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Presented at the Training Workshop for Judges and Jurists held at Patna Bihar India on 7-8 July 2007 at the Higher Institute for Training Judges and Jurists a division of the Law Directorate for the States of Bihar, Orissa, and the Jarkhand by Professor Omar Hasan Kasule Sr MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine.
ABSTRACT
Preservation of progeny, hifdh al nasl, is one of the five purposes of the Law, maqasid al shari’at. The purpose is fulfilled by appropriate health care for children to grow into healthy adults able to reproduce. It is also fulfilled by appropriate care during pregnancy and delivery to ensure a healthy outcome. The following medical procedures help assure hifdh al nasl: genetic testing and counseling, Correction of disorders of the genital tract, and appropriate and adequate medical care during pregnancy, delivery, and infancy. Treatment of infertility by various methods of assisted reproduction fulfils the purpose of hifdh al nasl. Reproductive cloning is not considered a legitimate or safe method of hifdh al nasl. Various forms of contraception, feticide, and infanticide violate the purpose of hifdh al nasl.
1.0 INTRODUCTION TO THE PURPOSES OF THE LAW
1.1 Historical Background to Purposes of the Law, tarikh maqasid al shari’at[1]
The 5th - 6th centuries of hijra were a period of several developments in the Law. This was a time when the work on the fixed part of the Law was completed. Any further developments in the law after the 6th century required opening up new the flexible part of the law that necessitated new tools. Purposes of the Law became the most significant of these tools. It was at this time that al Ghazali (d. 505H) and his teacher al Juwayni introduced the ideas that underlie the concept of maqasid al shari’at. Ghazzali's work was extended by Ibn Taymiyat (d. 728H) and his student Ibn al Qayyim (d. 751H). The Andalusian Maliki scholar al Shatibi (d. 790 H) elaborated Ghazzali's theory and his book al Muwafaqaat fi Usuul al Shari’at became a major reference on maqasid al shari’at and was a prescribed textbook at Azhar University for several generations. Our subsequent discussion of the purposes of the law will be based largely on al Shatibi's book.
The concept of maqasid al shari’at did not evoke much practical interest in the period 1st – 14th century H. That period witnessed relatively little technological change in the ummah. In the 15th century of hijra, technological changes have created new and complex problems that require a bird's eye view for solution that can be formulated with the aid of maqasid al shari’at because there are no directly relevant textual references.
1.2 The Concept of Purposes of the Law, mafhuum maqasid al shari’at[2]
The aim of ijtihad is to discover the purpose of the lawgiver in order to reach a legal ruling, hukm shar’i. Ijtihad in the closed part of the Law is referred to the text, nass. Ijtihad in the open or flexible part of the law is referred to maqasid al shari’at. The maqasid are permanent, unchangeable, and consistent guidelines. They are derived form the text by induction and are therefore definitive. They deal with whole (panoramic view) and not the parts. The term maqasid al shari’at is generally used to refer to the 5 necessities, dharuuraat, that ensure human interests on earth and in heaven and without which normal human life is impossible. The 5 purposes of the Law, maqasid al shari’at, arranged in order of importance are: (a) preservation of religion, hifdh al diin; (b) preservation of life and health, hifdh al nafs, (c) preservation of the mind, hifdh al 'aql; (d) preservation of progeny, hifdh al nasl; (e) and preservation of property, hifdh al maal.
The concept of hifdh includes protection, preservation, and promotion. Hifdh al din is ‘aqidat, ‘ibadat and supporting functions of activities of normal living, ‘aadaat, marital regulations, munakahaat, and civil transactions, mu’amalat. Hifdh al nafs is protection of the body from harm and involves ‘aadaat, mu’amalaat, and criminal justice, jinaayaat. Hifdh al nasl is assured by marriage, child-birth within the marital bond, and proper child upbringing. Hifdh al ‘aql is assured by normal psychosocial relations as well as prohibition of alcohol and drugs. Hifdh al maal is assured by property rights and prohibition of stealing and embezzlement. The 5 purposes are closely related. Hifdh al nasl cannot stand alone. It is assured by all the remaining 4 maqasid each of which protects and promotes life and health of children to grow up into healthy adults able to reproduce successfully. They also ensure the health of parents (especially mothers) for optimum obstetric outcome. Hifdh al ddiin ensures sexual morality and therefore a good reproductive outcome when child-birth as well as child rearing occur within the protection of the family institution. Hifdh al nafs ensures the health of parents and their reproductive competence. Hifdh al ‘aql ensures mental health required for successful child-rearing. Hifdh al maal ensures adequate financial and other material resources to take care of pregnant and breast-feeding mothers as well as their children.
