Islāmic Bioethics : Compilation of Fatāwa

بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ

Islāmic Bioethics : Compilation of Fatāwa

 

This is an ongoing project which will be updated إن شاء الله .

It is important that as doctors that we are aware of the rulings of the international organisations which are specifically engaged in issuing legal rulings (fatāwa) on bioethic issues fo the benefit of Muslim doctors and the general public. We can take comfort and confidence in the fact that these rulings have been discussed by real experts (both religious and medical) of international standing, on occasions over a period of days before issuing a ruling. One is often awed at the level of detail and level of understanding when looking at the details of the discussions which took place.

The medical community is a global community and we should, perhaps, follow the rulings of these international Islāmic organisations, particularly those of us living in non-Islāmic countries. It is with this in mind that I have compiled a list of (fatāwa) related to bioethics in medicine. Any constructive comments are welcome. You may contact me through the website administrator ([email protected]) or via email [email protected] or leave feedback/comments here.
Dr. A. Hussain.

 

Contents

The information provided here is a concise summary of the legal rulings of Islāmic bodies and in certain cases individuals in the context of special bioethics as opposed to fundamental bioethics.

        Introduction

1.     Seeking Medical Treatment
2.     Providing Medical Treatment
3.     Doctor Patient interaction
4.     Contraception
5.     Abortion
6.     Artificial Reproductive Techniques

               6a. Third party involvement in reproduction

               6b. Crypopreservation

               6c. Surrogacy

               6d. Gender selection

7.    Organ Transplantation & Associated Issues

               7a. Collection of fatāwa

               7b. Blood transfusion

               7c. Autotransplantation

               7d. Allotransplantation

               7e. Cadaveric transplantation

                         7e(i)  Brain death - An Islāmic Perspective

               7f. Transplantation of organs of the reproductive system

               7g. Translantation of brain cells and nervous tissue

               7h. Obtaining cells/ tissue from a human fetus

               7i. Prominet fataawa on brain death

               7j. Recipient Prioritisation/ Prohibition

               7k. Organ donation as part of Will, Donor card and Opt-Out Organ Donation Schemes

8.   Burying of limbs/ placenta etc
9.   Cloning
10.   Stem Cell Research and Genetic Engineering
11.   The Use of Unlawful or Judicially Unclean Substances in Food, Medicines and Vaccines

You can qucikly go to the relevant content section by pressing Crtl+F and enter the relevant content section number.

 

Introduction

Islām perceives itself as the perfect monotheistic religion and with it’s Sharīʿa, which encompasses Divine law, as the perfect and comprehensive guidance on all aspects of human life. A major challenge faced by contemporary Muslim scholars is to formulate a jurisprudence that maintains continuity with the Islāmic legal heritage while at the same time address the realities of modern times in their proper context. This has been a difficult task with Islāmic scholars resorting to repeated invocation of the doctrines of “necessity” (darurah) and “public benefit” (maṣlaḥa).

Human dignity is a frequent and very important theme in religious moral perspectives and one of the most emphasized themes in the Holy Qur’ān. According to the Ashʿari theological school the concept of goodness, badness and human dignity is based on the understanding of religious Scriptures and not discovered by human reasoning.

The undeniable primary source of Sharīʿa is the Qurʾān and the secondary source is the Sunna of the Prophet Muḥammad  (). The consensus (ijmā') of the Muslim jurists is the third source of Islāmic law (Sharīʿa) and from a practical perspective the most important, as it is decisive in the interpretation of the first two sources of law. In the abscence of these sources of law most Muslim jurists resort to the principle of analogical deduction, called qiyas.

Islāmic bioethics is an extension of Sharīʿa and as such in Islāmic states any discussions on bioethics involves the religious scholars (ulama) because any rulings within bioethics must necessarily be within the confines of Sharīʿa.

The development of bioethics in Islāmic states has been slow in comparison to their western counterparts. For instance, it was not until 1996 that the Ministry of Education in Egypt set up the National Committee of Bioethics and it was only in January 2004 that the National Bioethics Committee was established in Pakistan chaired by the Director General of Health at the Ministry of Health.

Amongst the Sunni Muslims in the world there is no supreme judicial-religious authority to give rulings (fatāwa) on new circumstances such as occur in biomedicine. Due to the absence of such an authority different rulings may be issued for a particular problem by individual Muslim jurists, known as the fuqaha or muftis, or by regional organisations. These legal rulings (fatāwa) besides using the above four sources of law also involve the practice of ijtihād,  which is independent legal reasoning, using the principles of presumption (istishab), public benefit (istislah) and equity (istishan). These rulings issued by different authorities may sometimes be contradictory to the same problem. A further confusion which occurs for those not familiar with Islāmic law is the presence of different schools of jurisprudence within Islām, which formed in the early centuries of Islāmic history. There are four main Sunni Islāmic schools of jurisprudence (fiqh), called madhāhib. They are named after their founders, imām Abū Ḥanīfa (), imām Mālik (), imām Shāfiʿī  () and imām Aḥmad bin Ḥanbal (). The Ẓāhirī madhhab has not survived although some minority groups are trying to revive it.

