"Al-Mabsuṭ" in Jurisprudence of Contemporary Issues: Medical Issues (Book)

Author: hassan ejraei

"Al-Mabsuṭ" in Jurisprudence of Contemporary Issues: Medical Issues (in persian: المبسوط في فقه المسائل المعاصرة: المسائل الطبية) is a scholarly work on Islamic medical jurisprudence authored by Muḥammad Muḥammadi Qaeini. This two-volume book is the result of advanced fiqh lectures on medical issues delivered at the Markaz Fiqhī al-Aʾimmah al-Aṭhār (ʿA.S.), addressing topics such as organ transplantation, artificial insemination, and the legal rulings on medical treatment. Shaykh Qāʾinī is a prominent teacher of Dars-e-Khārij (advanced jurisprudential studies) in the seminary of Qom, particularly in the field of medical fiqh. He is known for his opposition to maqāṣid-based fiqh (purposive jurisprudence), viewing it as a form of ijtihād that contradicts clear textual evidence. The two-volume work Al-Mabsūṭ fī Fiqh al-Masāʾil al-Muʿāṣirah, authored by Qāʾinī—partly on commercial transactions and partly on medical issues—was awarded the Distinction of Honor at the 20th Seminary Book of the Year Conference in 1397 Sh / 2018 CE. The book is organized into two volumes: it includes an introductory section, six chapters, and an appendix, discussing a range of issues including: organ donation, rulings on fertilization and pregnancy, artificial insemination, medical treatments, marital defects, and human cloning. According to Muḥammad Muḥammadī Qaeini, the rulings on transactions are just as taūqīfī (scripturally fixed and non-speculative) as those on acts of worship. Regarding abortion, he argues that if a fetus poses any danger to the mother—whether fatal or otherwise—abortion is permissible as a form of self-defense, even if the soul (rūḥ) has already entered the fetus. In support of this, he cites principles such as the rule of necessity (qāʿidat al-ḍarūrah), narrations on self-defense, and rational consensus (bināʾ al-ʿuqalāʾ). As for maternal status, Qaeini holds that a woman becomes the mother by virtue of providing the ovum, as the mere nurturing of the fetus in the womb does not establish motherhood. This contrasts with the view of his teacher, Sayyid Abū al-Qāsim al-Khūʾī, who—based on the verse of Ẓihār—considers the woman in whose womb the fetus develops to be the mother.

BrieThe book

"Al-Mabsuṭ" in Jurisprudence of Contemporary Issues: Medical Issues, is a two-volume work—Volume I consisting of 400 pages and Volume II of 728 pages. It is the product of Dars al-Khārij (advanced jurisprudential seminars) on medical jurisprudence delivered at the [Markaz Fiqhī al-Aʾimmah al-Aṭhār ʿalayhim al-salām] in Qom. This book was compiled by the mentioned center and published in Arabic.

The book has been cited in numerous academic and research-based articles.

The Persian translation of this book, titled Pazhoheshī dar Masāʾil-I Fiqh-I Ṭibbī (“A Research on Issues of Medical Jurisprudence”), was published in 1394 Sh (2015 CE) by the same center. The translators into Persian are Aḥmad Rukhī, Muḥammad-ʿAlī Karīmī-Niyā, and Muḥammad-ʿAlī Qāsimī.

The reason behind the book’s title is its resemblance to al-Mabsūṭ by Shaykh al-Ṭūsī. The motivation behind al-Ṭūsī’s work was to address non-textual jurisprudential topics which the Sunnīs had explored but had been largely neglected by the Shīʿah (Vol. 1, p. 12).

The Author

Muhammad Muhammadi Qaeini, a student of Mīrzā Jawād Tabrīzī, is one of the instructors of advanced jurisprudence (dars-I khārij fī al-fiqh wa uṣūl al-fiqh) at the Qom seminary. In the years 1398–1399 Sh (2019–2020 CE), he conducted weekly seminars on medical jurisprudence for seminary students in Qom, which continued into 1400 Sh (2021 CE).

He is also a member of the ten-person Ethics Committee in Research at the Ibn Sīnā Research Institute. He regularly participates in specialized jurisprudential panels to express his scholarly opinions.

Research and Writings

• Author of the two-volume work al-Mabsūṭ fī Fiqh al-Masāʾil al-Muʿāṣirah, which addresses both commercial jurisprudence and medical jurisprudence. The medical section was translated into Persian under the title Pazhoheshī dar Masāʾil-I Fiqh-I Ṭibbī. This book earned a commendable distinction in the field of jurisprudence and legal theory during the 20th Seminary Book of the Year Conference in 1397 Sh (2018 CE).
• He also authored marginalia (taʿlīqah) on Tabṣirat al-Mutaʿallimīn fī Aḥkām al-Dīn by ʿAllāmah al-Ḥillī and conducted a critical edition of the ḥadīth work al-Fuṣūl al-Muhimmah fī Uṣūl al-Aʾimmah (Takmilat al-Wasāʾil) by al-Ḥurr al-ʿĀmilī.

