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ISLAMIC MEDICAL EDUCATION RESOURCES-03

0210-ETHICAL AND LEGAL ISSUES IN MIDWIFERY: AN ISLAMIC PERSPECTIVE.

Paper presented at the 5th International Nursing Conference held in Brunei Dar es Salam in the period 28-31 October 2002 by Professor Omar Hasan Kasule, Sr. MB ChB (MUK), MPH, DrPH (Harvard), Deputy Dean, Research and Postgraduate Affairs, International Islamic University, Malaysia. EM omarkasule@yahoo.com

ABSTRACT
Pregnancy, al haml: The minimum and maximum periods of gestation can be established using modern technology. The physical acts of salat should be accordingly modified for women in advanced pregnancy. Missed fasting for fetal interests is made up later. Missed fasting in maternal interests is expiated by feeding the poor. Care is needed in hajj, and other physical activities. Coitus is allowed but precautions are needed to prevent infection and fatal hemorrhage in cases of placenta previa. Breast feeding can continue in pregnancy. A pregnant woman can be divorced but cannot be forced out of her house until after delivery. Legal punishments, huduud, cannot be carried out in pregnancy until after delivery and suckling of the baby for 2 years.

 

Delivery, wadhau al haml : A bloody ‘show’ and any bleeding during labor and delivery invalidate wudhu? Salat is not physically possible in the perinatal period and has to be made up. Saum in the perinatal period is not recommended. Physical activities of hajj are not recommended in advanced pregnancy. The rules pertaining to menstruation apply to the period of post-natal bleeding. Salat is exempted. Fasting is made up later. Touching the Qur’an and sexual intercourse are forbidden. Divorce of a woman in the post-partum period is prohibited. The fetus has rights to life, inheritance, a good name, general health care and nutrition. The mother has rights to health care, nutrition, and payment for breast feeding if divorced. The following are done for the newborn: Adhan and iqamat at birth, naming, circumcision, shaving the hair, ‘aqiiqah:

 

Breast-feeding, ridha’a: The Qur'an set the statutory period of breast-feeding as 2 full years. No maximum period was set.  The father has to give financial compensation to a breastfeeding divorced wife. Breast-feeding of a child not issued from the mother automatically creates a legal relation not different from the biological one. Milk banks are permitted on the basis of dharurat by records must be kept of all donors. A nursing mother is allowed to combine 2 prayers and to miss fasting making up later. Suckling while pregnant is allowed. Intercourse with suckling woman is allowed. New ijtihad is needed on the minimum period of maternal leave from work since the Qur’an sets a limit of 2 years for suckling.

 

Disorders of pregnancy: The period of post-abortion bleeding is recognized as nifaas. In cases of hemostatic disorders and ecclampsia termination of the pregnancy may be the best way to save the mother’s life but it will adversely affect the fetus who may not yet be viable extra-uterine. Delivery complication may lead to difficult choices between saving one of the lives: mother or infant. The Law gives precedence to the mother


1.0  PREGNANCY, haml

Diagnosis of pregnancy: The Qur’an mentioned pregnancy, haml[i]. The traditional diagnosis of pregnancy was based on amenorrhea, signs and symptoms of pregnancy, and abdominal enlargement in the late stages. Earlier diagnosis of pregnancy based on hormonal and radiological procedures is now available. This earlier diagnosis cannot lead us to shortening the post-divorce period of waiting, iddat al talaaq. We know that the material reason, illat, for waiting three months is to ensure that the wife is not pregnant. We however do not know all the wisdom, hikmat, behind the ordaining of ‘iddat

 

Period of gestation: Legal situations arise in which the court must reach a decision based on knowledge of the minimum and maximum periods of gestation. Bleeding or spotting in early pregnancy[ii] that is thought to be an abortion or a menstruation can be the cause of the confusion in computing the period of gestation. The early jurists using medical knowledge available in their times had reached conclusions about the minimum and maximum durations of gestation. These need to be revised in view of modern medical knowledge and the availability of sophisticated diagnostic procedures.

 
Physical activity in pregnancy: Standing up, qiyaam; bowing, rukuu; prostration, sujuud, and sitting down in salat may be difficult for a woman in advanced pregnancy. It may also be difficult for her to put her hands on her abdomen. A pregnant woman may be excused from fasting, saum. If the excuse is based on fear of nutritional deficiency in the mother or in both the mother and the fetus, the missed fasting must be made up. If the exemption is based on fear of harm to the fetus alone, expiation is by feeding the poor. The hustles of movement in hajj may be too strenuous for a pregnant woman. A woman in advanced pregnancy has limited ability to do physical work, at home or outside the home, and has to be excused. Sexual intercourse is physically cumbersome in advanced pregnancy. It may also introduce infections in the birth canal. In the rare instance of placenta previa it may provoke potentially fatal bleeding.
 