Muslims living in western countries rely heavily on fatāwa (legal edicts) issued in Islāmic states. There are a few well known organisations which issue rulings related to bioethics. The Islāmic Organization for Medical Sciences (IOMS) based in Kuwait and officially established in 1984 exclusively studies bioethical issues and is probably the most influential. Other important institutions whose rulings have a good academic standing include the Islāmic Fiqh Academy (IFA), which was established in 1977. It is is affiliated with the Muslim World League (sometimes referred to as Islāmic World League) and based in Jeddah, Saudi Arabia; the International Islāmic Fiqh Academy (IIFA), established in 1981, based in Jeddah, Saudi Arabia, and affiliated with the Organization of Islāmic Conference, and the Islāmic Fiqh Academy of India which was established in 1988 in New Delhi, India. In Europe the European Council for Fatāwa and Research (ECFR) was established in 1997 in Dublin and has been involved in issuing fatāwa regarding bioethics. An interesting development which has taken place in Islāmic jurisprudence in the twentieth century is that of collective ijtihād (al-ijtihād al-jamā'i), whereby traditional Islāmic scholars in conjunction with experts in the field of science (medicine) both contribute to the discussions and final ruling on a particular issue. Collective ijtihād has become a necessity due to the vast increase in scientific knowledge to the extent that it is usually not possible for religious scholars to be familiar with the complexities of scientific knowledge.

 

1. Seeking Medical Treatment

While seeking a cure for a disease a Muslim should be observant of the principles of Islām. The methodology used must be within Sharīʿa principles except in exceptional circumstances where the legal principle of necessary (darurah) may need to be applied. General principles of Sharīʿa include that the end does not justify the means and Sharīʿa gives priority to preventing harm over accruing a benefit (dar’ al-mafsadah muqaddamun ‘alaa jalb al-mafa’ah). So treatment options have to be carefully weighed to ensure that the treatment is not worse than the disease itself.

Islām does encourage its followers to look after their health and not to lose hope, while at the same time emphasising that everything is predestined (qadar). Medicine is to be seen as part of Divine determinism (qadar), it does not modify predestination but is part of it. According to Ibn Qayyim () recourse to treatment and medicine does not contradict submission to the Divine will just as we protect ourselves from hunger, thirst, the heat and the cold with the remedies that Allāh () Himself has provided (food, water, clothes, etc.).

“There is no disease that Allāh has created, except that He also has created its treatment” (Bukhari).

Some people, both Muslims and non-Muslims, with disease resort to superstition, magic, sorcery, astrology and divination. Such superstitions practices which may include amulets, tamaims, divinations, kahanah (fortune teller) and asking for supernatural cure from human beings who claim to possess supernatural powers or knowledge of the unseen may nullify the aqidah of tauhid.

 

2. Providing Medical Treatment

The practice of medicine has played a leading role during Islāmic history being second in importance only to the study of Sharīʿa. Some scholars consider the practice of medicine as a fard kifaya (communal obligation of the Muslim community).

It is a fundamental belief of all Muslims that Allāh () is Omnipotent, He is the source of every illness and cure, so the role of the doctor is to distribute the remedies and treatments made available to him by the Almighty. However, the role of the doctor is not limited to the distribution of these remedies and treatments made available to him by the Almighty, the role also includes social, psychological and religious aspects of life as well as giving advise on modification of behaviour for prevention of disease. So from an Islāmic perspective, a good doctor should also be a good Muslim, being aware of the rulings of Sharīʿa, thereby advising the patient appropriately for his/ her overall well-being.

 

3. Doctor Patient Interaction

In the course of practicing his/ her profession it is important that the medical Muslim doctor is aware of all relevant religious rulings issued by the religious authorities. The ultimate cure for any disease lies solely in the power of the Almighty. The Fiqh Academy of Makkah, in its 8^th session, on the 19th–28th January 1985 stated that a Muslim woman is prohibited from undressing completely in front of a man with whom it is unlawful for her to have sexual intercourse and it is only allowed for a legitimate purpose recognized by the Shari’a. These purposes include the case of a woman who requires medical treatment or care.

The awra of patient must be protected as much as possible and the doctor must only look at such parts out of necessity.

Whenever possible a female patient should be examined by a female doctor. Seclusion (khalwa) of a male doctor and female patient (and vice versa), being in a closed room, is prohibited, a third person, such as the patient’s spouse should be present, with the consent of the patient. In circumstances where a lengthy confidential consultation between the doctor and patient is necessary, such as in psychiatry, the psychiatrist should be a devout Muslim.

 

4. Contraception/ Abortion

Background information

 

 

MRI 3-D image of human embryo at carnegie stage 23 (8 weeks post fertilisation)

MRI saggital scan of human embryo at carnegie stage 23 (8 weeks post fertilisation)

 

4. Contraception

The majority of the Muslim jurists tolerate temporary contraception if there is the wife’s consent and it is the result of free choice. “Permanent” contraception (surgical sterilization or sterilization implants) is not permissible.

The overwhelming majority of jurists allow the use of IUD (intra-uterine device) as a contraceptive as they do not consider the fertilized ovum to have sanctity (hurma) as long as it is not settled in the uterus. The fertilised ovum might have a dignity (ihtirm), but this still does not mean sanctity.

The Islāmic Organization for Medical Sciences (IOMS, Kuwait) seminar on “Human Reproduction in Islām” in 1983, point 6, accepted surgical contraception (sterilisation) on the individual level in case of necessity.

 

Council of the Academy of Muslim Law (Fiqh) of Jeddah (Fifth Session, Kuwait City, 10–15 December 1988) Resolution no. 39 (1/5) states:

(1) “General laws” that limit the procreative freedom of the spouses are unlawful.

(2) It is prohibited to deprive a human being of the capacity to procreate (sterilisation) except in cases of necessity approved by the Sharīʿa.

(3) It is lawful to temporarily control procreation to space out the periods of pregnancy or interrupt them for established periods in case of necessity recognised by the Sharīʿa; however, this should be done at the discretion of the married couple according to their mutual agreement and after consultation as to whether the instruments are lawful.