1.3 The Purpose of Protection of Progeny, maqsad hifdh al nasl[3]
The purpose of hifdh al nasl is fulfilled in the fields of activities of normal living (‘aadaat), marriage and family (munakahaat), civil transactions (mu’amalaat), and criminal justice (jinaayaat). All these fields are intimately related to medicine. In ‘adaat, good nutrition of young girls ensures that they grow into healthy potential mothers who will bear healthy babies and are at low obstetric risk. Good nutrition in pregnancy ensures optimal intra-uterine fetal growth and development and easier delivery with minimal intra-natal and post-natal complications. All these measures taken together ensure healthy offspring.
In munakahaat, maintenance of progeny includes the regulations about marriage, family life, and child upbringing. The Law on nafaqat for the mother and the child both during marriage and after divorce ensure adequate financial and material resources for the health of the mother and the child. The laws about determining paternity ensure that biological fathers have the legal and financial responsibility for physical care of their children until they grow up.
In mu'amalaat, the laws of inheritance ensure proper transfer of property rights from the parents to their young children so that they have the means to sustain them to grow into adulthood. The laws against illegal sexual relations like zina and liwat ensure that people marry and have children in a family unit. It is the experience of all human civilizations that the birth rate falls in situations of wide-spread sexual immorality.
2.0 PRESERVATION OF PROGENY in MEDICINE
2.1 Genetic testing and counseling[4]
Genetic testing and counseling play a role in hifdh al nafs by ensuring delivery of healthy offspring. Pre marital counseling is recommended in marriages of close relatives. Genetic testing during pregnancy or soon after delivery can detect diseases to enable instituting early treatment for a better health outcome. The objective of counseling before testing is to provide information about the genetic disorders and the risks of disease to individuals and families so that they may make informed decisions about marriage and child rearing.
2.2 Correction of disorders of the genital tract[5]
Coitus serves 2 purposes: reproduction and sexual enjoyment. The primary purpose of reproduction ensures hifdh al nasl. Sexual enjoyment is most probably a secondary purpose that facilitates the primary purpose of reproduction. Foreplay is a sunnat and it allows both parties to be psychologically and physiologically prepared for successful coitus and subsequent insemination and fertilization. Coitus is forbidden during menstruation, post natal or post abortal bleeding. Coitus in these conditions may lead to ascending infection of the genital tract that may cause sterility. Any disorders that interfere with successful coitus will hamper reproductive capacity and violate the purpose of hifdh al nasl. The Law requires treatment of mental and physical causes of these disorders in order to preserve reproductive function. Marriage is annulled when coitus is physically impossible and there is no hope for a medical or surgical solution.
It is offensive, makruuh, for a male with no libido to marry. Lack of libido is grounds for divorce or khulu’u. In cases of impotence marriage is nullified after a grace period of 1 year during which medical treatment is sought. Impotence can be managed by drugs such as Viagra, by surgical intervention, and by psychotherapy. Modern technology can enable insemination and fertilization in cases of complete failure of erection. Pre-mature, delayed, or no ejaculations may not be sufficient grounds for divorce because they do not completely abrogate the purpose of hifdh al nafs. Priapism causing physical harm to the wife should be treated because it may interfere with successful coitus. Cases of cryptorchidism should seek counseling about fertility before marriage.
Kindness is required for wives when they experience loss of libido, lack of sexual enjoyment, dyspareunia, and vaginismus. Medical and surgical intervention as well as psychotherapy can be used to relieve these conditions in order to allow normal coitus. Lack of libido and sexual interest in a woman is not considered a barrier to marriage. Sexual relation can be undertaken in prolonged DUB if care is taken to prevent ascending infection. Surgical treatment of septate or imperforate vagina should be attempted before marriage dissolution due to non-consummation. A spouse is legally liable for transmitting infection to the partner because that may destroy the reproductive function. A proper balancing of harm, dharar, and benefit, maslahat, must be considered in treating benign malignancies because of destruction of the reproductive function. Ovariectomy and hysterectomy for uterine fibroids destroy the reproductive function and lead to psychological problems in a woman who then can no longer menstruate.
Disorders of gender differentiation and gender identity are anatomical and physiological with serious behavioral and legal implications affecting marriage, procreation, and inheritance. In cases of hermaphrodites, the Law allows genetic and other methods of investigation to arrive at a conclusion on what is the definitive gender. Once this determination is made corrective medical and surgical measures are undertaken to restore the genitals and try to preserve as much reproductive capacity as is possible.
