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Lecture series for Kashmiri nurses at
King Fahad Medical City October 2015 by Professor Omar Hasan Kasule Sr. MB ChB
(MUK), MPH (Harvard), DrPH (Harvard) Department of Bioerhics Faculty of
Medicine King Fahad Medical City
ABSTRACT
The paper uses the theory of Purposes of the
Law, maqasid al shari’at, to discuss contemporary
ethico-legal issues in medicine relating to reproductive technology (assisted
reproduction, contraception, abortion, sex selection, and genetic testing), end
of life issues (artificial life support, euthanasia), transplantation (stem
cells and solid organs), cosmetic and reconstructive surgery, post-mortem
issues (embalming, cryopreservation, and autopsy), and research (human and
animals). Ethical procedures conform to and do not violate the 5 maqasid al shari’at which are:
preservation of diin, hifdh al ddiin;
preservation of life, hifdh an nafs;
preservation of progeny, hifdh al nasl;
preservation of the intellect, hifdh al
‘aql; and preservation of resources, hifdh
al maal. Also used in the discussion are legal axioms, qawa’id al shari’at, that assist in ethico-legal reasoning.
1.0
DERIVATION OF MEDICAL ETHICS FROM THE LAW
1.1 Relation between law and ethics
Islamic
Law is comprehensive being a combination of moral and positive laws. It can
easily resolve ethical problems that secularized law, lacking a moral religious
component, cannot solve. Many contemporary ethical issues in medicine are moral
in nature and require moral guidance that can be provided only from diin.
The Law is the expression and practical manifestation of morality. It automatically
bans all immoral actions as haram and
automatically permits all what is moral or is not specifically defined as haram. The approach to ethics is a
mixture of the fixed absolute and the variable. The fixed and absolute sets
parameters of what is moral. Within these parameters, consensus can be reached
on specific moral issues. Ethical theories and principles are derived from the
basic Law but the detailed applications require further ijtihad by physicians. Islam has a parsimonious and rigorously
defined ethical theory of Islam based on the 5 purposes of the Law, maqasid
al shari’at. The five purposes are preservation of ddiin, life, progeny, intellect, and wealth. Any medical action
must fulfill one of the above purposes if it is to be considered ethical. Legal
axioms or principles, qawa’id al shari’at,
guide reasoning about specific ethico-legal issues and are listed as intention,
qasd; certainty, yaqiin; injury, dharar;
hardship, mashaqqat; and custom or
precedent, ‘urf or ‘aadat.
1.2 The 5 Purposes of the Law in Medicine, maqasid al shari’at fi al tibb
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. A sick or a weak body cannot perform physical ‘ibadat properly. Balanced mental health
is necessary for understanding ‘aqidat
and avoiding false ideas that violate true ‘aqidat.
Protection of life, hifdh al nafs: The
primary purpose of medicine is to fulfill the second purpose of the Law, the
preservation of life, hifdh al nafs.
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 physiological functions are 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: Medicine
contributes to the fulfillment of the progeny function by making sure that
children are cared for well so that they grow into healthy adults who can bear
children. Treatment of infertility ensures successful child bearing. The care
for the pregnant woman, peri-natal medicine, and pediatric medicine all ensure
that children are born and grow healthy. Intra-partum care, infant and child
care ensure survival of healthy children.
Protection of the mind, hifdh al ‘aql: Medical
treatment plays a very important role in protection of the mind. Treatment of
physical illnesses removes 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: 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. The principles of protection of life and protection of wealth may
conflict in cases of terminal illness. Care for the terminally ill consumes a
lot of resources that could have been used to treat other persons with
treatable conditions.
1.3 The 5 Principles of the Law in Medicine, qawa’id al shari’at fi al tibb
The principle of intention, qa’idat al qasd: The
Principle of intention comprises several sub principles. The sub principle ‘each
action is judged by the intention behind it’ calls upon the physician to
consult his inner conscience and make sure that his actions, seen or not seen,
are based on good intentions. The sub principle ‘what matters is the intention
and not the letter of the law’ rejects the wrong use of data to justify wrong
or immoral actions. The sub principle ‘means are judged with the same criteria
as the intentions’ implies that no useful medical purpose should be achieved by
using immoral methods.
The principle of certainty, qa’idat al yaqeen: Medical diagnosis cannot reach the legal
standard of absolute certainty, yaqeen.
Treatment decisions are based on a balance of probabilities. The most probable
diagnosis is treated as the working while those with lower probabilities are
kept in mind as alternatives. Each diagnosis is treated as a working diagnosis
that is changed and refined as new information emerges. This provides for
stability and a situation of quasi-certainty without which practical procedures
will be taken reluctantly and inefficiently. The principle of certainty asserts
that uncertainty cannot abrogate an existing certainty. Existing assertions
should continue in force until there is compelling evidence to change them. All
medical procedures are considered permissible unless there is evidence to prove
their prohibition.
