Islamic Classes‎ > ‎2010 Spring‎ > ‎

Contemporary Fiqh Issues Spring 2010

Contemporary Fiqh Issues: Abortion (Problematic Cases), Organ Transplants, and Insurance 
  • Prerequisite: NONE
  • Time: Wednesdays 7:00 - 8:00 pm PST

Related Readings (not “required” or “recommended” but interesting!)
  • Islamic Perception of Contraception and Abortion – Muhammad al-Jibaly
  • Islamic Principles on Family Planning – Alllie Haroun Sheik
  • Birth Control & Abortion in Islam – Muhammad al-Kawthari
  • Abortion, Birth Control & Surrogate Parenting: An Islamic Perspective – Abul Fadl Mohsin Ebrahim
  • Organ Transplantation, Euthanasia, Cloning and Animal Experimentation: An Islamic View – Abul Fadl Mohsin Ebrahim
  • The Fiqh of Medicine – Ahmed Abdel Aziz Yacoub
  • Islamic Bioethics: Problems and Perspectives ~ Dariusch Atighetchi
  • Islamic Ethics of Life: Abortion, War and Euthanasia ~ Jonathan E. Brockopp (Editor)
  • Muslim Medical Ethics: From Theory to Practice ~ Jonathan E. Brockopp (Editor),Thomas Eich (Editor)

Grading:
Final Exam 100% or 90% (One final, June 2, one week before last class)
Pop Quiz 10% at the discretion of the instructor
 
Basic Outline of the Class
Topic 1: Abortion (Problematic Cases)
Topic 2: Organ Transplants
Topic 3: Insurance

2010-04-07 Class Notes

We will discuss problematic cases related to abortion. We will review the basic rulings about abortion. We discussed birth control and abortion in the previous session. 

We have no text from Quran and Sunnah that directly touches upon the topic of abortion. 

t[impregrnation] => Time of impregrnation
t[ensoulment] => Feutus has ruh, after this time any kind of non essential abortion is haraam

The time before ensoulment, some scholars say it is permissible to abort the feutus, it is mubah. You don't need a reason to do the act. Some other scholars say it is disliked. And some others say it is haraam or forbidden. However there is confusion about when ensoulment takes place, 42 days or 120 days. We discussed that the evidence points to 42 days.

In this session we will talk about problematic cases of abortion. 

Right not to be born is a western concept. If a feutus is so deformed, then it is considered that it has no right to be born. 

Scenario
Woman has medical issues. Continuing with pregnancy will put woman's life at risk. Is it okay to abort the feutus?

Suppose there are two people on a ship. And the ship is at risk. It can only sustain only one life. Will the stronger of the two determine who will survive? Can the stronger just push the weak?

Another analogy. Can somebody threaten a person, that if they do not take another person's life, they might kill him. If you are threatened can you take somebody else's life?

We get evaluation of the threat to mother's life from a doctor. Sometimes doctor's have their own perspectives. From his personal perspective, the sheikh reports that some female gyn gave advice pregnant woman to abort since she already had 3 or 4 children. When the woman went to another doctor, this doctor provided a different evaluation of the threat. Even if the advice is coming from a doctor you trust, it is based on their opinion. And this is not an issue that one should not take lightly.

What is the principle? Law of necessity Darura. 

What is the evidence for it? If you are compelled out of necessity to each pork or other forbidden things, you are allowed to do it. 
Al Anam 145
Al Baqarah 173
Al Anam 119
Al Maida 3
An Nahl 115
Nisa 95

Goals of the shareeah. It is establishing to preserve and protect and grow in the best ways.
1. Life
2. Wealth
3. Deen
4. Lineage or family relationships
5. Intellect

When these are threatened, then the law of necessity or darura can be invoked.

What is meant by darura?
If I find something is diifficult for me. Can I invoke it for any flimsy reasons? No. 
Necessity versus hardship.
Hanafi madhab: Where you fear your life will be lost or your limb will be lost and then you can apply darura
Zarqashi from Shafieeh: When you are about to lose your life or close to it.
Maliki madhab: Fear of loss of life, either definitively or suspect you are losing it. (Qataa or Dhanna)

Necessity makes things are unlawful, permissible. Some scholars say the act still remains haraam. It still has to be lesser of two evils. 

