250805P - ISLAMIC MEDICAL ETHICS: A Framework For Contemporary Practice

Presented at the 23rd WAMY Medical Student Camp on August 5, 2025 10.30-11.30 am by Professor Omar Hasan Kasule Sr MB ChB (MUK), MPH (Harvard), DrPH (Harvard), Chairman of the Medical Ethics Committee at King Abdullah bin Abdulaziz University Hospital, Riyadh.

CONCEPT OF MEDICAL ETHICS

• The concept of medical ethics is a misnomer from a strict Islamic perspective. The correct term should be medical jurisprudence because ethics is not an independent discipline but is part of fiqh.
• Islamic Law is comprehensive, encompassing positive law and morality. 
• The modern discipline of medical ethics arose in European civilization as a necessity to deal with issues of a moral nature that the existing secularized laws could not handle because they lacked a moral dimension whose source is religion.

STAGES  OF  EVOLUTION  OF MEDICAL  FIQH

• In the first period (0 to circa 1370H), it was derived directly from the Qur’an and Sunnah. 
• In the second period (1370-1420), rulings on the many novel problems arising from drastic changes in medical technology were derived from secondary sources of the Law, either transmitted (such as analogy, qiyaas, or scholarly consensus, ijma) or rational (such as istishaab, istihsaan, and istirsaal). 
• In the modern period, the failure of the tools of qiyaas to deal with many new problems led to the modern era (1420H onwards) characterized by the use of the Theory of Purposes of the Law, maqasid al shari’at, to derive robust and consistent rulings. Ijtihad maqasidi is becoming popular and will be more popular in the foreseeable future.

EVOLUTION  OF  MAQASID  AL SHARI’AT - 1

• Maqasid al shariat are like a legal theory with the difference that they are developed from text, whereas normal legal theory is developed from actual court cases.
• Al Juwayni (d. 478H), in his book al Burhan, proposed extensions to the methodology of qiyaas and also proposed general principles, qawaid.
• AlGhazali (d. 505H) developed and systematized al-Juwayni's ideas, proposed broad principles of maslahat, and introduced the term maqasid al shariat. He divided the maqasid into religious, maqasid diini, and earthly, mawasid duniyawi. 

EVOLUTION  OF  MAQASID  AL SHARI’AT - 2

• Each purpose has dual aspects: securing a benefit, tahsil, and preservation with prevention of harm, ibqa. The term ri'atyat al maqasid covers both tahsil and ibqa. Ibqa, as mentioned above, has both preservation and promotion.
• Ghazzali divided the maqasid into three parts: necessities, dharurat; needs, hajiyat; and tawasu'u & taysiir. The third part has come to be known as embellishments, tahsinat. Some authors included maqasid al shariat under the general theme of ashbaah wa al nadhair.

EVOLUTION  OF  MAQASID  AL SHARI’AT - 3

• The new theory of maqasid al shariat opened the way for further development of the flexible part of the Law and excited the interest of many jurists, the most famous being the Andalusian Maliki scholar Abu Ishaq al Shatibi.
• Most of al-Shatibi’s work was an elaboration of the ideas proposed by Ghazzali. The new theory did not, however, lead to major practical changes because by that time the Islamic state was in decline, and the flexible part of the law was in the hands of the political leaders and not the jurists.
• A lot of books have been published on the maqasid in the past 20 years and include.

EXAMPLE OF MAQASID BOOK COVERS

THE 5 MAQASID - 1

• Protection of diin (hifdh al ddiin)
• Protection of life (hifdh al nafs)
• Protection of lineage (hifdh al nasl)
• Protection of the mind (hifdh al ‘aql)
• Protection of wealth (hifdh al maal). 

THE 5 MAQASID - 2

• Hifdh al nafs is the most commonly used in medicine. 
• Hifdh al nasl is invoked in reproductive matters (obstetrics and gynecology) as well as pediatrics. 
• Hifdh al ‘aql is invoked in psychiatry. 
• Hifdh al maal is invoked in health services administration in controlling medical care expenses.