The principle of injury, qa’idat al dharar: Medical
intervention is justified on the basic principle is that injury, if it occurs,
should be relieved. An injury should not be relieved by a medical procedure
that leads to an injury of the same magnitude as a side effect. In a situation
in which the proposed medical intervention has side effects, we follow the
principle that prevention of an injury has priority over pursuit of a benefit
of equal worth. If the benefit has far more importance and worth than the injury,
then the pursuit of the benefit has priority. Physicians sometimes are
confronted with medical interventions that are double edged; they have both
prohibited and permitted effects. The guidance of the Law is that the prohibited
has priority of recognition over the permitted if the two occur together and a
choice has to be made. If confronted with 2 medical situations both of which
are injurious and there is no way but to choose one of them, the lesser injury is
committed. A lesser injury is committed in order to prevent a bigger injury. In
the same way medical interventions that are in the public interest have
priority over consideration of individual interest. The individual may have to
sustain an injury in order to protect public interest. In many situations, the
line between benefit and injury is very fine.
The principle of hardship, qaidat al
mashaqqat: Medical interventions that would otherwise be
prohibited actions are permitted under the principle of hardship if there is a
necessity. Necessities legalize the prohibited, al daruuraat tubiihu al mahdhuuraat, and mitigate easing of legal rules
and obligations. In the medical setting a hardship is defined as any condition
that will seriously impair physical and mental health if not relieved promptly.
Committing the otherwise prohibited action should not extend beyond the limits
needed to preserve the purpose of the Law that is the basis for the
legalization. The temporary legalization of prohibited medical action ends with
the end of the necessity that justified it in the first place.
The principle of custom or precedent, qaidat al urf: The standard of medical care is defined by
custom. The basic principle is that custom or precedent has legal force. What
is considered customary is what is uniform, widespread, and predominant and not
rare. The customary must also be old and not a recent phenomenon to give chance
for a medical consensus to be formed.
1.4 Evolution of medical jurisprudence, tatawwur al fiqh al tibbi
There are three stages in the evolution of fiqh
tibbi. 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). 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.
The
theory of maqasid al shari’at is not
new but many people had not heard about it because its time had not yet come. By
the 5-6th centuries of hijra the basic work on the closed part of
the Law derived directly from primary sources was complete. Any further
developments in the law required opening up new the flexible part of the law
which necessitated discussion of the purposes of the law. It was at this time
that al Ghazali and his teacher Imaam al Haramain al Juwayni introduced the
ideas that underlie the concept of maqasid
al shari’at. Other pioneers of the theory of maqasid al shari’at were Imaam an Haramain al Juwayni and his
student Abu Hamid al Ghazzali (d. 505 H), Sheikh al Islam Ahmad Ibn Taymiyyah
(d. 728H) and his student Ibn al Qayyim al Jawziyyat (d. 751H). The field of
the purposes of the law witnessed little development until revived by the
Abdalusian Maliki scholar Imaam Abu Ishaq al Shatibi in the 8th century AH who
elaborated Ghazzali's theory. Our subsequent discussion of the purposes of the
law is from al Shatibi's book al
muwafaqaat fi usuul al shariat.
2.0
ETHICO-LEGAL ISSUES IN REPRODUCTIVE TECHNOLOGIES
2.1
Assisted Reproduction
Overview: The Law allows assisted reproduction in fulfillment
of the purpose of preservation 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 vivo insemination, al talqiih al
istinaa’e al daakhilii: 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 because that would violate the principle
of preserving lineage, hifdh al nasab.
In vitro fertilization, al talqiih al
istinaa’e al khaariji: The Law permits in vitro fertilization (IVF) if the sperm and ovum are from legally
wedded husband and wife and the zygote is implanted in the same wife. All other
forms of IVF involving ovum or sperm donation are prohibited because they
violate the principle of hifdh al nasab.
Ethical and legal issues: Several
ethical issues arise in assisted reproduction: disclosure of infertility before
marriage, artificial insemination after death of the husband, legality of
masturbation for obtaining sperms, paternity and maternity of children born of
illegal procedures, disposal and use of unused fertilized ova, sex selection
and selective fetal reduction, embryo splitting, developing embryos for purposes other than their use in assisted
reproduction, using embryos to produce a clone, using fetal gametes for
fertilization, trans-species fertilization (mixing human and animal gametes),
mixing of gametes or embryos of different parentage to confuse biological
parentage, implanting the embryo in a non-human species uterus, replacing the
nucleus of the embryo, embryo flushing, commercial trading in sperms, gametes,
or embryos, and use of gametes from cadavers. All these can be resolved by
using the relevant Purpose of the Law and consideration of the specific circumstances
of each case.
2.2 Contraception
Overview: 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. 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 based
on the purposes of the Law and Principles of the Law. There is no consensus
among jurists on sterilization as a method of contraception.
Male contraception: The
permissible reversible methods for males are the condom, coitus saxanicus, coitus reservatus, and coitus interruptus.
Female contraception
Permissible
reversible methods for females are either mechanical (the diaphragm, the
cervical cap, the vaginal sponge) or chemical (spermicides, oral contraceptive
pills). Some forms of IUD are not permitted because they cause early abortion.
Socio-demographic impact: 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 and gender. Widespread practice of birth control
makes it easier to accept and practice genocide by decreasing respect for human
life.
