Plastic Surgery and Human Cloning from a Fiqh Perspective (book)

Author: Mustafa Alikhani

Plastic Surgery and Human Cloning from a Fiqh Perspective is a book in the field of medical jurisprudence written by Sayyid Asghar Nazemzadeh Qomi, a jurist and teacher at the Qom seminary. The book examines two independent topics, plastic surgery and human cloning, from a jurisprudential perspective in two separate parts. In the first part, structured in five chapters, the jurisprudential arguments for reconstructive surgery and cosmetic surgery are analyzed, and some related secondary issues of cosmetic surgery are discussed. In the author's view, plastic surgery is permissible, and in some cases recommended (*mustahabb*) or even obligatory (*wajib*), but some instances of non-essential cosmetic surgery are forbidden (*haram*) as a secondary ruling.

Book Information
Author	Sayyid Asghar Nazemzadeh Qomi
Style	Analytical
Language	Persian
Volumes	1
اطلاعات نشر
Publisher	Bustan-e Ketab

• Abstract

In the second part of the book, over six chapters, the author outlines the history, types, and stages of human cloning. After presenting the approaches of different religions and denominations, he examines the jurisprudential arguments for the permissibility and prohibition of cloning from a Shia perspective. Nazemzadeh Qomi believes that human cloning is permissible as a primary ruling, and a fatwa for its prohibition cannot be issued even as a secondary ruling. The author supports his view by enumerating some benefits of human cloning.

Ambiguities in some jurisprudential arguments, detailed examination of some topics with little relevance to the main discussion, failure to cite sources for some opinions or referring to them through intermediary books, and errors in quoting opinions are among the shortcomings of this work.

Introduction to the Book

• Plastic Surgery and Human Cloning from a Fiqh Perspective* is a book in the field of medical jurisprudence that examines two new topics in the medical field from a jurisprudential viewpoint. The author of the book, Sayyid Asghar Nazemzadeh Qomi (b. 1323 SH), is a jurist and teacher at the Qom seminary and the author of works in contemporary jurisprudence such as "Sex Reassignment and Intersexuality from a Fiqh Perspective" and "Artificial Insemination from a Fiqh Perspective."

The author states that the discussions in this work are the result of his jurisprudential lessons and research, as well as scientific consultations with medical specialists (pp. 13-14). According to him, the limited number of jurisprudential studies on plastic surgery and human cloning, as well as the request from a group of seminary students to examine these two topics, were the author's motivation for writing this work (p. 18). The book was published by Bustan-e Ketab Publications in 1402 SH in 288 pages.

Structure of the Book

• Plastic Surgery and Human cloning from a Fiqh Perspective* consists of two main, independent parts on 1. Plastic Surgery, and 2. Human Cloning. These two parts have no common ground (except that both are medical topics); they are not dependent on each other either in jurisprudential reasoning or in subject matter and could be separated. The table of contents is at the beginning of the book, and the bibliography is at the end.

The first part of the book comprises an introduction and five chapters. In the brief introduction to this part, the author divides plastic surgery into two types: reconstructive surgery and cosmetic surgery, and states the necessity of the discussion and his motivation for examining this topic (pp. 17-18). In the first chapter, the author examines the jurisprudential evidence for reconstructive surgery, and in the second chapter, which is more extensive, he examines the jurisprudential evidence for cosmetic surgery. The third and fourth chapters are dedicated to explaining the secondary issues related to cosmetic surgery (p. 107). In the fifth chapter, the author has included endnotes for a more detailed explanation of jurisprudential terms and principles of jurisprudence (p. 141).

The second part of the book is organized into an introduction and six chapters. After explaining the necessity of discussing human cloning in the introduction to the second part (p. 166), Nazemzadeh Qomi outlines the history, types, and stages of human cloning in the first three chapters. The fourth chapter discusses the approach of Christians, Jews, and Muslims (both Shia and Sunni) towards human cloning. The fifth chapter, which is the main chapter of this part, examines the jurisprudential evidence for the permissibility or prohibition of human cloning (p. 211). The author, who himself considers human cloning to be permissible, enumerates the benefits of cloning in the sixth chapter.

