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Paper presented at the First National Seminar on Science from the Islamic Perspective Organized by the Faculty of Science Universiti Brunei Darussalam June 30 – July 1 2005 by Professor Dr Omar Hasan Kasule, Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard)
ABSTRACT
The paper starts with a lengthy introduction to the theory of maqasid al shari’at and its general application for ijtihad in the field of medicine. It then offers an analysis of legal issues relating to IVF from the maqasidi context. IVF fulfils the purpose of preserving progeny, hifdh al nasl, for infertile couples but could violate the purpose of preserving lineage, hifdh al nasab, if done illegally leading to mixing lineages and biological parenthood outside legal wedlock. Destruction of frozen embryos that are left over after IVF violates the purpose of preserving life, hifdh al nafs. Successful parentage by IVF brings happiness and mental tranquility fulfilling the purpose of protecting the mind, hifdh al ‘aql. However disputes about parentage that arise in illegal IVF negate the same purpose. The expense of IVF procedures in the presence of more pressing needs relating to disease and hunger in the community may violate the purpose of preserving wealth, hifdh al maal.
1.0 BACKGROUND TO MAQASID AL SHARI’AT
1.1 HISTORICAL BACKGROUND TO MAQASID AL SHARI’AT
The 5-6th centuries were a period of new developments in the Law. This was a time when the work on the fixed part of the Law based mainly on text, nass, was completed. Any further developments in the Law required opening up the flexible part of the Law using ijtihad. This necessitated discussion of the purposes of the Law, maqasid al shari’at. It was at this time that ideas that underlie the concept of maqasid al shari’at were introduced. Imaam Abu Hamid al Ghazzali (d. 505 AH) was a pioneer in the development of the theory of maqasid al shari’at. Imaam al Ghazzali's new theory of the purposes of the law was in the flexible part of the law and opened up new challenges for legal scholars. His work was extended by later jurists. The field of the purposes of the law witnessed little development until the 8th century of Hijra when it was revived by Imaam Abu Ishaq al Shatibi al Andalusi (d 790 AH). Abu Ishaq al Shatibi elaborated and systematized the ideas of Ghazali in a very lucid and scientific way. Subsequent discussion of maqasid al shari’at in this paper is based on al Shatibi's book Al Muwafaqaat fi Usuul al Shariat[1].
1.2 CONCEPTUAL BACKGROUND TO MAQASID AL SHARI’AT
The aim of ijtihad is to discover the purposes of the lawgiver, maqasid al shaari’u, in order to reach a legal ruling, hukm shar’e. Ijtihad in the closed part of the Law is referred to the nass. Ijtihad in the open or flexible part of the Law is referred to both the nass and the maqasid.
The Law was revealed to fulfill specific underlying purposes and for the benefit and in the interests of humans. Without the guidance of the maqasid humans cannot use their reasoning to discover their true interests and establish the equilibrium between evil. Mafsadat, and benefit, maslahat. The maqasid are permanent, consistent, derived form the texts, nass, by induction and are therefore definitive, qatu’i. They ensure that the Law is not changed and is not violated. They deal with the big picture and provide a bird’s eye-view that clarifies issues in the branches.
1.3 PRIMARY PURPOSES OF THE LAW GIVER, maqasid al shariu ibtida'an
The primary purposes of the lawgiver listed in order of importance are: protection of religion, hifdh al diin; protection of life, hifdh al nafs, protection of the mind, hifdh al 'aql; protection of progeny, hifdh al nasl; and protection of property, hifdh al maal.
Hifdh al din is protection of aqidat and ibadat. Hifdh al nafs is protection of the body from harm. Hifdh al ‘aql is assured by normal psychosocial relations as well as prohibition of alcohol and drugs. Hifdh al mal is assured by property rights and prohibition of stealing and embezzlement.