2.3 Reproductive cloning
Overview: We must start by distinguishing cloning of
individual cells and tissues from cloning of a whole organism. Cloning 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 that is common in plants
and animals. Adam (PBUH) had neither a mother nor a father. Isa (PBUH) was
reproduced asexually. The clone is the exact replica of the original. Genetic
recombinations that are responsible for the great variety of normal
reproduction do not occur in cloning.
Rulings on 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 human cloning
until it has occurred and we see its implications in practice. We can only
review general ideas from what we already know about cloning with no definitive
conclusions.
Spiritual quality of a clone: 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 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.
Ethical implications: 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.
Social implications: Likely
socio-demographic implications are loss of human dignity, production of human
monsters with no family background, and destruction of lineage, nasab.
2.4 Abortion
Unwanted pregnancy: The
issue of ‘unwanted pregnancy’ is a recent concept in human history and is
associated with social stresses of modern life. The purposes of the law, maqasid al shari’at, and its principles,
qawa’id a shari’at, focus on
preventing ‘unwanted pregnancy’, protecting the rights of the fetus and infant,
and mitigating the adverse effects of ‘unwanted pregnancy’ by social measures.
The law on feticide: Life
is sacred. All lives have equal worth whether in utero or in terminal illness.
Taking the life of any one person without legal justification is like killing
the whole human race. Abortion is criminal homicide because life is considered
to start at conception. Abortion is immoral because it encourages sexual
immorality and promiscuity without fear of pregnancy. 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.
The Law prescribes severe punitive measures for causing 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.
2.5 Sex selection, al tahakkum fi al jins
Sex
preference is natural. Gender selection is by Allah (shura: 49) and no human
efforts will contradict Allah’s will. Human efforts can only succeed if Allah
wills so. Efforts to get an offspring of a particular gender are in general
permissible because the dua that
prophets made are considered part of the effort. Discussion centers on the
methods used because some are permitted while others are prohibited. Natural
methods (selecting days of copulation before and after ovulation & changing
upper vaginal chemistry artificially) are not effective. Rulings are still being discussed on methods
such as separation of male and female sperms by centrifuging followed by in vivo
insemination and gender pre-selection and implanting only zygotes of desired
gender in in vitro fertilization.
Some jurists consider sex selection permissible for the couple but are
prohibited when they are part of community or national policy. There are
long-term consequences that must be considered. Severe gender imbalance will
threaten marriage and lead to family breakdown. Eventually the purpose of the
law to preserve progeny, hifdh al nasl,
cannot be fulfilled.
2.6 Genetic
testing and genetic counseling
Genetic
testing is used for disease
diagnosis, pre natal diagnosis, genetic screening, criminal investigations, and
settling paternity issues. Genetic
counseling is carried out before and after genetic
testing. The objective of counseling before testing is to provide information
about genetic disorders and the risks of disease to individuals and families so
that they may make informed decisions. Pre marital counseling is recommended
for close relatives. Genetic testing can be carried only if there is informed
consent of competent adults. Genetic data is confidential and cannot be
disclosed except following guidelines.
3.0
ETHICO-LEGAL ISSUES IN MEDICAL AND SURGICAL TECHNOLOGIES
3.1 Artificial Life Support
Legal definitions of terminal illness and death:
Terminal
illness is defined as illness from which recovery is not expected. The manner
in which death is defined affects the ruling, hukm, about life support. Death can be defined using the
traditional criteria of cardio-respiratory arrest. It can also be defined as
brain death either higher brain death or death of the brain stem or whole brain
death. If death is defined in the traditional way, life support cannot be
withdrawn at any stage. If the definition of higher brain death is accepted,
life support will be removed from persons who still have many life functions
(like respiration, circulation, sensation). The question of quality of life is
also raised in the definition of life. The assumption is that there must be
some quality to human life for it to be worth living. The exact definition of
quality is still elusive. It is argued that euthanasia saves the terminally ill
from a painful and miserable death. This considers only those aspects of the
death process that ordinary humans can perceive. We learn from the Qur'an that
the death of non-believers is stressful in the spiritual sense. Believers can
have a good death even if there is pain.
Palliative care: The aim
of palliative care is pain control, psychological support, emotional support,
and spiritual support. Death can be made a pleasant experience with appropriate
palliative care. Palliative care was traditionally in the family but it has
recently moved to institutions. Lessons about palliative care can be learned
from the terminal illness of the prophet and his companions.
Principles of certainty and autonomy: When the
definition of death and the exact time of its occurrence are still matters of
dispute, a major irreversible decision like withdrawing life support cannot be
taken. Islamic law strictly forbids action based on uncertainty, shakk.
The purposes of life and wealth: The
purpose of preserving life may contradict the purpose of preserving wealth.
Life comes before wealth in order of priorities. This however applies to
expenditure on ordinary medical procedures and not heroic ones of doubtful
value because that would be waste of wealth.
