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Presented
at the First International Bioethics Conference 8-10 March, 2015 by Professor
Omar Hasan Kasule MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Faculty of
Medicine King Fahad Medical City, Riyadh.
SUMMARY 1
The paper presents results of a research project that consists of
retrieval of medical fatwas from the website, summarizing/paraphrasing
them in English using medical terminology, and assessing their conformity to maqasid
al shariat and qawaid al fiqh as well as the necessities of empirical
medical practice.
The motivation of the research was to assess the viability of using
maqasid and qawaid as guidelines to the medical professional in
reaching robust conclusions about complicated ethico-legal issues that arise in
practice.
SUMMARY 2
An assessment was made whether the conclusions reached by the Fiqh
Academy in a period of 25 years could have been derived from the maqasid
and qawaid.
The conclusion was that a series of axioms based on maqasid
and qawa’id can be used as a reference by practitioners to form quick
opinions on practical ethical issues. Ijtihad maqasidi is becoming popular and will be more
popular in the foreseeable future. The paper recommends that a book of qawa’id for medical application be developed as a parallel to majallat al ahkaam al adliyyat in the commercial area.
CONCEPT OF MEDICAL ETHICS
The concept of medical ethics is misnomer from a strict Islamic
perspective. The correct term should be medical jurisprudence because ethics is
not an independent discipline but is part of fiqh.
Islamic Law is comprehensive encompassing positive law and
morality.
The modern discipline of medical ethics arose in the European
civilization as a necessity to deal with issues of a moral nature that the
existing secularized laws could not handle because they lacked a moral
dimension whose source is religion.
STAGES OF EVOLUTION OF MEDICAL FIQH
In the first period (0 to circa
1370H) it was derived directly from the Qur’an and sunnat.
In the second period (1370-1420)
rulings on the many novel problems arising from drastic changes in medical
technology were derived from secondary sources of the Law either transmitted
(such as analogy, qiyaas, or scholarly consensus, ijma) or
rational (such as istishaab, istihsaan, and istirsaal).
In the modern period, The failure
of the tools of qiyaas to deal with many new problems led to the modern
era (1420H onwards) characterized by use of the Theory of Purposes of the Law, maqasid
al shari’at, to derive robust and consistent rulings. Ijtihad maqasidi
is becoming popular and will be more popular in the foreseeable future.
EVOLUTION OF MAQASID AL SHARI’AT 2
Maqasid
al shariat are like legal theory with the difference that they are developed
from text whereas legal theory is developed from actual court cases.
Al Juwayni (d. 478H), in his book al Burhan proposed extensions to
the methodology of qiyaas and also proposed general principles, qawaid.
AlGhazali (d. 505H) developed and systematized al Juwayni's ideas,
proposed broad principles of maslahat,
and introduced the term maqasid al
shariat. He divided the maqasid into religious, maqasid diini, and earthly, mawasid duniyawi.
EVOLUTION OF MAQASID AL SHARI’AT 2
Each purpose has dual aspects: securing a benefit, tahsil, and preservation with prevention
of harm, ibqa. The term ri'atyat al maqasid covers both tahsil and ibqa. Ibqa as mentioned
above has both preservation and promotion.
Ghazzali divided the maqasid into three parts: necessities, dharurat; needs, hajiyat; and tawasu'u &
taysiir. The third part has come to be known as embellishments, tahsinat. Some authors included maqasid al shariat under the general theme
of ashbaah wa al nadhair.
EVOLUTION OF MAQASID AL SHARI’AT 2
The new theory of maqasid al
shariat opened the way for further development of the flexible part of the
Law and excited the interest of many jurists, the most famous being the
Andalusian Maliki scholar Abu Ishaq al Shatibi.
Most of al Shatibi's work was an elaboration of the ideas proposed
by Ghazzali. The new theory did not however lead to major practical changes
because by that time the Islamic state was in decline and the flexible part of
the law was in the hands of the political leaders and not the jurists.
A lot of books have been published on the maqasid in the
past 20 years and include:
THE 5 MAQASID 1
Protection of diin (hifdh al ddiin)
Protection of life (hiffh al nafs)
Protection of lineage (hifdh al nasl)
Protection of the mind (hifdh al ‘aql)
Protection of wealth (hifdh al maal).
THE 5 MAQASID 2
Hifdh al nafs is
the most commonly used in medicine.
Hifdh al nasl is
invoked in reproductive matters (obstetrics and gynecology) as well as
pediatrics.
Hifdh al ‘aql is
invoked in psychiatry.
Hifdh al maal is
invoked in health services administration in controlling medical care expenses.
EVOLUTION OF QAWA’ID AL FIQH 1
Qawaid
al fiqh are legal axioms or legal codes.