The feared or expected harm must be definite to occur or most probable. You cannot say I feel like something bad is about to happen, you need some real evidence.

Law of necessity can only be invoked, if you cannot find an alternative. You cannot invoke darura to eat non-zabeeha meat just because it is more expensive.

Minimum necessary in order to resolve the issue. You cannot pig out, you take what is necessary to survive.

Greater harm can be resolved by a lesser harm.

So there is conflict between life of the mother and the life of the feutus. There have to be some principles involved.

Medical diagnosis is about probabilities. Nothing is for sure. The probability of losing life is 70 or 80%

Ibn Abeeden Hanafi madhab opinion: It is not allowed to abort the feutus because the death of the mother is conjecture. And it is not allowed to kill a human being based on a conjecture.

Another hanafi scholar Al Zailawy: Abortion is not allowed because  giving life to one by killing another is not allowed by the shariah.

2010-04-14 Class Notes

Terminology of Abortions (Problematic Cases)
1. Medical Emergency Abortion - Life of the mother is threatened
2. Therapeutic Abortion - Pregnancy is not life threatening but due to some medical diagnosis or treatment such as chemotherapy which would cause harm to the mother and the feutus. And abortion is scheduled due to those reasons
3. Eugenic Abortion - Feutus is badly deformed, due to principle in the west called, a child has a right not to live

Is it obligatory upon a mother to abort the child if she finds malformed feutus in the first 40 days of pregnancy?

Analogy, if you are starving in a desert and there is nothing to eat and you come across carion, is it obligatory for you to eat it to survive?

Majority of scholars say it is obligatory to eat to survive. 

Some scholars say it is obligatory for a woman to abort in the pre-ensoulment stage in case of high risk factors.

If you gangrene on your leg, is it obligatory for you to remove the limb?
Yes. So if you could cut off the part of your leg then why cannot you take some medicine to remove some fluids which is what the feutus is at pre-ensoulment stage in case of high risk factors.

Majority of abortions that take place are not due to medical reasons, a vast majority are due to social and economic conditions. 

Question: Is it permissible if the woman's life is at risk to abort the baby (post-ensoulment stage)?

Hanafi scholar say that you cannot invoke the law of necessity in this case.
Ibn Abideen's argument is that the death of the mother is probable (different levels) but it is not certain. If you abort the child then the death of the baby is certain. 

You cannot resort to law of necessity. There are no lesser or greater harms, the harms are equal.

If you take a look at all four madhabs, they do not allow for the idea of saving the mother by taking the life of feutus after ensoulment. Sheikh Ibn Uthaymien was also of this opinion.

There is evidence to show that we can distinguish the two, may be we can give preference to the mother over the feutus.

Analogy: You have two children who are starving to death and you have food enough to feed only one of them, what would you do? If you give half, you will not have enough sustenance for one of them? It would be a hard decision to pick one?
It is not exactly analogous to the woman who is pregnant. In cases like this you look for evidence that would give preference to one over the other?

Evidence: The feutus is not a fully formed individual like the mother

Evidence: Mother is already established, she is somebody's mother, somebody's wife, somebody's child, if you allow her to die, you are going to bring harm to many more individuals, then if you simply allow the feutus to die.

Evidence: Parents have some rights over children. They have precedence over the children. The child cannot get precedence over the parents. If for some reason, a father kills his son, there is no death penalty. So we could give preference to the mother over the feutus.

Hadith of the prophet: A man came to the prophet and said my father wants to take my wealth, the prophet said, you and your wealth belong to the father.

If two individuals are not related then you cannot have preference for one over the other. But in case of relationships, parents have preference over the children.

These evidences are given by scholars to allow mother to abort feutus after the ensoulment in case of high risk factors.

Sheikh ??? Muslim World League: In high risk factors it is permissible to abort the feutus....