Legal rulings on initiating and withdrawing
life support: The terminally ill patient, who takes a major
risk, should make the final informed decisions after clarification of the
medical, legal, and ethical issues by physicians and jurists, fuqaha. The family may request that life
support be terminated if the patient is in pain or coma. Self-interest may
motivate some members of the family and others with personal interest to hasten
the legal death of the terminally ill patient. According to Islamic law, any
inheritor who plays any role direct or indirect in the death of an inheritee
cannot be an inheritor. It is
therefore impossible for any member of the close family to take part in life
support withdrawal decisions. Physicians and other health care givers may abuse
withdrawal of life support and kill people for various motives.
3.2 Euthanasia
Concepts: Euthanasia is carried out illegally for
patients in persistent vegetative states or those in terminal illness with a
lot of pain and suffering. Active euthanasia, an act of commission that causes
death, is taking some action that leads to death like a fatal injection.
Passive euthanasia, an act of omission, is letting a person die by taking no
action to maintain life. Terminal sedation with very high doses has the dual
effect of controlling pain and causing respiratory failure. Islamic Law views
all forms of euthanasia, active and passive, as homicide. Those who give advice
and those who assist in any way with suicide are guilty of homicide. A
physician is legally liable for any euthanasia actions performed even if
instructed by the patient.
Analysis using purposes of the law, maqasid
al shariat: Euthanasia violates the Purpose of the Law to
preserve Life by taking life and it leads to cheapening human life making
genocide more acceptable. It violates the purpose of religion by assuming
Allah’s prerogative of causing death.
Analysis using principles of the law, qawaid
al shari’at: According to the principle of intention, there
is no distinction between active and passive euthanasia because the end-result
is the same. The principle of injury makes euthanasia illegal because it tries
to resolve the pain and suffering of terminal illness by causing a bigger
injury which is killing. Continuation of pain in terminal illness is a lesser
evil than euthanasia. According to the legal principle of sadd al dhari’at, prohibition of euthanasia closes the door to
corrupt relatives and physicians killing patients for the sake of inheritance
by claiming euthanasia. Euthanasia reverses the customary role of the physician
as a preserver into a destroyer of life. A distinction in Law exists between
withholding life support and withdrawing it. The issue is legally easier if
life support is not started at all according to a pre-set policy and criteria.
Once it is started, discontinuation raises legal or ethical issues.
Continuation is easier that starting. Euthanasia like other controversial
issues is better prevented than waiting to resolve its attendant problems. The
patient cannot legally agree to termination of life because life belongs to
Allah and humans are mere temporary custodians. The determination of ajal is in the hands of Allah. A patient
who has legal competence, ahliyyat, makes
final decisions about medical treatment and nutritional support. Patients in
terminal illness often lose ahliyyat
and cannot make decisions on their treatment. A living will is a non-binding
recommendation and it can be reversed by the family. They however cannot make
the decision for euthanasia.
General conclusions: Our
analysis has shown that there is no legal basis for euthanasia. Physicians have
not right to interfere with ajal that
was fixed by Allah. Disease will take its natural course until death.
Physicians for each individual patient do not know this course. It is therefore
necessary that they concentrate on the quality of the remaining life and not
reversal of death. Life support measures should be taken with the intention of
quality in mind. Instead of discussing euthanasia, we should undertake research
to find out how to make the remaining life of as high a quality as is possible.
The most that can be done is not to undertake any heroic measures for a
terminally ill patient. However ordinary medical care and nutrition cannot be
stopped. This can best be achieved by the hospital having a clear and public
policy on life support with clear admission criteria and application to all
patients without regard for age, gender, socio-economic status, race, or
diagnosis.
3.3 Solid organ transplantation
Background: The first organs involved in transplantations
were the skin, the bone, the teeth, and the cornea. Later kidney, heart, lung,
and liver transplants were achieved. Glandular and neurohumoral organs will be
transplantable in the future. Transplantation decisions are a balance between
risk and benefit. Ethical and legal problems of transplantation are temporary;
they will disappear with the use of xenografts, artificial organs, and cloned
organs.
Legal rulings about transplantation: Transplanting
animal or artificial organs or auto-transplantation raise fewer ethical issues
than transplantation from a donor. The evidence for transplantation from a human
donor, living or dead, is by qiyaas
with permission to eat flesh of a dead person in case of dharuurat. The main guide about transplantation is the purpose of
maintaining life of the donor and the recipient. Under
the principle of hardship, necessity and hardship legalize what would otherwise
be objectionable or risky. Mutilation of a dead corpse is normally objectionable
but where transplantation can preserve good health this objection is set aside.
Under the principle of injury, lowering donor risk has precedence over benefit
to the recipient. The complications and side-effects to the recipient must be a
lesser harm than the original disease. Transplantation relieves an injury to
the body in as far as is possible but its complications and side-effects should
be of lesser degree than the original injury. Abuse of transplantation by
abducting or assassinating people for their organs could lead to complete
prohibition under the principles of dominance of public over individual
interest. Prevention of harm has priority over getting a benefit and
pre-empting evil. Under the principle of custom brain death fulfills the
criteria of being a widespread, uniform, and predominant customary definition
of death that is considered a valid custom. Selling organs could open the door
to criminal commercial exploitation and may be forbidden under the purpose of
maintaining life, the principle of preventing injury, the principle of closing
the door to evil and the principle of preventing motive. Protecting innocent
people from criminal exploitation is a public interest that has priority over
the health interests of the organ recipient. The principle of motive will have to be invoked to forbid
transplantation altogether if it is abused and is commercialized for individual
benefit because the purpose will no longer be noble but selfish. Matters are to
be judged by the underlying motive and not the outward appearances. Other
considerations in transplantation are free informed consent, respect for the
dignity of the human, ownership and sale of organs, taharat of the organs, sadaqat
and iithaar of the organ donor.