This Qur'an and sunnat are comprehensive in the sense of providing
general principles, qawa’id, that can be applied to specific situations.
These principles are either stated in the nass or are
derived by inductive reasoning.
If we can derive these principles from the primary sources we can
make the process of decision making easier even for the non-specialist.
EVOLUTION OF QAWA’ID AL FIQH 2: THE
FIRST GENERATION
Qawaid existed and were used from the first generation. They were found
in the concise but comprehensive sayings, jawamiu
al kalim, of the prophet; sayings of the companions, athaar al sahabat, and the sayings of the followers, aqwaal al tabiin. Q
awaid were also found scattered in the earliest books of fiqh such
as Kitaab al Kharaaj by Abu Yusuf Ya'aqub Ibn Ibrahim (d. 182H), Kitaab al Asl
by Imaam Muhammad bin al Hasan al Shaybani (d. 189H), al Kitaab al Umm by Imaam
al Shafie (d. 204H).
Imaam Ahmad Ibn Hanbal also wrote some qawaid.
EVOLUTION OF QAWA’ID AL FIQH 2: THE STAGE
OF DOCUMENTATION
Qawaid were scattered in the books of al Juwayni (d. 478H), Ibn Rushd the
grandfather (d. 520H), al Nawawi (d. 676H), an Qarafi (d. 784H), Ibn Taymiyat
(d. 728H), and Ibn al Qayyim (d. 751H).
The following authors collected and published qawa’id in
dedicated books: Imaam Abu Tahir al Dabaas al Hanafi in the 4th
century (d. ), Imaam al Karakhi (d.
340H), al Dabuusi (d. 430H), al Subki (d. 771H), al Zarkashi (d. 794H), al
Suyuti (d. 911H), Ibn Nujaim (d. 970H).
EVOLUTION OF QAWA’ID AL FIQH 2: THE
STAGE OF ESTABLISHMENT AND COORDINATION
The majallat was published in 1285-1293H. The Majallat stated 99
basic qawa’id and expanded their applications to a total of 1790 qawa’id
covering a wide array of issues in commercial transactions in the Hanafi school
of law.
The Majallat is considered an effort in the controversial area of
codifying the shari’at. Many commentaries and translations were made of the Majallat.
Unfortunately this effort was not continued to its fruition in
other areas of the Law because of the decline of the Ottoman state and its
eventual overthrow by the European colonial powers who then went on to impose
their legal codes on Muslim countries and marginalized the shari’at.
THE 5 MAIN QAWA’ID 1
There are 5 basic qawa’id also called al kulliyaat al khamasat.
Many sub-principles can be derived from these.
The first principle is that of intention, qa’idat al qasd
that states that an action is judged according to its underlying intention, qaidat
al qasd, al umuur bi maqasidiha (Majallat
article No 2).
The second principle is that of certainty, qa’idat yaqiin,
that states that certainty cannot be voided by a doubt, al yaqeen la yazuul
bi al shakk (Majallat article No. 4). This principle is the basis for
evidence-based knowledge and action.
THE 5 MAIN QAWA’ID 2
The third principle is the principle of hardship, qa’idat al
mashaqqat, states that difficulty calls forth ease, mashaqqat
tajlibu al tayseer (Majallat article No 17), and
necessity makes the otherwise prohibited permissible, al dharuraat
tubiihu al mahdhuuraat (Majallat article No 21).
The fourth principle is that of injury or harm, qa’idat al
dharar, is the most commonly invoked in medicine and defines the delicate
balance between benefit, maslahat, and harm, mafsadat.
The fifth principle is that custom has the force of law, al ‘aadat
muhakkamat.
QA’IDAT AL DHARAR: SUB PRINCIPLES 1
la dharar wa la dhiraar (Majallat article No 19).
Aldharar yuzaal (Majallat article No 20).
Al dharar la yuzaal bimithilihi (Majallat
article No 25).
Yatahammalu al dharar al khaas li dafi al dharar al aam
(Majallat article No. 26).
QA’IDAT AL DHARAR: SUB PRINCIPLES 1
Yukhtaar ahwan al dharrain (Majallat article No. 29)
al daharar al ashadd yuzaalu bi al daharar al akahaff (Majallat article No 27)
idha taradha mufsidataan ruu’iya a’adhamuhuma dhararn bi irtikaab
akhafyhuma (Majallat article No 28)
Dariu al mafaasid awal min jalbi al manafiu (Majallat
article No. 30
ma haruma fi’iluhu haruma talabuhu (Majallat
article No. 35)
THE INTERNATIONAL ISLAMIC FIQH ACADEMY (IIFA) 1
IIFA is an organ of the Organization of Islamic Cooperation (OIC)
founded according to a decision of a meeting of the OIC held in Makka 25-28 January
1981.