Structure and Contents

The book consists of two volumes, arranged into the following structure: One introductory section (Madkhal)

Six main chapters (Abwāb)

One appendix section (Malḥaqāt)

Volume One

• Tasdīr al-Markaz al-Fiqhī (Foreword by the Fiqh Center)
• Muqaddimat al-Muʾallif (Author's Introduction)
• al-Madkhal (Introduction) – consisting of three general sections (jihāt kulliyyah):
• o al-Jihah al-Ūlā: Tawqīfiyyat al-Muʿāmalāt ka-al-ʿIbādāt
• (First Topic: The Tawqīfī Nature of Transactions Like Acts of Worship)
• o al-Jihah al-Thāniyah: Ḍābiṭat al-Masʾalah al-Mustaḥdathah wa-Bayān Anwāʿihā
• (Second Topic: Criterion for a Jurisprudential Issue Being “Innovative”)
• o al-Jihah al-Thālithah: Buḥūth Tamhdīdiyyah ʿĀmmah li-al-Masāʾil al-Mustajiddah
• (Third Topic: General Preliminary Discussions on Novel Issues)
• al-Bāb al-Awwal: Masāʾil Tataʿallaq bi-Tarqīʿ al-Aʿḍāʾ
• (Section One: Issues Related to Organ Transplantation)
• o al-Masʾalah al-Ūlā: Lā Yajūzu Qaṭʿu ʿUḍwin min al-Ḥayy al-Muḥtaram
• (Prohibition of Removing an Organ from a Living Human Being for Transplantation)
• o Hal Yajūzu Qaṭʿu ʿUḍwin li-al-Tarqīʿ min al-Mahdūr bi-Qiṣāṣ aw Rajm aw Ḥadd?
• (Ruling on Organ Transplantation from a Convicted Criminal)
• al-Bāb al-Thānī: Masāʾil Tataʿallaq bi-al-Nuṭfah wa-al-Ḥaml wa-Jumlatun min Aḥkāmihimā
• (Section Two: Issues Pertaining to Semen, Pregnancy, and Related Rulings)
• al-Bāb al-Thālith: Masāʾil fī al-Talqīḥ al-Ṣināʿī
• (Section Three: Artificial Fertilization)
• Fahras al-Mawḍūʿāt
• (Index of Topics)

Volume Two

• Muqaddimat al-Muʾallif (Author’s Introduction)
• al-Bāb al-Rābiʿ: fī al-ʿIlāj wa-mā Yartabiṭu bihi aw Yatashaʿʿabu ʿanhu
• (Section Four: Treatment and Its Sub-Issues)
• al-Bāb al-Khāmis: fī ʿUyūb al-Zawjayni wa-al-Amrāḍ al-Mustajiddah
• (Section Five: Defects of Spouses and Novel Diseases)
• al-Bāb al-Sādis: fī al-Istinsākh wa-al-Isttiʾām
• (Section Six: Cloning and Genetic Duplication)
• al-Mulḥaqāt (Appendices)
• Fahras al-Mawḍūʿāt (Index of Topics)

Foundational Doctrines

In the Introduction (al-Madkhal) of his book, the author presents three of his key jurisprudential and legal-theoretical principles:

1. The Tawqīfī Nature of Transactions Like Acts of Worship

Muḥammadi Qaeini holds that the rulings related to transactions (muʿāmalāt) are tawqīfī—that is, determined exclusively by revelation—just as are acts of worship (ʿibādāt). Consequently, one cannot derive their rulings merely through customary reasoning or societal norms without relying on explicit religious evidence (Vol. 1, pp. 15–16).

2. Criterion for a Ruling Being "Innovative": Inconceivability in the Era of Legislation

According to Muḥammadī Qāʾinī, a jurisprudential issue qualifies as mustaḥdath (innovative) when its external reality could not have been conceived in the era of divine legislation. Therefore, such issues fall outside the direct scope of revealed texts. For instance, the transplantation of a human hand to someone born without one would have been unimaginable to people at the time of the Prophet; thus, no corresponding question or ruling was ever posed (Vol. 1, p. 19). He categorizes these mustaḥdath issues into three types: 1. Issues not asked about during the era of legislation, though they were possible had they been posed—e.g., prayer and fasting in regions like the Arctic Circle (Vol. 1, p. 20). 2. Issues that were inconceivable even with deliberate attention—e.g., transplanting the organ of a dead human to a living one (Vol. 1, p. 20). 3. Issues discussed in the religious texts but ignored by jurists—e.g., the permissibility of anesthetizing a limb during the execution of a punishment to prevent pain (Vol. 1, p. 21).

