In the name of Allāh, Most Gracious, Most Merciful

The Muslim Medical Expert and Fatāwa on Bioethics

بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ

The Muslim Medical Expert and Fatāwa on Bioethics

 

In modern-day western society, many Muslims (and non-Muslims) seek answers, from an Islāmic perspective to some every important questions which have a profound effect on their daily lives, in terms of health, sickness, life and death.

Many erroneously believe that the answers to all their questions can be obtained from the imām of the masjid. In fact, an imām in Sunni Islām is often a term used for someone who leads the faithful in prayer and not necessarily someone well-acquainted with Islāmic law.

Those who have studied Islāmic law and have traditionally been given the responsibility of issuing Islāmic rulings on matters are called muftis or fuqaha (singular faqih). The word Islāmic scholar is a very loose term (similarly the title of sheikh) and does not necessarily mean someone well versed in Islāmic law nor an expert in a particular field of knowledge.

So seeking Sharīʿa rulings which carry academic weight and authenticity to novel medical problems is a challenge in itself. Most muftis are not at all well-equipped to answer these questions but rely on merely quoting the views of classical scholars as found in the classical religious texts, often not appreciating the change in scientific knowledge that has occurred over the centuries to question the classical legal standpoints on certain issues. Examples of such issues include the maximum gestation period, rulings on medical interventions which break the fast, reproductive techniques, and is brain death actual death? This has also been true of issues outside the scope of medicine such as finance and astronomy, in particular the issue of moon-sighting.

Many questions posed by modern medicine such as in bioethics require independent reasoning (ijtihād) on part of the mufti to derive at a legal religious ruling (ḥukm sharʿī) and then issuing a fatawa.

In deriving at a legal religious ruling (ḥukm sharʿī) and issuing a fatawa on an issue involves 2 elements:

  1. The first, the informative element, is to understand the reality of the situation (fahm al-wāqiʿ) which involves gathering and understating all the relevant information from experts in a particular field of knowledge
  2. The second, the normative element, is to correctly perceive (taṣawwur ṣaḥīḥ) the issue using the established juristic methodologies.

The end result is the issuing of a legal religious ruling (fatawa).

Traditionally legal religious rulings have been undertaken by individual muftis (or fuqaha), so quite often, a religious ruling is quoted as according to such and such a scholar.

Even top-level Muslim jurists (fuqaha) can reach the wrong conclusion due to a lack of full correct perception of a particular issue. By way of example, Muḥammad al-Ashqar, a Jordanian scholar, submitted a paper at an Islāmic Organization for Medical Sciences (IOMS) meeting on the transplantation of sexual organs and his conclusion was that transplanting testes is permitted from an Islāmic standpoint.  Of course, anything which may lead to the mixing of lineages (ikhtilāṭ al-ansāb) and the involvement of a third party in the production of a child is clearly forbidden in Islām.

Al-Ashqar argued that in the case of a transplanted organ (testes included) the recipient is the exclusive owner of the donated organ, he put forward a number of valid arguments to justify this position. He went on further to argue that sperm which will impregnate the recipient’s wife are produced in the body of the recipient and nowhere else, any resultant children must, therefore, belong to the recipient.  Hence, al-Ashqar concluded, that transplanting testes is permitted because the recipient of the testes is the genetic and legal father from the Islāmic point of view. To correct Al-Ashqar’s misperception several biomedical scientists engaged in a detailed and lengthy discussion with him. They pointed out to him that the sperm produced by the testes will always be that of the donor, a fact well known to virtually all doctors, because spermatogenic cells which form the sperm are produced in the very early weeks of foetal development, so the genetic material will always be of the donor. The correct perception in this instance was put forward by the science experts which was accepted by all the religious experts and the fatawa on transplantation of testes (and ovaries) is that it is forbidden. This is an example where a Muslim jurist changed his legal opinion on a matter after having understood the true reality of a situation.

Similarly, it is the scientific evidence which takes precedence in determining the maximum gestation period rather than the rulings of the classical Muslim jurists (fuqaha) who put the limit at 2 to 7 years (and more in some cases).

