa’idat al ‘aadat. The customary definition changes with changes of knowledge and available medical technology. Therefore cryonic procedures carried out after the point considered legal death are repugnant to the Law because they involve denial of death or attempting to artificially prolong life.
4.6 Cooling the body before clinical death: Another outstanding issue that deserves further discussion is cooling the body to lower metabolism and decrease tissue damage in a patient who is not yet clinically or terminally dead.
4.7 Cryonics and violation of ‘aqidat: The most serious consideration in cryonics relates to ‘aqidat. A person without the correct ‘aqidat does not believe in life in the hereafter and wants to achieve immortality on earth and is therefore wont to turn to cryonics. Cryonics seen from such a perspective should be prohibited absolutely. The relevant Islamic teachings on death are very clear and leave no room for doubts about the prohibition of cryonics. We summarize these teachings for re-emphasis below.
5.0 AUTOPSY
5.1 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.
5.2 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.
5.3 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.
5.4 Permissibility of autopsy for educational purposes under the principle of necessity, qa’idat 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 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. 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.
5.5 Alternative ways of achieving the educational objectives of autopsy: 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. The necessity of educational autopsies can be reduced by modern endoscopic and imaging technology that can enable inspecting internal structures of a corpse 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.
5.6 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.
6.0 RESEARCH ON DEAD CORPSE
There are several types of research on the recently dead that can be permitted under the principle of necessity if they will result in better health care that fulfills the second purpose of the Law, preservation of life or hifdh al nafs. Forensic pathologists may carry out research to study the process of decomposition of the body. They then can use that information to estimate time since death in cases of criminal homicide.
7.0 CASE STUDIES ON LIFE SUPPORT IN TERMINAL ILLNESS
7.1 A patient with brain stem death is kept on artificial life support at the insistence of the family because announcing the death immediately will have an adverse effect on the values of the family business on the stock exchange.
7.2 The family took an unconscious man to hospital reluctantly because they believed he was dead. He was admitted to the ICU and was put on artificial life support. For a period of 4 weeks the family insisted on withdrawal of life support because they would be ruined financially by the high ICU costs. The physicians refused withdrawal of life support because his brain stem was functional. The patient woke up in the 5th week.
7.3 A patient is brought to the emergency room after a car accident. The examining doctor found some signs of life but refused to institute life support because he was convinced it was futile. The patient died a few minutes later. The accompanying family members were furious and accused the doctor of negligence. They threatened to sue. The doctor advised them to wait for results of the postmortem examination that would show that death was inevitable. They refused to have any postmortem because it was against their religious beliefs.
7.4 A patient admitted to the ICU after a car accident was confirmed by 3 specialist surgeons to be in a persistent vegetative state. The doctors wanted to discontinue life support but the family refused because there were signs of life like reflex flexion of joints and blinking of the eyes. The hospital decided to seek a court injunction after keeping the patient in the ICU for 6 months without any obvious improvement.
8.0 CASE STUDIES ON POSTMORTEM
8.1 A child’s asthma progressed to respiratory failure and death. The father refused tom give up his heavy smoking and the mother refused to get rid of their cats to which the child is allergic. Hospital authorities request for a postmortem examination to establish the cause of death for fear that they may be charged unfairly for negligence in the death of the child. The social workers also request a postmortem because they suspect that parental negligence contributed to the death. The family rejects postmortem claiming the child died from a curse and not disease.
8.2 A police officer died a few minutes after admission from what was suspected injuries sustained in the course of his duty. The police department insisted on a postmortem to determine the cause of death in order to make decisions about compensation. The family was divided. Some were opposed to postmortem and others wanted to go ahead.