IIFA members are fuqaha, ulama, thinkers in various fields of
knowledge including fiqh, culture, science, and economics and from different
parts of the world.
IIFA studies problems of contemporary life through ijtihad to reach
solutions deriving from the Islamic heritage and open to developments of
Islamic thought.
THE INTERNATIONAL ISLAMIC FIQH ACADEMY (IIFA) 1
The first meeting of IIFA was 7-9 June 1983. IIFA holds a session
every year in a different Muslim capital and discusses issues raised. These
issues vary from year to year and cover all fields including medicine.
The first meeting was held in 1983 and the 21st meeting
in 1435H.
IIFA recognized the importance of maqasid al shari’at in its
resolution No No (18/5) 167 dated 9-14 July 2007 (see Table No 1) and defined
their role in the methodology of its work.
There is evidence in the various decisions taken over the past
quarter century of using maqasid and qawa’id but not
systematically or uniformly
METHODS OF THE RESEARCH 1
Decisions of the Academy were retrieved from its 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 background research papers on which
these decisions were based were not included in the analysis.
The decisions were tabulated showing which qai’dat or maqsad
applied to each. Where relevant the number of the qa’idat in the majallat was
provided.
METHODS OF THE RESEARCH 2
An explanation was made how in the author’s view that qa’idat or
maqsad explained the decision.
An overall assessment was made on each decision in terms of its
consistency with his understanding of maqasid al shariát, applicable qawa'id
al fiqh, and medical practice.
The source of maqasidf ak shariat by the classical book of Abu
Ishaq al Shatibi, al muwafaqqat fi usul al shari’at. The source of qawa’id
was the majallat al ahkaam al adliyyat.
PHYSICIAN LIABILITY 1:
Making the physician liable for malpractice errors protects life (hifdh
al nafs) and prevents harm (dharar).
The harm to the patient may be physical such as wrong medication or
psychological such as disclosing confidential medical information
Physician malpractice may be intended or may be due to lack of
knowledge or skill
Physician liability arises if there is a contract with the patient
with the exception of emergency situations
Malpractice may be an error of commission or an error of omission.
PHYSICIAN LIABILITY 2:
The physician in direct contact with the patient, al mubashir,
is liable although another physician contributed to the error according to the
principle, Idha ijatam al mubashir wa al mutasabbib yudhaafu al hukm ila al
mubaashir (Majallat article No. 90).
Yudhaafu al fi’ilu lia al faa’ili la al aamir ma lam yakun mujbiran (Majallat
article No. 89)
CONSENT 1:
The patient has his best interests at heart and has to decide on
medical procedures to protect life (hifdh al nafs) and prevent harm (dharar)
If the patient is not competent the next of kin is the best placed
to protect the interests of the patient as the legal guardian (wakiil) (Majallat
article No. 1449).
If there is no next of kin the government authority assumes the
duty of legal guardian. In the present of the next of kin the government cannot
make decisions because private guardianship (wilayat khaasat) is
stronger than public guardianship (wilaayat ‘aamat) (Majallat article No.
59).
The government can order treatment and other measures to contain an
epidemic without individual consent because public interest (maslahat ‘aamat).
There must be a real benefit associated with this intervention, Al tasarruf
fi al ra’yat manuutu bi al maslahat (Majallat article No 58).
CONSENT 2:
Treatment can be given without
consent in a life-saving emergency because of necessity since necessities make
the forbidden permissible (al dharurat tubiihu al mahdhuuraat ) (Majallat
article No 21).
Consent for research has more
consideration than consent for treatment because the benefit is not assured and
the risks are unknown.
Consent for vulnerable research
subjects like prisoners and the destitute may not be valid if coercion is
involved even if indirectly
Consent can be written or verbal al
kitaab ka al khitaab (Majallat article No 69)
Silence does not imply consent (la
yunsab li saakitin qawl) (Majallat article No. 67)
CLINICAL PRACTICE
Rulings on treatment are based on the benefit-risk ratio which
reflects the balance of protecting life (hifdh al nafs) and preventing
harm (dharar).
Treatment is obligatory (wajib) or recommended (manduub)
if non-treatment will lead to body injury or impairment. It is offensive (makruh)
if side effects of the treatment are worse than the disease.
In conditions of necessity in the absence of a female physician, a
male can treat a female because necessity makes the prohibited permissible (Majallat
article No 21). The exposure of nakedness should not be more than the minimum
necessary because al dharuraat tuqaddar bi qadariha (Majallat article No
22)
Presence of a chaperone prevents harm of transgression or suspicion
SAUM FOR THE PATIENT
Permissibility of a wide range of medications and surgical
procedures in Ramadhan is based on the principle of certainty (yaqiin)
that they do not introduce nutritious material into the alimentary canal (aljawf).