Verbosity in the Book

This work suffers from verbosity in various places. For example, in the second chapter of the first part, the author explains the different types of cosmetic surgery in detail without mentioning any practical benefit for stating these types (pp. 39-41). Also, some topics are linked to the discussion with minimal relevance; for example, in examining the rulings on cosmetic surgery, the use of nail polish or wigs is considered a type of cosmetic surgery (p. 41), whereas applying the term "surgery" to these is questionable. The fourth chapter (examining the quality of ablution with a splint) and the sixth chapter of the first part (explanatory endnotes for jurisprudential terms and principles of jurisprudence) do not have a strong connection to the book's topics, and the author's reason for including them was solely to satisfy the readers' interest (p. 126). In the fifth chapter of the first part as well, topics that should be discussed in the science of the principles of jurisprudence (such as an explanation of the hadith of رفع (*hadith al-raf'*), the Ash'arites' denial of rational good and evil, and the Akhbaris' arguments for precaution in prohibitive jurisprudential ambiguities) are included in the book in a relatively lengthy manner (pp. 141-162). However, in some cases, contrary to his approach, the author refers the examination of some evidence that is directly related to the discussion (such as the application of the rule of permissibility in jurisprudential ambiguities to prove the permissibility of human cloning) to books on the principles of jurisprudence (see: p. 220).

Ambiguity in Citing Opinions

In many cases, the author attributes opinions to jurists but does not mention his source (for examples, see: pp. 42, 63, 148, 158, 159, 265, and 273). Also, where specialized medical topics are discussed, no source is provided for them (for examples, see: pp. 179-183). In some places, the views of some jurists are referred not to their own works, but to intermediary books (for examples, see: pp. 69-70).

Plastic Surgery

Permissibility of Reconstructive Surgery

The first chapter of the first part of the book is dedicated to the examination of reconstructive surgery. The author explains the necessity of this type of surgery and reports an example of reconstructive surgery during the time of the Prophet (s) (pp. 21-22). Nazemzadeh Qomi believes that the narrations related to reconstructive surgery are of three types: 1. Narrations related to the use of gold to secure a tooth, 2. Narrations related to the permissibility of replacing a fallen tooth with the tooth of a ritually slaughtered sheep, and 3. Narrations related to replacing a fallen tooth with the tooth of a deceased human (p. 22).

After examining the hadith-based evidence and responding to conflicting narrations (pp. 23-37), the author considers reconstructive surgery to be permissible in principle (*fi-l-jumla*) (p. 37). Nazemzadeh Qomi then attributes to Shia and Sunni jurists the view that, with the consensus of all of them (except one Sunni scholar), reconstructive surgery is absolutely permissible (p. 37). However, the author's approach in this section is not very clear; because he initially does not consider those reconstructive surgeries in which the body of a non-believer or a deceased Muslim (before the performance of the funeral ablution) is used to be permissible for performing prayers (pp. 36-37), but later he considers reconstructive surgery to be absolutely (and not in principle) permissible, and in some cases recommended and in others obligatory (p. 38).

Permissibility of Cosmetic Surgery by Primary Ruling

At the beginning of the second chapter of the first part, the different types of cosmetic surgery are explained (pp. 39-41). The author states the view of Sunni scholars (including Shafi'i, Maliki, Hanbali, and Hanafi) on the prohibition of cosmetic surgery, and proceeds to examine and critique their arguments (1. prohibition of changing God's creation, 2. narrations of the Prophet's curse, 3. prohibition of deceit and deception, and 4. prohibition of harming the body) (pp. 42-67).