Indications, side effects, and complications: The
indications of transplantation are irreversible organ failure and sub-optimal
organ function. Transplantation on the basis of preventive maintenance of
organs in good condition is not allowed because the Law does not allow action
based on uncertainty. The associated side effects and complications of immune
suppression, infection, neoplasia, graft rejection, and drug toxicity are
treated under 2 principles of the Law: hardship, mashaqqa, and injury, dharar.
3.4 Embryonic stem cell transplantation
Description of stem cells: A stem
cell is able to divide and replicate itself almost indefinitely and can be
grown to produce a more specialized or differentiated cell. Some stem cells are
already differentiated or specialized and can be grown to produce only specific
specialized cells. Other stem cells are less specialized or differentiated and
can be grown into a wide range of specific cell types. These are called
multi-potent or pluripotent cells. The third type of stem cells is called
totipotent. These are completely undifferentiated and can be grown into any
cell type.
Sources of stem cells:
Multipotent cells can be found in adult blood, adult bone marrow, and umbilical
blood. They can also be derived from cancer tissues and from fetal cells and
embryonic cells (either pre-implantation or post-implantation). Embryonic stem
cells are totipotent. They are able to develop into any type of body cell or
tissue. The nucleus of the stem cell can be removed and can be replaced by the
nucleus of a patient who has a damaged tissue. The cell can grow into the
desired tissue. Embryonic stem cells are more efficient than adult stem cells.
Diseases likely to be treated using embryonic
stem cells: The following serious medical conditions are
candidates for cure using stem cells: diabetes, stroke, spinal cord injury, and
neurodegenerative disorders such as Parkinson's disease. Stem cells could be
grafted at a site of spinal cord injury. Stem cells grafted in the pancreas
could produce insulin that is deficient or lacking in diabetics.
Advantages of stem cells: Stem
cells have two main advantages. They can be a source of tissue or organs thus
helping overcome the shortage of organs for transplantation. Stem cells
generated under the patient’s own genetic control will be fully immunologically
compatible unlike donated organs that can be rejected by the patient.
Ethical controversy about embryonic stem cells: The
use of adult stem cells or cells from the umbilical cord raises few ethical
controversies. Embryonic stem cells, unlike adult stem cells, are a source of
ethical controversy because they are obtained from embryonic tissue, either
pre-implantation or post-implantation. Use of such tissue involves violation of
the purpose of preserving life. Since the cell is a potential human life its
use in research or transplantation involves denial of that life.
3.5 Cosmetic and reconstructive surgery
The concept of change of Allah’s creation: The
Qur’an mentions stability of creation (30:30) and stability of Allah’s laws
(35:43). The unchanging creation mentioned is constancy of the laws that govern
the universe, sunan, as expounded in
the Qur’an (35:43). Change is allowed if it follows the Laws. Any changes that
do not follow these laws are repudiated. Desire to undertake reconstructive or
cosmetic surgery arises out of dissatisfaction with defects and the associated
embarrassing appearance. The defects
are due to injuries that according to the principle of injury must be removed.
Thus technology to remove or correct defects is not opposing or denying Allah’s
creation. A serious issue of ‘aqidat
would arise if a human were to be dissatisfied with Allah’s primary creation
because it is optimal and perfect. Humans cannot conceptualize a better
creation that they then prefer. Deliberate effort to change Allah’s primary
creation without valid reasons is due to shaitan.
There is risk in tampering with fitra
without following the sunan.
Beautification: Allah made humans in a perfect image. He
however also allowed them to enhance their physical appearance by wearing
clothes, using perfumes. These measures improve appearance do not change fitra. Humans in disobedience undertake
other forms of beautification that change basic fitra or do not follow the sunan.
Prohibited procedures are tattooing, shortening teeth, widening gaps between
teeth, and plucking eyebrows. Circumcision is an allowed procedure although it
involves change of fitra. Male
circumcision is mustahabb and is recommended on hygienic grounds.
Opinions differ about female circumcision. Fraudulent procedures that are
prohibited are wearing wigs, dyeing hair to hide age, and hymenal
reconstruction. There are other forms of beautification. Increasing body weight
and changing body shape by dieting is common and was practiced by women at the
time of the prophet without objection.
Reconstructive/restorative surgery: Reconstructive/restorative
surgery is carried out to correct natural deformities, deformities due to
disease, and deformities due to complications of disease treatment.
