A. Legal Definitions Of Terminal Illness And Death
B. Life Support Technology
C. The Principle Of Certainty
D. Balancing The Purposes Of Protecting Life And Conserving Resources
E.The Principle Of Autonomy
B. Analysis According To Purposes Of The Law, Maqasid Al Shariat
C. Analysis According To The Principles Of The Law, Qawaid Al Shari’at
D. Historical Precedents
E. General Conclusions
10.3.4 FETICIDE AND INFANTICIDE
A. Historical Background
E. Social Injustice
10.3.5 SUICIDE, HOMICIDE, GENOCIDE, CAPITAL PUNISHMENT
D. Judicial Execution
10.3.1 PALLIATIVE CARE
A. CONCEPS AND PRINCIPLES
A motivation for improving palliative care is the concept of good death. Whereas death in inevitable, much can
be done to make the death process as comfortable as possible. The confort may be physical. It may also be psychological involving
allaying anxieties and fear of death among the terminally ill. The tables could be turned around and the terminal illness
can become a pleasant moment. This is because the person is resigned to their fate and are no longer concerned about the routines
of life that prevent them from thinking of loftier and nobler objectives. The dying person realizes that they could not make
any more material achievements: wealth, positions etc. They therefore have time to reassess their past time in an objective
and detached way and with no pressure or haste. This may be the time when nobler human qualities can surface. The terminally
ill can forgive those who wronged them. They can afford to be generous to their enemies. They can seek forgiveness for any
harm they caused others. And finally and above all they can make peace with their creator.
The realization that earthly life is soon coming to an end, opens the mind to the alternative life of the hereafter.
In life people hear about the hereafter and talk about it but they are so busy in the pursuit of material pleasures and possessions
that they give it no thought. Terminal illness provides an opportunity to think about the life in the hereafter that can be
better than life on earth for the righteous. The prophet Muhammad like all prophets before him was given a choice between
life and death and voluntarily chose death, khuyyira baina al mawt wa al hayaat fa ikhtaara al mawt (KS 484).
From a historical perspective, palliative care was not an important concern of health care workers for several
reasons. In the absence of effective medical and surgical interventions, illnesses were rapidly fatal with little time left
for palliative care. The demand on health resources was always so high that preference was always given to the living and
the terminally ill were neglected to their fate. It was only the family members who undertook palliative care to the best
of their abilities. It is the family-oriented palliative care that has created cultural barriers to seeking professional palliative
care. The reasoning being that the dying can only be cared for by their families. Family-oriented palliative care is becoming
difficult in today’s industrialized society because the extended family has virtually disappeared and all members of
the nuclear family are busy in their occupational pursuits leaving nobody at home to care for the terminally ill. Thus the
need for professional care at free-standing hospices or hospital-based hospices. A compromise has also been struck in some
cases by professional palliative care within the home.
The following is a summary of guiding Islamic concepts on illness, death, cure, and the etiquette with the terminally
ill. They are the basis for palliative practice. Illness is not all negative,
it has positive human aspects. Death is not a terminal event; it is a transitional
event from one state of existence to a better one. The cure of illness or death
are in the hands of God; the healthcare givers' role is to make ensure that the remaining life-time has the highest quality
possible. Health care workers must provide a total package to the terminally ill
that addresses physical, psychological, spiritual, and legal needs. They should also be involved in the continuum of events
before and after death including the burial and mourning processes. The physician bed-side visit has both social and professional
aspects and should strengthen the patient psychologically. Spiritual preparation
to face death involves repeating teachings of Islam on the nature of disease, death, and the hereafter. Caregivers should
guide and participate with the relatives and friends through the processes of mourning which include preparation of the body
for burial, the burial itself and the post-burial period. This all-round concern and
participation of the caregivers with the patient and he relatives are a demonstration of total care.It comforts the living that when their turn comes somebody
A pertinent question may be asked: why expend resources in palliative care when we know that the person is terminally
ill? There are several ways of justifying palliative care. It is part of respect for human dignity that a person dies in as
comfortable a status as possible especially without much pain. The relatives also want to feel that they have done all what
they can for the terminally ill and that they have mitigated the suffering of the last moments.