Nazemzadeh quotes the different opinions of Shia jurists and then strengthens the majority Shia view, which is the permissibility of cosmetic surgery (p. 70). In stating the permissibility of cosmetic surgery, he argues based on verses, narrations, the rule of permissibility (*qa'idat al-hilliyyat*), the rule of dominion over oneself (*qa'idat al-taslit 'ala al-nafs*), and the practice of rational people (*sira al-'uqala'*) (pp. 70-106). In the first part, the author concludes that both reconstructive and cosmetic surgery are permissible as a primary ruling, and cosmetic surgery for marital vivacity and preservation is in some cases recommended and in others obligatory (pp. 105-106); however, he provides no evidence for these claims. This problem also exists in the author's argument from the practice of rational people. The practice of rational people is one of the proofs cited both in the discussion of cosmetic surgery (p. 104) and in the issue of human cloning (p. 216). However, the author has not explained his basis for the practice of rational people, whereas it seems the author's view on the definition of the practice of rational people and the criterion for its authoritativeness differs from the majority view of jurists.

In this chapter, despite the brevity of the main topics of the book, the author has dedicated a significant portion to examining and proving the rule of permissibility and the principle of exoneration—which are discussed in books of the principles of jurisprudence—(see: pp. 79-95); just as he has explained the different types of cosmetic surgery in detail without mentioning any practical benefit for stating these types (pp. 39-41).

Impermissibility of Cosmetic Surgery by Secondary Ruling

In Nazemzadeh Qomi's belief, if non-essential cosmetic surgery leads to the performance of some forbidden acts (pp. 107-108) or the abandonment of some acts of worship, or causes a person to perform dry ablution (*tayammum*) instead of ablution (*wudu'*) for a period, or not to perform the bowing and prostration of prayer completely, this act is not permissible as a secondary ruling (pp. 120-121). Also, although the author considers nail implantation or gluing artificial nails to be permissible as a primary ruling, he believes that if these actions prevent water from reaching the person's body for ablution, they are not permissible, even though the performed prayer is valid (pp. 123-124). In stating the rulings on the use of nail polish or artificial nails, he believes that if their removal is impossible or causes unbearable hardship, for performing acts of worship, one should suffice with ablution or ritual bath with a splint (*wudu'* or *ghusl al-jabira*), and performing dry ablution in addition to ablution or ritual bath is not obligatory. Likewise, making up for the acts of worship after the impediments are removed is not necessary and is only in accordance with recommended precaution (*ihtiyat mustahabb*) (p. 122).

Twinning and Organ Cloning

In the first chapter of the second part of the book, Nazemzadeh Qomi divides cloning into three types: 1. Organ cloning, 2. Twinning, and 3. Complete human cloning (p. 169), but he makes the third type, i.e., complete human cloning, the main topic of the book (p. 174).

Taking the Permissibility of Organ Cloning and Human Twinning for Granted

The author of the book has considered organ cloning and human twinning to be permissible (pp. 170-174). Taking the permissibility of organ cloning and human twinning for granted is only seen in the author's views, because these two topics—especially the act of human twinning—are extensive and subject to debate in other jurisprudential books. By doing this, the author has excluded some jurisprudential discussions that are addressed in similar works from his book. Among these discussions are organ cloning through complete human cloning, the purity or impurity of cloned organs, human twinning in case of destruction of or harm to the zygote, twinning on a massive scale, and the insertion of the zygote into the womb of a non-spouse.

