0210-JURISPRUDENCE OF BIOTECHNOLOGY (FIQH AL TAQNIYAT AL HAYAWIYAT)
Paper presented at a seminar organized by KampungBaruMedicalCenter, Kuala Lumpur, on 26th Ooctober 2002 by Prof Omar Hasan Kasule Sr. MB ChB (MUK), MPH, DrPH (Harvard),
Deputy Dean for Research, Kulliyah of Medicine, International Islamic University, Kuantan, MalaysiaEM: firstname.lastname@example.org. Web: http://omarkasule.tripod.com/
1.0 THEORETICAL BASIS
1.1 Sources Of The Law, Masadir Al Shariat
1.2 Purposes Of The Law, Maqasid
1.3 Principles Of The Law, Qawaid
2.0 REPRODUCTIVE & GENETIC TECHNOLOGY
2.1 Assisted Reproduction
2.3 Sex Selection And Sex Change
2.5 Genetic Technology
3.0 LIFE SUPPORT and LIFE TERMINATION
3.1 Palliative Care
3.2 Artificial Life Support
3.4 Feticide, And Infanticide
4.0 TRANSPLANTATION TECHNOLOGY
5.0 CHANGE OF FITRA
5.1 The Concept Of Change Of Allah’s Creation
5.3 Reconstructive/Restorative Surgery
5.4 Cosmetic Surgery
5.5 General Conclusions
6.1 Research In Islam
6.2 Use Of Animals In Research
6.3 Research On Humans
6.4 Research Practice
6.5 Research Policy
1.0 THEORETICAL BASIS
1.1 SOURCES OF THE LAW, MASADIR AL SHARIAT
Qur’an as a primary source of law
The Qur'an is 'Allah’s words revealed to Muhammad (PBUH) in Arabic, transmitted to us in continuity, written
in the mashaf, whose recitation is worship, commencing with surat al fatihat
and ending with surat al nas. Verses
of the Qur’an were revealed adhoc each associated with sabab al nuzuul. It was memorized and also
written down immediately. Abubakar collected the written records and Othman issued one official version in the Quraishi dialect
that is used all over the world. The Qur’an is practical, rational, and miraculous. Its 3 themes are aqidat, spiritual refinement, and practical guidance. Legal rulings,
ayat al ahkaam, are a minority of its
more than 6000 verses being distributed munakahaat70, mu'amalat 70, jinayaat 30, iqtisaad
10 verses, qadha 13 verses, government 10 verses, and international law 25 verses.
The Qur’an is comprehensive and complete but deals with issues in a generic and not specific way. Its verses are muhkamat or mutashabihat. It challenges
the intellect, does not indoctrinate, and gives room for opposing views. It is divided into 114 surats. Each surat starts with the basmalah
except surat al baraa. It is divided into 30 juz’us each divided into 2 hizbs. Rub'u orthumun
are subdivisions of the hizb. The Makkan verses, dealing with aqidat, are short,
poetic, and powerful. Madinan verses are longer dealing with details of societal organization. The prophet read the Qur’an
in 7 different ways, The Qur’an can be recited as tartiil or as tajwid. As a source of legislation the Qur’an provides general
foundations and principles. Qur'anic evidence for legal rulings is either qatui,
or dhanni. The Qur'an is the primary source of law. All other recognized sources
are secondary to the Qur'an and are validated by it.