B. PROPHET’S TERMINAL ILLNESS
The prophet had a premonition that his earthly life was nearing its end even before he fell sick. During the farewell
pilgrimage he told the congregation that he was not sure whether he would meet them again. His farewell sermon is very famous
and was like a testament of a person who is soon passing away. On return to Madina he fell ill. He attributed his terminal
illness to poisoned food taken in khaybar, kaana ya’azu maradh mawtihi ila aklat khaybar (KS 479 Bukhari K64
B83). The books of siirat have preserved for us the details of the last days, ayaamuhu al akhhirat (KS 485). He spent
the last days of his illness in the apartment of‘Aishah, kaana maradhuhu
al akhiir fi hujrat Aisha (KS 486). His pain became very severe, ishtadda alayhi al waji’u fi maradhihi al akhiir
(KS 485). When the poin became severe, water was poured on him to control the fever, uhriiqa ‘alayhi min saba’e
qirab (KS 485). He sought treatment, kayfa kaan yu’aaliju nafsihi fi maradhihi al akhiir (KS485). He was
given some treatment that he did not like, laqad ludda wa huwa ghayr raadhi (KS 485). On preparation for his passing
away he distributed all his property, tawzii’u al maal qabla wafaatihi (KS 484: Ibn Sa’ad J2 Q2 p32-34,
Ahmad 6:104, 182). He had wanted to write a will but Omar intervened and prevented it, haylulat omar baynahu wa bayna kitabat
wasiyatihi (KS 484: Bukhari K4 B39, Bukhari K58 B6, Bukhari K64 B84, Bukhari K75 B17, Bukhari K96 B26, Muslim K25 B27,
Waqidi K2 Q2 p36, 324, 336; Ahmad 1:232, 293, 324, 336, 355; Ahmad 3:346).
He passed away while held by Aishah, wafatuhu bayna dhira’ay aishah (KS486) or Ali, wafatuhu bayna dhira’ay aishah (KS486)
C. TERMINAL ILLNESS OF COMPANIONS
Abubakr’s terminal illness was short and relatively uneventful (KS 55). Omar had a premonition about the
approach of his death, hadith qalbihi bi dunuwi ajalihi (KS 401). He was assassinated while leading the dawn prayer
in the mosque, khabar maqtal omar (KS 401). He however completed the prayer despite the pain of his wound, itmaamuhu
al salaat ba’ada ta’amihi (KS401). Omar did not die immediately. A physician, brought to examine him, gave him
a glass of milk to drink. When the milk came out through the wound he told him to appoint a successor, a’ahid ya
amiir al mu’uminiin, because death was deemed inevitable. He had time to appoint an electoral college that would
choose the next khalifat. He requested Aishah to be buried in her apartment next to the prophet and Abubakr, sualuhu aishah
an yudfana ‘inda al nabbiy (KS401). He also left instructions on what was to be done to his body, wasiyatuhu
fiima yufu’alu bi juthatihi (KS401). His last words, akhir kalaamihi (KS402). Both Othman and Ali were killed
by assassins so there was no time for palliative care. Khalid Ibn al Waliid, the sword of Islam, cried when he was on his
death-bed. He was disappointed that after fighting in so many encounters such that no part of his body was free of a scar,
he was dying like a goat; he would have preferred to die in the battle-field. Bilaal told his wife not to cry in his terminal
illness because he was looking forward to death so that he might join his friend the propher. The books of siirat recount
deeds of bravery and nobility at the death of other companions: Sa’ad Ibn Abi Waqqaas (KS277), Abu Ibaydah Ibn al Jarraah
who died in the Awamis plague (KS58), Salman al Farisi (KS285), Abu Hurairah (KS60), al Zubayr ibn al Awwaam (KS257), Abd
al Rahman ibn Awf (KS365), Abdullah Ibn Rawahah (KS366), Ibn Omar (KS369), and Abi Dharr al Ghifaari.
D. PALLIATIVE CARE: ORGANIZATION AND CONTENT
Palliative care can be in the home, in a hospice section of a hospital, or in a free-standing hospice. Many patients
suffer from pain; powerful analgesics are needed including opiates. The essential drugs: (a) non opiod eg paracetamol (b)
opiods eg codeine (c) opiod for severe pain eg morphine. Recitation of the Qur’an and supplications are needed in addition
to pain control.
Palliative care education is needed for physicians and nurses in general hospitals in order to change their attitudes.
The sources of learning are: case discussions, observation and example, attachment to palliative care units. The role of nurses
in hospice care includes communication, and emotional support for the patient and the family.
E. ETIQUETTE WITH ELDERLY PARENTS
The Qur’an has taught us the etiquette of dealing with elderly parents who are usually sick and need a lot
of care in their terminal illness. Good treatment of parents is one of the most beloved acts infront of Allah, birr al
waalidayn min ahabb al ‘amal ila al llaah (KS247). The Qur’an ordained good treatment of both parents (p 188-189
2:83, 2:215, 4:36, 6:151, 17:23-24, 29:8, 31:14-15, 46:15-18). There is great reward for good treatment of parents, ajr
birr al waalidayn (KS247). A person who has elderly parents and fails to enter paradise will be humiliated (KS247). Good
treatment of the parents includes obeying them, taa’at al waalidayn (p 14 37:101-102). Mistreatment of the parents
is a major sin, ‘aqq al waalidayn min al kabair (KS248). Cursing or mistreating the parents has severe punishment,
‘uquubat laa’in waalidayhi wa ‘aaqihima (KS 248).