Hayat kabarul Iman of Saudi Arabia: Abortion is haraam unless specialized and trustworthy doctors agree that leaving the feutus in the womb would cause her death then it becomes permissible to abort. This can only be done after all other steps have been done to protect her life. And this is done in concordance with the principle of avoiding the greater harm.

ibn Uthaymeen, contemporary scholar, was of the opinion that you cannot abort the feutus even in the problematic cases.

Case: In the fifth month of pregnancy, the amniotic fluid leaked and the woman became sick. If the feutus is left inside, it would die and decompose, which would poison the mother and put her at risk. Should abortion be done in this case?

The feutus is not going to survive but leaving the feutus is going to cause harm to the mother.

If the feutus is going to die and cause harm to the mother, then it is permissible to abort the feutus.

Case: Woman just finished chemotherapy and she was in remission. She was advised not to get pregnant for three years because of the risk of relapse. Hormones produced during pregnancy could cause the cancer to relapse and the treatment would need to be severe. Today she discovered she is pregnant for more than 40 days. And very likely the drugs she takes for cancer have deformed the feutus.

2010-04-21 Class Notes

Ibn Abeeden, hanafi scholar mentions one case of abortion in fiqh book, the scenario is that a woman is breast feeding a child and then she gets pregnant, the effect of pregnancy is that she will not be able to breast feed the child, the family cannot afford to hire a wet nurse, in this case, ibn Abeeden says you can abort the child. What do you think about this opinion? How applicable is this scenario today? This was written 200-300 years ago by Ibn Abeeden.

Can you apply the law of necessity in the western world?  There are other options that the formula is available. As long as an alternative exists then you cannot apply the law of necessity.

Knowing how to deal with fiqh, you have to distinguish what is fixed by shareeah and what can be changed by time, circumstance, technology, etc

Some people are so rigid that once they come across a fiqh ruling they apply it blindly.

Pregnancy as a result of rape

Woman is sinless and baby itself has not committed any sins.
But is this reality now in the Islamic world, why should any evil distinction be given to woman or baby. In reality most likely, she will be shunned, more by women than by anybody else. Her prospect of getting married in Muslim culture, if they know that she was raped or had a child as an outcome of rape, it will be difficult for her. Most likely the life of the child will not be pleasant either. Another issue we will talk about later is the issue of honor killing which is a reality in Muslim world. If the woman was married when she was raped, she might face ostracization by her husband. The child might not be accepted by her husband.

We have many things in Muslim culture that go against the shareeah and cause harm to them and the muslim world. The young people who have ties to their culture should work on removing those customs.

Here we have to take into account the western principle of the right not to be born. Wrongful birth lawsuit, in the case of deformed feutus. Parents have sued the doctors and hospitals for babies who are born ill-formed. These kind of things exist in western world and they will reach the muslim world also.

Using all of the tools of shareeah and the principles of law of necessity, what should be done?

Pre-ensoulment, it is mubaha. There are things a woman can do as soon as she is raped to abort before ensoulment. She should get medical treatment as soon as possible. Some scholars say it is obligatory for the woman to take treatment to reduce the possibility of pregnancy.

Even scholars who say abortion during pre-ensoulment is haraam, say it is mubaha in the case of rape.

But let's take the case of Bosnian women who were captive and were raped and then freed after 4-5 months, so now it is post-ensoulment. Or another case could be a woman is afraid and does not report it and finds out much later that she is pregnant post-ensoulment.

One of the examples they choose come from the time of the prophet, but it does not capture the differences of the behavior of muslims

Al-Ghamdi tribe who committed zina and came to the prophet and confessed. The prophet delayed the death punishment until she gave birth and suckled the child and then she was punished. But it does not take into account the mores of the society during the lifetime of the prophet who would have taken care of the prophet. This would not be the case in today's society.

Incest is a special case of rape and there is no special ruling about incest. It is simply considered to be rape.