1.4 APPLICATION OF MAQASID AL SHARI’AT IN MEDICINE
For medical practice to be ethical and legal, the purposes of medicine, maqasid al tibb, must conform to the purposes of the Law, maqasid al shari’at. The correspondence between the two types of purposes is explained below:
Protection of ddiin, hifdh al ddiin essentially involves ‘ibadat in the wide sense that every human endeavor is a form of ‘ibadat. Thus medical treatment makes a direct contribution to ‘ibadat by protecting and promoting good health so that the worshipper will have the energy to undertake all the responsibilities of ‘ibadat. The principal forms of physical ‘ibadat are the pillars of Islam: prayer, salat; fasting, siyaam; and pilgrimage, hajj. A sick or a weak body can perform none of them properly. Balanced mental health is necessary for understanding ‘aqiidat and avoiding false ideas that violate ‘aqiidat. Thus medical treatment of mental disorders contributes to ‘aqiidat.
Protection of life and good health, hifdh al nafs, is the primary purpose of medicine. Medicine cannot prevent or postpone death since such matters are in the hands of Allah alone. It however tries to maintain as high a quality of life until the appointed time of death arrives. Medicine contributes to the preservation and continuation of life by making sure that homeostatic physiological functions are well maintained. Medical knowledge is used in the prevention of disease that impairs human health. Disease treatment and rehabilitation lead to better quality health.
Protection of progeny, hifdh al nasl in the Law of activities of daily living, fiqh al ‘aadaat involves good nutrition of young girls to ensure 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.
Protection of progeny, hifdh al nasl, in the Law of marriage and family, fiqh al munakahaat, involves the regulations about marriage, family life, and child upbringing. Hifdh al nasl has 3 interpretations. It is wrong to use it to refer to protection of a race or an ethnic group because ‘asabiiyat for race is forbidden by Islam. It can be used to refer to protection of honor, irdh. However the best interpretation of hifdh al nasl is protection the family to fulfil its procreative function. The rules of marriage, divorce, nafaqat, and child upbringing fall under this purpose.
Protection of progeny, hifdh al nasl, in the Law of civil transactions, fiqh al mu'amalaat, involves regulations of inheritance to 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 regulations of nafaqat ensure that biological fathers have the legal and financial responsibility for physical care of their children until they grow up.
Protection of progeny, hifdh1 al nasl, in the law of criminal justice, fiqh al jinaayaat, involves regulations against illegal sexual relations like zina and liwat to ensure that people marry and have children. It is the experience of all human civilizations that the birth rate falls in situations of wide-spread sexual immorality.
Protection of the mind, hifdh al ‘aql, involves treatment of physical illnesses to remove stress that affects the mental state. Treatment of neuroses and psychoses restores intellectual and emotional functions. Medical treatment of alcohol and drug abuse prevents deterioration of the intellect.
Protection of wealth, hifdh al mal, is very important for the survival of the family and the community. The wealth of any community depends on the productive activities of its healthy citizens. Medicine contributes to wealth generation by prevention of disease, promotion of health, and treatment of any diseases and their sequelae. Communities with general poor health are less productive than healthy vibrant communities.
1.5 STAGES OF GROWTH OF MEDICAL JURISPRUDENCE, fiqhi tibbi[2]
Fiqh tibbi has evolved through three distinct stages each being characterized by a dominant mode of ijtihad. In the initial period (0 – 1370 H) fiqh tibbi was derived directly from the two primary sources of the Law (Qur’an and sunnat). In the middle period (1370 – 1420 H) drastic technological and social changes necessitated derivation of fiqh tibbi from secondary sources: (a) the 2 transmitted ones, masaadir naqliyyat of analogy, qiyaas, and scholarly consensus, ijma, and (b) the logical ones, masaadir ‘aqliyyat, that are istishaab, istihsaan, and istirsaal. Qiyaas was used most extensively in the first part of the second period. Towards the end of the second period, further developments in medical technology strained qiyaas with the result that its analysis and conclusions were no longer robust or even reliable. The difficulties in the use of qiyaas are being overcome in the modern period of fiqh tibbi (1420 H onwards) by using the theory of purposes of the Law, maqasid al shari’at, to derive robust and consistent legal rulings.