9.3.3 ARTIFICIAL LIFE SUPPORT
A. 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 passive euthanasia. The following are various definitions
of death: (a) traditional: cardio-respiratory arrest (b) Whole-brain death (c) Higher brain death. If a patient has higher
brain death, life support can be removed on the basis that he is dead. If death is defined in the traditional way, life support
can not be withdrawn at any stage. Since he definition of death and the exact time of its occurrence are still matters of
dispute, a major irreversible decision like withdrawing life support can not be taken. Islamic law strictly forbids action
based on uncertainty, shakk. New treatment methods may be discovered to reverse
'terminal illness' thus making 'defined death' not terminal. Before the discovery of antibiotics TB was a terminal illness
but it is now considered an easily-cured disease. 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.
The principle of certainty, qa’idat al yaqeen, is
invoked in the definition of death. The definition of death requires that there should be no doubts at all (al yaqeen la yazuulu bi al shakk). Of all available definitions of death, it is only the traditional definition
of death as cardio-respiratory failure that is accepted by all. There is no doubt about its irreversibility. Brain death,
partial or complete, is still controversial and it is possible that new medical technology could reverse brain death. The
implication of death definition is that once a person is declared dead with certainty, the withdrawal of life support does
not constitute homicide and is not a case of euthanasia. Since there is no new unanimously-agreed definition of death, we
have to stick to the traditional one. The provision of the law is that existing assertions should continue in force until
there is compelling evidence to change them, al asal baqau ma kaan ala ma kaana (b)
There is doubt about the legality of the living will because it is made by a person in perfect health. The same person could
have different opinions when in terminal or severe illness. Islamic law in general discourages speculative or hypothetical
thoughts or actions that are taken before the event. There is also doubt about the right of a person to make decisions about
the disposition of his or her life because life belongs to Allah only and it is He alone who disposes. The Islamic law of
wills deals with property and even in that domain, there are restrictions on how much can be willed as gifts with the rest
being distributed among the inheritors according to the law. It is therefore untenable that in the case of euthanasia the
living will is accepted without restriction. (c) In the emotionally-laden and psychologically-stressed situation of terminal
illness, there no certainty that the patient's consent to withhold or withdrawal treatment and nutrition is a true expression
of their free wish. Under the law some forms of coercion, istikraah,invalidate decisions such as this one.
B. LIFE SUPPORT TECHNOLOGY
Medical and surgical procedures may be carried out to support life functions and replace organs damaged beyond
repair. These include the artificial respirator, he heart-lung machine, kidney dialysis, and parenteral feeding. Most of these
are heroic measures that do not change the basic condition. The patient inevitably succumbs as soon as they are withdrawn.
The following are Islamic principles that guide decision-making in terminal caere. Death is accepted as natural inevitable
event. The quality of life must be maintained as high as possible in the last days. Death in dignity is a worthy objective
in terminal care and life support. Measures must be taken to lessen the emotional burden of a prolonged illness; both the
patient and the family suffer. Withdrawal of life support remains a controversial measure and we will analyze the issue in
the ramainder of the unit.
C. THE PRINCIPLE OF CERTAINTY
THE PRINCIPLE OF CERTAINTY, qa’idat al yaqeen,
in invoked in the following situations.The definition of death requires
that there should be no doubts at all (al yaqeen la yazuulu bi al shakk). Of all
available definitions of death, it is only the traditional definition of death as cardio-respiratory failure that is accepted
by all. There is no diubt about its irreversibility. Brain death, partial or complete, is still controversial and it is possible
that new medical technology could reverse brain death. The implication of death definition is that once a person is declared
dead with certainty, the withdrawal of life support does not constitute homicide and is not a case of euthanasia. Since there
is no new unanimously-agreed definition of death, we have to stick to the traditional one. The provision of the law is that
existing assertions should continue in force until there is compelling evidence to change them, al asal baqau ma kaan ala ma kaana (b) There is doubt about the legality of the living will because it is made
by a person in perfect health. The same person could have different opinions when in terminal or severe illness. Islamic law
in general discourages speculative or hypothetical thoughts or actions that are taken before the event. There is also doubt
about the right of a person to make decisions about the disposition of his or her life because life belongs to Allah only
and it is He alone who disposes. The Islamic law of wills deals with property and even in that domain, there are restrictions
on how much can be willed as gifts with the rest being distributed among the inheritors according to the law. It is therefore
untenable that in the case of euthanasia the living will is accepted without restriction. (c) In the emotionally-laden and
psychologically-stressed situation of terminal illness, there no certainty that the patient's consent to withhold or withdrawal
treatment and nutrition is a true expression of their free wish. Under the law some forms of coercion, istikraah,invalidate decisions such as this one.