EVOLUTION OF QAWA’ID AL FIQH - 1

• Qawaid al fiqh are legal axioms or legal codes.
• This Qur'an and Sunnah are comprehensive in the sense of providing general principles, qawa’id, that can be applied to specific situations.
• These principles are either stated in the Nass or are derived by inductive reasoning.
• If we can derive these principles from the primary sources, we can make the process of decision-making easier even for the non-specialist. 

EVOLUTION OF QAWA’ID AL FIQH - 2 (The First Generation)

• Qawaid existed and were used from the first generation. They were found in the concise but comprehensive sayings, jawamiu al kalim, of the Prophet; sayings of the companions, athaar al sahabat, and the sayings of the followers, aqwaal al tabiin.
• Qawaid were also found scattered in the earliest books of fiqh, such as Kitaab al Kharaaj by Abu Yusuf Ya'aqub Ibn Ibrahim (d. 182H), Kitaab al Asl by Imaam Muhammad bin al Hasan al Shaybani (d. 189H), and al Kitaab al Umm by Imaam al Shafie (d. 204H).
• Imaam Ahmad Ibn Hanbal also wrote some qawaid. 

EVOLUTION OF QAWA’ID AL FIQH - 3 (The Stage Of Documentation)

• Qawaid were scattered in the books of al Juwayni (d. 478H), Ibn Rushd the grandfather (d. 520H), al Nawawi (d. 676H), al Qarafi (d. 784H), Ibn Taymiyat (d. 728H), and Ibn al Qayyim (d. 751H).
• The following authors collected and published qawa’id in dedicated books: Imaam Abu Tahir al Dabaas al Hanafi in the 4th century (d. ), Imaam al Karakhi (d. 340H), al Dabuusi (d. 430H), al Subki (d. 771H), al Zarkashi (d. 794H), al Suyuti (d. 911H), Ibn Nujaim (d. 970H).

EVOLUTION OF QAWA’ID AL FIQH - 4 (The Stage Of Establishment And Coordination)

• The Majallat was published in 1285-1293H. The Majallat stated 99 basic qawa’id and expanded their applications to a total of 1790 qawa’id covering a wide array of issues in commercial transactions in the Hanafi school of law.
• The Majallat is considered an effort in the controversial area of codifying the shari’at. Many commentaries and translations were made of the Majallat.
• Unfortunately, this effort was not continued to its fruition in other areas of the Law because of the decline of the Ottoman state and its eventual overthrow by the European colonial powers, who then went on to impose their legal codes on Muslim countries and marginalized the shari’at.

EXAMPLE OF QAWA‘ID BOOK COVERS

HOW  TO  RESOLVE  ETHICAL ISSUES  IN  PRACTICE - 1

• What is an Ethical Dilemma?: A problem with two or more competing solutions. No fixed or unanimous rules and regulations. Whatever solution is adopted has practical, ethical, and legal implications.
• Ask Your Heart?: Humans were created with the innate ability to feel ‘right’ from ‘wrong’ Ð ask your heart first. In most cases, the rational = the moral. In a few cases, human rationality fails, and a higher moral guidance needs to be invoked.
• Authoritative Sources: At the Local, National, and International Levels: local scholar, fiqh council or academy, Mufti, laws and regulations.

HOW  TO  RESOLVE  ETHICAL ISSUES  IN  PRACTICE - 2

Solutions Using Maqasid Al Shari’at:

• Protection of ddiin (morality).
• Protection of life (life and health), hifdh al nafs.
• Protection of progeny (family and procreation), hifdh al nasl.
• Protection of the mind (psyche), hifdh al ‘aql.
• Protection of wealth (resources), hifdh al mal.

Solutions from Principles of the Law, qawaid al fiqh.

• The Principle of Intention, qa’idat al qasd: we consider the underlying intentions.
• The Principle of Certainty, qaidat al yaqeen: evidence-based decisions.
• The Principle of Injury, qaidat al dharar: cause no harm; balance benefit vs injury.
• The Principle of Hardship, qaidat al mashaqqat: exceptions in cases of necessity.
• The Principle of Custom or Precedent, qaidat al urf: follow the procedures.