 

Sharīʿa reasons quoted for allowing temporary methods of contraception include:

1. the need to space out births to protect the mother’s health;

2. prevention of transmitting hereditary and infectious diseases;

3. protecting a woman who is already ill from the risks caused by pregnancy;

4. avoiding economic hardship;

5. protecting the breastfed baby from the negative impact on the quality of the milk caused by a new pregnancy.

 

5. Abortion

Key considerations in abortion rulings:

1. When does human life begin
2. The time of ensoulment of the unborn child
3. The time when embryo/ foetus takes the characteristic form of a human being
4. Permission of husband for abortion to take place
5. Risk to mother’s health/ life from continued pregnancy

 

The question of when human life begins is a key question when it comes to abortion but there is no unified answer to this question as the interpretation of the scriptural texts on the issue are not definitive. Both Islāmic scholars and Muslim doctors (scientists) subscribe to each of three different viewpoints:

1. From the time of fertilisation of the female ovum by the sperm
2. From the time of implantation of the zygote in to the endometrium of the uterus
3. From the time of ensoulment

The dominant opinion is no. 3.

 

The Qurʾān itself does not give details of when ensoulment takes place, which is taken to be the change from biological life to human life, evidence for ensoulment relies on interpretation of hadith literature, which indicate different times. The majority opinion of the jurists is 120 days after fertilisation. Other opinions state 40 days, 40 nights, 42 nights, 40 days and 40 nights and 45 nights.

Some medical physicians are of the opinion that ensoulment coincides with development of the brain which can be evidenced by modern medical imaging techniques.

 

Classical position of the madhāhib:

Ḥanafī jurists: Abortion is acceptable before ensoulment with or without a justification.

Shāfiʿī jurists: Abortion is allowed within 40 or 42 days with the consent of the parents, but abortion is still legally a detestable act (makruh).

Mālikī jurists: Majority prohibit abortion even in first 40 days.

Ẓāhirī jurists: Abortion is unlawful before and after ensoulment.

 

February 1987, Resolution no. 140 of the Saudi Committee of Senior Ulama prohibits abortion at any stage of the pregnancy except in the limited cases allowed by the Sharīʿa.

During first 40 days abortion is lawful if there is a legitimate benefit.

From 40th day to 120 days abortion is unlawful unless the pregnancy threatens the woman’s health and life.

After 120 days, abortion is prohibited except in the event that the continuation of the pregnancy will be fatal to the mother.

2004, Islāmic Code for Medical Ethics of IOMS prohibits abortion unless the mother’s health and life are threatened, in which case abortion is permitted before the 120 day period. The risk of serious injuries to the mother must be confirmed by no fewer than three doctors. When abortion is recommended, written consent is required from husband and wife (or guardian) in order to abort.

Islāmic Medical Association of North America (IMANA), Ethics Committee, has opined that abortion is lawful in the first 120 days to save the mother’s life and/or her health from serious psycho-physical damage, and is also permitted in the case of lethal malformations of the foetus with the consent of the medical experts, and it is also lawful in cases of rape, incest and war crimes.

 

Additional note: After ensoulment, the diyya (i.e. the full blood price) is paid if the foetus is aborted alive and then dies, while the ghurra (equivalent to 1/10-1/20 of diyya) is paid if it is aborted dead.

 

6. Artificial Reproductive Techniques

6a. Third-party involvement in reproduction

Artificial reproductive techniques are prima facie Islāmically permissible provided the technique involves the married couple only such that both the sperm and the eggs come from the married couple in the context of a valid marriage. Third-party involvement is prohibited.

6b. Crypopreservation

Cryopreservation of the wife’s ova, husband’s sperm or fertilized ova is considered permissible by many Islāmic scholars on one condition, that they are used in subsequent cycles for the same couple within the span of their marriage. Note that marriage contract terminates through a divorce or when one of the spouses dies, so impregnating a woman with the stored sperm of her ex-husband or fertilised ova is not permissible.

 

6c. Surrogacy

There are different types of surrogacy:

1. Traditional surrogacy (also known as partial, genetic, or straight surrogacy) involves natural or artificial insemination of a surrogate. If the intended father's sperm is used in the insemination, then the resulting child is genetically related to the intended father and genetically related to the surrogate. If donor sperm is used, the resulting child is not genetically related to either intended parent(s) but is genetically related to the surrogate.

2. Gestational surrogacy (also known as host or full surrogacy) takes place when an embryo created by in vitro fertilisation (IVF) technology is implanted in a surrogate, sometimes called a gestational carrier. Gestational surrogacy may take a number of forms, but in each form the resulting child is genetically unrelated to the surrogate:

• the embryo is created using the intended father's sperm and the intended mother's eggs. The resulting child is genetically related to both intended parents.
• the embryo is created using the intended father's sperm and a donor egg where the donor is not the surrogate. The resulting child is genetically related to the intended father.
• the embryo is created using the intended mother's egg and donor sperm. The resulting child is genetically related to the intended mother.
• a donor embryo is implanted in a surrogate. Such an embryo may be available when others undergoing IVF have embryos left over, which they donate to others. The resulting child is genetically unrelated to the intended parent(s).

Surrogacy is prohibited both partial and complete types as well as surrogate maternity in a polygamous marriage. The ijmā’ of the Muslim scholars is that the birth mother is the “real” mother.

 

6d. Gender selection

Application of PGD or sperm sorting techniques for sex selection is discouraged in principle. Gender selection is only permitted for medical reasons where a particular sex predisposes to a serious genetic condition such as serious x-linked disorders including, Duchenne muscular dystrophy, haemophilia, and fragile X syndrome.