D. BALANCING THE PURPOSES OF PROTECTING LIFE & CONSERVING RESOURCES
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, israaf, that has been condemned. The patient's choices
about food and medical treatment my contradict the purpose of preserving life. Where life in under immediate threat, the patient's
desires may be overridden.
E. THE PRINCIPLE OF AUTONOMY
General binding legal rulings, fatwa, can
not be made on most issues related to euthanasia; each case should be considered on its own merits. The rapid changes in medical
science also make a general binding fatwa even more irrelevant because the balance
of harm and benefit change almost daily with discovery of new drugs and surgical technics. Legal rulings change with the change
of time, taghayyur al ahkaam wa taghayyur al zamaan. This manual does not pretend
to give any legal rulings, fatwa, on
the issues raised. It makes analyses that clarify the issues fromthe legal and
medical points of view. It asserts that general purpose fatwas are irrelevant in
this situation because there are many parameters that go into making a decision including the inclinations and feelings of
the patient, conflicts of interests, and psychological factors.Since these factors
are intangiblesthat are difficult to put into the equation, it is felt thatphysicians and fuqaha should confine themselves
to clarifying the issues and leaving the final decision to those most concerned.
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 fuqaha. This could
take the form of a living will which is an authorization to disconnect life support under specified conditions. The patient
may be allowed to stop taking medication or food so that he passes away.
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 withpersonal 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 can not be an inheritor, mirath al qaatil. It is therefore
impossible for any member of the close family to take part in euthanasia decisions. Physicians and other health care givers
may abuse euthanasia and kill whom they want. They could be bribed to kill people by either family members or others.
DEFINITION OF EUTHANASIA:
Euthanasia is Greek for good death which translates into English as easy death or mercy killing.It was accepted by the ancient Greeks and Romans. Three Asian religious traditions accept euthanasia: Budhism,
Shintoism, and Confucianism. It was rejected by the 3 main monotheistic religions: Christianity, Judaism and Islam. It has
its supporters and opponents in all countries. Two types of patients are involved in euthanasia: (a) a patient in a persistent
vegetative state who is awake but is not aware of self or the environment. Such a patient has no higher brain functions and
is kept 'alive' on artificial life support: respirators, heart-lung machine, and intra-venous nutrition (b) patient in terminal
illness with a lot of pain, psychological suffering and loss of dignity. The patient may or may not be on life-support.
TYPES OF EUTHANASIA:
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. Passive euthanasia can be withholding or withdrawing water, food, drugs, medical or surgical
procedures, resuscitation like CPR, and life support such as the respirator. The patient is then left to die from the underlying
disease. Sometimes a distinction is made between normal nutrition and hydration on one hand and medical nutritional support
involving intravenous and naso-gastric feeding on the other hand. Euthanasia can be by the patient or by the health care giver.
Euthanasia can be voluntary when the patient takes the decision, non-voluntary when the decision is made by another person
for an unconscious patient, and involuntary when the decision is made contrary to the patient's wish.
MORALITY OF EUTHANASIA:
The following is a brief summary of European and American arguments for and against euthanasia. Two arguments are
advanced for active euthanasia: (a) mercy killing because of pain, psychological and physical suffering (b) the utilitarian
argument is that euthanasia is desirable because it relieves the misery of the terminally ill. Two arguments are made against
active euthanasia. (a) killing is morally wrong and is forbidden by religion (b) unexpected cures or procedures may be discovered
to reverse the 'terminal' condition.
LEGALIZATION OF EUTHANASIA:
Islamic Law views all forms of euthanasia as murder. Those who give advice and those whp assist in any way with
suicide are guilty of homicide. Islam teaches patience, sabr, for prolonged and painful disease. Active euthanasia is illegal
in all countries except the Netherlands.
Controversies on legalization of euthanasia in Europe and America
are continuing. The argument for legalizing euthanasia is that the individual's freedom entails liberty or choice in all matters
as long as the rights of any other person are not infringed upon. The argument against legalizing euthanasia is that it will
lead to disrespect for human life. Euthanasia can then be abused for criminal purposes. A financial motive is sometimes advanced
in favor of euthanasia. It costs money from the family of the government to keep terminally sick people on life support which
will be wasted resources if they eventually die.