DISCLOSURE AND TRUTHFULNESS

• Obligation to Tell the Truth (doctors should not lie to patients).
• What is Disclosed? (full disclosure unless there is a valid reason)
• Partial Disclosure and White or Technical Lies.
• Disclosures to Others about the Patient (not generally allowed without patient consent).
• Giving Bad News.

PRIVACY AND CONFIDENTIALITY

• Privacy.
• Confidentiality.
• Medical Records.
• Release of Confidential Information.

FIDELITY

• Definition of Fidelity.
• Conflicts Regarding Fidelity.

AUTONOMY AND CONSENT TO TREATMENT

• The Patient’s Autonomous Right to Consent.
• Conditions of Informed Consent.
• Refusal of Consent.
• Proxy Consent.
• Consent for Children.
• Mental Patients.
• Consent for the Unconscious.

ASSISTED REPRODUCTION

• Infertility.
• In vivo insemination.
• In vitro fertilization.
• Other Alternatives.
• Issues of Paternity and Maternity.

CONTRACEPTION

• Fertility.
• Population and birth control.
• Male contraception.
• Female contraception.
• Socio-demographic impact.

SEX  SELECTION  and  SEX CHANGE, al tahakkum fi al jins

• Background to Gender Preference.
• Non-invasive methods.
• Sperm separation.
• Intra-uterine.
• Post-natal sex change.

CLONING: Tissues, organs, and organisms

• Background to cloning.
• Medical Benefits.
• Medical Dangers.
• Legal Implications.
• Socio-demographic Implications.
• Speculation.

OTHER TECHNOLOGIES

• Genetic therapy.
• Gender correction.
• Menopause.
• Oncofertility.

LIFE SUPPORT  and  LIFE TERMINATION

• Legal definitions of terminal illness and death.
• Palliative care.
• Legal rulings on initiating and withdrawing life support: purpose of life and wealth, principle of certainty, and autonomy.
• Euthanasia: passive and active.
• Feticide, infanticide, homicide.

OUSTANDING ETHICO-LEGAL ISSUES IN SOLID ORGAN TRANSPLANTATION

• A definition of what constitutes the moment of death, such that organs can be harvested.
• The right over the body organs.
• Respect for the human dignity of the dead.
• Possible criminal or commercial abuse when organized crime gets involved in the procurement and sale of human organs.
• Harvesting organs from minors and legally incompetent persons.

RESEARCH

• Research on humans.
• Research on animals.

ETHICO-LEGAL ISSUES RELATING  TO  THE  LEGAL GUARDIAN  / PROXY DECISION MAKER

DEFINITION  OF  COMPETENCE (تعريف الاهلية) 

• A person with full legal competence has full rights in decisions and actions regarding their person and property. He also has full responsibility for his actions of commission or omission.
• Legal competence (ahliyyat) is the basis for intention (niyyat), which is the basis of the validity of human actions. Therefore, human actions cannot be valid without legal competence.
• There is a difference between competence and capacity. A competent adult may not be capacitous because of an inability to speak.
• Competence is task-specific. A person competent in one task may be incompetent in another one.
• A legally incompetent person is not held liable for some of their actions or words. The prophet said ‘rufi’a al qalam ‘an thalaathat’...
• Techniques of forensic psychiatry may be used to test for competency.

CONDITIONS  OF  LEGAL COMPETENCE  (شروط الاهلية)  

• Intellect, ‘aql, the main condition is that of intellectual competence.
• Puberty, buloogh, is an approximation of intellectual maturity.
• Knowledge, ‘ilm of obligations, rights, actions, and their consequences, can affect legal competence.
• Civil liberty or freedom, Hurriyat.
• Emotional competence is considered in some decisions, like marriage or medical decisions under stress.

