Verses of Medical Jurisprudence (Book)
Verses of Medical Jurisprudence (آیات فقه پزشکی) is a research by Mohammad Ali Qasemi that has collected verses related to 20 medical topics and examined the implication of those verses on medical issues. For example, the author has inferred the possibility of abortion before the ensoulment (*Damidan-e Ruh*) from the verses negating hardship and difficulty (*Nafi-e 'Usr wa Haraj*) if it causes hardship for the mother. He has also utilized the verses of necessity (*Idhtirar*) for the permissibility of transplanting organs from a brain-dead person to others. The author has inferred the prohibition of suicide and euthanasia from the verses forbidding homicide (*Qatl al-Nafs*). The author, by relying on the verses of transaction (*Shira'*), has also deduced human dominance over one's own self (*Sultah al-Insan 'ala Nafsih*), as a result of which he has arrived at the permissibility of organ transplantation.
| Verses of Medical Jurisprudence | |
|---|---|
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| Book Information | |
| Author | Mohammad Ali Qasemi |
| Subject | Medical Jurisprudence Books |
| Style | Argumentative |
| Language | Persian |
| Publication Information | |
| Publisher | Jurisprudential Center of the Pure Imams |
- Abstract
Brief Overview and Structure
The present research, titled "Verses of Medical Jurisprudence", is the result of Mohammad Ali Qasemi's research, which was published in Persian in 2020 (1399 SH) by the publications of the Jurisprudential Center of the Pure Imams. The author considers the Quran as one of the important sources for discovering the rulings of the Sharia because it is incorruptible (*Tahrif-napazir*). In his belief, numerous verses of the Quran find connection with medical rulings; for this reason, in this book, the discovery of medical rulings from Quranic verses has been undertaken with an independent reasoning (*Ijtihadi*) approach and by relying on the viewpoints of exegetes (*Mufassirun*). In this book, by first specifying the subject of the verses, the author proceeds to insert the verse, its translation, and its occasion of revelation (*Sha'n al-Nuzul*), and subsequently explains the exegesis of the verse and ultimately the application and argumentation of the verse in medical jurisprudence.
Structure
The book Verses of Medical Jurisprudence has extracted these verses in twenty chapters. The titles of the chapters are as follows: the verse of transgression (*I'tida'*) (pp. 31-48); the verse of the negation of authority (*Nafi-e Sabil*) (pp. 49-62); the verses of the negation of hardship (*Nafi-e Haraj*) (pp. 63-74); the verses of harm and causing harm (*Darar wa Idhrar*) (pp. 75-100); the verses of necessity (*Idhtirar*) (pp. 101-122); the verses of transaction (*Shira'*) (pp. 123-130); the verse of ownership (*Malikiyyah*) (pp. 131-136); the verse of assistance (*I'anah*) (pp. 137-144); the verse of the destruction of progeny (*Ihlak al-Nasl*) (pp. 145-148); the verse of perdition (*Tahlukah*) (pp. 149-156); the verses of altering God's creation (*Taghyir Khalq-Allah*) (pp. 157-174); the verses of forbidding homicide (*Nahy az Qatl al-Nafs*) (pp. 175-202); the verse of the prohibition of carrion and blood (*Tahrim al-Maytah wa al-Khun*) (pp. 203-214); the verses of pairing (*Zawjiyyah*) (pp. 215-224); the verses of guarding the private parts (*Hifdh al-Farj*) (pp. 225-256); the verses of virginity (*Bakariyyah*) (pp. 257-264); the verses of keeping secrets (*Kitman al-Sirr*) (pp. 265-300); the verses of lineage (*Nasab*) (pp. 301-328); the verses of embryology (pp. 329-356); and the verses related to the "hermaphrodite" (*Khuntha*) (pp. 357-364).