 

1983, Seminar on “Human Reproduction in Islām” (IOMS, Kuwait) stated “Foetal sex selection is unlawful when it is practised at a national level, while on an individual basis, some of the scholars participating in the seminar, believe there is nothing legally wrong with the attempt to fulfil the wish of a married couple to have a boy or a girl through available medical means, while others scholars believe it is unlawful for fear that one sex might outnumber the other.”

 

1985, 8th session of the Fiqh Academy of Makkah refused surrogate maternity in a polygamous relationship.

 

1986, The Fiqh Academy of Jeddah in its 3rd session in Amman, Resolution no. 5 (4–3) The Fiqh Academy of Jeddah issued the same ruling.

 

1987, Symposium organised by the IOMS on “The Islāmic Vision of Some Medical Practices” state that the majority of experts and scholars did not deem the surplus fertilised ovules inviolable but they could be destroyed.  

 

1990, 6th session of the Fiqh Academy in Jeddah (Organisation of the Islāmic Conference) ruled that: it is allowed to inseminate the strictly indispensable number of eggs with the husband’s semen. The surplus pre-embryos should be left to die spontaneously; the donation of fertilised eggs was judged unlawful.

 

1991, “Bioethics on Human Reproduction in the Muslim world” held at the University of Al-Azhar in Cairo (Egypt), made the following points:

● Research on the stimulation of ovulation, IVF and artificial insemination are allowed only if the gametes belong to a married couple and on condition that the fertilised egg is transferred into the uterus of the wife to whom the egg belongs.

● The donation and commerce of sperm and eggs are forbidden.

● The transfer of the fertilised egg to a “surrogate mother” is prohibited even in a context of polygamy.

● The number of embryos transferred into the uterus must not exceed three to four.

● Any surplus fertilised eggs may be cryopreserved; they belong to the married couple and may be transferred to the wife in a subsequent cycle when the previous treatment has failed only if the marriage contract is still valid. These pre-embryos may be used for research if the couple give their consent.

● Research on pre-embryos should be limited to therapeutic research with the consent of the partners. Non-therapeutic research requires the free and informed consent of the couple and these pre-embryos may not be transferred to any uterus.

● Research with the aim of amending the hereditary characteristics of the foetus is prohibited, including to choose its sex.

 

1997, 9^th Islāmic law and medicine conference, Islāmic Organization for Medical Sciences (IOMS), held in Casablanca, Morocco, recommended to prevent human cloning and to prohibit all situations in which a third party invades a marital relationship through donation of reproductive material.

 

2003, 17^th session, decree no. 3, of the Islāmic  Jurisprudence Council of the Muslim World League in Makkah Al-Mukarama, declared regarding stem cell therapy: It is permissible to obtain stem cells, to be grown and used for therapy or for permissible scientific research, if the source is legitimate, as for example, leftover zygotes remaining from IVF, if donated by the parents, when it is ascertained that they will not be used in an illegal pregnancy.

 

2007, the Muslim World League passed a fatawa stating that gender selection performed specifically for social reasons is banned. However, it allowed gender selection for medical reasons only.

 

7. Organ Transplantation

1996 in Jakarta, the Indonesian Council of Ulama, together with the Indonesian Forum for Islāmic Medical Studies and the Federation of the Islāmic Medical Association (FIMA), in the final resolution of the International Seminar on Organ Transplantation unanimously stated in the final resolution that organs belong to Allāh but, as divine assets were created for the benefit of men, man can use his organs for the benefit of the community.

1988 in Jeddah, resolution no. 26 (1/ 4), by the Council of the Academy of Islāmic Law stated:

(1) The beneficiary of a transplant to be leading an honest existence in accordance with the Sharīʿa.

(2) It is permissible to transplant an organ from one place in a person’s body to another place in the same body, but attention must be paid to ensuring that the expected benefits outweigh any possible harm; that is subject to the condition that this is done to replace a lost organ or body part, or to restore its regular shape or function, or to correct a fault or remove a deformity that is causing the person psychological or physical harm. 

(3) It is permissible to transplant an organ from the body of one person to another if it is an organ that renews itself automatically, such as blood and skin. But attention must be paid to the condition that the donor be fully qualified and fulfil the Sharīʿa conditions. 

(4) It is permissible to make use of organs that have been taken from the body of another person due to sickness, such as taking the cornea from the eye of a person whose eye has been removed due to sickness. 

(5) It is harām to transplant an organ on which life depends, such as transplanting the heart from a living person to another person. 

(6) It is harām to transplant an organ from a living person when its removal may cause an essential function to cease, even though his life does not depend on it, such as taking the corneas of both eyes. But if he will still have partial function after removing it, then the matter is subject to further discussion.

(7) It is permissible to transplant an organ from a dead person to a living person whose life or basic essential functions depend on that organ, subject to the condition that permission be given by the deceased before his death, or by his heirs after his death, or by the authorities in charge of the Muslims if the identity of the deceased is unknown or he has no heirs. 

(8) It should be noted that the agreement on the permissibility of organ transplants explained above is subject to the condition that this is not done by selling the organs, because it is not permissible to subject human organs to sale under any circumstances.  As for the beneficiary spending money in order to obtain the required organ where necessary or offering compensation or honouring the donor, this is subject to ijtihād and further discussion. 

(9) All cases having to do with this topic are subject to further research and discussion, and they should be studied and discussed in a future session in the light of medical data and Shari’a rulings.

1990 in Jeddah, resolution no. 6/ 8/ 59 of the Academy of Islāmic Law stated that, (1) the transplantation of genital organs (ovaries and testicles) is juridically prohibited and (2) the transplantation of the external genital parts or most shameful parts (awrât mughallaza) is also prohibited. The expression awrât mughallaza does not appear to include the uterus.