Sunnat as a primary source of law
Sunnat, a subgroup of hadith and part of wahy, is defined
as words, actions, and tacit agreement of the Prophet. A hadith consists of a sanad,
and matn. It can be hadith nabawi or hadith qudsi. Writing of hadith
started late. Hadith collections are classified as sihaah, sunan, masanid, and muwatta’at. Hadith is described as mutawatir if narrated by many, mash'hur if reported by at least 2, and aahaad if reported
by only 1 sahabi. It be tashri'i
if legislative or ghayr tashri' if it
is not. The grades of hadith authenticity in descending order are: sahiih, jayyid, and hasan. Muttafaq
‘alayhi is reported by both Bukhari and Muslim. Musnad has a chain of narrators to the prophet. Muttasil
has an unbroken chain of narrators. The sanad stops at a sahabi in mawquf and at a tabi’e
in a marfu’u hadith. In mursal the tabi’e reports directly from the prophet. Munqati’u
has an incomplete sanad. Dha’if lacks the attributes of the sahiih
and hasan. Sunnat can affirm, explain,
or elaborate the Qur'an or bring up matters not mentioned in the Qur’an. Obedience of the prophet implies following
his sunnat. The sunnat comes second to the Qur'an as a source of law. The
daliil of the sunnat may be definitive,
qatai, or probable, dhanni. The sunnat is interpreted in the light of general principles of the Qur'an, the social situation in the prophetic
era, and the Arabic language.
Secondary sources of law: ijma, qiyaas, and others
Ijma is agreement of all mujtahids
existing at one time on a particular legal ruling based on nass. It can be ijma sariih or ijma sukuuti. Qiyas is use of a ruling of one matter for another matter
when the two share the same illat. Pre-Islamic laws, shara'u man qablana, were either abrogated or confirmed by the Qur’an.
The word of the companion, qawl al sahabi, is a source of law under specified conditions. Custom or precedent, ‘aadat or 'urf, is a source of law if it does not contradict nass, there is ijma
on it, and is in the public interest, and closes the door to evil. Istishaab is continuation of an existing ruling until there is evidence to the contrary. Istihsaan is preference for one qiyaas by a mujtahid. Istislaahis assuring a benefit or preventing a harm used in mu’amalat but not ‘ibadat. Maslahat
mursalat is public interest on ra’ay. when there is no nass. Sadd al dhari'at is prohibition of
an act that is otherwise mubaah
because it has a high probability of leading to haram.
Methodology of extracting legal rulings, tariqat istinbat al ahkaam, tariqat
Nass can be muhakkam
or mutashabih. The muhakkam can be ‘aam, khaas (amr and nahy), or mushtarak. Amr
can be wajib, manduub, or mubaah. Nahy can be haram or makruh. Nahy implies both
batil and fasid in ibadat. In mu’amalat a fasid
transactions is irregular but not batil and has some legal effect. Legal reasoning uses the tools of agreement, ashbaahu, difference, furuuqaat, or exceptions, nadhair, Conflict of
evidences is apparent and not real and is due to different views of mujtahidiin. It is resolved by the tools of nasakh,
tarjih, or tawfiq. Nasakh is abrogation of one daliil. by another. Tarjiih is an intellectual
effort to compare two or more rulings and select the best of them on the basis of strength of daliil. Tawfiq
is combining two contradictory daliil to give one ruling.
1.2 PURPOSES OF THE LAW, MAQASID AL
The aim of ijtihad was to discover the purpose of the lawgiver in order to reach a hukm shar’i. Ijtihad in the closed part of the Law is referred to the nass. Ijtihad in the
open or flexible part of the law is referred to the maqasid. The law was revealed to fulfill specific underlying purposes
and for the benefit and in the interests of humans. Without the Law humans cannot use their reasoning to discover their true
interests and establish the equilibrium between mafasid and masalih since these are relative and not absolute.
The maqasid are permanent, consistent, derived form the nass by induction and are
therefore definitive. They ensure that the Law is unchanged or violated. They deal with whole and not the parts. Maqasid
al shariumust in ideal situations
correspond with maqasid al mukallaf. Maqasid al shar’e can
be primary or secondary. The primary maqasid can be private or public; they can relate to rights of Allah or rights
of humans. The 1st to 14th centuries witnessed relatively little change in the ummah in the physical
sense. However in the 15th century, technological changes have created new and complex problems that require a
bird's eye view for solution. It is the maqasid that can provide this bird's eye
view and thus lead to appropriate solutions.