Verse of Transgression
In the author's belief, it is inferred from the verse of transgression (*Ayat al-I'tida'*) that possessing the right of retaliation (*Qisas*) is one of the established rulings of Islam, and if a perpetrator (*Jani*) unjustly amputates someone's organ, the victim (*Majni 'Alayh*) has the right to retaliate against him; for example, if he has cut off his ear, he may also cut off that person's ear (pp. 44-45); however, the important issue is whether the evidence proving the right of retaliation can prevent the perpetrator from transplanting the amputated organ and returning it to its original state. Relying on the evidence of retaliation, including the verse of transgression, the author answers that if the perpetrator has caused the permanent destruction of the organ, in this case, he does not have the right to transplant the amputated organ (p. 46).
Verse of the Negation of Authority
In the author's belief, the verse of the negation of authority (*Ayat Nafi al-Sabil*) expresses a general law and rule; meaning that whenever a person, such as a doctor and medical staff, out of the motive of service and benevolence (*Ihsan*), causes harm to another person like a patient, they are not held accountable in this situation, and accountability, just as it can pertain to a prescriptive ruling (*Hukm Taklifi*), can also pertain to a declaratory ruling (*Hukm Wad'i*), and the non-liability of the benevolent person (*Muhsin*) conveys that very declaratory non-accountability and his lack of liability (*Dhaman*) and responsibility (pp. 57-58). Based on the implication of this verse, if the doctor has no intention of personal gain and solely with the intention of benevolence and goodness in emergency medical procedures proceeds to tear the patient's clothes, or breaks their gold bracelet, no liability will be directed toward him (p. 60).
Verses of the Negation of Hardship and Difficulty
The author states that in the discussion of abortion, Imam Khomeini uses the verses of the negation of hardship and difficulty and says, "If the diagnosis of a disease in the fetus is definitive and keeping such a child causes hardship (*Haraj*), in this case, it is permissible to abort the fetus before the ensoulment; however, based on precaution (*Ihtiyat*), its blood money (*Diyah*) must be paid" (p. 69). Also, regarding referring to a doctor of the opposite sex, the jurists have set the criterion as hardship and difficulty, stating that if finding a doctor of the same sex involves severe difficulty and hardship (*'Usr wa Haraj*), referring to a doctor of the opposite sex is not problematic. They have also stated: Using impure (*Najis*) medicine is forbidden (*Haram*); however, if not using it causes the intensification of the disease and leads to hardship and difficulty, the Lawgiver (*Shari'*) has removed its prohibition (pp. 71-73).
Verses of Causing Harm
There are numerous verses that have prohibited causing harm (*Idhrar*). Based on this, whenever a doctor, medical staff, or hospital refuses to admit and treat a patient under false pretexts, such as not paying the advance payment, and as a result, the patient dies or suffers harm; each of them has committed negligence and a sin, and if this act is attributed to them, they will be legally (*Shar'an*) liable (p. 96). Regarding cosmetic surgery, jurists also emphasize this point that if any negligence on the part of the doctor and medical staff is directed at the patient, causing them harm, in this case, the doctor, the medical staff, or anyone involved in this matter will be liable (p. 98).
Verses of Necessity
According to the author, the verses of necessity are considered the foundation of the rule of necessity (*Qa'idah al-Idhtirar*); according to these verses, in conditions of necessity, committing a forbidden act is deemed permissible. As jurists believe regarding the dissection (*Tashrih*) of a Muslim's body that if the dissection of a non-Muslim's body is not possible and saving the life of a Muslim individual depends on the dissection of a deceased Muslim, in this situation, dissection is permissible (pp. 109 and 113). According to him, by reflecting on the opinions of jurists who have commented on the transplantation of organs harvested from individuals suffering from brain death, it becomes clear that they have considered the permission to harvest transplant organs from a person permissible under the assumption of a state of necessity, such as the dependence of saving and preserving a Muslim's life on it. Likewise, in the case of necessity for a sex change, jurists have argued for the permissibility of undertaking a sex change by relying on the resolution of sexual disorders and psychological distress, and the consequent onset of depression that causes the necessity (pp. 119-120).