After the work of al Shatibi in the 8th century of hijra, the theory of maqasid al shari’at lay in abeyance. This was because the socio-demographic and technological situation of the ummah did not raise problems that required the use of maqasid. The 1st to 14th centuries witnessed relatively little change in the ummah in the physical sense. The legal problems that were encountered could be resolved by reference to text, nass, and use of analogy, qiyaas. However in the 15th century, technological changes have created new and complex problems that require a bird's eye view for solution. It is the maqasid that can provide this bird's eye view and thus lead to appropriate solutions.
2.0 MAQASIDI ANALYSIS OF IN VITRO FERTILIZATION (IVF)
2.1 INTRODUCTION
IVF has traditionally been undertaken to treat cases of infertility with failure to achieve fertilization in the fallopian tubes and failure to retain the early zygote.
In vitro fertilization involves fertilizing an ovum with an egg in the laboratory then implanting the resulting embryo into the uterus to grow.
The source of the sperm may be the husband or a strange man. The source of the ovum may also be the wife or a strange woman. The embryo may be implanted in the uterus of the wife, rahm al zawjat dhaataha; or the uterus of a strange woman, rahm imra at ajnabiyyat; that is also called al raham al dhi ir.
Infertility is defined as relative or absolute inability to conceive. It is defined pragmatically as failure to get pregnant after 1 year of regular intercourse without any contraception. Infertility was mentioned in the Qur’an as ‘uqm or ‘uqr[3]. It 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.
2.2 IVF AND PRESERVATON OF PROGENY. hifdh al nasl
Procreation for a married Muslim couple is considered among the necessities, dharuraat. It fulfils the purpose of the Law about preserving progeny, hifdh al nasl.
The purposes of the human reproductive function can be considered at the individual, family, community, and human levels. Reproduction at an individual level fulfils a deeply felt human desire for self-perpetuation.
Parents are proud of their children, al tafakhur bi al awlaad[4] and naturally desire to have many, al takathur bi al awlaad[5]. Desire of parents for children is natural. The prophet Zakariyyah[6] [7] made du’a to Allah to give him offspring. The prophet encouraged marrying young fertile women for glory of the ummah ‘alaykum bi al abkaar[8]. Marrying women was considered a source of good, inna khayra hadhihi al ummat akthahruhum nisa an[9]. The prophet encouraged fertility when he said: tazawwaju al waduudat al waluudat. Children help cement and strengthen the marital bond. As regards the community level, the prophet encouraged Muslims to have as many offspring as possible to give glory to the ummat so that it may be the largest of communities. When righteous people have many children and bring them up to be righteous they will be spreading light and truth in the next generation in a very effective demographic strategy. At the level of the human species, reproduction is necessary to ensure survival of the human race.
2.3 IVF AND PRESERVATION OF LINEAGE, hifdh al nasab
We have seen above that the Law generally will allow methods of artificial reproduction for purposes of fulfilling the purpose of progeny, nasl. However the purpose of progeny also includes the purpose of lineage, nasab. Thus IVF would be permitted only of it does not violate the purpose of nasab. Permitted forms of IVF preserve both nasl and nasab. Forbidden ones assure nasl but not nasab.
The Law permits invitro fertilization if the sperm and ovum are from legally wedded husband and wife and the zygote is implanted in the same wife. In general any situation in which there is mixing of lineage, ikhtilaat al ansaab, or in which birth is done outside wedlock is forbidden because a child must be produced only through marriage, majiu al walad bi al zawaaj[10]
There is consensus among jurists that 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, shatl al rahim. There is consensus among jurists that a married woman cannot have a zygote implanted into her uterus if a sperm from a donor who is not her husband fertilized it. This type of child-bearing is similar to the pre-Islamic Arabian jahili custom of istibdhaa’u that the Law forbade. Sperm banks are a form of zina with only one difference that the male partner in the crime is not identifiable. The offspring of this procedure is illegitimate, walad al zina. A husband who allows his wife to be fertilized by another man’s sperm is called duyuuth (weak and despised)[11]. There is consensus among jurists that 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. In the same way the Law prohibits using a hired surrogate mother, al rahim al musta jar or al rahim al dhi ir, in IVF. It also prohibits using a relative as a surrogate mother, al umm al qariibat.