Primary purposes of the law giver, maqasid al shariu ibtida'an
The primary purposes of the lawgiver are necessities, dharuraat; needs, hajiyat; refinements, tahsinaat;
and complementaries, mukammilaat.Dharuraat ensure human interests on earth
and in heaven. Normal human life is impossible without them.Haajiyat allow proper functioning of life relieving
difficulties arise in implementing dharuraat.Tahsinaat assure
human dignity and makarim al akhlaqMukammilaat are complementary purposes
The 5 necessities that are generally referred to as maqasid al shariat arranged
here in order of importance: religion, diin; life, nafs, the mind, 'aql; progeny, nasl;
and property, maal. They are permanent and are unchangeable. Hifdh al din is ‘aqidat, ‘ibadat and supporting functions
of ‘aadaat, munakahaat, and mu’amalat. Laws that forbid spread of evil ideas and practices also
protect the religion. Hifdh al nafs is protection of the body from harm and involves ‘aadaat, muamalaat,
and jinayat and could take the forms of quarantines and isolation in epidemics, qisas,
and liability for medical negligence. Hifdh al nasl is assured by marriage, child-birth within the marital bond, and
proper child upbringing. Hifdh al ‘aql is assured by normal psychosocial relations as well as prohibition of
alcohol and drugs. Hifdh al mal is assured by property rights and prohibition of stealing and embezzlement.
There are rules for resolving conflicts between and among various maqasid. The dharurat have priority
over the hajiyaat which in turn have priority over tahsinaat. Among the dharurat, the stronger purpose
prevails; the order of strength being diin, nafs, nasl, aql, and maal. Public
interest has priority over private interest. The definitive, qatai, has priority over the probable, dhanni.
Rights of Allah have priority over rights of the humans. The maqasid are the basis for siyash shar'iyat. It
is siyasah ‘adilat if it relies on the mujtahid. It is siyasah dhaalimah if it does not follow
the Law. The maqasid define clear objectives for the community and allow it to grow as a living balanced organism.
The economic system must follow the priorities of the maqasid.
1.3 PRINCIPLES OF THE LAW, QAWAID AL
Five major principles, al qawaid
al kulliyat al khamsat, are unanimously recognized as the pillars
of the law: Intention, qasd; certainty, yaqeen;
injury, dharar, difficulty; mashaqqat
and custom or precedent, urf. Each is a group of legal rulings or axioms that share
a common derivation by qiyaas or are derived from the Qur’am, sunnat, or
writings of jurists. The principle of intention states that each action is judged by the intention behind it. Reward is based
on the intention. What matters is the intention and not the letter of the Law. Means are judged with the same criteria as
the intentions. If the intention is wrong the means is also wrong. The principle of certainty states that a certainty cannot
be changed by doubt. Existing assertions continue until compelling evidence changes them. All acts are permissible unless
there is evidence to the contrary. Declaration of original motive takes precedence over the de facto.The principle of injury states that injury should be relieved or prevented as much as is possible but cannot
be relieved an injury of the same degree. Prevention of an injury takes precedence over pursuit of a benefit of equal worth.
Prevention of haram has priority over pursuit of halaal. The lesser of two actions of equal harm harms is selected. A lesser
harm is committed in order to prevent a bigger one. An individual could sustain harm in the public interest. The principle
of hardship states that difficulty calls forth ease and mitigates easing of rules and obligations. Humans are not obliged
beyond their capacity. Necessity, dharuurat, legalizes the prohibited. The principle
of custom/precedent states that custom or precedent is a legal ruling and is a source of law unless contradicted specifically
2.0 REPRODUCTIVE & GENETIC TECHNOLOGY
2.1 ASSISTED REPRODUCTION
Infertility is considered a serious condition because it could lead to psychological distress, marital problems,
and even marital failure. At the ummatic level widespread infertility could spell
demographic weakness, a security threat. Causes of infertility may be natural, related to lifestyle, or complications of medical
or surgical procedures. Traditional methods of treating male and female infertility may be medical or surgical. Treatment
of infertility fulfils the purpose of hifdh al nasl. 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, talqiih sinna’i ajnabi.