Malformations may be congenital or acquired. The distinction is not important
because many of the congenital malformations are due to environmental factors
operating in utero. The purposes of
surgery on congenital malformations are: restoration of the normal appearance
to relieve psychological pressure or embarrassment and restore function. These
purposes do not involve change of fitra
but restoration of fitra to its state
before the injury. Similarly restorative surgery for deformities due to disease
or treatment do not involve change of fitra
since they are returning to the normal. Surgery for hiding identity of a
witness is allowed. A surgical operation to reveal the true gender of an
apparent hermaphrodite is not change of fitra
but an attempt to restore fitra
altered by hormonal or chromosomal damage. Such operations have another
objective of trying to preserve or restore the reproductive function.
Cosmetic surgery: Cosmetic
surgery has a sole purpose of enhancing beauty with no medical or surgical
indication. It can fulfill the purpose of preserving progeny, hifdh al nasl,
if carried out for beautification in order to find a marriage partner.
Expensive cosmetic surgery violates the purpose of preserving wealth, hifdh
al maal. It violated the principle of preservation of religion, hifdh al
ddiin, if carried out with the
belief that Allah’s creation was ugly. Under the principle of motive, qai’dat al qasd, we look at each individual case of cosmetic surgery
and judge it based on the intention. As mentioned above a simple cosmetic
surgery operation may lead to the noble purpose of marriage. We however must
consider the benefits of cosmetic surgery against its harm under the principle
of injury. The Law gives priority to prevention of injury over accruing a
benefit. The principle of hardship cannot be applied to cosmetic surgery
because there is no life-threatening situation necessity to justify putting
aside normal prohibitions. Pursuit of beauty in not necessary for life and good
health. Beauty is in any case a nebulous intangible entity that is very
subjective.
4.0
ISSUES AFTER DEATH
4.1 Embalming
Definition: Embalming is treating
a dead corpse with substances that prevent it from decay or decomposition. Embalming
does not prevent but delays the decomposition process.
The embalming procedure: In arterial embalming blood is drained through a
vein and is replaced by a preservative fluid injected through the arteries.
Cavity embalming involves removing fluid from body cavities using a trochar and
replacing it with a preservative. Hypodermic embalming involves injecting
preservatives under the skin. The fluid used is usually a mixture consisting of
formalin and other substances. Arterial embalming is not permanent and repeat
treatments are required to maintain the body in an embalmed state.
Embalming
and the purposes of the Law: Embalming does not fulfill any of the 5
purposes of the Law. It on the other hand violates the 5th purpose
of preserving wealth, hifdh al maal, because it is an expensive
procedure that consumes wealth. It also leads to violation of the hadith of the
prophet about hastening the funeral, al ta'ajil bi al janazat[i].
Embalming a body that died of a
communicable disease carries a risk to the funeral attendants and the community
which would violate the second purpose of preserving life, hifdh al nafs. The prudent measure in cases of death from contagious disease is
immediate burial.
Exceptional situations: In an exception to the general rule, embalming
could be a better alternative in a situation in which a person dies in a
foreign place with no Muslims knowledgeable or willing to give him an Islamic
burial. It may be better in such a case to embalm the body and transport it to
where it can get a decent and honorable Islamic burial. Proper burial including
salat al janazat is one of the 5 cardinal duties of brotherhood in
Islam. As many
persons as possible should participate in salat al janazat because if
100 persons pray for the dead, the sins may be forgiven by Allah[ii].
Embalming could also be considered in a situation in which a Muslim dies or is
killed in hostile territory and it is feared that if the body is not
transported to a Muslim land, it will be dishonored by the enemies.
4.2 CRYONICS
Definition: Cryonics is
cryopreservation of the body by cooling it immediately to the temperature of
liquid nitrogen after death and keeping it at a low temperature. In some cases
only the brain is removed and is cryopreserved because it contains the
essential information. The whole practice of cryonics is based on a speculation
that future scientific discoveries will be able to reverse death. The practice
of cryonics is based on the hope that one day medical technology will be able
to reverse the death process so that the clinically dead can come back to life.
According to its advocates, cryonics does not involve denial of death, nafiyu
al mawt, or denial of resurrection, nafiyu al ba’ath, because its
advocates think that clinical death is not terminal death but is a process that
can be reversed. The advocates of cryonics do not consider the preserved bodies
as dead and they call them patients.
Procedures: Immediately after
death the body is infused with glycerol (a cryoprotectant fluid) and is then
cooled to a very low temperature. The fluid prevents formation of ice crystals
that could damage cells. The body is kept at the low temperature indefinitely.
Cryonics and purposes of the Law: Cryonics is repugnant to the Law because it
involves waste of resources, a violation of the 5th Purpose of the
Law. ‘Patients’ as the cryopreserved bodies are referred to have to set aside
large sums of money as investments such that the returns on the investment can
cover the annual costs of cryopreservation for an indefinite period of time.
Speculative thought, dhann: The other aspect of cryonics that is repugnant to
the Law is the speculative thought, dhann, that science will one day
develop a method of reversing clinical death. According to the principle of
certainty, qa’idat al yaqeen, the Law requires decisions based on actual
realities and not speculative or hypothetical conjectures. Advocates of
cryonics have been arguing that the cryopreservation would be more effective if
started before the point at which clinical death is legally recognized. If this
were to be put in practice, the Law would recognize occurrence of a criminal
act of murder.