Verses of Transaction
One of the important topics in medical jurisprudence is the discussion of human dominance over one's self and organs. From the verse of transaction (*Ayat al-Shira'*) and similar ones, a kind of existential (*Takwini*) and legislative (*Tashri'i*) dominance of human beings over their own selves is inferred; just as a person can engage in trade and make a profit or loss only when they possess dominance and authority over their sold object (*Mabi'*). In these types of verses, a person is legally presumed to have free will and authority over their own self, so that they can trade it for a price, such as the highest paradise, or become a loser in this transaction and sell it for a paltry price (*Thaman Bakhs*). Therefore, some Islamic thinkers, relying on these very verses, believe that human beings are the owners of themselves and dispose of it with the permission of the Divine, who is the true owner (p. 130).
Verses of Ownership
According to the author, in arguing from the verse of ownership, some jurists, such as Mohammad Momen, believe that although this verse is in the position of expressing the precedence of the Prophet in guardianship (*Wilayah*) over the believers compared to themselves, there is no doubt that the verse implies that the believers possess guardianship over themselves, except that the guardianship of the Prophet is stronger and more emphasized; therefore, the concept of the verse is that this guardianship that the believers have over themselves is the very guardianship that rational people acknowledge for every person. Furthermore, through implicative signification (*Dalalah Iltizamiyyah*), the verse concisely proves the legal guardianship of people over themselves. Accordingly, believers possess guardianship over their lives and properties and can have interventions and dispositions regarding their organs (pp. 134-135).
Verse of Assistance in Sin
The meaning of assistance in sin (*I'anah 'ala al-Ithm*) is aiding in a transgression, meaning that the sin committed by the direct perpetrator (*Mubashir*) is carried out with the help and assistance of someone or something, such that by creating a series of preliminaries, that forbidden act has taken place. Jurists have various theories for the realization of assistance or aiding; one group considers the mere knowledge and awareness of the assistant regarding the intention of the perpetrator as sufficient, while another group, in addition to the knowledge and awareness of the assistant, considers the criminal intent and malice of the assister (*Mu'in*) as necessary and essential (pp. 137-138). To justify their view, jurists rely on the generality of the verse "And do not cooperate in sin and aggression" (Wa la ta'awanu 'ala al-ithm wa al-'udwan); based on this view, if a doctor is aware of the objective of the patient that she intends to deceive (*Tadlis*), in this case, he cannot, for instance, surgically repair and restore the hymen of the woman who has visited; because by mere knowing, assistance in sin is realized (pp. 138-139).
Verse of Perdition
According to the author, the meaning of the verse of perdition (*Ayat al-Tahlukah*) is that you should not expose yourself to destruction. Ayatollah Makarem has reasoned from this verse in explaining the prohibition of smoking cigarettes and says, smoking cigarettes is a clear instance of casting oneself into perdition (*Ilqa' al-Nafs fi al-Tahlukah*). In addition, from this verse, apart from deriving the prohibition of suicide or doing anything that causes destruction, it can be derived that the aforementioned prohibition also includes the destruction of the principal organs of the body; therefore, one cannot donate the main organs of the body for transplantation to other individuals (pp. 151-154). Based on this very reasoning, the operation of sterilization and permanent prevention of pregnancy are also considered tantamount to casting oneself into perdition, and consequently, their permissibility would not be correct; except in a state of necessity where its ruling is secondary (*Hukm Thanawi*) (p. 155).
Verses of Altering God's Creation
The author considers the meaning of "altering God's creation" (*Taghyir Khalq-Allah*) to be an alteration or any act that results in a disfigurement (*Tashwih*) incompatible with the innate nature (*Fitrah*) in the body; hence, to prove the prohibition of cloning, reliance has been placed on the verse of altering God's creation, explaining that human cloning causes the emergence of copies of the human body, and this act is forbidden and prohibited according to the primary principle (*Asl Awwali*) in Islamic law (p. 172). It is also stated that cloning is among the kind of dispositions that God does not consent to; rather, it can be said that cloning is considered an alteration in creation and interference in divine creation, which Satan has commanded, completely conflicting with divine creation (p. 172).