If treatment can wait it is better to postpone it to the night
since there is no dharurat to break the saum
ACQUIRED IMMUNODEFICIENCY DISEASE SYNDROME (AIDS)
Measures are taken to prevent spread of infection to the spouse to
others.
Spouses can separate to prevent spread of infection because hifdh
al nafs is higher in consideration than hifdh al nasl
Patients need not be isolated because there is no yaqiin
that the infection can spread through casual contact
Deliberate spread of the infection violates hifdh al nafs
and is a punishable crime
Pregnancy is not terminated if the mother is infected for hifdh
al nafs of the fetus
An infected mother can nurse her baby because there is no yaqiin
of infection through the milk
AIDS is considered a terminal illness because there is no yaqiin
evidence of recovery from it
REPRODUCTION ETHICS 1
Public laws restricting the couple’s reproductive choices are not
permissible because it contacts the purpose of hifdh al nasl
Permanent sterilization of men and women is not permissible because
it contracts the purpose of hifdh al nasl but it can be permissible for
a legal necessity, dharurat
Temporary contraception is permissible with methods that do not
cause harm (dharar) or destruction of life (hifdh al nafs) and with
mutual agreement of the two spouses
REPRODUCTION ETHICS 2
Non-permissibility of in vivo and in vitro fertilization involving
sperm or ovum donation or use of a surrogate uterus because of contravening the
purpose of lineage (hifdh al nasl or hifdh al nasab)
No extra ova should be fertilized in IVF procedures to avoid their
destruction that is against the purpose of hifdh al nafs
Extra fertilized ova should not be implanted in a strange woman
because that contradicts the purpose of hifdh al nasl
END OF LIFE ETHICS
The definition of terminal illness (maradh al mawt) is
according to ‘urf involving physician assessment, treatment
availability, and the nature of the disease.
Definition of legal death depends on urf and the yaqiin
of non-reversible cardio-respiratory arrest or non-reversible brain death
Permissibility of withdrawing life support in case of yaqiin
of death as defined above
It is better not to start artificial life support in futile cases
because it is a difficult decision to withdraw it later according to the
principle,
Al baqau ashalu min al ibtida (Majallat article
No 56) OR yughtafar fi al baqaau ma la yughtafar fi al ibtida (Majallat article
No 55).
TRANSPLANTATION 1
Transplantation is permissible if there is yaqiin of benefit
(maslaha) for the recipient and minimal risk (dharar) for the
recipient and living donor
Permissibility of transplanting organs, tissues, and cells from
animals, dead humans, naturally aborted fetuses because of maslaha for
the recipient and no dharar for living humans
Non permissibility of transplanting from living fetuses,
unencephalic living infants, or terminally ill fetuses because it contradicts hifdh
al nafs
TRANSPLANTATION 2
Trade in transplant organs is non permissible will result in harm (dharar)
for the poor and weak in society
Non permissibility of transplanting ovaries and testes because it
contradicts hifdh al nasal / hifdh al nasab. Transplantation of
other reproductive organs in allowed under necessity daharurat because
they do not carry hereditary characteristics
HEREDITY AND GENETICS
Human cloning is non permissible because it violates hifdh al
nasl. Cloning of organs and tissues is allowed under necessity dharurat
Cloning is permissible in plants, animals, and microorganisms if
there is benefit (maslaha) and no harm (mafsadat)
PRINCIPLES OF BIOMEDICAL RESEARCH
Respect for autonomy of the research
subject to consent (hifdh al nafs) and prevent harm (dharar)
Benefit (maslahat)
Ihsan
Justice
CONCLUSIONS AND RECOMMENDATIONS
Maqasid and qawaid cannot be used when there is nass, la
massagh li alijtihad fi mawrid al nass (Majallat article 14).
Maqasid and qawa’id are not daliil but are a guide to
systematic thinking
A book of principles in medicine similar to majallat in the
commercial area is needed
Systematic analysis of all medical procedures existing and
anticipated instead of waiting for a problem to arise and a fatwa is asked
TABLE 1: DECISION NO (18/5) 167 DATED 9-14 JULY 2007 ON MAQASID AL SHARI’AT
AND THEIR ROLE IN DERIVATION OF LEGAL RULINGS
1. Maqasidf al shari’at are general meanings and wisdoms as well as
objectives that the lawgiver aimed at fulfilling in legislation to assure
benefits on earth and in the hereafter
2.
The roles of
maqasid in ijtihad are: (a) comprehensive view of the legal texts and rulings
(b) Maqasid al shariat are considered
the murajih that must be differences among scholars (c) tabassur of
consequences of actions of mukallifiin and to apply shariat rulings on them
3.