The ultimate penalty for fornication, hadd al zina, is not imposed in any of the situations of illegal in vitro fertilization. Only disciplinary, ta’aziir, punishments are imposed and that for purposes of deterrence. The punishment covers all those involved in illegal IVF: the husband, the wife, and the physician.
Trans-species fertilization which may involve mixing human and animal gametes is prohibited by the Law because it violates the purpose of preserving human lineage.
Mixing of gametes or embryos of different parentage to confuse biological parentage is also forbidden by the Law because it violates the principle of preserving lineage.
Implanting the embryo in a non-human species uterus may become possible in the future. We would like to venture to give an opinion about this because the practice of jurists is not to issue a legal ruling on hypothetical issues. They wait until a problem arises to study its practical consequences before making any judgments.
2.4 IVF and PROTECTION OF LIFE, hifdh al nafs
It is inevitable in IVF operations that ova, sperms, or zygotes may remain unused in hospital refrigerators. The Law has to provide guidelines on the fate of frozen ova, al baydh al mujammadat, frozen semen, al maniu al mujammad, and frozen zygotes, al ajinnat al mujammadat.
IVF procedures of necessity require that more embryos than will be used are cryopreserved. This is because the first attempt may not succeed and the frozen embryos are used instead of the asking the husband and wife to undergo the procedures of sperm and ovum harvesting again. Frozen embryos assure fairly high pregnancy rates[12].
As regards unused fertilized zygotes, there are four alternatives. (a) There is consensus among jurists that they can legally be implanted at a later stage in the wife who was the source of the ovum so that she can have a second pregnancy; this implantation must be carried out during the life of the husband to prevent him from having children after his death and during the survival of the marriage contract to make sure that children are not born out of wedlock. (b) There is consensus among jurists that donating zygotes to a childless couple so that they can be implanted in the wife as a surrogate mother is prohibited because of mixing up of lineage, ikhtilaat al ansaab. There is no consensus yet among jurists on the remaining 2 alternatives: (c) destroying the zygotes or (d) using them for scientific research.
Destroying the zygotes raises the issue of destroying life. The opinion of the present author is that the zygotes have life and have the right of protection under the purpose of protecting life. They therefore cannot be destroyed. The present author’s opinion is that life exists from conception and that the attempt to distinguish between the pre-embryo and the embryo stage is irrelevant.
It has been known since 1998 that stem cells can be sourced from extra left-over embryos from IVF procedures[13] [14]. Use of these embryos or zygotes as sources of stem cells creates an dilemma because it involves destruction of the life of the zygote in pursuit of beneficial therapeutic benefits of stem cell technology. A suggestion that ethical norms of organ donation should be applied to this situation[15] is not valid because it in organ donation the donor’s life is not destroyed or the organ is from a cadaver that has no life.
The opinion of the present author is that use of the zygotes for medical research could be allowed under the principle of the Law that states that necessities permit the prohibited, al dharuuraat tubiihu al mahdhuuraat.
2.5 IVF and PROTECTION OF THE MIND, hifdh al ‘aql
IVF may relieve the mental anguish of couples who cannot enjoy parenthood. Even in situations in which the Law allows IVF, patience is preferred in order to close the door to evil and other complications, tafdhiil al sabr li saddi al dharii’at.
The processes of IVF involve a lot of tension and mental stress and usually several attempts have to be made before achieving a successful pregnancy. The result of IVF also lead to more mental tensions especially if carried out illegally especially disputes about paternity and maternity. For these reasons we may have to consider alternatives to IVF.
The alternatives may be technological. Some of the mental anguish associated with legal and ethical complications of IVF may be relieved in the future by use of new technologies such as the animal uterus or the artificial uterus.