Verses Forbidding Homicide
The researcher says that from the totality of the verses forbidding homicide, it is thus derived that a human being has the ability and right of disposition over their own body as long as it does not reach the border of titles such as homicide (*Qatl al-Nafs*), suicide (*Intihar*), or perdition (*Tahlukah*), because such titles are considered restrictions and conditions for human dominance over one's own self (p. 178). Undoubtedly, euthanasia, which ends the life of a human being, for whatever reason it takes place, whether the person is suffering from severe pain or the person themselves consents to this act, is forbidden, and the generalities (*'Umumat*) and absoluteness (*Itlaqat*) of the verses prohibiting homicide also encompass this case. As Ayatollah Fazel states in this regard: "Killing a patient who is afflicted with an incurable disease and is suffering from pain, whether with the consent of the patient or their relatives, or without their knowledge and consent, is considered homicide and is forbidden, and all the rulings of intentional murder (*Qatl-e 'Amd*) will be applicable in this case" (pp. 178 and 198).
Verses on the Prohibition of Carrion and Blood
Some have reasoned from this category of verses that according to the literal meaning of the verses, any kind of utilization, buying and selling, and obtaining income with blood is forbidden; but on the contrary, another group of jurists, such as Imam Khomeini, believe that buying and selling blood to save a patient's life is permissible, because it is more apparent that utilizing and benefiting from blood, and buying and selling it for purposes other than eating, is permissible, and there is no indication of the absolute prohibition of utilizing blood. Furthermore, today the uses of blood have found new dimensions that do not limit its utilization to eating (pp. 212 and 213). Of course, the buying and selling of carrion (*Maytah*) and its parts is not permissible, and its usage is problematic; certainly, regarding the buying and selling of body organs, such as kidneys and the like, the precaution is that if they want to take money, it should be in exchange for the permission to harvest the organ from the donor's body, not in exchange for the organ itself, and the principle of this act is permissible provided that there is no danger involved for the organ donor (pp. 213 and 214).
Verses of Pairing
Citing this research, some Islamic thinkers, paying attention to the verse of pairing (*Ayat al-Zawjiyyah*), have concluded that the marriage contract and the tradition of pairing is one of the manifestations of the legislative realm (*'Alam al-Tashri'*) and must always be considered and should never be distorted; but since human cloning distorts and destroys this tradition, it will be prohibited (p. 222). It has also been stated that cloning, which violates the law of pairing and is based on independence from the other sex and restricting to one sex, is an act against the innate nature upon which God has formed people, and is in no way in the interest of human beings; because humans innately need the other sex; not only for reproduction but so that each completes themselves through the other (p. 223).
Verses of Guarding the Private Parts
According to this group of verses, some consider any act that is incompatible with guarding the private parts (*Hifdh al-Farj*) to be a transgression and violation of the religious standard, unless it is through a lawful (*Halal*) means approved by the Lawgiver, such as marriage. In their belief, if a fertilized egg or semen belonging to a strange man is transferred to the womb of a strange woman who is not his wife, whether directly or by means of medical instruments, and whether with the person's consent or without it, such an act is forbidden and prohibited, and the perpetrator of this act is also considered a sinner. Likewise, womb renting and injecting a woman's egg into another woman are considered among the prohibitions (pp. 228 and 251).
Verses of Virginity
In the author's opinion, there are verses in the Quran that are used in various discussions of "deception in virginity, restoration of virginity, the religious and medical criterion for virginity, how virginity is removed, the condition of virginity in the marriage contract, and the annulment of marriage due to the spouse's lack of virginity"; of course, there are scientific disputes in these cases (p. 261). One of those who have addressed these discussions with a relatively complete reasoning is Ayatollah Khoei; he has stated in this regard, "What is apparent from the lexicon, and custom (*'Urf*) also supports it, is that a virgin (*Bikr*) means someone with whom intercourse has not taken place (*Ghayr Madkhulah*); therefore, a girl who has committed a lawful or unlawful sexual act is excluded from being a virgin; but if she has not had a sexual act and intercourse has not occurred, she is a virgin, even if her hymen has been removed due to another reason and cause" (p. 261).