Complete Human Cloning

Difference of Fatwas on Complete Human Cloning

In the discussion of complete human cloning, after quoting the views and some of the arguments of Christians, Jews, and Sunnis on the prohibition of cloning (pp. 189-197), Nazemzadeh Qomi reports four views from Shia jurists:

1. Absolute permissibility of cloning: The view of jurists such as Sayyid Ali al-Sistani, Sayyid Muhammad Sa'id al-Hakim, Sayyid Muhammad Husayn Fadlallah (pp. 198-203);
2. Permissibility of cloning in small quantities and its prohibition on a massive scale; according to the opinion of Sayyid Kazim al-Ha'iri (pp. 204-205);
3. Permissibility of cloning by primary ruling and its prohibition by secondary ruling; the view of jurists such as Naser Makarem Shirazi and Yousef Sanei (pp. 205-207);
4. Absolute prohibition of cloning: The view of Muhammad Mahdi Shams al-Din (pp. 207-210). Although the author is hesitant in classifying Jawad Tabrizi's view with the third or fourth opinion (p. 209), he has nevertheless listed his name under the fourth view (p. 207).

Arguments for the Permissibility of Complete Cloning

In the fifth chapter, the author has argued for the permissibility of cloning based on the practice of rational people, the rule of permissibility, and the principle of exoneration. In his belief, although for the practice of rational people to be authoritative, the silence or approval of an Infallible must also exist, in modern issues that did not exist in the era of the Infallible, this is not necessary, and in the absence of any evidence for prohibition, the practice of rational people will be authoritative (pp. 216-217). Also, according to the author, the rule of permissibility is not exclusive to objective ambiguities (*shubuhat mawdu'iyya*) and is also applicable in jurisprudential ambiguities (*shubuhat hukmiyya*) like the issue under discussion (pp. 218-220). Nazemzadeh believes that in the issue of human cloning, both legal exoneration (*bara'a shar'iyya*) and rational exoneration (*bara'a 'aqliyya*) are applicable (p. 222).

The Parents of a Cloned Human

In the author's belief, a cloned human does not have legal parents. Nazemzadeh believes that the terms "father" and "mother" are only applied to someone whose child is produced from the fertilization of their sperm and egg (p. 185), and since a cloned human is born from a non-sexual cell and an enucleated egg and grows in the womb of another woman, none of the owners of the cell and egg are his or her parents (see: pp. 185 and 236). In the matter of prohibited degrees of kinship (*mahramiyyat*) and the marriage of a cloned human with the owner of the cell or egg or their uterine relatives, the author has exercised precaution and has not considered their marriage to be permissible (p. 186). However, the author's basis in issues like the right of custody, maintenance, and inheritance is not clear; because in one part of the book, by denying the possibility of the owners of the cell and egg being the parents, he has dismissed the application of these rulings, even as a precaution (p. 185), but in another part of the book, he considers the application of the said rulings to be in accordance with precaution (p. 251).

In this book, the author has not examined the relationship between the owner of the womb (not the owner of the egg) and the cloned human. Sayyid Abu al-Qasim al-Khoei and Muhammad Asif Mohseni, citing verse 2 of Surah al-Mujadalah, have considered the owner of the womb to be the legal mother of the cloned individual, but Mohammad Ebrahim Jannati has considered the owner of the womb to be equivalent to the person's foster mother. In contrast, Sayyid Kazim al-Ha'iri has denied the maternal relationship of the owner of the womb with the cloned human, both literally and in terms of fosterage.

The Book's Critiques of the Arguments for the Prohibition of Cloning

In the fifth chapter of the book, Nazemzadeh Qomi has evaluated the arguments for the prohibition of complete human cloning in two parts: arguments for secondary prohibition and primary prohibition. By examining all the mentioned objections and responding to them, he finally concludes that human cloning is not forbidden, neither by a primary ruling nor by a secondary one (p. 274). At the end of the book, in the sixth chapter, in support of his view, he mentions benefits for the three types of cloning, namely organ cloning, twinning, and complete human cloning, which include treating diseases, treating infertility, and cloning geniuses (pp. 275-278).

Nazemzadeh has examined the arguments for the prohibition of cloning by primary ruling in two contexts (arguments of the Sunnis and the arguments of Shia jurists) (p. 241). The author first quotes eight arguments from Sunni jurists and then three arguments from Shia jurists. Most of the arguments that the author has mentioned for the prohibition of cloning by primary ruling are detailed versions of the same arguments he mentioned for the prohibition by secondary ruling; arguments such as ambiguity in kinship relations, ambiguity in the rulings of maintenance and inheritance, the abolition of the concept of motherhood, the possibility of the formation of illicit relationships, criminal misuse of cloning, and the destruction of the family institution (pp. 241-258), which jurists of both schools have stated.