TYPES AND CAUSES OF LEGAL COMPETENCE / INCOMPETENCE

• Legal competence concerning the acquisition of rights, ahliyat al wujuub, legal competence concerning the execution of obligations, ahliyat al adaa.
• Full competence, ahliyyat kaamilat, or deficient competence, ahliyyat naqisat.
• General competence vs. specific competence.
• Voluntary impediments to competence, mawaniu al taklif al ikhtiyariyat, e.g., ignorance, jahal; intoxication, sikr.
• Involuntary impediments to competence, mawaniu al taklif ghayr al ikhtiyariyah or awaridh samawiyyah, e.g., madness, junuun; mental impairment, safah, loss of consciousness, ighma, childhood, sighar. Forgetting, nisyaan & sahaw, terminal illness, maradh al mawt, absent-mindedness, ghaflat.

GUARDIANSHIP (ولاية)

• Legal guardianship, wilayat, is legal authority given to a guardian, waliy, to make and carry out decisions regarding the person, nafs, or wealth, maal.
• Two types: general guardianship (wilaayat shar’iyyat) and specific medical guardianship (wilaayat tibbiyat).
• Qualifications of the guardian (shuruut al waliy): he must be legally competent and must be able to carry out the duties of guardianship.
• The decisions of the guardian are binding unless they are clearly not in the best interests of the patient.
• Who is the waliy: a blood relation or a representative of the government? If several blood relations are in the hospital, the guardian is selected according to the rules of inheritance.
• Decision by a proxy can work in two ways: (a) decide what the patient would have decided if able, or (b) decide in the best interests of the patient.
• The guardian must abide by the advance directive or living will.

QAWAID AL FIQH OF COMMERCIAL DELEGATION IN MEDICAL CONSENT – 1 (كتاب الوكالة في مجلة الاحكام العدلية)

• Wilaayat in medical consent is nearer wikaalat in commercial matters than to wilaayat in family matters.
• A wakiil is authorized to decide and act on behalf (Article No. 1449). A Rasul just conveys decisions (Article No 1450).
• It is recommended that a patient assign a wakiil on admission. This will solve many problems. The matters to be decided must be defined exactly (Article No. 1468).
• The wakiil must accept to act as wakiil (Article No 1451). The wakiil can relieve himself of the delegation (Article No. 1522). The wakiil can be relieved (Article No 1521).
• A wakiil is subject to conditions (Article No. 1456) and restrictions (Article No. 1479).

QAWAID AL FIQH OF COMMERCIAL DELEGATION IN MEDICAL CONSENT – 2 (كتاب الوكالة في مجلة الاحكام العدلية)

• The wakiil must be competent and capacitous (Article No. 1457, 1458); incompetence abrogates wikaalat.
• If two are assigned as wakiil, they must act together (Article No. 1465).
• A wakiil cannot delegate to another person without prior approval (Article No. 1466).
• The wakiil has to avoid conflict of interest when making decisions (Article No. 1485, 1496).
• The wakiil can represent in legal disputes.

MINISTRY OF HEALTH CIRCULAR 2/50/101994 dated 26/3/1433 - 1

• Consent for children < 18 years is: father, mother, brother, and sister.
• Consent for incompetent adults: father, mother, brother, sister, son, sister.
• Consent for an adult competent male or female patient > 18 years by himself/herself.

MINISTRY OF HEALTH CIRCULAR 2/50/101994 dated 26/3/1433 - 2

• The next of kin must be: > 18 years, related by blood to the patient, and have an identification card.
• A competent adult signs himself/herself, but if not physically able, a next of kin can sign on behalf.
• The authorized next of kin signs on behalf of the children.
• A legal representative (wakil) who is not a next of kin signs if legally authorized.
• The wife signs by herself for all operations except tubal ligation or hysterectomy that require the husband’s consent.

PARENTS  AS  GUARDIANS  OF CHILDREN

• Below the age of 7 (age of discrimination sinn al tamyiiz), all decisions are made by the legal guardian. Between 7 and puberty, children can assent, but a guardian must approve.
• If the 2 parents disagree, the physician can proceed if one of the parents consents. If the child disagrees with the parent, the parental choice is followed.
• The court can override parental consent if not in the best interests of the child 
• The physician can proceed to give life-saving treatment to a child even if parents refuse to give consent.
• Parental decisions on organ donation to a relative may be a conflict of interest.
• Children who are parents decide for themselves.
• Children above puberty or 18 years may not be intellectually mature enough to be competent.