1989, Islāmic Fiqh Academy of New Delhi in 1989 stated that:

(1) the transplantation of organs from halāl animals (i.e. the consumption of which is allowed, e.g. sheep, goat, cow) slaughtered according to Sharīʿa is permissible.

(2) when life is at risk and there are no alternatives, organs from harām animals and halāl animals not slaughtered according to Sharīʿa is also permissible.

(3) Organs form a pig can only be used if there exists a serious danger for life.

(4) donation of organs in a Will is non-binding. This opinion is based on the consideration that we cannot give away what does not completely belong to us (the only real owner is the Creator); in addition, a human organ has an inestimable value and its inclusion in a Will makes it invalid. This opinion is not shared by other religious bodies.

1989 in Kuwait, Islāmic Organization for Medical Sciences (IOMS) in collaboration with the Islamic Fiqh Academy of Jeddah, recommendations:

(1) transplant of nerve tissues is licit if the nerve cells come from the marrow of the suprarenal glands of the subject,

(2) explantation from an anencephalic may be used for transplantation only after the brain stem death of the foetus and

(3) transplant of sexual organs is illegal.

1996 in Jakarta, Indonesian Resolution on “Organ Transplantation from the Islāmic Perspective” stated:

(1) the transplantation of organs from halāl animals (i.e. the consumption of which is allowed, e.g. sheep, goat, cow) slaughtered according Sharīʿa is permissible.

(2) the transplantation of organs from animals involves use and eating, transplantation of organs from animals which are harālm or ritually impure (najis) is permissible if they represent the only cure.

2002, Sheikh Yusuf al-Qaradawi issued a fatawa declaring that it was unlawful for a Muslim to donate his/ her organs to a non-Muslim that attacks Islām, or to an apostate.

Rulings on the definition of death, brain death and organ retrieval from brain dead subjects are to be found here.

 

7b. Blood transfusion

View of the madhahib : Blood transfusion is allowed from non-Muslims based on the criterion of necessity according to Hanafi, Shafii and Hanabali fiqh, the Malaki fiqh allows it if a Muslim donor is not available.

1949, the Religious Rulings Committee of Al-Azhar fatawa states that when the recovery or life of a patient depends on a transfusion, the practice is lawful “even if he [the donor] is non-Muslim”.

 

7c. Autotransplantation

Autotransplantation means transplanting tissues or organs from one part of the body to another of the body in the same person. It is permissible providing:

(i) that the potential benefits of such an operation outweigh the probable harms and

(ii) that the purpose of this operation is legitimate such as replacing a missing organ, restoring its shape or usual function or reforming a defect or removing ugliness that causes psychological or physical harm.

 

7d. Allotransplantation

Allotransplantation means transplanting tissues or organs from one person into the body of another person. It is permissible with the following conditions:

(i) the donor is legally qualified to donate and the donated organ regenerates itself automatically such as blood or skin,

(ii) the donated tissue or organ has been removed for medical reasons.

1988, the Council of the Academy of Islāmic Law IV Session, resolution no. 26 (1/4) requires the beneficiary of a transplant to be leading an honest existence in accordance with the Sharīʿa.

 

7e. Cadaveric transplantation

Cadaveric transplantation means transplantation of tissue or organ from a dead person in to a living person. This subject is controversial and a number of issues have to be considered including the concept of death itself as well as brain death.

     7e(ii).  Brain death - An Islāmic Perspective, details can be found here

(i) as long as the recipient’s life or a fundamental function in his body is dependent on receiving such an organ.

(ii) The main condition stipulated by the fatwa is that the dead person should have given his consent before death or his heirs give theirs after his death. If neither the deceased nor heirs were identifiable then the consent of the “Guardian of the Muslims (walī amr al-muslimīn)” should be obtained.

 

7f. Transplantation of organs of the reproductive system

(i) it is forbidden to transfer someone’s testicle or ovum to another person,

(ii) transplanting other organs of the reproductive system which do not transfer the genetic characteristics is permissible.

 

7g. Transplantation of brain cells and nervous tissue

(i) it is permissible if they are obtained from the adrenal gland of the patient himself.

 

7h. Transplanting or Obtaining cells/ tissue from a human fetus

(i) is permissible only after an abortion which is considered legal from an Islāmic perspective or after natural miscarriage.

(ii) Obtaining these cells from a baby born with anencephaly is permissible only after being diagnosed with brain death.

 

7i. Prominent fataawa on brain death

1981: In Kuwait, a religious committee ruled that a person remained alive as long as the circulation and respiration continued even if the respiration was mechanical.According to this fatwa brain death does not equate with Islamic death.

1982: In Saudi Arabia, Senior Religious Scholars Commission allowed organ donation from brain dead individuals.

1985: Islāmic Organisation for Medical Sciences (IOMS) equated brainstem death with unstable life (al-hayat ghair al-mustaqirr), allowing discontinuation of life-support systems but did not equate brainstem death with a formal declaration of legal death. The IOMS reviewed its stand on the subject in 1996 and did not make any alterations to its original statement. According to this fatwa brain death as currently practised in medicine does not equate with Islamic death.

1986, Oct. 11-16, Amman The Resolution no. 17 (Fatwa) of the Council of Islāmic Jurisprudence on Resuscitation Apparatus (Islāmic Fiqh Academy), 3rd session, based on the majority decision of the participants, accepted two legal standards for declaration of death as:

           Complete cessation of the heart and respiration irreversibly as witnessed by physicians, and

Complete cessation of all vital brain functions and the specialist physicians rule that it is irreversible and the brain has started to degenerate. Under these conditions, it is lawful to disconnect the life-support treatment even if some organs continue to function automatically (e.g. the heart) under their effect. According to this fatwa brain death as currently practised in medicine does not equate with Islamic death.