Breast feeding: There is no ruling against breast-feeding in pregnancy. It is a medical necessity since breast milk is the best food for a baby.
 
Legal proceedings in pregnancy: A pregnant woman can be divorced but cannot be forced out of her house until after delivery. Legal punishments, huduud, cannot be carried out in pregnancy until after delivery and suckling of the baby.

 

2.0 DELIVERY, wadhau al haml

Blood: The show of labor is considered as nifaas and will invalidate wudhu. Salat is not physically possible in the advanced stages of labor and immediately after delivery. Siyaam in labor is not recommended. Women in post-natal bleeding are excused from salat like those in menstruation. Post-natal mothers are excused from fasting but they have to make up later. The rules pertaining to menstruation apply to post-natal bleeding. Touching the Qur’an is forbidden. Sexual intercourse is forbidden in the perinatal period. It is forbidden post-natally until the end of nifaas. Divorce of a woman in the immediate post-partum period is not appropriate.

The newborn: The books of sunnat have given reasons for the crying of the baby at birth[iii]. Every new born is touched by the shaitan, mass al shaitan 'inda al wilaadat[iv]. The fetus has rights to life and inheritance. The newborn has the following rights: choice of a good name, general health care, and nutrition. The rights of the mother are: health care, nutrition, shelter, and payment for breast-feeding if divorced. The following are done for the newborn: adhan and iqamat at birth, naming, tasmiyat, circumcision, khitaan, shaving the hair, halq al sha’r, and aqiiqah.

 

BREAST-FEEDING, ridha’a

Duration: The Qur'an set the statutory period of breast-feeding as 2 full years, muddat al ridha'a hawlain kaamilain[v]. No maximum period was set. The father has to give financial compensation to a divorced wife who is breast-feeding his child[vi].
 
Legal relations due to breastfeeding: Breast-feeding is not merely nutrition. Unlike blood transfusion or organ donation, it involves a more intimate biological and psychological interaction between the infant and the lactating woman. Breast-feeding of a child not issued from the mother automatically creates a legal relation that in the regard of the Law is no different from that that of a son or a daughter. The relation encompasses the wet nurse, the children of the wet nurse, and the husband of the wet nurse. The conditions set by the Law for this relation to hold are: the wet nurse must be a female at least 9 years of age, the baby suckled must be less than 2 years old, suckling must be from the breast and not milk expressed in a container, and at least 5 separate breast feeding sessions must be held. The legal relationship thus established leads to marital restrictions between foster brothers and foster sisters. If there is doubt whether an infant breast-fed or not, we rule that it did not breast-feed because the maxim of the law is certainty cannot be voided by doubt, al yaqiin la yazuul bi al shakk. Doubts about breast-feeding could arise in situations in which the baby was out to the breast 5 times but it is not known whether he actually suckled or not.

 

Milk banks: On the basis of necessity, dharurat, the Law permits collecting milk from several lactating mothers in a milk bank and using it to feed premature babies or those who have no natural mothers. This does not create legal relations based on ridha’at because the babies did not feed from the breast directly. It is recommended that records be kept of names of donors to the bank and names of babies who fed from the bank.

 

Physical activity for a nursing mother: A nursing mother is allowed to combine 2 prayers. A nursing mother does not fast and makes up later. Suckling while pregnant is allowed. Sexual intercourse with suckling woman, al ghayla, is allowed New ijtihad is needed on the minimum period of maternal leave for working women since the Qur’an sets a limit of 2 years.


[i][i] (Qur’an 3:6, 3:35, 7:189, 13:8, 16:78, 19:22, 22:2, 22:5, 23:14, 31:14, 31:34, 39:6, 46:15, 53:32, 65:4, 65:6)

[ii] (Darimi K1 B97, Muwatta K2 H101)

[iii]  (Bukhari K65 S3 B2; Muslim K43 H148; Ahmad 2:233, 368)

[iv]  (Bukhari K60 B44; Bukhari K65 S3 B2; Muslim  K43 H146, Muslim  K43 H147; Ahmad 2:233, 274, 288, 292, 319, 368, 523)

[v]  (Qur’an 2:233, 31:14, 46:15)

[vi]  (Qur’an 65:6)

Professor Omar Hasan Kasule October 2002