Prohibition of Producing a Human without Sexual Intercourse

The prohibition of producing a human without sexual intercourse and the prohibition of the mixing of waters and lineages (*ikhtilat al-miyah wa-l-ansab*) are two arguments that the author has quoted from Sunni jurists in addition to the previous ones. The Sunnis have inferred from verses like verse 18 of Surah al-A'raf and verse 8 of Surah al-Sajdah that God's way in the creation of man is only through sexual intercourse, and creating a human by other means is forbidden (pp. 242-243). Nazemzadeh believes that in addition to the fact that the said verses are not in the context of stating a legal ruling for how human reproduction should occur, their claim can be refuted by the verses that are stated about the creation of Jesus (a), because Jesus (a) had no father and his creation was of a different kind (pp. 244-246).

Mixing of Waters and Lineages

It has been said that one of the consequences of cloning is the mixing of waters and lineages, while one of the objectives of Sharia of all divine religions, including Islam, is the preservation of lineage (pp. 246-247). The author, by stating that in human cloning, sexual cells have no role in producing a human, has dismissed the mixing of waters (p. 247).

Prohibition of Altering God's Creation

The impermissibility of changing God's creation is one of the arguments cited by some Shia jurists. Muhammad Mahdi Shams al-Din, a Lebanese jurist, citing Quran 4:119, believes that any change in the human body that is not in harmony with his innate nature is a satanic and forbidden act (pp. 259-260). The author, by stating that the content of the verse is related to changing human nature, not his body, rejects this argument and quotes various opinions from exegetes in support of his view (pp. 260-263). He has also invalidated Shams al-Din's argument by stating that cloning is a new creation, not a change in creation (p. 264).

Human's Lack of Ownership over His Own Body

The lack of human ownership over one's own body is one of the arguments of Shia jurists for the prohibition of cloning. According to the primary principle, a person's disposition over his own body and soul is not permissible, and as long as there is no evidence for the permissibility of disposition, any significant disposition over the body will be forbidden. However, Nazemzadeh, relying on verses from the Quran (such as verse 207 of Surah al-Tawbah, verse 95 of Surah an-Nisa, and verse 6 of Surah al-Ahzab), believes in human ownership over his own body (pp. 268-269). He has also argued for the correctness of his view by citing the rule of dominion (*qa'idat al-saltanah*), and finally concludes that contrary to the said claim, the primary principle is the permissibility of human dispositions over their body and soul (pp. 269-273).

Secondary Arguments for the Prohibition of Human Cloning

The author of the book has stated and critiqued several arguments as secondary reasons for the prohibition of cloning by a secondary ruling. According to Nazemzadeh, the emergence of moral problems, such as the dissolution of the family system (p. 224), is one of these reasons, but he has responded that human cloning is not the complete cause of this problem (p. 226) and even if it were the complete cause, there is no evidence for the prohibition of the prelude to a forbidden act (p. 233).

The emergence of legal problems, such as the lack of lineage and the non-application of custody and legal guardianship (pp. 225-226), has also been considered one of the forbidden consequences of cloning, but the author believes that there is no evidence for the prohibition of producing a human without lineage (p. 237). Similarly, the emergence of social problems, such as the impossibility of distinguishing cloned individuals from each other (p. 225), are consequences that only arise in the case of mass cloning of humans, but given the very high cost of this work, such a problem will not occur. In addition, this problem arises when all the initial cells are taken from one person and all the created humans from the cells of one individual have complete similarity, which is not proven.

See Also

• Cloning (Study Resources)
• Cosmetic Surgery (Study Resources)