1987, Oct. 17-21, Makkah: The Council of Islāmic Jurisprudence of Muslim World League, 10th session, resolution no. 2, allowed withdrawal of life-support system from a person when three doctors declare the person as being whole brain dead but death of the person can be pronounced only after breathing and the heartbeat have stopped. This fatwa did not equate brain death with legal death, thereby rejecting the 1986 fatwa but it received little attention in the media. According to this fatwa brain death as currently practised in medicine does not equate with Islamic death.

1995   Muslim Law Council fatwa in U.K. stated: "The council accepts brain stem death as constituting the end of life for the purpose of organ transplant."

2000  European Council for Fatwa and Research ratified the IIFA 1986 fatwa. ECFR states that death is of two types: 

 a. the death of the brain through medically irrecrsible final stoppage of all its functions

            b.  the complete medically irreversible dysfunction of the heart and the respiration system

According to this fatwa brain death as currently practised in medicine does not equate with Islamic death.

2007: Indian Fiqh Academy at the 16th Fiqhi Seminar in Muhazzabpur, Azamgarh declared death as: “When the respiratory system collapses completely and the signs of death are apparent, only then it would be declared that the patient is dead. His Will would take effect from that time. The inheritance will be released and the period of ‘idda (waiting period for widow) will also be counted from that time.” According to this fatwa brain death does not equate with Islamic death.

2019 Mufti Zubair Butt's fatwa on organ donation. Brain death does not constitute death in Islam. 

2021 Fiqh Council of North America stated that it  "does not include brain death in the definition of death, and thus does not allow for the extraction of vital organs (e.g. the heart) for donation purposes in such a state." 

 

7j. Recipient Prioritisation/ Prohibition

(i) If the donor or his heirs specified a certain person to benefit from the donated organ, or they authorized a certain authority to specify the beneficiary, then this should be abided by as much as possible. If this [specification] could not be settled because of mental incompetency or medical reason then the donor’s heirs, and if not available then the authority concerned with the Muslims’ interests in non-Muslim countries, should be consulted.

(ii) In case of organ shortage, the organ donated by a Muslim should go firstly to a Muslim blood-relative, then to a Muslim non-relative and finally to a non-Muslim. This prioritization based on religious affiliation cannot be applied in Europe in the light of the binding European laws and regulations.

 

7k. Organ donation as part of Will, Donor card and Opt-Out Organ Donation

(i) Organ donation in a Will: There are opposing legal rulings on this issue.

First opinion is that of the Islāmic Fiqh Academy of New Delhi in 1989 which stated that a donation of organs in a Will is non-binding and its inclusion in a Will makes the Will invalid. 

Second opion is that of the Middle East scholars which is that if a person wrote a document donating one of his organs posthumously then the rulings with pertinence to testaments (waṣiyya) should be applied herein. Neither the heirs nor anybody else has the right to change this testament.

(ii) Donation via donor card: According to the European Council for Fatāwa and Research (ECFR) fatwa, filling in a organ donation card is analogous to the drafting of a testament according to Islāmic law. Hence, the heirs are not entitled to act against the Will of the deceased.

(iii) Opt-out organ donation: According to the ECFR fatwa, there is no objection in Islām against the opt-out organ donation system.

Details of opt-out organ donation system in Wales here.

 

8. Burying of Limbs/ Placenta etc.

(i) Hanafi fiqh ruling as mentioned in Fatawa al-Hindiyya, Vol. 5, P. 438, Darul Kutub Ilmiyya, and Badaai' al-Sanaai', Vol. 4, P. 316, Darul Kitab Deoband, regarding separated limbs, placenta etc., is that one should endeavour to bury them but it is not necessary to bury them in a designated graveyard.

(ii) The opinion of Shaikh bin Baz as mentioned in kitaab Majmoo’ Fataawa wa Maqaalaat Mutanawwi’ah li Samaahat al-Shaykh al-‘Allaamah ibn Baaz , vol. 9, p. 436, is that the matter is open although it is good and preferable to bury amputated limbs in the ground.

 

9. Cloning

1997 in Jeddah, International Islāmic Fiqh Academy (IIFA), prohibited both types of human cloning, reproductive and twinning,  and any other type that might lead to human procreation. Cloning in the botanical and zoological fields is permissible.

 

10. Stem Cell Research and Genetic Engineering

Introduction of a healthy gene into somatic cells, if performed for therapeutic reasons, is permissible; some experts deem this technique equivalent to a transplant at the molecular level and is accepted by those in favour of organ transplants (the majority of jurists).

The modification of an organ through a gene for therapeutic purposes is acceptable according to some; however, the modification of an entire
the organism is formally prohibited.

1998 in Kuwait, 11th Seminar on “Genetics, Genetic Engineering, the Human Genes and Genetic Treatment – An Islāmic Perspective,” organised by the International Islāmic Fiqh Academy of Jeddah,  the WHO Regional Office, Alexandria (Egypt), and the Islāmic Education, Science and Culture Organisation (ISESCO), recommendations:

(1) Islām promotes knowledge and does not obstacle any “constructive” scientific research; for these reasons, Islām must move to the fore
in genetic research. Recourse to genetics to cure hereditary or acquired pathologies does not contradict the acceptance of divine will. Genetic research must never have priority over the rules of the Sharīʿa and respect for human rights.

(2) Mapping of human genes is permissible as an effort aiming at the knowledge of the human being and comprehension of the mechanisms of some hereditary pathologies.