2.3 Pregnancy[6]
The Law has provisions to protect the physical and mental health and well-being of a pregnant woman. The Law obliges the father to provide adequate material support, nafaqat, for a pregnant mother so that she may be in the best nutritional and health status to ensure a healthy reproductive outcome. A pregnant woman is excused from duties that involve physical exertion detrimental to the health of the fetus. She is also forbidden from activities and behavior that jeopardize infant health such as smoking, alcohol, exposure to toxic chemicals and radiation. Standing up, qiyaam; bowing, ruku’u; prostration, sujuud, and sitting, juluus, in salat may be difficult for a woman in advanced pregnancy and modifications are necessary. A pregnant woman may be excused from fasting, saum. If the excuse is based on fear of nutritional deficiency in the mother or in both the mother and the fetus, the missed fasting must be made up. If the exemption is based on fear of harm to the fetus alone, expiation is by feeding the poor. A woman in advanced pregnancy has limited ability to do physical work, at home or outside the home, and has to be excused. Sexual intercourse is physically cumbersome in advanced pregnancy. It may also introduce infections in the birth canal. In the rare instance of placenta previa it may provoke potentially fatal bleeding. There is no ruling against breast-feeding in pregnancy. It is a medical necessity since breast milk is the best food for a baby. A pregnant woman can be divorced but cannot be forced out of her house until after delivery. Fixed legal punishments, huduud, cannot be carried out in pregnancy until after delivery and suckling of the baby.
2.4 Delivery[7]
The delivery process has many risks for the mother and the infant. Salat is not physically possible in the advanced stages of labor and immediately after delivery. Saum in labor is not recommended. Physical activities of hajj are not recommended in advanced pregnancy.
Difficult medical decisions may have to be made in obstructed labor. These decisions involve essentially making a difficult choice between the life of the mother of the life of the infant. Immediate medical intervention is in favor of the mother but the infant may not be mature enough to survive. Delay of intervention could put the mother at higher risk but it gives the infant more time to mature. In this case the choice is between endangering 2 lives and endangering one life. Immediate intervention is good for the mother. Delay of intervention puts the mother at higher risk as well as the unborn fetus because fetal welfare depends on maternal welfare. The logical choice is therefore to put maternal interest above fetal interest. In cases of hemostatic disorders and ecclampsia, termination of the pregnancy may be the best way to save the mother’s life but it will adversely affect the fetus who may not yet be viable extra-uterine.
The immediate post-partum period is a period of vulnerability for the mother and the infant. Post-partum infection and hemorrhage may impair the health of the mother. Women in post-natal bleeding are excused from salat like those in menstruation. Post-natal mothers are excused from saum but they have to make up later. Sexual intercourse is forbidden during post-partum bleeding, nifaas. This will decrease the risk of ascending infection of the genital tract. The mother has 3 basic rights: health care and nutrition; shelter; and payment for breast-feeding if divorced.
2.5 Breastfeeding[8]
The infant has the right to general health care and nutrition. Nutrition and healthcare for infants and children contribute directly to preservation of progeny by ensuring that children grow into healthy adults able to reproduce.
Onset, continuation, and end of lactation are under endocrine & neural control, neuro-humoral. Lactation can be affected by the psychological state of the mother. Drugs can also affect lactation either enhancing or suppressing it. The Qur'an set the statutory period of breast-feeding as 2 full years, muddat al ridha'a. No maximum period was set. However maternal milk is not sufficient as a sole nutrient after 6 months and has to be supplemented. The father has to give financial compensation to a divorced wife who is breast-feeding his child. Breast feeding is so important that the Law allows breastfeeding by a woman who is not a biological mother. On the basis of necessity, dharuurat, the Law permits collecting milk from several lactating mothers in a milk bank and using it to feed premature babies or those who have no natural mothers. Because of the importance of breastfeeding, a nursing mother is allowed to combine 2 prayers. A nursing mother may not fast and make up later. New ijtihad is needed on the minimum period of maternal leave since the Qur’an sets a limit of 2 years.
2.6 Assisted Reproduction[9]
Infertility is considered a serious condition because it could lead to psychological distress, marital problems, and even marital failure. At the ummatic level widespread infertility could spell demographic weakness that is a security threat. Treatment of infertility fulfils the purpose of hifdh al nasl.
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, talqiih sinna’i ajnabi.