RULING OF THE SHAR’AT ON EUTHANASIA
The issue of euthanasia can arise in terminal illness. Taking human life by any of the following measures for purposes
of easing the burden of a prolonged illness is illegal. The patient may refuse food and/or treatment. The caregiver may withhold
nutrition and /or medical care. The caregiver may advise and/or assist the patient in taking life. A paper presented by the
author at a seminar on Ethics in Medicine held at Hospital Kuala Lumpur on 28th
November 1998 , analyzed euthanasia in its various forms employing the 5 Purposes of the Law, maqasisd al sharia, and the 5 Principles of the Law, al qawaid al fiqhiyyat
al kulliyat. Use of textual, nass, evidence had limited success because the
issues involved are new and there are no relevant legal precedents.The analysis concluded that active and passive euthanasia are
both illegal because the intention behind them is the same, taking life. A physician is legally liable for any euthanasia
actions performed even if instructed by the patient. The only allowable actions are patient refusal of normal food, hydration,
or heroic medical procedures. Physicians have not right to interfere with ajal
which was fixed by God. Disease will take its natural course until death. This course is not known by physicians for each
individual patient. It is therefore necessary that they concentrates 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
can not be stopped.
B. ANALYSIS ACCORDING TO PURPOSES OF THE LAW, MAQASID AL SHARIAT
(i) The purpose of preserving life, hifdh al nafs, makes any form of
active or passive euthanasia illegal. Life and good health must be protected and promoted in all circumstances. This includes,
inter alia, adequate nutrition, hydration, prevention and treatment of any illness
and disease. Every disease has a treatment known or discoverable by further scientific research. The purpose of preserving
life does not imply human ability to delay death or lengthen the life-span because those are the prerogatives of God alone.
(ii) Euthanasia violates the purpose of preserving religion, hifdh al ddiin, because
it involves a human attempt to violate the divine prerogative of giving and taking away life. (iii) Euthanasia can indirectly
lead to the violation of the purpose of preserving progeny by cheapening human life thus encouraging suicide, homicide, and
genocide. (iv) The enormous resources used to care for terminal patients have to be considered in the light of the purpose
of preserving wealth, hifdh al maal. Those resources, if from the family, could
have been used to care for the orphans and widows left behind. If they are from the state they could have been used to care
for many poor and disadvantaged persons. Using them in a case with no hope of eventual recovery could be a form of waste.
C. ANALYSIS ACCORDING TO THE PRINCIPLES OF THE LAW, QAWAID AL SHARI’AT
THE PRINCIPLE OF INTENTION, qa’idat al qasad
is invoked in 3 situations. (a) There is no legal distinction between
active and passive euthanasia because the law considers only the intentions behind human actions and ignores the terminology
used, al ibrat fi al mawasid wa al ma'ani wa laisa li al alfaadh wa al mabaaani.
Since both active and passive euthanasia have the same intention of ending the life of a terminally ill patient, they are
the same action under the law. The physician who advises, assists, or carries out a euthanasia operation at the instructions
of the patient in full knowledge of the underlying intention is committing a crime. The maxim of the law is that an act is
illegal whether done by the person or by an agent, ma haruma fi'iluhu haruma talabuhu.(b) The physician involved in euthanasia either as an active participant or an advisor
may have intentions relating to self-interest and not the interests of the patient or those of religion. These could include
trying to get rid of a difficult medical case, cutting costs of intensive and expensive terminal care, or possible ulterior
material, political, or social motives. (c) members of the family may have the intention of hastening death in order to inherit
the deceased's estate. They may also want to avoid the costs of terminal care. In both cases (a) and (b) there is a possibility
of bad intention in euthanasia decisions. The general principle of the law if to give priority to prevention of evil over
accrual of a benefit. Thus euthanasia is forbidden because of the potential evil inherent in it.
THE PRINCIPLE OF INJURY, qa’idat al dharar,
asserts that no one should be hurt or cause hurt to others, la dharara wa
la dhiraar. Decisions on euthanasia hurt patients in their life and health. The family is also hurt emotionally and psychologically
by the death of the patient. The family hurt is accentuated by feelings of guilt about the euthanasia decision. The converse
argument could be made that continuation of the pain and suffering of the patient under life support in terminal care, the
emotional and psychological burden on the patient and the family, and the material costs of expensive terminal care constitute
an injury to all involved. The law requires that any injury should be mitigated to the extent possible, al dharar yudfau qadira al imkaan. However one injury can not be removed by another injury of similar magnitude,
al dharar la yuzaal bi mithklihi. A lesser injury could be used to remove a bigger
injury,al dharar al ashadd yuzaalu bi
al dharar al akhaff. It is therefore wrong under the law to mitigate the physical and emotional injury of terminal illness
by another and bigger injury of euthanasia. When faced with 2 evils, the lesser one is chosen, ikhtiyaar ahwan al sharrain. This is interpreted to mean that continuation of painful terminal life is better
that euthanasia. A further argument against euthanasia is that a person should bear personal injury if that prevents public
or widespread injury, yatahammal al dharar al khaas li daf'ui al dharar al 'aam.