(3) Genetic engineering on germinal cells is prohibited by the Sharīʿa. Genetic engineering should not be used with offensive purposes or crossing genes of different species to improve the human race or to tamper with the personality of an individual (eugenic purposes). 

(4) Muslim law has no objections to the use of genetic engineering in agriculture and for animals but calls for an evaluation of the long-term risks on humans, animals and the environment.

(5) Genetic consulting should be available to citizens but without any obligation; consulting must remain confidential; recourse to consulting must be encouraged by the health institutions, the mass media and in the masājid.

 

11. The Use of Unlawful or Judicially Unclean Substances in Food, Medicines and Vaccines

 

7. Treatment of diabetes patients with insulin obtained from a pig source is permissible because of "necessity" given that the relevant rules and principles of the Sharīʿa, are observed.

 

8. "Transformation", i.e. the process that causes an object to change into another, totally different in properties and characters, turns the unclean, or what is deemed to be unclean, into a clean object, and therefore, turns prohibited things into things permissible by the Sharīʿa. On this account the following is concluded:

a. Gelatine made of unclean animal's bones, skin and tendons is clean and permissible for consumption.

b. Soap produced by treating and transforming pig fat or fat obtained from a dead animal turns into a clean compound by the process of transformation and therefore using this soap is permissible.

c. Cheese processed with rennet, obtained from animals which are dead but are permissible to eat, is clean and eating it is permissible.

d. Ointments, creams and cosmetics which contain pig fat are all unclean. Their use is impermissible in Sharīʿa except when transformation (of the material into one of totally different properties) is ensured.

 

9. All narcotic drugs/ substances are prohibited and under no circumstances are they permissible except for specific medical treatment as determined by physicians. These substances are inherently clean themselves. There is no objection, however, to the use of nutmeg as an aromatic for food, in small amounts which do not lead to sedation or narcosis.

In their summary, the jurists reaffirmed the scholarly consensus (ijmā'),  that the pig is judicially unclean, najis al-ayn. However, they allowed the use of pig components in medicine where “transformation” (istiḥāla*) of the component has taken place. See the official statement letter below.

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1997, 9th IOMS seminar. The Islāmic Educational, Scientific, and Cultural Organization (ISESCO), also attended the seminar in addition to the 1995 participants. The Islāmic scholars reaffirmed the permissibility of using porcine gelatine based on the Islāmic ethico-legal construct of istiḥāla, and further approved the use of pig enzymes in medicine production through the construct of istihlāk.

1998, Islāmic Fiqh Academy (IFA of Jeddah) stated: "It is permissible to use gelatine extracted from the lawful materials as well as from animals slaughtered in accordance with the rulings of Islāmic Sharīʿa. However, it is not permissible to use gelatine extracted from any prohibited animals or materials such as pigskin and bone.”

2008, MUI (council of Indonesian ulema) issued a fatwa that meningitis vaccine produced by GlaxoSmithKline declaring it to be harām as pig enzymes are used during it's manufacture. The Saudi government would not allow the Hajj pilgrims to travel for Hajj unless they were vaccinated against meningitis, so the MUI allowed the use of the vaccine based on the principle of necessity as no alternative was available. In 2010 when halāl meningitis vaccines became available the permissibility to use the GlaxoSmithKline vaccine was withdrawn.

Muslim jurists agree on the general principle of transformation (istiḥāla), even if their phraseology might differ on it. However, it is worth noting that Shafii jurists do not, in general, accept that the principle of istiḥāla (transformation) is applicable to porcine products, the official fiqh of Indonesia is Shafii. The Hanafi and Maliki jurists view is that istiḥāla can purify porcine products, although some Hanafi scholars opine that porcine products are not covered by istiḥāla. The dominant opinion amongst the Hanbali jurists is probably that porcine products are not covered by istiḥāla, but the opinion of Ibn Taymiyyah () and Ibn Qayyim al-Jawziyyah () was that they are.

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The UK situation 

The only vaccines which involve porcine gelatine during their manufacture in the UK are the MMR vaccine (VaxPro®) which protects against measles, mumps and rubella, the shingles vaccine (Zostavax®) which protects older adults against shingles, and the children's nasal spray flu vaccine (Fluenz Tetra®) which protects children against flu.

Are there any alternatives to these porcine gelatine based vaccines? There is an alternative to the MMR vaccine (VaxPro®), called Priorix® is as safe and effective as MMR VaxPro®, so parents not wishing their children to have the porcine gelatine-containing MMR vaccine should request the Priorix® vaccine from their GP. Zostavax® is the only shingles vaccine currently available worldwide. For healthy children, there are no suitable equally effective alternatives to Fluenz Tetra®. There are injectable flu vaccines that do not contain pork gelatine, but these are less effective than Fluenz® in children. They may also require two doses, and do less to reduce the spread of flu in the community. These vaccines are only recommended as part of the programme for children and adults who are at high risk of the complications of flu.

Does the end product, Fluenz® vaccine contain porcine gelatine? The official statement by the manufacturer states that unlike the gelatine used in foods, the product used in vaccines is highly purified and broken down into very small molecules called peptides (small molecules made of amino acids) which is supported by the fact that very sensitive scientific tests have shown that the Fluenz® flu vaccine does not contain any detectable DNA from pigs (see letter from manufacturer AstraZeneca below).

Why did the manufacturer choose porcine gelatine for Fluenz® vaccine rather than a halāl alternative?
"Porcine gelatine is used in vaccines as a stabiliser – to ensure that the vaccine remains safe and effective during storage. Vaccine manufacturers normally test a wide range of stabilisers and choose one that is stable, good quality and available in sufficient volume. Unlike the gelatine used in foods, the product used in vaccines is highly purified and broken down into very small molecules called peptides.