Maqasid al
shari’at in their different levels are the basic and suitable context for human
rights
4.
Maqasid al
shari’at are important in in ijtihad
5.
Correct use of
maqasid does not yu’attil the dalaalat al nussus al shar’iyat and correct ijma
6.
It is importance
to study the different dimensions of
maqasid al shari’at in the social, economic, educational, political fields etc
7.
Iistihdhaar
maqasid al shariat has an impact in sadiid understanding of the shariat
discourse
8. Use of maqasid al shari’at is important in applying shariat rulings
on the realities, novelties of contemporary financial transactions in order to
assure tamayuz in formulating Islamic products and their independence from
traditional formulations
TABLE 2: MEETINGS OF IIFA
TABLE 3: PHYSICIAN ETHICS AND LIABILITY
Category of decision
|
Decision number, Session, date,
and venue
|
IIFA Decision
|
Qawaid basis
|
Maqasid basis
|
Physician ethics, responsibilities, and liabilities
|
Postpone the decision to the next session
|
N/A
|
N/A
|
|
Physician liability
|
142 (8/15) Session 15 Muscat 14-19 March 2004
|
1. Physician liability for patient injury
is considered in the following situations: causing intentional injury,
physician ignorance or lack of skill, lack of registration or accreditation
from the official body, treatment without the consent of the patient or the
legal guardian, patient deception, practice not according to professional
standards, negligence, disclosure of patient confidentiality with no valid
reason, failure to provide emergency life-saving treatment
|
Dharar
|
nafs
|
2. Physician liability can be jaza’iyat?
|
Dharar
|
nafs
|
||
3. Each member of the team is responsible
for his error and the head is carries vicarious responsibility for errors of
his subordinates
|
Dharar
|
nafs
|
||
4. The hospital or institution is liable
if it did not fulfill its responsibilities or gave wrong instructions
|
Dharar
|
nafs
|
TABLE 4: ETHICS OF CONSENT
Category of decision
|
Decision number, Session, date,
and venue
|
IIFA Decision
|
Qawaid basis
|
Maqasid basis
|
Consent to treatment
|
Competent patient makes treatment decisions
Legal guardian makes decisions for incompetent patients
|
Qa’idat al dharar
|
nafs
|
|
Legal guardian decision is disregarded if not in the interests of
the patient and another guardian or the government makes the decisions
|
Qa’idat al dharar
|
nafs
|
||
The government can order compulsory treatment and preventive
measures in cases of infectious diseases
|
Qa’idat al dharar
|
nafs
|
||
Emergency treatment can be provided without patient consent
|
Qa’idat al dharar
|
nafs
|
||
Consent for emergency surgery
|
(18/10) 172
Session 18 Putrajaya 9-14 July 2007 pages 28-29
|
1. Permissibility of medical interventions in emergency
situations without consent of the patient or the legal guardian in the
following cases: (a) patient is unconscious (b) The patient is in a critical
consition requiring immediate intervention and time is of essence (c) There
is no next of kin present to make the decision
|
Qa’idat al dharar
|
nafs
|
2. Conditions for intervention in emergency cases are: (a) The
treatment must be approved and known in that speciality (b) Presence of a
specialist in a team of 3 physicians who make the decision to investigate and
treat and who sign a report about this (c) the benefit of the intervention
must exceed its harm (d) all details are disclosed to the patient when he
regains consciousness (e) treatment must either be free but if payment is
meeded it must be fixed by a specialized authority
|
Qa’idat al dharar
|
Nafs
|
||
Consent for emergency surgery
|
(19/10) 184
Session 10 Shariqat 26-20 April 2009 pages 29-30
|
|||
Consent to research
|
Consent of competent research subjects or their legal
guardian is needed avoiding situations
of quasi compulsion such as prisoners and the poor
|
Qa’idat al dharar
|
nafs
|
TABLE 5: CLINICAL PRACTICE ETHICS
Category of decision
|
Decision number, Session, date,
and venue
|
IIFA Decision
|
Qawaid basis
|
Maqasid basis
|
Seeking medical treatment
|
1. Obligatory (wajib) if non-treatment will lead to 1. harm to
the body or a its parts to prevent bodily harm 2. spread of infectious
disease
|
Dharar
|
nafs
|
|
2. Recommended (manduub) if non-treatment
will impair the body to a degree lesser than described in 1 above.
