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Paper presented at a Workshop on Islamic Medical Education organized by the Indonesian Islamic Medical Education Convention at the Faculty of Medicine Makassar Indonesia 25-27 May 2007 by Professor Dr Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine, Institute of Medicine, University Brunei Darussalam. WEB: http://omarkasule.tripod.com
ABSTRACT
The paper uses the theory of Purposes of the Law, maqasid al shari’at, to discuss contemporary ethico-legal issues in medicine. Ethical procedures conform to and do not maqasid al shari’at. Medical decisions must follow the principles of the law, qawa’id al shari’at and specific text from the Qur’an and sunnat.
1.0 Theory of Islamic Medical Ethics: maqasid al shari’at
Ethical medical practice must conform to and not violate the 5 Purposes of the Law, maqasid al shari’at which are protection of ddiin, hifdh al ddiin; protection of life, hifdh al nafs; Protection of progeny, hifdh al nasl; protection of the mind, hifdh al ‘aql; and Protection of resources, hifdh al mal.
2.0 Principles of Islamic Medical Ethics: qawa’id al shari’at
In addition to maqasid al shari’at, medical decision making is guided by the 5 Principles of the Law, qawa’id al shari’at: the principle of intention, qa’idat al qasd; the principle of certainty, qa’idat al yaqeen; the principle of injury, qa’idat al dharar; the principle of hardship, qaidat al mashaqqat; and the the principle of custom or precedent, qaidat al urf
3.0 THE ETIQUETTE OF THE PHYSICIAN, adab al tabiib
An ideal physician is characterized by iman, taqwah, amanat, & akhlaq. He should also follow the following guidelines from the sunnat: good intentions, avoiding doubtful things, leaving alone matters that do not concern him, loving good for others, causing no harm, giving sincere advice, avoiding the prohibited, doing the enjoined acts, renouncing greed, avoiding sterile arguments, respect for life, basing decisions and actions on evidence, following the dictates of conscience, righteous acts, quality work, guarding the tongue, avoiding anger and rage, respecting transgressing Allah’s limits, consciousness of Allah in all circumstances, performing good acts to wipe out bad ones, treating people with the best of manners, restraint and modesty, maintaining objectivity, seeking help from Allah, and avoiding oppression or transgression against others.
In making decisions, the physician should respect the autonomy of the patient and carry out no procedures except after informed consent. If the patient has no capacity to consent, ahliyyat, then the decision is made by the waliy who is the nearest relative.
An ideal physician respects the privacy of the patients and does not disclose any private information to any third party without the patient’s consent unless such disclosure is needed for purposes of further treatment or in the public interest.
The ideal physician must be truthful in communicating with the patients. The principle of fidelity requires that physicians be faithful to their patients. It includes: acting in faith, fulfilling agreements, maintaining relations, and fiduciary responsibilities (trust and confidence).
4.0 ETHICO-LEGAL ISSUES IN MODERN MEDICINE: AN ISLAMIC PERSPECTIVE
4.1 Assisted reproduction in the form in vivo insemination or in vitro fertilization is allowed to fulfil the purpose 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 practice these procedures are allowed only if done between a husband and a wife.
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4.2 Contraception: 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.
4.3 Abortion: Islamic Law recognizes a fetus as a legal person distinct from the mother so abortion is criminal homicide. Abortion is permitted only when the life of the mother is at risk for the reason that the procedure will enable the mother to live whereas if the procedure is not carried out both mother and fetus will die since the fetus cannot survive without the mother
4.4 Artificial life support is allowed as long as the patient is alive (has a functioning brain stem). Its continuation after brain stem death violates the purpose of preserving resources, hifdh al maal.
4.5 Euthanasia, passive or active, violates ‘aqidat (life and death are in the hands of Allah) and also violates the purpose of life, hifdh al nafs.
4.5 Transplantation is allowed under the purpose of life, hifdh al nafs, and under the principle of necessity, dharuurat.
4.6 Cosmetic and reconstructive surgery for rectifying effects of disease or injury is allowed. Cosmetic surgery for beauty alone has problems because it violates the purpose of preserving resources, hifdh al maal.
4.7 Embalming can be allowed if a Muslim dies in a place with no other Muslims to bury him properly according to Islamic Law. Embalming in that case preserves the body during transportation to a Muslim area. Cryonics or cryopreservation violates ‘aqidat by denying finality of death and is forbidden.
4.8 Cadaver dissection for educational purposes could be allowed under the principle of dharurat but there is doubt today because there are many educational alternatives.
4.9 Autopsy for research and physician education may not fulfill the legal criteria of necessity, dharuurat. The permission of the family and the opinion of a local jurist should be sought. Autopsy for criminal investigation can fulfill the principle of dharurat but if the family are not interested in following up on their right of retribution qisaas then it is not carried out.
4.10 Research on animals is allowed under the doctrine of taskhiir and the principle of dharuurat provided the animals are treated kindly.
4.11 Research on humans is allowed to find new cures that fulfil purposes of the Law provided procedures of informed consent and protection of research subjects from harm are followed.