Suffering of some individuals in terminal life is preferable to legalizing euthanasia because euthanasia could be criminally
abused leading in some cases to genocide. Public interest takes precedence over personal interest, al maslahat al aamat muqaddamat ala al malahat alkhhaasat. Preventing evil from euthanasia takes precedence over
any consideration of benefits from it, dar'u al mafasid awla minjalbi al masalih.
THE PRINCIPLE OF HARDSHIP, qa’idat al mashaqqat,
could be invoked wrongly in euthanasia situations. Hardships necessitate relaxing the law, al mashaqqa tajlibu al tayseer. The pain and suffering of terminal illness are not among the hardships recognized
by classical jurists. The life of a handicapped invalid, psychological and emotional stress due to illness are difficult situations
but do not reach the level of the legally-defined hardship. In general in cases of hardship where a clear necessity is established,
the prohibited can be allowed at least temporarily until the hardship is relieved, al
dharuraat tubiihu al mahdhuraat. A necessity is defined in law as what threatens any of the 5 purposes of the law namely
religion, life, intellect, progeny, and wealth. Euthanasia can not be accepted as a necessity since it destroys and does not
preserve 2 of the purposes of the law: religion and life.
THE PRINCIPLE OF CUSTOM OR LEGAL PRECEDENT, qa’idat al aadat
The principle of custom has several applications in euthanasia. Aadat is
defined as what is uniform, wide-spread, predominant, and not rare (al ibrat li al
ghaalib al shaiu la al naadir). Once a custom is established it must be accepted until there is evidence to the contrary.
Custom has the force of law, al aadat muhakkamat. The role of the physician has
customarily been known to be preservation of life. It is therefore inconceivable that they could be involved in any form of
euthanasia that destroys life (c) the principle of custom is also used to define what is customary medical care to distinguish
it from heroic efforts that are sometimes employed in euthanasia.
OTHER APPLICABLEPRINCIPLES OF
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. The principle of the law that applies here is that continuation is excused where commencing is not,
yughtafar fi al baqa ma la yughtafar fi al ibtidaa.. Continuation is easier that
starting, al baqau ashal min al ibtidaa.. Euthanasia like other controversial issues
in better prevented than waiting to resolve its attendant problems, al maniu afdhal
min al raf'iu
D. HISTORICAL PRECEDENTS
The books of siirat record a case of a man who was fighting gallantly. The prophet told his companions that the
man was a hypocrite. When he was wounded he took his life with his own sword because of the pain he was suffering. This incidence
indicates that taking life for pain in a terminal condition is not accepted by Islam.
E. GENERAL CONCLUSIONS
ACTS OF COMMISSION and ACTS OF OMISSION
Terminal illness involves acts of commission or omission that require definition and description of actions. All
actions are judged by their intentions, niyyat. The last stage of the act is what
defines its nature, al a'maal bi khawatimiha. Actions can be (a) obligatory, wajib (b) offensive, makruh(c) recommended, mandub (d) prohibited, haram (e) permitted, halal. The basic default position is permission,
al asal fi al umuur al ibaahat. There are rewards or penalties for each action
depending on the mode of commission or omission. Committing an obligatory act brings rewards and omitting it brings penalties.
Committing an offensive act brings no penalty but omitting it brings a reward. Committing a recommended act brings rewards
but omitting it brings no penalty. Committing a prohibited act brings penalties and omitting it brings a reward. It is therefore
clear from the above that there is a difference between acts of commission and acts of omission. This difference disappears
at the level of the intention. If both types of act have the same intention, they are not different in the eyes of the law.
This conclusion makes the distinction between active and passive euthanasia untenable. The physician is responsible for his
actions and can not claim that he is acting on the patient's instructions. An action is haram whether done by the person or
is done by another on his/her behalf, ma haruma fi'iluhu haruma talabuhu. The physician
carries the most responsibility for such an action because the major responsibility for a bad act rests on the person who
performs it last, al fi;ilu yudhhafu ila al fa'ili al akhiir. Final legal responsibility
is with the physician who carried out the act and not the patient who requested it, yudhaafu
al fi'ilu ila al fa'ili la ila al amir ma lam yakun mujabaran. In case of two actions being required at the same time,
the rejection of prohibition, haram,takes
precedence over carrying out the permitted, halal. Alleviation of the evil takes
precedence over establishing benefit, dar'u al mafasid muqaddam muqaddam ala jalb al
masalih. If a choice between 2 actions has to be made, the lesser evil is chosen, ihktiyaar
aqallu al dhararain..