Parts of fatwah that highlight some good points. Sheikh has been researching the topic of abortion for a long time. Some one gave him this fatwah from the internet. Ahkaam al-Janeen fi’l-Fiqh al-Islaami by ‘Umar ibn Muhammad ibn Ibraaheem Ghaanim. The website said that the fatwah came from Ahkaam al-Janeen fi’l-Fiqh al-Islaami by ‘Umar ibn Muhammad ibn Ibraaheem Ghaanim, but the sheikh found out the fatwah was from a different source which is attributed to somebody else by the author of the book Umar Ghaanim. The website mis-attributed the fatwah to the author and not to the sheikh who made the fatwah. The author of the fatwah is Yusuf Qardawi.

There was a conference held on human rights in Bosnia, during that conference, the muslims put forth this question, what is an option available for woman who were raped by the Serbs. Yusuf Qardawi's reply was that women should have tried to resist to the best of their ability but if they were forced then there is no sin upon them, very similar to the one who is forced to perform kufr, he quoted the ayat of the quran, that there is no sin upon those who are forced to perform kufr. Any calamity you face, then Allah swt will reward you with what you have been inflicted with. And then he quotes the hadith - No muslim is inflicted with any kind of stress, even a prick of thorn which will be expiated by Allah swt. Muslim men should hasten to marry these women. And then he says that it is haram to perform abortion after ensoulment even in the case of zina and then he mentioned the case of the woman for Al Ghamdi tribe. And then he mentions the ensoulment after 40 days. And then says, rape of a muslim woman by a evil enemy is a reason for woman to perform the abortion because she and her family will hate the baby and they should hasten to abort it before ensoulment. However there is no sin on her if she carries the baby to term. One of the principles of Islam is to ease hardship.  If she fears that she might be killed by her family or she fears for her sanity and physical harm then there is no harm for her to perform abortion before ensoulment.

He is avoiding to answer the question of abortion post ensoulment. THe implication is, that he is not allowing or dislikes abortion post ensoulment.

Most of the scholars do not allow abortion even in the case of pregnancy due to rape after ensoulment.

What is the penalty of rape in shareeah? It is more than zina, it is considered a harara, it is death penalty. IN today's muslim world, is that if the woman is willing to marry the rapist then ???? This law was repealed in Egypt.

One of the topics we will be discussing later, someone who is on life support system, is it allowed to take them off the life support machines? This question is relevant to organ transplant.

The sheikhs who do not allow abortion in post-ensoulment in case of rape, do allow patients to be taken off life support system. Why? Economic reasons, quality of life reasons. So if you take those points into consideration for terminating life in vegatative case then why not in the case of pregnancy due to rape.

2010-04-28 Class Notes

Shareeah principle of protecting wealth is one of the reason's why there is such harsh punishment for the thief. 

Abortion due to zina in case of an unmarried woman

When you read old books of fiqh, rarely due you find the distinction between pregnancy due to sound marriage or zina. Books of fiqh are made to mention many things but this topic is rarely mentioned.

Is there something special that we need to distinguish between zina and sound marriage?

We are discussing abortion pre-ensoulment?

If a scholar agrees that it is mubaha to perform abortion pre-ensoulment from sound marriage then should it be permissible in case of zina?

Suppose a woman repents after committing zina and has remorse for her act and now she does not want to perform any other haraam act and she is asking what should she do?

The prophet delayed the punishment for a woman who committed zina until she gave birth and suckled the child, so he took steps to save the baby. The al-ghamdi case.

If an act is mubah, then it is mubah, but is there any thing special about the case of zina.

Since the pregnancy is due to zina and since pre-ensoulment it is not a human being and it has less significance and on top of it the pregnancy is due to zina, so it deserves less respect and it is more than mubah to perform abortion.

One of the maliki scholars says, that the woman might be harmed due to honor killing and child would grow up without a father and since we have been given knowledge about different stages of feutus and we know that it is mubah to abort pre-ensoulment, so it is more than persmissible to abort.