RECONSTRUCTIVE AND COSMETIC SURGERY: CONCEPTUAL AND ETHICO-LEGAL ISSUES

THE CONCEPT OF CHANGE OF GOD’S  CREATION

• There is stability of creation and stability of physical laws.
• The unchanging creation mentioned is the constancy of the laws that govern the universe.
• Change is allowed if it follows the Laws.
• Any changes that do not follow these laws are repudiated.

MOTIVATION FOR RECONSTRUCTIVE / COSMETIC SURGERY - 1

• Desire to undertake reconstructive or cosmetic surgery arises out of dissatisfaction with defects and the associated embarrassing appearance.
• Defects are due to injuries that, according to the principle of injury, must be removed.
• Technology to remove or correct defects is not opposing or denying God’s creation.

MOTIVATION FOR RECONSTRUCTIVE / COSMETIC SURGERY - 2

• A serious issue would arise if a human were to be dissatisfied with God’s primary.
• God’s creation is optimal and perfect. Humans cannot conceptualize a better creation than what they then prefer.
• Deliberate effort to change God’s primary creation without valid reasons is misguided.
• There is a risk in tampering with nature without following the physical laws on which the universe is built.

BEAUTIFICATION

• God made humans in a perfect image.
• God also allowed humans to enhance their physical appearance by wearing clothes and using perfumes.
• Beautification measures improve appearance, but do not change the primary creation.
• Humans, in disobedience, undertake other forms of beautification that change basic creation.

RECONSTRUCTIVE / RESTORATIVE SURGERY - 1

• 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 & embarrassment, and restore function. These purposes do not involve a change of primary creation but are the restoration of the primary creation to its state before the injury.

RECONSTRUCTIVE / RESTORATIVE SURGERY - 2

• Similarly, restorative surgery for deformities due to disease or treatment does not involve a change of primary creation since they are returning to the normal.
• Surgery to hide the identity of a witness is allowed. A surgical operation to reveal the true gender is not a change of creation but is an attempt to restore the primary creation altered by hormonal or chromosomal damage. Such operations have another objective of trying to preserve or restore the reproductive function.

COSMETIC SURGERY - 1

• 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 God’s creation was ugly.
• Under the principle of motive, 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.

COSMETIC SURGERY - 2

• We, however, must consider the benefits of cosmetic surgery against its harm under the principle of injury. The Law gives priority to the 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 is not necessary for life and good health. Beauty is, in any case, a nebulous intangible entity that is very subjective.

GENERAL CASE SCENARIOS

PRE-NATAL  AND  NEONATAL ETHICS

Case scenario 1: Benefits of early disease screening versus suffering from false negative results.

• The city council introduced universal compulsory Pap smear screening for all women aged 20 and above. During the year, a false positive rate of 20% was found (i.e., women who were positive on Pap smear but negative on confirmatory biopsy). The mass media led a campaign to stop the screening program because cervical biopsy was found to be associated with many other problems.

PALLIATIVE  CARE  FOR  THE TERMINALLY  ILL

Case scenario 2: Palliative vs. curative care.

• A 90-year-old in ICU with stage 4 widely metastasized cancer and multi-organ failure was told by the doctors that there was nothing they could do to reverse the course of the disease, and that they could only provide symptomatic treatment. He asked to be discharged to die at home. His children objected, saying that he needed complex nursing care that they could not provide at home. He was finally admitted to a private hospice that provided palliative care at great expense.

END OF LIFE DECISION - 1

Case scenario 3: DNR physicians vs. family.

• Doctors wrote a Do Not Resuscitate (DNR) order for an 80-year-old grandmother with disseminated, untreatable ovarian cancer. Her family objected vehemently when told of this decision and sought its reversal. Before the dispute was resolved, the patient collapsed after an episode of acute pneumonia unrelated to her original condition. The nurses followed the DNR order and did not call the resuscitation team.

END OF LIFE DECISION - 2

Case scenario 4: Withholding futile life support.