Developing a vaccine takes many years of laboratory testing and clinical studies to ensure that it is both safe and effective. Once the manufacturer has chosen the stabiliser for the vaccine, any change in this could require extensive laboratory and clinical studies to show that the safety and effectiveness of the vaccine were not affected. Because of this, developing a new safe and effective vaccine with a different stabiliser may take several years or may never happen."

Is the end product, Fluenz® vaccine halāl or harām?
The Muslim jurists are divided on this issue. All the jurists agree that the pig is judicially unclean, najis al-ayn, so any product containing porcine gelatine is harām. However, the original porcine gelatine is degraded by hydrolysis to peptide molecules to the extent that the Fluenz® flu vaccine does not contain any detectable DNA from pigs. Some jurists are of the opinion that porcine products cannot be judicially purified, they remain najis. Other jurists believe that porcine products can be purified by a process of istiḥāla (transformation) but they disagree amongst themselves what constitutes istiḥāla (legal transformation) because istiḥāla has not been clearly defined by the classical jurists. 

In the U.K. some Hanafi jurists in UK have stated that the use of Fluenz® vaccine to be harām because it "contains gelatine derived from pork", or they do not accept the changes that have occurred in the porcine gelatine constitutes istiḥāla (a legal “transformation”). These Muslim jurists further support their stand by pointing out that Fluenz® vaccine is not intended as a direct treatment for an individual, rather it is intended as an “optional” way of avoiding the spread of flu. However, many medical treatments/ interventions including vaccination programs are based on the principle of prevention for the benefit of the individual and in some circumstances for the community as a whole, so the latter justification is somewhat tenuous. The bottom line is that these Muslim jurists consider the Fluenz® vaccine to be harām.

 

Permissibility of harām medication

The next obvious question is the permissibility of using medication containing harām substances.

The classical Hanafi fuqaha differed as to the permissibility of using harām medication. Imām Abū Ḥanīfa () was of the opinion that it is not permissible to use anything that is unlawful even for medical purposes. However, his eminent student imām Abu Yusuf () considered it to be permissible. The authoritative Hanafi text states: "The Scholars differed regarding the usage of harām medication. The apparent opinion in the (Hanafi) school is that it is harām. However, it is said that it will be permissible when the medicine is known to be effective and there is no other alternative, just as there is a dispensation in drinking alcohol for a person dying of thirst, and the fatwa is given on this opinion." (Durr al-Mukhtar, 1/210)

According to the Hanafi view it is permissible to use medicines that have impure or unlawful substances in them, provided the following conditions are met:
1) It is reasonably known that the medicine will be effective, and is needed;

2) There is no permissible alternative reasonably available;

3) This has been established by an expert Muslim doctor who is at least outwardly upright and god-fearing.

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Summary re Fluenz® vaccine, Halāl or Harām?:

i) Porcine gelatine is used in the manufacture of Fluenz® vaccine, it acts as a stabiliser for the live attenuated virus.

ii) The porcine gelatine in vaccines is broken down into very small molecules called peptides. It is degraded to the extent that very sensitive scientific tests have shown that the Fluenz® flu vaccine does not contain any detectable DNA from pigs (see letter from manufacturer AstraZeneca below). So the original source of the porcine gelatine cannot be identified.

iii) Some Muslims jurists (Shafii jurists and others) do not accept that the principle of istiḥāla (transformation), whereby a judicially impure substance is transformed into a pure one, is applicable to porcine products, so the amount of transformation of the porcine gelatine is irrelevant. These jurists opine that Fluenz® vaccine is harām.

iv) In 1995 over 100 leading Muslim jurists and experts from across the Muslim world passed a fatwa at the 8th medical seminar organised by the Islāmic Organization for Medical Sciences (IOMS) in Kuwait that porcine gelatine in vaccines is judicially pure and permissible to use based on the principle of istiḥāla (transformation), hence according to this fatawa Fluenz® vaccine is considered halāl. However, this fatwa is not accepted by all Muslim jurists around the world. Participation by the leading Muslim jurists does not necessarily mean they all endorsed the final fatawa.

v) Around 2014-2015. Some Muslim jurists (Hanafi jurists in UK and elsewhere) do not consider the changes that the porcine gelatine has undergone in the manufacture of the Fluenz® vaccine constitutes istiḥāla (a legal transformation) whereby an impure substance transforms into a pure one, so their stand is that Fluenz® vaccine is harām.

vi) In September 2020, the British Fatwa Council (?based at the Karimia Institute in Nottingham) issued a fatwa stating that "nasal flu vaccine containing porcine gelatine is permissible". This fatwa was signed by Mufti Dr. Hafiz M. Munir Al-Azhari, Mufti Yar Muhammad Khan Qadri and Dr. Musharraf Hussain Al-Azari.

vii) For healthy children within the recommended age range, there are no alternatives which are considered to be as effective as the Fluenz® vaccine. However, an alternative is available which is in the injectable form and does not involve any porcine products.

viii) Muslim jurists who consider medicines (including vaccines) manufactured using porcine contents as harām do allow their use in cases of necessity (darurah).

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*Istiḥāla refers to the transformation of a judicially impure (najis) substance into a judicially pure (tāhir) substance. 

**Istihlāk refers to changes that occur when mixing large quantities of a purity with small quantities of an impurity. 

Jurists consider istihlāk as a form of istiḥāla.

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THIS IS AN ONGOING PROJECT.   I WILL UPDATE AS TIME PERMITS.