Verses of Keeping Secrets and Trustworthiness
According to the author, Verse 3 of Surah al-Tahrim, although about the prohibition of revealing the secret of the Prophet (PBUH), is not exclusive to the person of the Prophet and includes all human beings. Therefore, revealing patients' secrets, which includes disclosing their medical record information and intruding into their privacy, will not be permissible; especially if it is done without any religious and legal justification (p. 271). In addition to the reasoning from the verse on the prohibition of concealing secrets and the obligation of keeping secrets, according to the verse of the obligation of trustworthiness, which encompasses material and spiritual matters, observing covenants and pacts, and preserving secrets, the secrets of patients, which are considered among trusts, constitute a breach of trust (*Khiyanah fi al-Amanah*), which will not be permissible. Therefore, doctors and hospital medical staff, who are in fact the trustees of patients, do not have the right to reveal the secrets of patients, and in case of revealing their secrets, they have committed a breach of trust and performed a forbidden act, which is deserving of punishment and retribution (p. 281). It is obvious that some diseases are customarily considered secrets that must be protected, such as infertility in women and men, psychological and mental illnesses, skin and venereal diseases, fatal diseases like various types of cancers, and any disease that the person is keen to hide (pp. 289-292).
Verses of Lineage
The author states that the approximation of the reasoning is that in Verse 2 of Surah al-Mujadilah, absolutely, and indeed in a form of restriction (*Hasr*), the mother of a child is considered to be the one who carries and gives birth to them, and endures the pain and hardship of their pregnancy, and brings them into the world. Based on this reasoning, a child born from embryo transfer is attributed to the owner of the womb, because they are born from the owner of the womb (pp. 303 and 308). Also, through this type of reasoning, some jurists have considered the criterion for the attribution (*Luhuq*) or non-attribution of a child to a woman to be birth or non-birth and have said: The woman who owns the womb is the complete cause (*'Illah Tammah*) of bringing the child into the world; therefore, the infant is attributed to the owner of the womb who has given birth to them (p. 308).
Verses of Embryology
According to the author, in the Quran, the manner of human creation and the stages of fetal development have been explained in many instances, from the totality of which, seven stages have briefly been considered: the stage of the drop of fluid (*Nutfah*), the stage of the clinging clot (*'Alaqah*), the stage of the chewed lump (*Mudghah*), the stage of the emergence of bone, the stage of covering the body with flesh, the stage of breathing the spirit into the fetus's body, and the stage of birth and presence in the world, each of which contains amazing points about the system of creation (pp. 272 and 273). In his belief, one of the most important rights of the fetus in Islamic jurisprudence is its right to life as well as the right to enjoy physical health. Among the rulings that confirm the fetus's right to life and emphasize it is that in the event of the death of a pregnant woman while the fetus is alive, cutting open the abdomen and extracting the fetus from the womb is obligatory (*Wajib*). Therefore, abortion without religious permission is considered harming the health of the developing fetus and is counted as a crime that will entail the obligation of blood money (*Diyah*); of course, the obligation of blood money, in addition to the previous confirmation, is considered another confirmation of the fetus's right (pp. 345 and 346).
Verses Related to the "Hermaphrodite"
According to the author, some scholars have traced the root of the issue of resembling, dressing as, and marrying a hermaphrodite (*Khuntha*) back to the question of whether a problematic hermaphrodite (*Khuntha Mushkil*) is a third nature or is truly a man or a woman? Sayyid Yazdi says that the fairness of the matter is that Quranic verses have not restricted the creation of humans to male and female; hence, in the world of science today, a group also considers the hermaphrodite a third nature and believes that they are humans whose female and male hormones are equal (pp. 361 and 362). However, in the opinion of many jurists, this theory is incorrect; because it is derived from the verses related to the discussion of the hermaphrodite that a hermaphrodite is not a third essence, thus it is either a man or a woman. For this very reason, a group of Islamic thinkers has stated that all creatures of the universe are not outside the two categories of male and female; just as in animals and plants, either a hermaphrodite does not exist, or if it does, it is not considered a third nature. These verses are also applicable in the issue of sex change (pp. 362 and 363).