Definition and timeline of death: An
outstanding ethico-legal issue relating to cryonics is definition of death and
determining the point in time at which death is said to occur. This is because
death is a process and not an isolated event. Depending on the definitional
criteria used, there are several points on the time line of the death process
than could be considered the point of death. Definition of legal death is based
on the legal principle of precedent or custom, qa’idat al ‘urf or qa’idat
al ‘aadat. The customary definition changes with changes of knowledge and
available medical technology. Therefore cryonic procedures carried out after
the point considered legal death are repugnant to the Law because they involve
denial of death or attempting to artificially prolong life.
Cooling
the body before clinical death: Another
outstanding issue that deserves further discussion is cooling the body to lower
metabolism and decrease tissue damage in a patient who is not yet clinically or
terminally dead.
Cryonics and violation of ‘aqidat: The most serious
consideration in cryonics relates to ‘aqidat. A person without the
correct ‘aqidat does not believe in life in the hereafter and wants to
achieve immortality on earth and is therefore wont to turn to cryonics.
Cryonics seen from such a perspective should be prohibited absolutely. The
relevant Islamic teachings on death are very clear and leave no room for doubts
about the prohibition of cryonics. We summarize these teachings for re-emphasis
below.
4.3 Autopsy
Definition: The term autopsy or
necropsy is used to refer to dissection and examination of a dead body to
determine the cause(s) of death. It may be carried out for legal or for
educational purposes.
Purposes of autopsy: Post-mortem
examination serves several purposes. It can be done for scientific research to
understand the natural history, complications, and treatment of a disease
condition. It can be done for further education of physicians and medical
students especially when they compare their clinical diagnosis with the
evidence from autopsy a process usually referred to as clinico-pathological
correlation. The lessons learned will improve their diagnostic and treatment
skills in the future and decrease the incidence of clinical mistakes. Post
mortems are also undertaken for forensic purposes to provide evidence on the
timing, manner, and cause of death. Legally
the courts may require scientific proof of the cause of death in order to make
decisions regarding various forms of legal liability.
The procedure of the autopsy: The first step in an autopsy is examination of the
exterior of the body. Then the body cavity is opened to examine the internal
organs. Organs may be removed for examination or may be examined in situ. After
the examination removed organs are returned and the external incision is sewed
up restoring the body to almost its original appearance with the sole exception
of having an incision. During the examination tissues and fluids are removed
for further examination that may include histological, microbiological, or
serological procedures.
Permissibility
of autopsy for educational purposes under the principle of necessity, qa’idat dharuurat: Dissection of cadavers has been very
important for medical education over the past decades when there was really no
alternatives to dissection. Cadaver dissection was therefore permissible under
the legal principle of necessity, dharuurat. The reasoning is that
cadaver dissection enables future doctors to be trained well to treat patients
which fulfils the second purpose of the Law, preservation of life or hifdh
al nafs. The situation of necessity explained above takes precedence over
considerations of violating human dignity by dissecting the body under the
general principle of the Law that necessities legalize what would otherwise be
prohibited, al dharuuraat tubiihu al mahdhuuraat. However this can only
be carried out if there is informed consent from the family members who have
the authority to consent as prescribed by the Law. As far as possible this
consent should take into consideration the will of the deceased on this matter
if it was known before death. However human dignity cannot be violated more
than necessary. The body should still be handled with respect and
consideration. All tissues cut away should be buried properly and the remaining
skeleton should also be buried in a respectful way.
Alternative
ways of achieving the educational objectives of autopsy: The
following arguments cast doubt on the degree of necessity for cadaver
dissection in medical education. The cadaver is treated before dissection and
does not truly represent the structure or appearance of tissues in a living
person. Secondly with availability of computer graphics and anatomical models,
medical students can learn human anatomy very conveniently and more
efficiently. The necessity of educational autopsies can be reduced by modern
endoscopic and imaging technology that can enable inspecting internal
structures of a corpse without the making an incision to inspect internal
tissues. If the educational objective can be achieved fully using such
technology then the rational for the necessity will disappear and educational
autopsies will be considered repugnant to the Law.
Ethico-legal
issues in autopsy for legal or forensic purposes
The
necessity of a forensic post-mortem is based on the paramount paradigm of
Islamic Law to ensure justice. If the only way evidence about a crime on a
deceased is by an autopsy then it becomes a necessity to carry put the autopsy.
A forensic or medico-legal autopsy is more detailed in that it tries to look
for clues to the motivation and method of death. It is equally important to record
some findings as it is to record negative findings. The deceased should be
identified accurately. Documentation is very thorough. The time of death must
be estimated. The postmortem record is a legal document that can be produced in
a court of law.
4.4 Research
on dead corpse
There
are several types of research on the recently dead that can be permitted under
the principle of necessity if they will result in better health care that
fulfills the second purpose of the Law, preservation of life or hifdh al
nafs. Forensic pathologists may carry out research to study the process of decomposition
of the body. They then can use that information to estimate time since
death in cases of criminal homicide.