OWNERSHIP AND CONTROL OF LIFE:
The central legal and ethical issue in euthanasia is ownership of life. Do humans own or control their lives? Do
they have a right to take that life under any or all conditions?. The Islamic position is that life belongs to Allah. It is
He who gives and takes away life. No human can give or take it. Despots like Pharaoh and Nimrod were severely condemned by
the Qur'an for their mistaken belief that they controlled human life by deciding who would be executed and who would be spared.
The moment of death, ajal, is under the control of Allah and the human has no say
in this matter; the human can not and should not attempt to hasten or delay the ajal.
The prohibition on life applies equally well whether for self, suicide, or others, homicide or genocide. The concept of freedom
and individual choice does not apply here for 2 reasons (i) life does not belong to the human (ii) taking life will cause
harm to the family and society in general. An individual's freedom of choice is constrained by the harm it causes others.
CONSENT TO MEDICAL TREATMENT:
The extent to which a patient has a right to refuse or discontinue treatment is a question of dispute. A patient
who has legal competence, ahliyyat, makes final decisions about medical treatment
and nutritional support. A patient should be fed according to his wishes and forced only if there is an immediate threat to
life. The conditions of legal competence are: adulthood, soundness of the mind, freedom from duress or compulsion, and complete
understanding of the medical and legal issues involved. These conditions rarely obtain in a situation of terminal illness.
The use of a living will has been proposed as a way around this. The person writes a will while still healthy specifying preferences
for medical procedures in cases of terminal illness. The will may also confer powers of attorney on any other person to make
the necessary decisions. In our opinion a living will is a non-binding recommendation because it is made for a hypothetical
situation. It is most likely that the person making the will would decide differently if in an actual situation of terminal
illness. The only binding will to the best of my knowledge is to will up to one third of the property. The family represented
by those who are eligible to inherit, al warithiin, can legally reverse a living
will. They however have limited choices. They can never take any decision that involves causing death either actively or passively
because that would automatically disinherit them. A patient who can not speak could write their choices. Established sign
language can also be accepted, al isharat al ma'ahudat ka al bayan bi al lisaan.. However
no assumptions should be made about the choices of a patient who is unconscious and can not communicate in any way, la yunsab ila saakit qawl.
Our analysis has shown that there is no legal basis for euthanasia. Physicians have not right to interfere with
ajal which was fixed by Allah. Disease will take its natural course until death.
This course is not known by physicians for each individual patient. It is therefore necessary that they concentrates 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 can not 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,
SES, race, or diagnosis.
9.3.4 FETICIDE, AND INFANTICIDE
A general principle of the Law is that 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.
The reasons for feticide and infanticide are similar to those of contraception discussed already. Children conceived
as a result of illegal sexual intercourse, zina, may be undesirable the parents may consider feticide ot infanticide as a
way out of social embarrassment. Children conceived as a result of rape may also be victims of feticide. Poverty may push
indigent parents to feticide and infanticide. Infanticide may be by material neglect of the child who then dies of hunger
or disease. Feticide is also carried out because of gender preference, genetic diseases of the infant, and serious disease
in the mother or the fetus.
Abortion, ijhaadh or isqaat, is the commonest form of feticide. It was practised in ancient Egypt
and Greece. Criminal abortion was common in industrial Europe
and America in the early 20th century. In the second
half of the century abortion was legalised and the number of operations performed increased. Forced abortion is still practiced
in the People’s Republic of China. Feticide is most
common by by abortion in the first and second trimesters. Menstrual Abortion by menstrual extraction/regulation is suction
of the uterus a few days after a missed period. Abortion by dilatation and curettage is done for more advanced pregnancy usually
after the 12th week. The morning-after pill is used to prevent implantation. Several ethical issues arise in abortion
and all center of the definition of the start of life. Our view is that abortion is criminal homicide because life is considered
to start at conception. Under prompting and pressure from population control zealots, some scholars have legalized abortion
before the stage of nafkh al ruh (either 40 days or 120 days depending on hadith interpretation). They reason that
there is no human being before ensoulment. This is misunderstanding the import of the hadith. There is nothing in the hadith
to say that life starts with ensoulment. Ensoulment represents an advanced stage of human life and not its start. Even if
the ensoulment argument is accepted, early abortion is still a crime because it destroys a potential life. Some scholars have
erroneously equated abortion with ‘azl and argued for its legalization. There is no basis in the Law for such a position
because in abortion there is destruction of life whereas in ‘azl there is no life yet since life starts with
conception. Besides considerations of taking life in abortion, abortion is immoral because it encourages sexual immorality
and promiscuity. The proper comparison is to equate abortion with wa’ad. People can have illegal sexual intercourse
without fear of pregnancy and the legal responsibilities of child care. Scholars have allowed abortion in situations in which
the life of the mother is threatened by continuation of the pregnancy. This is not a situation of preferring or valuing one
life over another. If the pregnancy is allowed to continue, the life of the mother is endangered. Death of the mother also
means death of the fetus because of the close dependence of the fetus on the mother. The actual choice is between saving one
life and losing two lives. The shariat guideline is to choose the lesser of two evils, abortion of the fetus, instead of losing
both mother and fetus. Abortionof a fetus known to have congenital deformities,
al janiin al mushawwah, is not allowed by the Law. Also illegal is abortion prompted by poverty, rape, incest, or adultery.