Over many decades new experts, particularly in the field of medicine are having an increasing role in the normative element, which was at one time the exclusive domain of the religious expert. This has largely been as a result of the vast increase in the amount of medical knowledge as well as the complexity of issues involved. Furthermore, such practices are not confined to medicine but also extend to fields such as finance and astronomy.

The moon-sighting debate in the UK is a good example of a non-medical issue. Our understanding of the science of moon-sighting has increased hugely over the past few decades to such an extent that experts in this field of knowledge must be involved to gain a true understanding of the reality of the situation before issuing any decisions. The 1986 decision in Bury of 21 Islamic religious scholars to follow Saudi moon-sighting announcements did not take into account that the Saudi Hijri calendar is an amalgamation of two systems neither of which has the actual sighting of the new moon crescent (hilāl) as its basis. The first system is used for 8 of the 12 months of the year and is based purely on calculations provided by the Royal Observatory.  The criteria for this first system is that a new Islamic month starts if moon conjunction (astronomical moon birth) occurs before sunset time in Makkah and that moonset occurs after sunset. The second system which is used for 4 months out of 12 months of the year is based on the testimony of a Muslim. As long as a Muslim in Saudi Arabia testifies to seeing the hilāl then the Islamic month will start. So even if the moon is below the horizon or the moon has not been born as long a Muslim testifies to seeing the hilāl the Islamic month starts. The system in operation in 1986 for the Saudi Hijri calendar was that a new Islamic month started if on the 29th of the Islamic month moonset was after sunset in Makkah then the new Islamic month would start. Of course, moonset after sunset in Makkah does not guarantee that the new moon has been born. The Islamic religious scholars who made the decision in 1986 to follow Saudi moon-sighting for UK Muslims were not aware of these technical details nor were they aware that for 8 out of 12 months the Saudi Hijri calendar is based on the birth of the moon as per astronomical calculations. Just as the jurist Muḥammad al-Ashqar reviewed his ruling on the transplantation of testes after understanding the reality of the situation, the 1986 ruling to follow Saudi moon-sighting also needs to be reviewed in light of current knowledge and understanding of the Saudi Hijri calendar. A multi-disciplinary approach is necessary whereby experts in this field of knowledge are consulted prior to any decision-making.

Both the religious experts and non-religious experts realise that interaction and discussions are more likely to result in rulings free from error and criticism. In fact, many bioethical issues are discussed extensively by a panel of appropriate religious experts and appropriate medical experts before issuing a legal religious ruling. This combined effort, so-called collective ijtihād (al-ijtihād al-jamā'i) to derive at legal religious rulings (fatāwa), seems a much better method rather than individual rulings which can often be contradictory. Religious rulings in the field of medical bioethics have a huge influence on our lives in areas such as contraception, abortion, reproduction, organ donation etc. so it is only befitting that sufficient investigation and deliberation is undertaken before a fatawa is issued on any particular matter.

A number of well-known organisations in Islāmic states have undertaken the task of issuing fatawa on bioethical issues such as the Islāmic Organization for Medical Sciences (IOMS) based in Kuwait, the Islāmic Fiqh Academy (IFA) which is affiliated with the Muslim World League (also referred to as Islāmic World League) and the International Islāmic Fiqh Academy (IIFA) as well as the Islāmic Fiqh Academy of India and the European Council for Fatāwa and Research (ECFR).

It is important that as doctors we are aware of the rulings of these international organisations with regards to bioethics in medicine, 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 (particularly those of us living in non-Islāmic countries) should, perhaps, follow the rulings of international Islāmic organisations which are specifically engaged in issuing legal rulings (fatāwa) on bioethical issues for the benefit of Muslim doctors and the general public. It is with this in mind that I have compiled a list of (fatāwa) related to bioethics in medicine. Any comments are welcome. You may contact me through the website administrator ([email protected]). Dr. A. Hussain

Compilation of Fatāwa for medical bioethical issues can be found here.