Issues in Islamic bioethics

The common perception of the juristic task (whether individual or collective) needed for the investigation of novel questions (nawdzil, sing. ndzila) — lacking explicit reference in the foundational sources or exact precedent in the classical legal corpus — is that it involves the process of constructing a new appropriate ruling for such questions.

for example, in issues such as post-mortem examination and organ donation. An equally im­portant task, however, is placing the new ruling/answer within its proper thematic context as well as the larger Islamic legal framework. Both post-mortem examination (whether done for educational or forensic purposes) and organ donation raise the risk of violating the in­herent dignity of the human body. The juristic process involves weighing and balancing this risk in relation to the expected private as well as public benefit to be procured as a result of these procedures. The juristic process also involves searching for close precedents or relevant examples such as premodern discussions on the possibility of cutting a dead body open to extract a live baby or to extract a valuable item belonging to someone else.

For example, in his fatwa on the permissibility of autopsy, the late Egyptian Mufti and subsequently Grand Shaykh of al-Azhar Jad al-Haqq Ali Jad al-Haqq (d. 1996) reviews ear­lier fatwas issued during the 20th century, which argue for the permissibility of autopsy on the basis of expected forensic benefits such as confirming the cause of death or acquitting an innocent person, which would justify the invasive process of dissecting a dead human body. On the other hand, undertaking the procedure for educational purposes was subject to debate among contemporary jurists. Some jurists limit the permissibility of dissection to the classical cases discussed in the tradition, such as extracting a live baby or a valuable item, and argue for its impermissibility if undertaken for educational purposes, especially if other alternatives can be found to satisfy this need such as use of animals instead of actual human bodies.

Similarly, organ donation or transplantation was subject to a great deal of legal as well as jurisprudential controversy. In general, a distinction is often made between extracting organs from a dead body (cadaveric organ donation) or a living person. In the former case, many jurists argue for the permissibility of the process in light of the expected benefit of saving a human life, especially if permission is given or a will is made by a donor prior to death. In the absence of such explicit permission either by the donor or his family, some jurists argue for impermissibility while others argue for permissibility on the basis of necessity, which is usually the main grounds for undertaking this procedure.

In the case of living organ donation, another distinction is made between indispensable organs such as the heart and other non-indispensable organs such as kidneys. Donating an indispensable organ is unanimously prohibited even if the person indicates his permission because this would be considered to be suicide. With regard to donating a non-indispensable organ, some jurists argue for impermissibility, regardless whether the donating person indi­cates permission, even if the extracted organ does not negatively impact the donor’s health or disrupt the functions of his body on the grounds that extracting a part of a living person violates the inherent dignity of the human body and that any extracted part of the human body should be buried. Some jurists also use the argument that one does not own one’s body and therefore cannot donate part of it. On the other hand, many jurists argue for the permis­sibility of organ donation provided that due permission is indicated and that the extracted organ does not negatively impact one’s health on the grounds that necessity overrides prohi­bition.

In examining Muslim discourses on modern biomedical issues it is important to observe the impact of new medical research on the reconstruction of earlier legal rulings. For exam­ple, one of the main changes that were introduced into the body of classical Islamic family law in the modern period is the limitation imposed on the maximum pregnancy period. Pre-modern jurists differ on the determination of the exact gestation period, mainly due to lack of a clear textual indication to either the minimum or the maximum period of a viable pregnancy. The question of the average pregnancy period was one of the important criteria used by classical jurists to verify the plausibility of filiations claims, especially ones that were made by widows and divorced women. In general, the minimum period of pregnancy was not as controversial as the maximum period. Most jurists estimate the minimum period of pregnancy to be six months. Unlike the minimum period of pregnancy, the maximum period was subject to a great deal ofjuristic disagreement. In the juristic tradition, opinions vary from nine months to an open-ended range. On the other hand, most modern jurists, basing themselves on modern medical and scientific knowledge, choose a minimum preg­nancy period of six months and a maximum of nine months. They explain the disagreement among pre-modern jurists and their accommodation of extended maximum periods of preg­nancy by unavailability of decisive and accurate medical information and also by reliance on reported claims of these extended periods.

By far some of the important issues that had to be renegotiated in light of new medi­cal findings as well as modern medical technology are associated with the two themes of beginning and end of human life. Both of these themes involve several legal and ethical implications as they touch on a number of critical questions ranging from (im)permissibil- ity of abortion to new criteria for the definition of death. A central point in the discussions concerning both the beginning and end of human life has been the issue of the soul (ruh). Reference in the Qur'an, and to a larger extent in the Sunnah, trace the inception of human life to the point at which this metaphysical entity merges with or is blown into the human body at the earliest stages of embryonic development.

According to the mainstream view in the tradition and also in the modern period, this point is 120 days. Modern embryology detecting signs of life prior to this threshold, how­ever, has rekindled classical debates surrounding the interpretation of the various scriptural references on this issue. Similarly, scriptural references to death trace its occurrence to the process through which the soul is separated from the body.

Joint meetings between physicians and life scientists on the one hand and jurists as well as legal experts on the other were convened in order to discuss the exact beginning and end of human life in light of new scientific and medical developments. Important meetings were initially sponsored by the Islamic Organization for Medical Sciences, which were followed by subsequent meetings organized by the two other transnational institutions mentioned above: the Islamic Fiqh Council and the International Islamic Fiqh Academy. The recom­mendations and resolutions of these joint deliberations have become important reference points for moral decision-making on these questions.³⁶

Another area of bioethics that has necessitated reconsideration of established legal rules is assisted reproduction. Since their introduction into the Muslim world, modern assisted reproductive technologies (ART) have stirred debates over their potential legal, ethical, and social implications. Some of the important issues discussed include: the moral status of em­bryos, gamete donation, cryopreservation of pre-embryos, post-marital or post-mortem con­ception, artificial insemination, manipulation of oocytes and embryos in vitro, the treatment of surplus or unwanted embryos, and the commercialization of the human reproductive function.³⁷

From the normative Islamic perspective, reproduction should be pursued within the framework of a licit sexual relationship in the form of marriage and most juristic discus­sions examine the impact of modern reproductive technologies on the marital relationship.

The impact of modern medical technology on the classical corpus of Islamic law has not been limited to particular substantive issues but it has also included its procedural dimen­sions as well. For example, juristic deliberations on the evaluation of DNA testing and its evidentiary weight vis-à-vis classical means is an important case in point. This issue has stirred extensive juristic discussions to address the evidentiary power of DNA whether in criminal or in civil cases. In general, use of DNA analysis in the investigation of criminal cases was permitted with the exception of cases involving textually stipulated crimes and punishments (hudud) or retaliation (qisas), which would require adherence to certain pre­scribed rules and procedures.³⁹ On the other hand, the main implementation of DNA analy­sis in civil cases is for paternity verification. Opinions in the literature indicate that securing legitimacy for the use of DNA fingerprinting for this purpose is achieved through two main approaches. The first is treatment of DNA testing results as a type of supporting or circum­stantial evidence, in conjunction with or in lieu of the classical method of physiognomy (qiyafa). The second is treatment of DNA testing results as a full legal proof by revisiting the definition of the term evidence (bayyina), which, according to this line of reasoning, does not have to be limited to witness testimony, as it has traditionally been interpreted by the majority ofjurists.⁴⁰