The Law permits in vitro fertilization if the sperm and ovum are from legally
wedded husband and wife and the zygote is implanted in the same wife. According to some jurists the Law permits in vitro fertilization
if the sperm is from a husband and the ovum is from a legally wedded wife, and the zygote is implanted in a second wife of
the husband. In vitro fertilization is prohibited if the sperm is from the husband and the ovum is from the wife and the zygote
is implanted in a surrogate mother. A married woman cannot have a zygote implanted into her uterus if a sperm from a donor
who is not her husband fertilized it. Sperm banks are a form of zina are not allowed.
The Law prohibits implantation of a fertilized zygote in a wife if another woman donated the ovum and the sperm is from her
husband or a strange man. Legal rulings are being formulated on other forms of assisted reproduction such as gamete intra-fallopian
transfer, intra-cytoplasmic sperm injection, and futuristic technologies such as animal uterus, artificial uterus, male pregnancy,
and embryo transfer. In general shari’at rulings are not promulgated for hypothetical situations that have not yet become
widespread. The following alternatives to assisted reproduction can be considered: foster
care, polygamy, open adoption, patience and ‘ibadat.. 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 embryosfor 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.
Reproduction fulfils a human desire for self-perpetuation, enjoyment of children, and strengthening the ummat. Contraception negates these objectives and is undertaken for very strong reasons. Marrying and getting
offspring are obligatory, wajib, for the community and fulfils the purpose of protecting
and preserving progeny, hifdh al nasl. Procreation for the individual couple is mubaah
or mustahabb in normal circumstances but becomes wajib in situations of military or economic weakness. There is basic permissibility of contraception from the
hadith on coitus interruptus, tarkhis fi al ‘azalDecisions 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 (hifdh al ddiin, hifdh al nafs, hifdh al ‘aql, &
hifdh al nasl) and principles of the Law. There is no consensus among jurists on sterilization. Contraception as part
of a national population control policy is prohibited by Law. The permissible reversible methods for males are the condom,
coitus saxanicus, coitus reservatus, and coitus
interruptus. 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. The safest and perhaps the least effective is the rhythm method.
Availability of safe contraception removes the fear of pregnancy and encourages zina
and family breakdown.
2.3 SEX SELECTION and SEX CHANGE, 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 around 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 methods are still being discussed such
as Separation of male and female sperms by centrifuging and in vitro insemination, gender pre-selection and implanting only
zygotes of desired gender in in vitro fertilization, sex change by genetic engineering, exposure of fetuses to specific hormones,
and sex change operations for hermaphrodites. 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.
Cloning was achieved in sheep. It seems technically feasible in humans. It 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 and Isa were humans from
asexual reproduction. Cloning is a form of reproduction without male-female interaction. The clone is the exact replica of
original. Genetic recombinations that are responsible for the great variety of normal reproduction do not occur in 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 cloning until it has occurred
and we see its implications in practice. 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. Cloning has some medical benefits such
as supply of organs for transplantation but it may lead to new diseases and medical problems. 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. Likely socio-demographic
implications are loss of human dignity, production of human monsters with no family background, and destruction of lineage,
2.5 GENETIC TECHNOLOGY
Genetic technology is useful in disease diagnosis, perinatal diagnosis, genetic screening, criminal investigations,
and establishment of paternity. Counseling is carried out before and after genetic testing.Informed consent and confidentiality must be respected. Genetic data must not be misused for discrimination and stigmatization.
3.0 LIFE SUPPORT and LIFE TERMINATION
3.1 PALLIATIVE CARE
The aim of palliative care is good death which includes: pain control, psychological support, emotional support,
and spiritual support. Death can be made a pleasant experience. 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. The Quran has taught the etiquette of caring for old parents.
3.2 ARTIFICIAL LIFE SUPPORT
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. The following are various definitions
of death: (a) traditional: cardio-respiratory arrest (b) Whole-brain death (c) Higher 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). 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 cannot be taken. Islamic law strictly forbids action based on uncertainty, shakk. 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 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. 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. 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 cannot 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.