The alternatives may also be social such as foster care of the husband’s children from a co-wife or from a previous marriage or foster care of abandoned outside children. Closed adoption in which the child does not know the biological parents is prohibited by Islam.
Polygamy can be an alternative to IVF for the man but not the women. The infertile couple can accept their fate and be patient while engaging themselves in acts of ‘ibadat.
2.6 IVF and PROTECTION OF WEALTH
IVF is very expensive. It imposes a big financial burden on poor families and poor communities. It would be considered offensive, makruuh, to undertake IVF in a situation where are more demanding priorities such as physical health and famine.
3.0 LEGAL ISSUES IN IVF
3.1 LEGAL CONSEQUENCES OF ILLEGAL IVF
Some Muslims will, despite the prohibition, still undertake the prohibited in vitro fertilization either due to ignorance or disobedience. Children will be born and legal issues will arise that cannot be brushed aside. The still has to address legal and practical consequences of illegal IVF. One of the commonest are maternity and paternity disputes.
3.2 IVF and DISPUTES ABOUT MATERNITY
Disputes about motherhood arise between the biological and the surrogate mother. The Law recognizes two types of mothers: the biological mother, al umm al nasabiyyat, and the foster mother, al umm min al ridhaa’at. The role of the foster mother is nutritional only, dawr al umm min al ridhaa’at al tafghdhiyat. The Qur’an describes both types of motherhood. It describes motherhood in relation to breast feeding, al umuumat bi ma’ana al ridhaa’at[16]. It also describes motherhood on the basis of carrying pregnancy and delivery, al umuumat bi ma’ana al wilaadat[17]. There is still controversy on the thesis that the surrogate mother, al umm al dhi ir, is the same as the foster mother, al umm min al ridhaa’at, on the basis of -analogy, qiyaas.
In the opinion of the present author, the issue of maternity is settled on the basis of biological inheritance. The source of the ovum is the biological as well as the legal mother; the surrogate mother has rights as a foster mother and these are well explained in the Law.
Both mothers have some biological relations. From modern genetics we know that permanent characteristics of a person are in the chromosomes. The source of the ovum contributed half of the chromosomes. The surrogate mother contributed as a conduit for nutrients and left no permanent mark on the child. The source the ovum has a stronger legal and biological relation to the child.
3.3 IVF and DISPUTES ABOUT PATERNITY
The traditional position of the Law is that the legal husband of the surrogate mother is legal father on the basis of the hadith of the prophet, al walad li al firaash wa li al ‘aahir al hajar[18]. This hadith was in the special context of adultery by a married woman who gave birth to a child. Since it was impossible at that time to be certain who the biological father was (it could be the legal husband or the adulterer), the prophet ordained that the child should belong to the legal husband. This is understandable for the protection of the interests and welfare of the child. It is also in conformity with the principle of the Law, qa’idat al sharia, that certainty cannot be voided by doubt. In this case the legal husband is the certainty and the possibility of the adulterer being the biological father is the doubt that could not be proved at that time to become a certainty. Thus this hadith cannot be generalized to allow paternity for a wife who becomes pregnant using a sperm donated by a strange man.
The traditions of the prophet indicate that biological relation, if proven, is the basis for paternity. Sa’ad bin Abi Waqqaas and Abd bin Zumu’ah took a dispute to the prophet about a child born of a slave girl. The prophet judged that the child belonged to Abd bin Zumu’ah because he saw physical resemblance with ‘Utbat the brother of Sa’ad?[19].
It is the opinion of the present author that the owner of the sperm used is the legal father. Paternity is established even if the sperm was illegal, maniyu ghair muhtaram. Thus a child conceived as a result of zina is recognized by the father if scientific evidence proves the heredity. Modern DNA technology removes any doubts about paternity. It should be mandatory that in all cases of in vivo insemination, whether legal or not, DNA analysis should be carried out to confirm maternity or paternity. Even in legal cases of insemination or fertilization, mistakes could occur in the laboratory or clinic leading to mix-up of ova and sperms.