|
Dharar
|
nafs
|
||
3. Permissible (mubaah) if 1 and 2 above
do not apply
|
Dharar
|
nafs
|
||
4. Offensive (makruh) if side effects of
treatment are worse than the disease
|
Dharar
|
nafs
|
||
A male physician treating a female patient
|
1. The order of priority of the treating
physician is: a Muslim female then a non-Muslim trustworthy female, then a
Muslim male, then a non Muslim male
|
Dharar
|
nafs
|
|
2. Only the minimum necessary exposure of
nakedness is permissible accompanied by lowering the gaze
|
Dharar
|
nafs
|
||
3. A husband or relative or a trusted
woman must attend the treatment session to avoid khalwat
|
Dhara
|
nafs
|
||
Cosmetic surgery
|
(18/11) 172
Session 18 Putrajaya 9-14 July 2007 page 32-39
|
1. Definition: Cosmetic surgery improves (tahsin) or corrects
(ta’adiiil) the shape or restores function
of any external part or parts of the body
2. Regulations and conditions of cosmetic surgery: (a) fulfill a
legally recognized objective such as restoring function, correcting a defect,
or returning the body to its natural state (b) the surgery should not result
in injury more than the expected benefit and thus is determined by the
specialists (c) the surgery must be carried out by a specialized and qualified
physician (d) the patient must consent to the surgery (e) the physician must
disclose the risks and side effects expected (e) there is no alternative
treatment with less intervention on the body (f) the surgery should not
violate any text of the shari’at such as the prohibition of tattooing (g)
observance of the rules of treatment such as prohibition of khalwat and exposure of nakedness except
as necessary (dharurat)
3. Legal rulings: cosmetic surgery is permissible for dharurat
and haajiyat with the aim of (a) restoring
the original structure (b) restoring function (c) correcting congenital
malformations (d) correcting acquitred malformations such as scars from burns
(e) removal of damaamat that annoys psychologically or physically
4. It is not permissible to undertake cosmetic surgery to change
natural creation with no medical indication
5. Weight reduction by surgery is permissible
6. It is not permissible to remove taja’iid by surgery or
injection
7. It is permissible to repair a hymen torn by accident or rape
|
dharar
|
Nafs
|
TABLE 6: SAUM BY THE PATIENT
Category of decision
|
Decision number, Session, date,
and venue
|
IIFA Decision
|
Qawaid basis
|
Maqasid basis
|
Permissible medication and medical procedures that do not break
saum
|
1. Eye drops, ear drops, ear irrigation,
nose drops, nose inhalers, sub-lingual pills provided they do not get
swallowed and reach the oropharynx:
2. Gynecological procedures: vaginal examination by hand or
scope, entry of fluids into the vagina, entry of a scope into the uterus,
fluids or scopes and catheters or medications in the ureter,
3. Surgical procedures: catheterization of arteries, abdominal
laparascopy, liver biopsy, intestinal scope with no lubricants, entry of
material into the brain or the spinal cord
4. Oral / dental procedures:
drilling or cleaning or brushing teeth, mouthwash or oral inhalation
5. Non nutritious or hydrating subcutaneous, intravenous, or
intramuscular injections
6. Preparations absorbed through the skin
7. Oxygen and anesthetic gases
8. Unintended vomiting
|
Yaqin
Dharar
|
nafs
|
|
Delay of treatment into the night
|
2. Muslim physician should advise delay
of above medications and procedures
where possible until after breaking the saum
|
Dharar
|
ddiin
|
|
Medication and saum
|
(18/12)174
Session 18 Putra jaya 9-14 July 2007 page 33
|
Completion of the discussion of muftiraat was postponed to the
nest session
|
||
Diabetes mellitus and saum
|
162 (11/17) – Session 17 Amman 24-28 June 2004
|
Postpone
|
||
Diabetes mellitus and saum
|
(19/9) 183 –
Session 19 Shariqat 26-30 April 2009 pages 24-28
|
TABLE 7: ACQUIRED
IMMUNODEFICIENCY SYNDROME
Category of decision
|
Decision number, Session, date,
and venue
|
IIFA Decision
|
Qawaid basis
|
Maqasid basis
|
Acquired immunodeficiency syndrome
|
Obligation on the infected spouse to inform the partner and both
cooperate in all preventive measures
|
Dharar
|
nafs
|
|
Acquired immunodeficiency syndrome
|
1. It is not obligatory to isolate
affected patients but medical precautions are taken to avoid infection
|
Dharar
|
nafs
|
|
2. Deliberate spread of infection in the general
community is punished under the laws of hiraba
|
Dharar
|
nafs
|
||
3. Deliberate attempt to infect an
individual is punished by a disciplinary punishment.
|
Dharar
|
nafs
|
||
4. Deliberate infection of an individual
is punished by a disciplinary punishment if the victim does not die. If the
victim dies capital punishment may be considered
|
Dharar
|
nafs
|
||
5.
It is not permissible to terminate pregnancy if the mother is infected
|
Dharar
|
nafs
|
||
6. It is permissible for an affected
mother to care for and breast feed her baby
|
Dharar
|
nafs
|
||
7.