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 has the dual effect of controlling pain and causing respiratory failure. Islamic Law views all forms
of euthanasia, active and passive, as murder. 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. Euthanasia
violates the Purpose of the Law to preserve Life by taking life. It violates the purpose of religion by assuming Allah’s
prerogative of causing death. It violates the purpose of preserving progeny by cheapening human life making genocide more
acceptable. 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. 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. The principle of the law that applies here is that continuation is excused where commencing is not. Continuation is easier that starting. Euthanasia like other controversial issues in 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. 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, SES, race, or diagnosis.
3.4 FETICIDE AND INFANTICIDE
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 ().
Illegal feticide and infanticide are committed for various reasons: avoiding consequences of sexual immorality, poverty, rape,
gender preference, and serious disease of the mother and child. Abortion is criminal homicide because life is considered to
start at conception and not as claimed at ensoulment. 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. Infanticide can be in the form of child neglect and child abuse.
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 higher 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. Children born
in poor families and communities have higher morbidity and mortality.
Direct suicide is deliberate and is due to pain, depression, loss of hope, and mental illness. Indirect suicide
is due to unhealthy and risky life-styles like cigarette smoking, alcohol, careless driving, refusal of immunization, neglect
of medical care, and poor nutrition. The Qur’an forbids putting life at risk (2:195). Anybody who kills himself with
a metal weapon will be punished with the same weapon in the hereafter. Those who commit suicide will be punished in the hereafter
and will be denied entry into paradise. The funeral prayer is not offered for a deceased who killed himself. Murder is a major
sin. The death penalty is prescribed for deliberate pre-meditated homicide. Financial penalties are imposed in cases of accidental
homicide. Ta’azir punishments are prescribed for accessories to indirect homicide. Genocide may be direct such as the
killing of Banu Israil by Pharaoh or may be indirect by social injustice that denies food and medical care for some elements
of the population who therefore get high mortality rates.Judicial execution
must follow due process of Law and is carried out by the government and not individuals. There are many fatalities due to
road traffic accidents, occupational accidents, or other environmental hazards.
4.0 TRANSPLANTATION TECHNOLOGY
The main legal issues that arise in transplantation are: (a) definition of what is the moment of death such that
organs can be harvested (b) the right over body organs (c) respect for human dignity of the dead (d) possible criminal or
commercial abuse when organized crime getting involved in procurement and sale of human organs (e) harvesting organs from
minors and legally incompetent persons. Some of these can be solved today. Others are considered temporary, they will disappear
in the near foreseeable future when medical science advances to use animal organs or tissues (xenografts) or artificial organs.
The main guide about transplantation is the purpose of maintaining life, hifdh
al nafs: There should be no injury to the health and human dignity of both the donor and the recipient. The associated
side effects, complications, and abuses for both the recipient and the donor are treated under 2 Principles of Law: hardship,
mashaqqa, and injury, dharar. The principles
of custom and certainty are invoked in the definition of death and thus the earliest time for organ harvesting.Necessity and hardship legalize what would otherwise be objectionable or risky, al dharuurat tubiihu al mahdhuuraat, lowering donor risk has precedence over benefit to the recipient, dariu al mafasid muqaddamu ala jalbi al masaalih, the complications and side-effects to the recipient must be
a lesser harm than the original disease, ikhtiyaar ahwan al sharrain. Transplantation
relieves an injury to the body, al dharar yuzaal, in as far as is possible, bi qadr al imkaan, but its complications and side-effects should be of lesser degree
than the original injury, al dharar la yuzaal bi mithlihi.
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, al maslahat al
aamat muqaddamat ala al maslahat al khhasat, prevention of harm has priority over getting a benefit, dar’u al mafaasid awla min jalbi al masaalih, and pre-empting evil, dariu
Under the principle of custom, al aadat, brain death does not fulfill
the criteria of being a widespread, uniform, and predominant customary definition of death that is considered a valid custom,
al ‘aadat muhakkamat. The successes of biotechnology in transplantation and
other fields introduce a strong doubt, shakk, in the irreversibility of brain death.
