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

Book Information
Author	Muhammad Muhammadi Qayni
Language	Arabic
Volumes	2
Pages	Vol. 1: 400 • Vol. 2: 728
Publication Information
Publisher	Fiqhi Center of the Infallible Imams (AS)

Author: hassan ejraei

Al-Mabsūṭ fī Fiqh al-Masāʾil al-Muʿāṣirah: al-Masāʾil al-Ṭibbiyyah (in persian: المبسوط في فقه المسائل المعاصرة: المسائل الطبية) is a two-volume work on Medical jurisprudence by Muḥammad Muḥammadi Qayni. The book, which originated from his advanced jurisprudence lectures at the Markaz Fiqhī al-Aʾimmah al-Aṭhār (ʿA.S.), addresses topics like organ transplantation, artificial insemination, and medical treatment.

Qayni, a senior lecturer at the seminary of Qom, is a notable opponent of Maqasid al-Sharia, which he considers "ijtihad against the text." His Al-Mabsūṭ series, covering both commercial and medical issues, received an award at the 20th Seminary Book of the Year Conference in 2018.

The book is structured into an introduction, six chapters, and an appendix. Key arguments include: the rulings on transactions are scripturally fixed (tawqīfī) like acts of worship; abortion to defend the mother's life is permissible even after ensoulment, based on principles like necessity (ḍarūrah); and maternal identity is determined by the ovum's origin, not gestation in the womb—a view differing from his teacher, Abu al-Qasim al-Khoei.

Overview

"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, organized into an introduction (Madkhal), six main chapters (Abwāb), and an appendix (Malḥaqāt).

Volume One

• Foreword (Taṣdīr al-Markaz)
• Author's Introduction (Muqaddimat al-Muʾallif)
• Introduction (al-Madkhal)
  • First Topic: Transactions as Scripturally Fixed (Tawqīfī)
  • Second Topic: Criterion for a "Novel" Juridical Issue (Mustaḥdathah)
  • Third Topic: Preliminary Discussions on Novel Issues
• Chapter 1: Organ Transplantation (Tarqīʿ al-Aʿḍāʾ)
• Chapter 2: Rulings on Semen and Pregnancy (al-Nuṭfah wa-al-Ḥaml)
• Chapter 3: Artificial Insemination (al-Talqīḥ al-Ṣināʿī)
• Index

Volume Two

• Author's Introduction (Muqaddimat al-Muʾallif)
• Chapter 4: Medical Treatment (al-ʿIlāj)
• Chapter 5: Spousal Defects and New Diseases (ʿUyūb al-Zawjayni)
• Chapter 6: Cloning (al-Istinsākh)
• Appendices (al-Mulḥaqāt)
• Index

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 Novel Issue: Inconceivability in the Age of Revelation

According to Qayni, a jurisprudential issue is considered novel (mustaḥdath) if its external reality was inconceivable in the age of revelation. Therefore, it falls outside the direct scope of scriptural texts. For example, transplanting a human hand was unimaginable then, so no ruling was sought (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.