Illegal postmortem paternity could arise in several ways. In one way the sperms of the husband may be obtained while he is alive and are kept frozen to be used in IVF procedures after his death. In another way sperms may be obtained from the husband after death[20]. Postmortem paternity creates special problems. It is an illegal procedure but since some Muslims may contrary to the Law carry it out we have to give some rulings on it. IVF after the death of the husband is forbidden but if carried out the child belongs legally to the dead husband. In the same way if a woman illegally donates an ovum and a child is conceived, the child belongs to her even after her death.
3.4 IVF and ISSUES IN CIVIL TRANSACTIONS, mu’amalaat
Financial transactions, buyuu’u: The Law has guidelines for mu’amalat consequences of IVF even if done illegally. The costs of the IVF procedures are borne by the husband because they are considered part of coitus and child birth. A contract of surrogate motherhood is haram. It is haram to make payment or receive payment under such a contract. Any physician who takes part in such a haram procedure cannot claim payment. Nafaqat for the surrogate mother is an obligation on the biological father.
In the opinion of the present author commercial trading in sperms, gametes, or embryos is forbidden by the Law because it will open the door to more evils. The Law prohibits such acts to close the door to evils, sadd al dhari’at.
Inheritance, miiraath: In IVF relationship is determined by DNA analysis for purposes of establishing inheritance. The conditions for inheritance are the death of the inheritee, maut al mawruuth; life of the inheritor, hayaat al waarith; and establishment of a blood relationship between the two, jihat al irth. Illegal IVF may complicate the problem if disputes arise about maternity and paternity. These however can be resolved by DNA analysis.
[1] Abu Ishaaq al Shatibi Ibrahim bin Musa al Llakhmi al Ghamaati (d. 790 H). Al Muwafaqaat fi Usuul al Shari’at. Vol 1-2. Dar al Kutub al ‘Ilmiyyat. Beirut Lebanon. Undated.
[2] Reproduced from a paper ‘Medical Jurispudence Between Originality And Modernity. (al fiqh al tibbi bayna al asaalat wa al hadaathat) presented at the 5th Scientific Meeting of the Islamic Medical Association of Malaysia held in Penang 26-28th May 2004 by Prof Dr Omar Hasan Kasule Sr.
[3] (Qur’an 3:40, 19:5, 19:8, 42:50)
[4] (Qur’an 9:55, 9:85)
[5] (Qur’an 9:69, 19:77, 34:35, 57:20)
[6] (Qur’an 3:38)
[7] (Qur’an 19:1-6)
[8] (Ibn Majah Kitaab al Nikaah Baab 7)
[9] (Bukhari Kitaab al Talaaq Baab 4)
[10] (Qur’an 16:72)
[11] Ahmad 2:69
[12] Klock SC Embryo disposition: the forgotten "child" of in vitro fertilization.
Int J Fertil Womens Med. 2004 Jan-Feb;49(1):19-23. [13] Walters L. Human embryonic stem cell research: an intercultural perspective.
Kennedy Inst Ethics J. 2004 Mar;14(1):3-38.
[14] Filip S, English D, Mokry J. Issues in stem cell plasticity. J Cell Mol Med. 2004 Oct-Dec;8(4):572-7.
[15] Landry DW, Zucker HA. Embryonic death and the creation of human embryonic stem cells. : J Clin Invest. 2004 Nov;114(9):1184-6
[16] (Qur’an 4:23, 2:233)
[17] (58: 2, 31:14, 46:15, 16:78, 39:6)
[18] Bukhari Kitaab al Huduud Baab 23
[19] (Bukhari, Kitaab al Ahkaam Hadith No 2053)
[20] Landau R Posthumous sperm retrieval for the purpose of later insemination or IVF in Israel: an ethical and psychosocial critique. Hum Reprod. 2004 Sep;19(9):1952-6. Epub 2004 Jul 8.