5.0
ETHICO-LEGAL ISSUES IN RESEARCH
5.1 Research on Humans
Purposes of the law in human experimentation: The
Islamic ethical theory on research is based on the 5 purposes of the Law, maqasid
al shari’at, religion, life, progeny, the mind, and wealth. If any of the 5
necessities is at risk permission is given to undertake human experiments that
would otherwise be legally prohibited. Therapeutic research fulfills the
purpose of protecting health and life. Infertility research fulfils the purpose
of protecting progeny. Psychiatric research fulfills the purpose of protecting
the mind. The search for cheaper treatments fulfills the purpose of protecting
wealth.
Principles of the law in human experimentation: The 5
principles of the Law guide research. Research is judged by its underlying and
not expressed intentions. Research is prohibited if certainty exists about
beneficial existing treatment. Research is allowed if benefit outweighs the
risk or if public interest outweighs individual interest. If the risk is equal
to the benefit, prevention of an injury has priority over pursuit of a benefit
of equal worth. The Law chooses the lesser of the two evils, injury due to
disease or risk of experimentation. The principle of custom is used to define
standards of good clinical practice as what the majority of reasonable physicians
consider as reasonable. Under the doctrine
of istishaab, an existing
treatment is continued until there is evidence to the contrary. Under the doctrine of istihsaan a physician can ignore results of a new experiment
because of some inclination in his mind. Under the doctrine of istislaah preventing an injury has priority over obtaining a benefit.
Informed consent: Informed
consent by a legally competent research subject is mandatory. Informed consent
does not legalize risky non-therapeutic research with no potential benefit. It
is illegal to force participation of the weak (prisoners, children, the
ignorant, mentally incapacitated, and the poor) in clinical trials even if they
sign informed consent forms.
Outstanding ethico-legal issues: Research
on fetal human tissues may encourage abortion. Cadaver dissection and post
mortem examination are permitted under necessity. Use of human bodies in auto
crass experiments violates human dignity. Genetic experiments may cause
diseases hitherto unknown. The Law allows research on ageing as long as the aim
is not prolongation of life or preventing death because those aspects are under
Allah’s control.
5.2 Research on animals
Enjoining kindness to animals: The
prophet enjoined kindness to animals. Saving animals from danger is a noble
act. There is reward for kindness to animals.
Prohibiting cruelty to animals: Cruelty
and physical abuse of animals are prohibited. There is severe punishment is
reserved for cruel treatment if animals. Face branding, beating, cursing,
sexual abuse, sexual abuse, and wanton killing of animals were forbidden.
Animal research: purpose and relevance: The
purpose of animal research is to spare humans from risk. Findings in animals
are relevant to humans because of similarities in physiology and biochemistry.
However findings in animals cannot be directly transferred to humans; research
on humans is still necessary for a definitive conclusion. Animal research is
exploratory and not definitive.
The Law and animal experimentation: The
position of the Law is that animal experiments are allowed if a prima facie
case can be established that the result of the research is a necessity, dharuurat.
Dharuurat under the Law is what is necessary for human life. The
regulations of necessity require that no more than the absolute minimum
necessary should be done, al dharurat tuqaddar bi qadiriha. Animal
research has definite risks for the animals that are not balanced by any
benefits: pain, suffering, permanent injury, inhumane treatment and operations,
and being killed (sacrificed). Thus use of animals in justifiable on the basis
of taskhiir and not any benefits that accrue to the animals. The risks
to humans from animal research are minimal in the short term; long-term effects
are difficult to fathom. The purposes and principles of the Law can be used to
analyze all legal aspects of animal experimentation.
Outstanding ethico-legal issues: There
are limits to taskhiir. Humans were not given a carte blanche to exploit
animals in any way they liked. They have to conform to the Law and moral
guidelines. If the results of animal experimentation will lead to protection of
human life, then research is allowed to proceed because then it is a necessity.
This is similar to killing animals for food, a necessity for human life. If
research is for general scientific curiosity unrelated to any tangible human
benefit, then it is beyond the authorization of taskhiir. There are
differences among animals. Animals considered dangerous and must be killed. Use
of such animals for research should therefore raise fewer ethical objections
than other animals. All types of animals used in research cannot be subjected
to unnecessary pain and suffering. Animals whose flesh is edible are preferably
used in research. Use of animals that are haram
like the pig should be avoided as much as possible and should be considered
only in cases of dharuurat. Animals,
like humans, have rights to enjoyment of life and good health. The researcher
must therefore follow Islamic etiquette to minimize animal suffering. The basmalah is said at the start of an
animal experiment, similar to slaughter of animals for food, in recognition of
the fact that the experiment is carried out with the permission of the creator
under the requirements of taskhiir. The animals must be shown kindness
and respect. They should not be subjected to the psychological pain of seeing
other animals in pain or being sacrificed. Pain must be minimized both during
the experiment and when the animal is being terminally sacrificed. This is
based on the legal requirement of slaughtering animals using a sharp knife and
as quickly as possible to prevent pain and suffering. The long-term effects of
the experiment on the animal must be considered and efforts made to decrease
suffering and pain. The nutritional and medical needs of the animal must be
taken care of before, during, and after the research.
REFERENCES
[i] (Bukhari
K23 B51)
[ii] (Muslim
K11 H58)