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 therafter. Ghurrat, which is less than diya, is paid if the fetus somes 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. The Law is not clear in a situation in which the mother caused the abortion either by medical or surgical means.
The Law is also not explicit about a situation in which both parents agree on the abortion.
Infanticide was practiced in the past for political or economic reasons. The pharaohs carried out genocide of Israeli
newborns, qatl al awlaad ‘inda al fara’inat (p. 914 2:49, 7:127, 7:141, 14:6, 28:4, 28:9, 40:23-25). Daughters
were killed in pre-islamic Arabia, qatl al awlaad fi al jaahiliyyat (p 914 6:137, 6:140, 6:151,
, 60:12, 81:8-9) for fear of poverty. Infanticide in the form of abuse and
neglect is common today in industrialized and non-industrialized societies. Newborns from unplanned and undesired pregnancy
are abandoned to die on the street. Many are killed and their bodies are buried secretly. Parents neglect feeding and taking
care of their infants until they die of malnutrition or disease.
E. SOCIAL INJUSTICE
Social injustice manifesting as poverty is responsible for a lot of feticide and infanticide.Poor mothers who do not get adequate nutrition and medical care have a higer rate of fetal loss and poor
pregnancy outcomes. Their children are born pre-mature of small for gestation age and succumb easily to disease and die. Chidren
born in poor families and communities have higher moribidity and mortality.
10.3.5 SUICIDE, HOMICIDE, GENOCIDE, CAPITAL PUNISHMENT
There are two ways of taking one’s life: direct and indirect. The direct is usually called suicide and involves
deliberate violent measures of life termination. The underlying motivating factors may be pain, depression, or loss of hope.
Some cases of suicide may be due to mental disease or temporary loss of sanity due to use of psycho-active substances. The
indirect form of taking life results from pursuit of unhealthy life-styles that endanger life like cigarette smoking, careless
driving, and poor nutrition. Death is not as violent and does occur immediately. The number of people who die from such slow
suicide id far more than those who take violent measures to terminate their lives. The Qur’an forbids putting life at
risk, la tulqu bi aydikum ila al tahluka (2:195). Anybody who kills himself with a metal weapon will be punished with
the same weapon in the hereafter, man qatala nafsahu bi hadiid ‘udhiba bihi yawm al qiyamat(KS432) and will be denied entry into paradise, qaatilu nafsihi hurimat ‘alayhi al jannat
(KS433). The funeral prayer is not offered for a deceased who killed himself, tark salat al janazat ‘ala man qatala
Killing another human is one of the major sins and is punishable by death. Many people commit homicide indirectly
for example manufacturers of guns and careless drivers who cause fatal accidents. The Law prescribes the death sentence for
deliberate pre-meditated homicide. Financial penalties are imposed in cases of accidental homicide. Ta’azir punishments
should be prescribed for accessories to indirect homicide.
The Qur'an tells that in Pharaoinic Egypt Israelites were selectively killed as babies. Governments ordered genocide
as a systematic policy for example Hilter, Hutu-Tutsi massacres in Rwanda,
Japanese genocide in East Asia in WW2. Sometimes genocide is indirect like social injustice that denies
food and medical care for some elements of the population who therefore get high mortality rates.
D. JUDICIAL EXECUTION
Judicial execution must follow due process of Law and is carried out by the government and not individuals. There
are cases of persons who commit capital offenses because of societal injustice. These are people who did not a chance to be
born and to be brought up in good families. They live in bad neighborhoods where they come under the negative peer influence.
They gravitate to a life of crime and commit capital offenses. They arr guilty of their offenses but society should consider
preventing future crime by removing its antecedents in the form of social injustice.
There are many fatalities
due to road traffic accidents, occupational accidents, or other environmental hazards.