Shafiee point of view of abortion in case of zina of an unmarried woman

Ar-Ramli shafiee scholar, he wrote nahatil muhtaj????, Shafiee point of view, he wrote a commentary on Imam Nawawi's book, the shafiee view was that it is mubah to abort in first 40 days and then he says:
1. Earlier scholars when they talked about abortion it was a result of sound marriage. If a term is being used in its general sense, in its most proper and correct sense. Discussion about salat, when allah swt says salat keeps individiual from sin, it means complete salat. Similarly when they talk about woman who are pregnant, they refer to a pregnancy due to sound marriage
2. Verse in Quran, no one shall bear any body else's burden. The feutus did not commint any sin, so it is not allowed to abort the feutus due to the mistake or sin committed by the woman.
3. He discusses the case of the woman from al-ghamdi tribe
4. Abortion in first 40 days is a concession. One of the overal goals of marriage is for procreation. You wouldnt even think about aborting a child. It is something that goes against shareeah, so it is considered a rukhsa or concession or exemption in the case of first 40 days. Similar to the exemption of salat and fasting while travelling. Exemption in the shareeah are only allowed when undertaken for a halal act. If the goal behind travel is for haraam reasons then you cannot use the exemption for salat and fasting. So you cannot commit zina which is haraam and then invoke exemption from shareeah
5. Child of zina from shareeah point of view does not have father, it is part of the punishment for the act of zina. It is punishment for the father since he cannot have relationship with the child, he sees the child but cannot claim as his. Therefore who is the wali of the child? If someone does not have the wali, then the ruler becomes wali and the ruler has the obligation to do what is in the best interests of the citizens, so taking life of the child is not going to be in the best interest of the child. The state has to take into consideration the best interest of the child and cannot allow abortion.
6. Blocking the means to a greater harm. If the woman knows that abortion is not an option for illegal sex, then it will be a hindrance for the act of zina.

So the conclusion of Ar-Ramli is that abortion is not mubah permissible in the case of zina.

Contemporary point of view from a PhD dissertation by Rahim.

He states that majority of the scholars say that it is not allowed for woman to abort in the 40 days because it will lead to much harm.
He used Ar-Ramli's reasoning and then stated:
Maybe one rule for everyone doesn't work. In this day and age there are lot of factors that are luring and tempting people to commit zina. And even a person who is trying to be pious, it is easy for her to slip and commit zina.
1. Since she is religious woman and trying to pious then it is sanctioned to conceal the sins. Evil doers would like the sins to be exposed
2. ... woman might not be killed...
3. Keeping the door of abortion open to her in the first 40 days and then allow her to commit taubah, rather than let her suffer

So it should be allowed for the woman in this case to perform abortion in the first 40 days. However in case of unchaste woman or woman who is not pious then it should not be allowed to perform abortion in first 40 days. (In a follow-up question, the sheikh refused to defend this point of view).

Sheikh's comments on this point of view is that now you are becoming lacksadisical and now you are promoting the woman to fall into the trap of zina.

Sheikh's observation, since there is no specific ruling about abortion in quran and sunnah, then can it be possible that the ruling of abortion is dependent upon time and age, and that is the reason why it is not fixed.

Rahim: Suppose a woman found out she is pregnant due to zina in first 40 days and then she fears that she might be killed due to her indecency and her sin. In Jordan it is legal to do honor killing. We will discuss honor killing next time. Suppose that woman leaves in Jordan and you feel that this pregnancy is discovered then you will be killed by your family.

Abortion is illegal in Jordan and is punishable by 20 years. However if you performed abortion in order to protect the honor of the family, then the punishment for abortion is 2 months.

Is this a case of necessity? Homework present evidence and arguments for and against honor killing which are of the same calibre as Ar-Ramli


2010-05-05 Class Notes

If someone is going to argue the case of zina is special for pre-ensoulment phase, then they need to bring the evidence. Islamic state could make abortion forbidden in pre-ensoulment phase, if this concession is being abused. Since there is no one fixed law in shariah, it will vary on the situation. 

One last thing we have to highlight, the difference b/w the moral and legal status. Most of the figh madhabs (except ahlul hadith), there's difference b/w legal status and moral status. You could do something legal but if you're doing with wrong intent, it's still sinful even though in this world it's legal. 