Under the principle of certainty, yaqeen: existing customary definition of death
should continue in force until there is compelling evidence otherwise, al asl baqau
ma kaana ala ma kaana.
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, sadd al dharia, and the principle of motive. Protecting innocent people from criminal exploitation is a public
interest that has priority over the health interests of the organ recipient. Principle of motive, qasd, 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, al umuuru bi maqasidiha.
The concepts of legal competence, ahliyyat, and free consent, ‘adam al ikraah, are invoked for organ donors. Decisions to donate an organ can only be legally binding
whenmade by an individual recognized by the law as having legal competence,
ahliyyat: adult, of soundmind, andnot under duress of compulsion. In order to avoid any doubts, decisions about donation
of organs should be made only by those giving the organs not because they own the organs but because, of all the players involved,
they are the most intimately concerned and have no conflict of interest. They must however fulfill the conditions of legal
competence that are: adulthood, soundness of mind, and no coercion. This practically excludes harvesting organs of minor children,
the insane, or the unconscious.
5.0 CHANGE OF FITRA
5.1 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.
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.
5.3 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 & 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.
5.4 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, 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.
6.1 RESEARCH IN ISLAM
Research is search for knowledge that is enjoined by Islam. Empirical scientific research is critical deliberative
observation of Allah’s signs in the cosmos and the human body. Scientific research is similar to ijtihad in fiqh and the two share the use of inductive logic and consensus,
ijma. Research to find cures was specifically enjoined by the Prophet.
6.2 USE OF ANIMALS IN RESEARCH
Islam enjoins kindness to animals and prohibits cruelty and abuse of any kind. Animal research precedes human research
to spare humans from unknown risks. Animal experiments are permitted 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 use of animals in justifiable on the basis of taskhiir and not any benefits that accrue to the animals.
6.3 RESEARCH ON HUMANS
The Islamic ethical theory on research is based on the 5 purposes of the Law, maqasid al shari’at,under
which define the 5 necessities, dharurat, under which human experimentation is allowed: preservation of religion, life,
progeny, the mind, and wealth. If any of the 5 necessities, al dharuraat al khamsat, is at risk permission is given
to undertake 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, hifdh al mal.
The 5 principles of the Law (intention, certainty, injury, hardship, and precedent) constitute the Islamic ethical guidelines.
Research is judged by its underlying and not expressed intentions. Research is prohibited 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 a harm 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
a harm has priority over obtaining a benefit. Informed consent by a legally competent research subject is mandatory. Informed
consent does not legalize risky non-therapeutic research with no potential benefit. Informed consent is violated in community-based
experimentation in which individuals are not consulted. It is illegal to force participation of the weak (prisoners, children,
the ignorant, mentally incapacitated, and the poor) in clinical trials. Research on fetal human tissues may encourage abortion.
Objection to dissection of cadavers for medical education and post-mortem examination is on the basis of prohibition of mutilation
but permission is given where necessity can be established. Use of human bodies in auto crass experiments is an affront to
human dignity. Genetic experiments on human organisms, tissues, and cells give rise to many ethical problems. Transformed
genes, molecules, and even microorganisms may cause diseases hitherto unknown. They may lead to new forms of environmental
pollution. 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.
6.4 RESEARCH PRACTICE
The research or ethics committee must assesses research proposals and protocols
that have ethical implications. The committee’s role does not end with the approval of the research. It has to continue
monitoring the conduct of the study to detect any ethical violations. The following are standard documents in research: research
application form, patient/volunteer information sheet, informed consent form, follow-up questionnaires
6.5 RESEARCH POLICY
Balance must be established between research and care delivery. Recruitment into studies should be representative to
avoid results of an unbalanced study may not be applicable to all groups. Decisions on research priorities should not be made
on a non-scientific basis. The funding should not influence the research. Islam enjoins dissemination of research findings
by teaching or publication. Islam prohibits hiding knowledge. Despite the best of efforts to police itself, the scientific
research community still has cases of research fraud.