THREE SOURCES OF SACRED LAW

The two primary sources of Law are:

• The Qur'an (Koran)—the Holy Text believed by Muslims to be the direct word of God

• The Sunnah—the example, whether in word or deed, of the Prophet Muhammad incorporated in Islamic scriptures.11

The third source is:

• Ijtihad—the law of deductive logic.

Before discussing this third source we need to appreciate the guiding principles and framework of Islamic philosophy which help resolve some moral and ethical dilemmas of today (box 3). Since Islam admits no clergy, the “learned” (Ulema), often scholars from Islamic universities such as Al-Azhar in Cairo, are charged with interpreting and contextualising religious teachings for the wider Muslim community. Recent scientific and technological advances have resulted in a proliferation of a range of complex issues that have produced ethical dilemmas for healthcare professionals, patients, and society at large. Responding to this challenge, manyUlema have concluded that, in situations requiring specialist knowledge (for example, decisions concerning medical practice), the somewhat novel concept of a “consensus edict” is preferable. For rulings pertaining to medicine these consensus groups will typically include a broad and diverse representation of Ulema and specialist clinicians from relevant disciplines, the latter responsible for providing the necessary background information. The decision making process is typically transparent with members of the wider community able to scrutinise the arguments employed and the textual material underpinning these edicts. Counter arguments may be presented, and it is not unusual for two or more seemingly contrasting opinions to coexist. In such cases individuals are, in principle, free to choose whichever judgement they find most agreeable, though in practice many will choose to remain loyal to their particular school of thought.

The process of deductive logic described above is known asIjtihad and this forms the third source of Islamic Law. It is Ijtihad that provides Sacred Law with its dynamism, allowing it to remain relevant when responding to novel challenges and concerns that regularly arise in the Muslim culture which values learning and the scientific process.12 One example, and one that is in time likely to bring considerable health benefit to communities worldwide, is the move towards outlawing cigarette smoking on the grounds that its adverse consequences to health are now well established. The more culturally aware of British health authorities have responded by putting the “quit smoking” message within an appropriate religious framework when targeting Muslim communities.

GENETIC MANIPULATION, ASSISTED CONCEPTION, AND ADOPTION

We (God) created Man in the most perfect form.13

Often used to explain that each human life has its own inherent value and goodness. Humans however also have the capacity for autonomy and self determination and thus have the choice of pursuing a course of action that remains true to their innate pure state or following an immoral path. Whilst genetic research and gene therapy may have positive uses in serving to restore health (and in the process integrity), care must be taken to ensure that other Islamic principles are not violated. An accurate and complete knowledge of one's pedigree is a fundamental human right; only somatic cell lines should therefore be used in transplantation of genetic material since parental integrity is then not compromised and there is no question of hereditary characteristics being influenced.

Know your genealogy and respect your blood ties.14

Children have the right to be born through a valid union (marriage) and to know their parentage fully. Artificial insemination and in vitro fertilisation are therefore licit only if sperm from the woman's spouse is used.

Call the adoptive children by the name of their father.15

Adoption is generally frowned on in Muslim culture since the process involves the transfer of parental rights to the adoptive parents. Fostering is however positively encouraged since no similar transfer of parentage occurs. In either case, the surname of the real father should be retained.

PRENATAL SCREENING AND TERMINATION OF PREGNANCY

Each of you will have had his created existence brought together in his mother's womb, as a drop (nutfa) for forty days, then a leech like clot (alaqa) for the same period, then a piece of flesh (mughda) for the same period, after which God sends the angel to blow the spirit (ruh) into him.16

On the basis of this text many Muslims conclude that foetal ensoulment occurs 120 days post-conception—an important consideration in discussions regarding termination of pregnancy.17 ,18First trimester chorionic villous biopsy (performed before ensoulment) and advances in therapeutic foetal medicine may in time lead to a greater willingness to engage in genetic counselling and prenatal screening.

An existing life, with its responsibilities and ties, takes preference over a developing one. If continuation of pregnancy places a mother's life in danger then all Muslim authorities agree that termination of pregnancy is justified. Termination for any other reason is strongly and consistently discouraged, particularly after ensoulment has occurred.