For example, someone wants to continue the habit of zina, she resorts to something which is mubah, in that case, even the mubah if it is used specifically to do something haraam, then that mubah becomes sinful. Legally it may not be a crime. At the same time she would be considered sinful. Ahlul hadith, even in this world will try to take a legal punishment in this world.  Like the action of growing grapes for making wine.

Shariah position on honor killing: 

Case of liyan, in one case a person asked the Prophet (saw), what should he do if were to know that his wife is committing zina what should he do? Can he do honor killing or you have to bring evidence, the prophet replied you have to bring evidence and you cannot enforce the punishment and if you're speaking about it without evidence you'll get punished. So even in the individual's case of own wife, there's absolutely no permission given to take the law in your own hands and kill the person who has performed the action. Taking a life of the human being without a due course is foribidden. You're not following the proper steps to do so. And also many times, the woman involved will bring disgrace on the family, and if the woman who has done it and she's not married and you kill her, you're putting a condition above and beyond what shariah has prescibed.

There was one case, during the time of Ali (ra), Muawiyah was in charge of shaam, he sent the letter to abu musa al-ashari about an honor killing. To ask Ali wha the thinks should be a ruling. First thing Ali said, this is not under my authority, he said, you should take that man who did that act and take him to the relatives of the family with the rope that he killed with. 

If you bring all of these bits of evidence, it is very clear that honor killings are not allowed in Islam. 

Al Istitkar by ibn Abdul Barr, a famour Maliki scholar, a commentary on the muwatta of Imam Malik and commentary on non-hadith from the muwatta of Imam Malik, it is 50 volume book.

It is clearly not allowed for husband to kill his wife on the concept of bringing dishonor to the family. 

The honor killing is a secular law in Jordan, it is due to Arab culture and not on the basis of shariah. They don't quote any hadith to defend their position. Many times it is the mother behind the honor killing, because she is worried about the ramnifications of the dishonor on the rest of her daughters who might not be able to marry, and the mother wants to protect the honor for the rest of her children.

Virginity tests in not part of the Islamic law, it is culture of the society and has no place in shareeah.

Law of zina

Attacking someone's honor has to be based on evidence. It cannot be based on hearsay, there has to be four witnesses reporting the same incident. It is not a light matter, you have to bring definite clear proof. Pregnancy is not a proof, it could be result of rape. 

Hadeeth of Prophet on this as well, that if Allah willed that a sperm will lead to a child, even if it lands on a rock it would lead to pregnancy. Now we can see this with IVF etc. 

It has to be witnessing the act of zina, there have to be four witnesses. And accusing people of their honor you have to be extremely careful. And we have to avoid the other extreme of killing to protect the honor of the family.

Special case of abortion as a result of zina

Suppose it is after ensoulment, and now she discovers that her life is threatened due to the pregnancy, now is it allowed for her to abort the baby?

Law of necessity is applicable only if you have not commited a sin, for example you can eat pork to save your life but if you were on the way to kill or rob and now you are starving, you cannot invoke the law of necessity.

Hanafi will say it is allowed there is no relation between the necessity and what you were trying to do. Maliki madhab is split on it and the other madhab say they cannot invoke law of necessity.

Ibn Hazn says that if someone is doing something haraam then he cannot eat, unless he repents then he can invoke the law of necessity and only Allah swt knows whether their repentance is accepted or not.

So the woman cannot just simply invoke the law of necessity because of the sin that she had committed.

Aborting the feutus due to physical condition of the feutus

Nowadays a number of tests are done on the feutus, specially if the mother is over 35, however these tests do not take place until the 20th week of the pregnancy. Which puts it beyond the ensoulment stage which is 40 days.What happens if parents find problems with the feutus. 

Ethical standard of the feutus, if you find the feutus is going to have a miserable life or harm the life of the parents, then the ethicists say that child has the right not to be born. Eugenics - master race as practiced by the nazis

There have been legal suits against the hospitals by parents of deformed babies against hospitals that they should have advised them to perform abortion.