In vitro fertilization, al talqiih al istinaa’e al khaariji, is permitted by the Law if the sperm and ovum are from legally wedded husband and wife and the zygote is implanted in the same wife. According to some jurists the Law permits in vitro fertilization if the sperm is from a husband and the ovum is from a legally wedded wife, and the zygote is implanted in a second wife of the husband. In vitro fertilization is prohibited if the sperm is from the husband and the ovum is from the wife and the zygote is implanted in a surrogate mother. A married woman cannot have a zygote implanted into her uterus if a sperm from a donor who is not her husband fertilized it. Sperm banks are a form of zina are not allowed. The Law prohibits implantation of a fertilized zygote in a wife if another woman donated the ovum and the sperm is from her husband or a strange man
2.7 Reproductive cloning[10]
Reproductive cloning was achieved in sheep. It seems technically feasible in humans. It 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 (no male-female interaction) that is common in plants and animals. Adam and Isa were humans from asexual reproduction. The clone is the exact replica of original. Genetic recombinations that are responsible for the great variety of normal reproduction do not occur in 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 cloning until it has occurred and we see its implications in practice.
Reproductive cloning cannot be used to achieve the purpose of hifdh al nasl. 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 a 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.
Cloning has some medical benefits such as supply of organs for transplantation. It may lead to new diseases and medical problems. 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.
2.8 Contraception[11]
Reproduction fulfils a human desire for enjoyment of children, and strengthening the ummat. Contraception negates these objectives and is undertaken for very strong reasons. Marrying and getting offspring are obligatory, wajib, for the community and fulfils the purpose of protecting and preserving progeny, hifdh al nasl. Procreation for the individual couple is mubaah or mustahabb in normal circumstances but becomes wajib in situations of military or economic weakness. There is basic permissibility of contraception from the hadith on coitus interruptus. 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 conform to the purposes of the Law (hifdh al ddiin, hifdh al nafs, hifdh al ‘aql, & hifdh al nasl). Contraception as part of a national population control policy is prohibited by Law. The permissible reversible methods for males are the condom, coitus saxanicus, coitus reservatus, and coitus interruptus. Permissible reversible methods for females are either mechanical (the diaphragm, the cervical cap, the vaginal sponge) or chemical (spermicides and oral contraceptive pills). Some forms of IUD are not permitted because they cause early abortion. The safest and perhaps the least effective is the rhythm method.
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. Widespread practice of birth control makes it easier to accept and practice genocide by decreasing respect for human life. Thus if contraception is allowed without adequate legal controls, will eventually violate the purpose of hifdh al nafs.
2.9 Feticide (abortion) and infanticide[12]
Feticide by abortion and infanticide violate the purpose of hifdh al nasl. Illegal feticide and infanticide are committed for various reasons: avoiding consequences of sexual immorality, poverty, rape, gender preference, and serious disease of the mother and child. Abortion is criminal homicide because life is considered to start at conception and not as claimed at ensoulment, nafakh al ruuh. Abortion is immoral because it encourages sexual immorality and promiscuity without fear of pregnancy. The Law prescribes severe punitive measures for causing illegal 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.
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.
Infanticide can be in the form of child neglect and child abuse. Social injustice manifesting as poverty is responsible for a lot of feticide and infanticide. Poor mothers who do not get adequate nutrition and medical care have a higher rate of fetal loss and poor pregnancy outcomes. Their children are born pre-mature of small for gestation age and succumb easily to disease and die. Children born in poor families and communities have higher morbidity and mortality.
THE 5 PURPOSES of the LAW, maqasid al shari’at
- Preservation of religion, hifdh al diin
- Preservation of life and health, hifdh al nafs
- Preservation of the mind, hifdh al 'aql
- Preservation of progeny, hifdh al nasl
- Preservation of property, hifdh al maal.
PROMOTION of hifdh al nasl
- Genetic testing and counseling
- Correction of disorders of the genital tract
- Medical care during pregnancy, delivery, and infancy
- Treatment of infertility by various methods of assisted reproduction
- Reproductive cloning is not hifdh al nasl.
VIOLATION OF hifdh al nafs
- Contraception
- Feticide
- Infanticide
NOTES
* The paper is based on the manuscript ‘Muqaddimat al Tibb (Introduction to Medicine) 2004 by the author. Detailed references pertaining to legal rulings mentioned are in the said manuscript and can be requested from the author at e-mail omarkasule@yahoo.com.
[1] Omar Hasan Kasule: Muqaddimat al Tibb (Introduction to Medicine) Volume 8 Module 15 Unit 15.3
[1] Omar Hasan Kasule: Muqaddimat al Tibb (Introduction to Medicine) Volume 8 Module 15 Unit 15.3
[2] ibid
[3] ibid
[4] Omar Hasan Kasule: Muqaddimat al Tibb (Introduction to Medicine) Volume 19 Module 27 Unit 27.5