• A car accident victim in severe shock was wheeled into the Emergency Room with unrecordable blood pressure or pulse. ECG showed low-amplitude, slow waves. The doctor did not declare death, despite the insistence of family members-refused to institute life support because he reasoned there was no hope. The patient was declared dead one hour later. The family threatened to sue the doctor.

RELATIONS WITH INDUSTRY

Case scenario 5.

• A company producing drugs for the management of hypertension has offered to pay the part-time salary of a nurse in a doctor’s practice. The nurse’s role is to audit patients’ records, ensuring that those with hypertension are regularly examined and receive up-to-date medicine. The doctor thinks this enhances patient care. The nurse provides anonymous patient data to the company but is barred from promoting its products. Information about the company’s drugs is regularly provided by a sales team, which visits the practice and pays for working lunches with the doctor. A good relationship exists, and the company provides occasional gifts and invites the doctor’s staff for dinner. 

CASE SCENARIO 6

• Dr. Ahmad is a 46-year-old gastroenterologist consultant working in a hospital in Riyadh. He has been working happily in the same hospital for the past 13 years and has never had any problems.
• One day, he is approached by a representative named Saleh from a major pharmaceutical company. Saleh tells Dr. Ahmad about a new drug that the company has made that can effectively treat diarrhea, and Ahmad is invited to see a presentation on the drug in Dubai. The company pays all the costs for a three-day trip for Ahmad, even though the presentation was only going to be on one day. Ahmad accepts the invitation, and after attending the presentation, he enjoys the rest of the three days in Dubai as a vacation.
• When he returns, Saleh visits him again and says that the company was grateful that he attended the presentation, and as a show of their gratitude, they are willing to offer him 10 riyals every time he prescribes their drug to a patient. 

END OF LIFE DECISION - 3

Case scenario 7: Post-mortem family vs. police.

• A policeman died suddenly during a fight with criminals, who were later arrested. The police authorities wanted to carry out a post-mortem to determine the cause of death to charge and punish the criminals with homicide. Some members of the family objected to the post-mortem because it was against the Sharia. Other members supported the post-mortem for insurance compensation purposes.

ETHICAL ISSUES IN RESEARCH

Case scenario 8.

• A new drug that had proved effective against leukemia in animal, in vitro, and phase 2 trials was submitted for human trials. Its risk profile was not well understood from earlier studies. It was to be tested against a placebo. There was no known effective treatment for this disease.

PUBLIC HEALTH ISSUES

Case scenario 9: Preventive versus curative medicine.

• A heated argument in the city council occurred between the Public Health Officer, who wanted to get funding for a community heart disease education program costing SAR 50,000 a year, and members of the council who wanted to allocate a higher budget to set up a coronary care unit costing SAR 5 million. Eventually, the decision was made to set up the coronary care unit because of the votes of a majority of council members who were elderly, some of whom had heart disease.

CASE SCENARIO 10:

Controversy about childhood immunization.

• In a wealthy neighborhood of the city,  professionals  (including doctors) refused to take their children for measles vaccination, arguing that the side effects of the vaccine, though low overall, were much higher than the risk of measles, which had not been diagnosed in their community for the past 10 years. They also argued that their children went to neighborhood schools and did not mix with children from areas where measles was endemic.

CASE SCENARIO 11:

Autonomy versus benefit.

• Noticing a threefold increase in the diagnosis of late-stage colon cancer that was fatal within a year, the city council passed a resolution requiring all men and women above 40 to undergo colonoscopy screening once every 5 years, with the warning that those who refused screening would not be treated for free if they got cancer.

CASE SCENARIO 12:

Prioritization of services in an emergency: Vulnerability versus social utility.

• A poisonous gas escaped from a factory in the city, and only limited amounts of antidote were available. The city council held a meeting to decide priority targets for the antidote. The decision was taken to give the available doses only to emergency health workers.

CASE SCENARIO 13:

Payment for unhealthy disease-causing lifestyles.

• The government introduced free universal health insurance for all citizens. Anti-smoking advocates objected to coverage of smoking-related diseases, saying that smokers should pay for their health care since they deliberately expose themselves to a risky lifestyle.