A spouse has the right to separation from an infected partner
|
Dharar
|
nafs
|
||
8. AIDS is considered terminal illness
|
TABLE 8: REPRODUCTIVE ETHICS
Category of decision
|
Decision number, Session, date,
and venue
|
IIFA Decision
|
Qawaid basis
|
Maqasid basis
|
Family planning
|
1. Non permissibility of a public law
restricting a couple’s reproductive choices
|
nasl
|
||
2. Non permissibility of sterilization in
men and women without a legal necessity (dharurat)
|
nasl
|
|||
3. Permissibility of reversible
contraception for purposes of child spacing or for another legal reason if
the husband and wife mutually agree and the methods used do not cause injury
or termination of pregnancy
|
Dharar
|
|||
Test-tube babies
|
5 (5/2)[1], Session 2, Jeddah 22-28 December 1985
|
Postpone decision to the next session while the medical and fiqhi
issues involved are studied
|
||
Non permissibility of IVF using a husband’s sperm, a donated ovum
from a strange woman, and implantation in the wife
|
Nasl (nasab)
|
|||
Non permissibility of IVF using donated sperm from a strange man,
the wife’s ovum, and implantation in the wife
|
Nasl (nasab)
|
|||
Non permissibility of IVF using the husband’s sperm, the wife’s
ovum, and implantation in a strange woman
|
Nasl (nasab)
|
|||
Non permissibility of IVF using donated sperm from a strange man,
donated ovum from a strange woman, and implantation in the wife
|
Nasl (nasab)
|
|||
Non permissibility of IVF using the husband’s sperm, the wife’s
ovum, and implantation in the co-wife
|
Nasl (nasab)
|
|||
Permissibility of IVF using the husband’s sperm, the wife’s ovum,
and implantation in the same wife
|
Nasl (nasab)
|
|||
Permissibility of in vivo insemination by injecting the husband’s
sperm in the vagina or uterus of the wife
|
Nasl (nasab)
|
|||
Extra / unused fertilized ova
|
1. Only the minimum needed number of ova
should be fertilized in every cycle.
|
nafs
|
||
2. Any extra fertilized ova should be
left with no extra medical care until they expire naturally
|
nafs
|
|||
3. non permissibility of implanting
fertilized ova into another woman and precautions must be taken to prevent
this from happening.
|
nasl
|
|||
Breast milk banks
|
: [1[ (2/6?6 Session 2, Jeddah 22-28
December 1985
|
1. Prohibition of establishing breast milk banks.
|
Nasl
|
|
2. Prohibition of feeding from milk banks
|
nasl
|
TABLE 9: END OF LIFE ETHICS
Category of decision
|
Decision number, Session, date,
and venue
|
IIFA Decision
|
Qawaid basis
|
Maqasid basis
|
Terminal illness
|
[1] (7/5) 67
Session 7 Jeddah 9-14 May 1992
|
1. Definition of terminal illness depends
on the physician assessment, treatment availability, and the nature of the
disease
|
Urf
|
nafs
|
Artificial life support
|
Postpone decision to the next session and study the decisions of
the International Islamic Medical Organization.
|
|||
1. Legal death is defined as 1. complete non-reversible cessation
of cardiac and respiratory function 2. Complete non-reversible cessation of
functions and start of brain tissue death
|
Urf
|
|||
2. Permissibility of withdrawing
artificial life support in a dead person as defined above
|
Yaqiin
|
Nafs
maal
|
TABLE 10: TRANSPLANTATION ETHICS
Category of decision
|
Decision number, Session, date,
and venue
|
IIFA Decision
|
Qawaid basis
|
Maqasid basis
|
Solid organ transplantation
|
Permissibility of Auto-transplantation
|
Dharar
|
nafs
|
|
Permissibility of hetero transplantation from a living or
deceased donor if there is consent from a
living donor or relatives of a dead donor consent, there is no
impairment of major bodily functions in the living donor, there is no sale of
organs,
|
Dharar
|
nafs
|
||
Brain and neural system cell transplantation
|
Permissibility of auto transplantation
|
Dharar
|
nafs
|
|
Permissibility of transplantation from animal fetuses
|
Dharar
|
nafs
|
||
Permissibility of transplanting neural tissue from naturally
aborted fetuses
|
Dharar
|
Nafs
nasl
|
||
Permissibility of transplanting brain cells grown outside the
body if they were obtained legally
|
Dharar
|
nafs
|
||
Non permissibility of harvesting cells from a living normal fetus
|
Dharar
|
nafs
|
||
Non permissibility to harvest neural tissue from a living
unencephalic infant
|
Dharar
|
nafs
|
||
Fetuses as sources of transplant organs
|
1. Non permissibility of using living
fetuses as sources of transplant organs
|
Dharar
|
nafs
|
|
2. Permissibility of transplanting organs
from dead fetuses from natural abortions or pregnancy termination to save the
life of the mother
|
nafs
|
|||
3. Non permissibility of transplanting
organs from terminally ill living fetuses
|
nafs
|
|||
Trade in transplant organs
|
Non permissibility of trade
in organ transplantation processes
|
Dharar
|
nafs
|
|
Control of transplantation
|
Organ transplantation must be under a trusted specialized body
|
Dharar
|
||
Transplantation of reproductive organs
|
1. Non permissibility of transplanting
the two reproductive internal gonads (ovary and the testes) because they
carry hereditary characteristics of the donor.