Holoprosencephaly 

97% of these cases will be still born or will result in miscarriage, the other 3% it depends on three different degress of severity - most will die right away or after few days, others will have life long ailments that will need to be dealt with medicines, cleft lip syndrome which can be treated. Of the 3%, the prognosis is not many will survive, those who survive will have mental retardation, however many of the 3% will have normal mental growth and live a normal life. The preliminary tests done will not predict the level of severity.

This is the question asked by many for fatwa.  Will this condition justify abortion after ensoulment.

Let's assume this condition is not a threat to the woman's life. Then what is the basis for the abortion? Since abortion is special condition, why would you abort because there is no harm to the mother.

The question is does the shareaah allow preemptive taking of life based on our determination of harm of the baby.

Let's suppose the feutus is determined to have mental problems or the brain is missing? If the brain is missing, then the child will die within days after birth. If the child dies it is ibtilaa. If the child survives and it mentally retarded again it is ibtilla.  So why should you abort?

Questions for next class
What about financial hardship to the parents who cannot afford care for a badly deformed baby
What about preemptive killing  in the story of khidr



2010-05-26 Class Notes

We are discussing organ transplants. We set the background for the issues that need to be answered or influenced regarding the final conclusions of organ transplants, we reviewed different types of transplants and five different opinions among the scholars.

Five different opinions of the scholars

1. Organ transplants are forbidden under all circumstances 
2. Permissible from live or cadaver donors under some conditions
3. Transplant from live donors is permissible under certain conditions and cadaver donors are forbidden
4. Opposite of 3 - Transplants from cadaver is permissible under some conditions and from live donors is forbidden
5. Permissible from cadaver or live donors as long as the donor is non-believer, this is an opinion of the contemporary scholar from a PhD dissertation.

Different types of transplants

1. Replantation - same organ in its original place
2. Autotransplant - skin graft - move from one part of the body to the other
3. Homotransplant - two members of the same species
4. Heterotransplant or Xenograph - from two different species - harvest organs from baboons or pigs

Evidence from Hadith for transplants

Qatadah (sahabi) in one of the battles, one of his eyes popped out. This hadith is mentioned in books of seerah. Albani concluded that it is hasan al ghairi.  This hadith is evidence for replantation.

Another hadith when one of the sahabas had his nose cut off in fighting. He had something made out of iron and placed on his deformed nose. This replacement began to smell very badly. The prophet told his to replace it with a piece of gold. You could use this hadith as evidence for prosthetic limbs. It is also significant that the prophet allowed him to use gold, since gold is forbidden for human beings. This hadith is mentioned in .... these books.

Prophet allowed some men to wear silk due to necessity or need due to some skin conditions.

Islamic Conferences

Majority of opinion is that autotransplants are permissible. List of some scholars .....  These conferences come out with resolution but you have to be aware that not all of the scholars who took part in the conference agreed with the opinion. Or in some circumstances a majority of the scholars did not agree. So it is best to look at individual papers.

Basically the evidence they give is two-fold
1. Right to be altruistic - al ithaar wrt one's body
2. Principle of need or dharoora and overall benefits of these actions

Al Ithaar Discussion

Altruistic is a good quality, the sahabas would give preference to others even when they were themselves in need. But obviously there must be some limits with ithaar. Does organ transplants fall in the case of al ithaar.

One of the evidences, is Abu Talha in the battle of Uhud, he risked himself in order to defend the prophet. They use this as evidence, since he is risking his life to defend the prophet.

What was the circumstance under which Abu Talha did that? It was the case of jihaad, when you go into war and place your life in risk. However when you go to defend, you go with the intention to kill the enemy and your goal is to survive and defend the prophet.  You cannot use this principle to place your life at risk when you are not conducting jihaad.

Can you place your life at risk when doing altruism?
Is there a difference between jihad and altruism.  The number one goal is to save your deen but you cannot make necessarily make analogy in the case of helping someone else. Jihad to protect the deen you are allowed to risk your life but not in the case of altruism.