3. Validity of General Texts for New Issues

Qāʾinī rejects the view that general and absolute scriptural texts (ʿumūmāt and iṭlāqāt) are insufficient for deriving rulings on new issues. He critiques this opinion by analyzing related traditions and presents five arguments to support his stance. These include:

• Traditions indicating that the Qurʾān and Sunnah encompass all rulings needed until the Day of Resurrection (Vol. 1, pp. 72–87),
• Reports affirming that the Qurʾānic rulings are eternal and universally applicable (Vol. 1, p. 87), and
• Strong emphasis by the Imāms (ʿalayhim al-salām) on the transmission of traditions to future generations (Vol. 1, p. 89).

Claims

Permissibility of Abortion Even After Ensoulment

According to Muḥammad Muḥammadi Qaeini (محمد محمدی قائنی), if the fetus poses a danger to the mother—whether lethal or otherwise—such that abortion would be considered an act of self-defense, then abortion is permissible, even if the soul has already been breathed into the fetus (vol. 1, pp. 259–261).

Evidences

He provides several arguments to support this:

1. The principle of ḍarūrah (الضَّرُورَة) renders prohibitions permissible, and this principle applies universally. Therefore, if the fetus poses a danger to the mother, abortion is allowed regardless of whether ensoulment (نَفْخُ الرُّوح) has occurred (vol. 1, p. 253).
2. Citing two ḥadīths concerning the obligation of self-defense, abortion in this case is classified as defending the mother’s life (vol. 1, pp. 254–255).
3. Based on rational convention (بِنَاء العُقَلَاء), defending oneself—including by aborting a life-threatening fetus—is permissible (vol. 1, p. 259).

Criterion for Motherhood: Genetic Contribution, Not Gestation

In the discussion on artificial insemination (التَّلْقِيحُ الصِّناعِيّ), Qaeini holds that the criterion for motherhood is the contribution of the woman’s ovum, not merely the gestation of the fetus in her womb. Gestation alone does not establish maternal status from a sharʿī perspective (vol. 1, p. 315). However, Sayyid Abū al-Qāsim al-Khūʾī (السَّيِّد أَبُو القَاسِم الخُوئِيّ), based on the verse on ẓihār (المُجَادَلَة: 2), asserts that the mother is the woman who gestated the fetus in her womb.

Evidences

Qaeini presents several arguments:

1. The mere presence and development of the fetus in a woman’s womb does not equate to birth or maternal identity—similar to how breastfeeding does not render a woman the mother (vol. 1, p. 315).
2. The distance or separation between the child and the genetic mother does not invalidate the mother-child relationship (vol. 1, p. 315).
3. Responding to those who argue that the term “umm (أُمّ)” refers only to the gestational mother, Qāʾinī rejects this. He asserts that what makes a woman the mother and a child her offspring is the fusion of the man’s sperm and the woman’s egg, regardless of the environment in which the fetus develops thereafter (vol. 1, p. 315).

Permissibility of Using Prohibited Substances for Treatment in Cases of Necessity

Qāʾinī states that if treating a disease is only possible through the use of a ḥarām (حَرَام) substance, such treatment is permissible, based on the principle of ḍarūrah. However, he excludes acts like seizing others’ property or amputating someone else’s limb for treatment purposes. His reasoning is based on the general principle of necessity (vol. 2, pp. 15–16).

He also addresses several objections—for instance, the claim that “Allāh has not placed healing in anything forbidden”—and counters them by citing eleven narrations (vol. 2, pp. 16–19), which he claims only apply to non-emergency situations. He argues that the rule of ḍarūrah overrides even such narrations, just as it overrides other legal rulings (vol. 2, pp. 19–20).

Brain Death Does Not Constitute Legal Death

An individual who has experienced brain death is not legally considered a mayyit (مَيِّت) and therefore does not fall under the rulings applicable to a dead person.

Evidence

Qaeini asserts that as long as some organs remain alive, even if the rest are dead, one cannot be absolutely deemed dead. For death to be validly asserted, all aspects of life must be negated. Therefore, as long as vegetative life or life functions that prevent bodily decay persist, the person is not legally dead (vol. 2, p. 714). However, he holds that terminating the vegetative life of such a person does not constitute qatl (قَتْل), because ending this type of life does not fulfill the condition of what is legally defined as killing. Thus, qisāṣ (قِصَاص) and other rulings of homicide do not apply in such cases (vol. 2, p. 715).

Textual or Library References

The digitized text of al-Mabsūṭ fī Fiqh al-Masāʾil al-Muʿāṣirah: al-Masāʾil al-Ṭibbiyyah is available in the library of the Madrasa-yi Fiqāhat. The first volume of this book has also been published on the website of the Markaz-e Fiqhī-ye Aʾimmat al-Aṭhār. Moreover, the Noor Digital Library offers both text and image versions of the book. However, full access to all pages requires a paid subscription.