|
nasl
|
||
2. Permissibility of transplantation of
reproductive organs that do not carry hereditary characteristics with the
exception of the male and female external gonads under conditions of
necessity and conditions defined in decision no. (4/1) 26.
|
nasl
|
|||
Transplantation of organs from criminals condemned to death or
organ removal in retribution
|
Non permissibility of re-attachment in the victim of an organ
removed as hadd punishment
|
nafs
|
||
Non permissibility of re-attachment of an organ removed as or
retribution (qisas) except if the victim of the crime agrees or has his organ
reattached
|
nafs
|
|||
Permissibility of reattachment of an organ removed by error
either in the judicial decision or during execution of the punishment
|
Dharar
|
nafs
|
TABLE 11: HEREDITY AND GENETICS
Category of decision
|
Decision number, Session, date,
and venue
|
IIFA Decision
|
Qawaid basis
|
Maqasid basis
|
Human cloning
|
1. Non permissibility of human cloning
|
Qa’idat ak qasd
Qaidat ak dharar
|
||
2. If the law above is broken and human cloning is carried,
legal opinions will be expressed on the consequences of the violation
|
||||
3. Non permissibility of a third party
involvement in the marital relationship such as a surrogate uterus, donated
ovum, donated sperm, or skin cell for cloning
|
Hifdh al nasl (nasab)
|
|||
4. Permissibility of use of cloning and
genetic engineering technology in plants, microorganisms and animals to get
benefits and relieve harm
|
Dharar
|
nasal
|
||
5. Call upon Muslim countries to pass
laws forbidding experiments leading to human cloning
|
Dharar
|
nasal
|
||
Heredity, genetic engineering, and the human genome
|
|
Postpone decisions
|
||
Heredity, genetic engineering, and the human genome
|
(20/8) 193
Session 20 Algiers 13-18 September 2012 page 17
|
Postpone to the next session.
|
||
Heredity, genetic engineering, and the human genome
|
(21/9)203 Session 21 Riyadh 18-22 November 2013
|
1. The following conditions must be observed in using the genome:
(a) use the genome in useful and not dangerous or illegal purposes (b)
genome-based diagnosis or treatment must be preceded by evaluation of
benefits and risks (c) consent must be obtained from the patient or the legal
guardian (d) everybody has the right to decide to receive or not receive
information about his genome (e) confidentiality and disclosure only with
patient permission (f) no discrimination on the basis of genetic information
(g) no genetic research violating Islamic law will be allowed
2. permissibility of treatment using somatic cells
3. Non permissibility of
using sex cells in treatment
4. Genetic engineering is not permissible for humans but is
permissible for plants and animals
5. Genetic counseling is permissible
6. Genetic diagnosis: genetic survey is permitted ubder certain
conditions. Genetic diagnosis is permissible before marriage, before
implantation, prenatally and post natally.
|
TABLE 12: MISCELLANEOUS
Category of decision
|
Decision number, Session, date,
and venue
|
IIFA Decision
|
Qawaid basis
|
Maqasid basis
|
Principles Biomedical research
|
161 (10/17) – Session 17 24-28 June 2006
|
1. The general principles for research
are: respect for persons so that no research is carried out without the
consent of the research subject or the legal guardian 2. Benefit, maslahat
3. Justice
4. Ihsan
|
Qa’idat al dharar
|
Hifdh al naafs
|
Health insurance
|
149 (7/16) – Session 16 9-14 April 2005
|
1. Permissibility of direct insurance by
the treating institution
|
Qa’idat al dharar
|
Hifdh al naafs
Hifdh al maal
|
2. Permissibility of cooperative or
social insurance
|
Qa’idat al dharar
|
Hifdh al naafs
Hifdh al maal
|
||
3. Non permissibility of commercial
insurance
|
Qa’idat al qasd
Qa’idat al yaqeen
Qa’idat al dharar
|
Hifdh al naafs
Hifdh al maal
|