CHILD ABUSE, DISCIPLINING, AND AUTONOMY

Say: “My Lord, have mercy upon them (my parents), as they cared for me in childhood”.19

The parent–child relationship is considered the most important of all human relationships, this forming a reference point for all other human encounters. Both children and parents have mutual rights and responsibilities. Love and respect are the guiding principles underpinning this most special of relationships. Any form of sexual, physical, and emotional abuse of children is thus considered abhorrent within Islamic Law. Islamic teachings, however, do recognise that children may at times need to be disciplined, both in their own interests and also in the interests of the wider society, and this may on occasions involve physical punishment. In such instances, jurists have stipulated that the following conditions must be met: parents must never strike the face or head; minimal force should be used, and in particular, no bruising should result; disciplining should not be performed when parents feel they may lose control.20

The pen has been lifted from three: the sleeper until he awakens, the (male) child until his first wet dream, and the insane person until he can reason.21

The 1989 Children's Act states that age of consent is when a child reaches their sixteenth birthday, or younger, if a doctor deems a child capable of understanding and making decisions. In Islamic law, the age of majority (and hence full autonomy) is dependent on physiological maturation, this being defined for males by the first nocturnal emission and for females by menarche.21

END OF LIFE ISSUES AND BRAIN DEATH

By him in whose hand is my soul, the miscarried foetus draws his mother into paradise by his umbilical cord when she seeks reward for his loss from God.22Every child dies in the true faith.22

Children are born pure according to the teachings of Islam, and those who remain true to their innate nature and abide by the teachings of Sacred Law, are considered whole or healthy. If death is decreed we remind relatives that as children are pure they are assured of bliss in the eternal abode of the hereafter, and furthermore will be their forerunners in Paradise.

Whosoever takes a human life, for other than murder or corruption in the earth, it is as if he has taken the life of all of mankind.23

No one is authorised deliberately to end life, whether one's own or that of another human being. Saving life is encouraged, and reducing suffering with analgesia is however acceptable, even if, in the process, death is hastened. This rule is based on the central teaching that “actions are to be judged by their intentions”. Withdrawal of food and drink to hasten death is therefore not allowed.

In 1987, Rahman, the US based Muslim philosopher expressed the view that relentless artificial prolongation of life is not in keeping with Islamic ethos unless there is evidence that a reasonable quality of life would result.24 The majority of Muslim authorities will consider “brain stem” death acceptable grounds to discontinue life support therapy; three independent physicians, of whom at least one must be a neurologist, should however make the diagnosis. A minority opinion is that the notion of brain stem death is inappropriate, for it is rooted in the Cartesian dualism that characterises biomedicine. It is argued that death criteria which remain true to the essence of the Semitic traditions, namely the point at which the soul departs, be identified and used for end of life decisions.

Withdrawing treatment from any patient, such as a child seriously affected by a hereditary neuromusclar disease, or curtailing treatment in a neonate with severe hypoxic encephalopathy, is never easy. This decision is on occasions, however, somewhat easier for Muslim doctors, such as ourselves, when dealing with Muslim families with whom we share a common heritage and world view. In such circumstances, after making clear that the child's interests are our foremost consideration, it is often possible to make use of Islamic teachings in counselling parents regarding the difficult decisions that lie ahead. We remind parents of God's Omnipotence and the transient nature of our earthly sojourn in contrast to the abiding reality of the hereafter. The exact time of death is a matter of Divine decree over which we as fellow human beings are ultimately bystanders. In these situations we show guarded confidence, yet discuss the real possibility of worse to come, sometimes suddenly and catastrophically. The ensuing “dynamic dialogue” in which we engage is thus rooted in the individual and collective narrative of the family for whom we provide care.

POSTMORTEM EXAMINATIONS AND ORGAN TRANSPLANTATION

Breaking the bone of the dead is akin to breaking the bone of the living.25

On the basis of this Qur'anic text some scholars have deduced that it may be possible for the deceased to feel pain—one of the reasons for the general reluctance of Muslims to allow postmortem examinations. Others, however, opine that the text obliges the Muslim community to deal humanely with fellow human beings whether in life or in death. In future magnetic resonance necropsy may offer an alternative to formal open whole body postmortem examination.26 This innovation is becoming increasingly widespread in many pathology departments in the UK.27

Organ transplantation is now encouraged in many Arab Muslim countries, and considered by some as a “perpetual” charitable act. This issue has not been as well debated among the South Asian Muslim community, at least in part because until very recently the subject was only one of academic interest in these countries.28 ,29 Sale of bodily organs is categorically prohibited. Xenotransplantation options are likely to increase in the foreseeable future and Muslim opinion about the acceptability and, if so, the prerequisite conditions (is transplant of organs from pigs acceptable when consumption of pork is forbidden?), remains divided.

NECESSITY ALLOWS THE PROHIBITED

But if one is compelled by necessity, neither craving nor transgressing—there is on him no sin, for indeed God is Clement, Merciful.30

In the case of absolute necessity, where religiously lawful alternatives do not exist, Islamic teaching allows for Sacred Law to be suspended, temporarily if possible. The use of pork insulin and heart valves from pigs has been ruled acceptable by manyUlema on the basis of this principle.