Evidence of limits of al ithaar

When you are willing to donate your organ, then you are putting yourself at risk. There is an important condition to be applied, the donor must do it with complete satisfaction and beware of the risks. If something were to happen during the transplant and your life is now harmed, then you should not weaken your iman, you should have complete faith in Allah.

For example, the prophet did not accept the donations of the wealth of sahaba who was imitating Umar and the prophet did not accept it, because he was worried what would happen to him if he was forced to live without any wealth.

In Muslim countries, relatives are forced to donate to help the person in need of an organ, and then this forced altruism could have negative affect on the person donating the organ.

Do we have the right to put our life at risk as a kind of ithaar?

You can protect your life, your wealth, your family and if you are killed doing so, then you are considered a shaheed. So there is evidence that you can risk your life to defend your family, or if someone is wronged then you are allowed to risk your life.

With respect to our body, is the right to sacrifice our body our right or within the realm of human choice from the perspective of shariah or does this right belong to Allah swt?

Even the scholars who conclude that organ transplants are permissible, agree that right of our body belongs to Allah swt. You don't have the right to interfere with the normal functioning of the body.

Khalil al Nais, scholar, is of the opinion, the body is from the rights of human being, human has more freedom and rights to do it unless there is direct evidence that you cannot do it.  He says zina falls under the rights of Allah swt, the two parties cannot settle the punishment among themselves, the court has to enforce the shariah punishment. However in the case of homicide, the grieved party of the deceased has the right to forgive the murderer. And hence he says therefore it is a right of human being. He says it is possible to do whatever you want to do with your body unless there is direct evidence otherwise.

Surah : If someone killed wrongly then he has killed all mankind, and if you save a life then you have saved all of mankind.

You can invoke this verse as evidence for organ transplants to save the life.

Hadith: Bitten by a scorpion and asked to perform rukiya. Prophet said if any of you have the ability to help your brother then do so.

You can apply this hadith in general sense and you can put your life at risk and become a donor for organ transplants. However suicide is not permissible and you cannot risk your life while donating organ knowing that it will terminate your life.

Law of necessity

When you look at goals or maqassid of shariah, the shariah has certain goals to establish, strengthen, continue, propagate and establish five things. Deen takes precedence over anything else, the second precedence is to life. The last one is maal or wealth, the third precedence is family ties, and the fourth is to protect akl or mental capacity.

We will not go through the evidence that preservation and continuation of life is a goal of shariah. Murder, suicide, accidental killing is not allowed. 

Five different opinions about seeking medical treatment

If preservation of life is one of the goals of shariah, then is medical treatment obligatory? If you are sick then is it wajib to get medical treatment to protect your life?

1. Some scholar (quote/unquote scholars) say it is forbidden, it is an opinion among sufis. If one wants to be a wali then the person has to be satisfied with whatever condition that you find yourself in. This is considered as a strange opinion.

2. Ahmad Ibn Hambal: It is preferred not to accept medicine. Abu Bakr never accepted medicine. You have to note that there are some exceptional people, the prophet took oath from certain people not to ask for help from others, such as Abu Bakr. Asking others is blemish condition. He took this oath from only certain people whose Iman was special.

Prophet gave an option to the woman who suffered from epilepsy to be patient

Hadith: Seventy who will enter jannah without reckoning. They dont seek rukiya, they do not cauterize and instead they put their trust in Allah swt. (Rukiya is someone reading quran over you as a means of cure.)

They use these evidences to state that it is not preferred to seek treatment but it is not disallowed to seek treatment.

3. It is preferred or recommended to seek medical treatment. It is opinion of the majority of the scholars. Hadith of the prophet where he commanded a Bedouin to accept medicine. He said that Allah swt has not made any disease unless he has created a cure from it. 

Ibn Qayyum says just like eating or drinking to sustain yourself or wearing clothes to keep you warm and safe, similarly taking medicine does not go against putting your trust in Allah swt.

We will discuss two more opinions next time.



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