NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #8
[This is the eighth in a series of my notes on the International Institute of Islamic Thought conference on iftaa and fatwa held in Herndon, VA. These notes are raw material for an edited report I will write on the conference and represents my perception of the discussion. The proceedings will be published by IIIT at a later time. The Minaret of Freedom Institute thanks IIIT for the grant that makes the publication of these notes possible. Responsibility for any errors in the notes is mine alone.]
Moderator: Hisham Altalib
“Is There an Islamic Bioethics?”
Abdulaziz Sachedina, Prof of Islamic Studies, University of Virginia
It is appropriate to ask how iftaa works out in a new field like ethics, which has been regarded as a totally secular field of inquiry. The hospital culture is generally regarded as a secular culture, in which ethical norms are totally derived from human reason and experience, a practical ethics. Virtue ethics is the foundation of all ethics, but ethics here means that practical reasoning that leads to a conclusion about the rightness or wrongness of the decisions we pursue. It is quite relative, because each decision is made case by case, albeit pursued according to values absolute in a given culture. Our concern is the answer to the question: What is the justification for me to do what I am doing? This is the course of action followed by the fuquha themselves. Why am I making the decision the way I am making it (fiqh al istighlâli)? Western secular bioethics are being taught in Muslim hospitals and clinics, although they are interested in the fatwa. When the patient’s family mentions a fatwa, however, the doctors listen but they make the decision themselves as there is no patient empowerment. In the Western setting bioethics is about patient empowerment. A fatwa might influence a decision, but is not necessarily part of the process.
They have translated Western bioethics into Arabic and Persian, etc. Our students are taught the four principles of bioethics taught in the West including autonomy, which has little meaning in the communitarian context of the Muslim culture. In the U.S. there was a public uproar against the authoritarian medical profession that led to patient empowerment. My effort has been to seek what makes bioethics Islamic. My foundation is the religious goals of Islam. I think we must know our texts very well, so when we argue with the ulama we can show we are not strangers to the texts. The role of the fitra is that blind acceptance is not accepted. The self must reflect the divine nature. The fatawa is the raw material that must be developed into bioethics. Declaring this is haram and this is halal is not sufficient. The physician must understand why, so this is empowerment of the physician as well as the patient, because clinical situations are very complicated. I am talking about freedom of human action. The ulama must be knowledgeable in certain medical issues before they can make a decision, lest they make such erroneous decisions as accepting third-party donation of semen, because they do not understand the genetic issues. This leads to a plurality of fatwas and morality has been kept out of the fatwa-giving process.
Let’s move to an important question of Shariah in the sense of revealed law, or at least informed by the revealed law. The fuquha don’t know the subject being spoken about, so we have no experts in ethics. They confuse bioethics for medical jurisprudence. Hukm or fatwa applies a paradigmatic case to a particular minor premise: e.g., a male is staffing the emergency room when a female patient arrives. The fatwa is not the final word.
Practical decision-making is similar but different. We search for precedents that provide a general warrant (`asl). The present case provides particular facts (far’) for a provisional conclusion with a possible revision through further research and information. It is not to provide hukm, but to provide a recommendation rather than a final decision, e.g., the trauma of a woman made pregnant by rape. In the classical rulings the harm of the pregnancy was not recognized because it was psychological rather than tangible and therefore it was not among the abortion exceptions, whereas now it is permitted within the first fourteen days at the choice of the woman. The problem of iftaa is that it provides a ruling but no moral reasoning behind the decision. We don’t have a tradition of bioethics committees in the Muslim world. To develop Islamic bioethics we need a new tradition which gives not only a ruling, but the moral reasoning behind it.
Is a zygote potentially a human being? Why do we have progressive diyât (compensating fines) if we do not recognize the potentiality of the embryo? There is no definition of a fetus in the Qur’an, nor in the entire fiqh. The idea that ensoulment begins after 120 days comes from the hadith. There is new information about when life begins. Similarly with the end of life, the fiqh takes no account of the potential for life extension with modern technology.
Sayuti says life begins when the fetus is moving, and there are other definitions, but we need to expand what they have said. La dhara, la dharar: no harm, no harassment [in Islam]. If I know a medicine does not work for me, the hospital should not force me to take it. If I have the right to reject a doctor’s advice to fast or not to fast, I should have the same choice elsewhere. There is no concept of rijdân (conscience) in fiqh.
The connection between reason and revelation is the bridge created by the usûl. There are many issues about which the sources are silent, like the definition of the fetus.
Dharûra (necessity) is often abused. It is based on the Qur’anic command that there be no difficulty in religion. The question in the fiqh is not framed as “Are you taking a human life?” If it were, the rules would be quite different.
In the case of in vitriol fertilization (IVF), the problems connected with not having a child, women are invariably blamed. The breastfeeding decision shows the disjunction between reason and revelation. Reason needs to humble itself, but revelation is also subject to interpretation. Plurality of wives opens the door to surrogate motherhood, but third party sperm donation is analogous to adultery.
The fuquha have not engaged on the ethical principles and that has left us out of the discussion.
Discussant: Ebrahim Moosa
I am struggling very hard to find a problem with our presentation. You raise the issue of Shaikh Atia’s breast-feeding fatwa, but he doesn’t understand human biology. Women don’t lactate all the time. I find the move is away from the deontological discussion to an ethical discussion. The inquirer should not be treated as a child. The Qur’an and Sunnah is supposed to push us forward, but instead we are always looking backward, so we are held back. We are anxious about the Qur’an and the Prophet. Tawsia rather than hukm, recommendation rather than judgment pushes the patient into a morally autonomous zone. Our patient needs resources to make that decision. Doesn’t it require patient literacy? You gave examples from the traditional fiqh on the necessity of the individual to make the decision. Al-Ghazali requires that the individual must have minimal knowledge, even if it is just to know who is the more informed faqih.
You introduced an important point about conscientious decision-making. This could be a real opening as to what kind of literacy is required. Also clarify individual vs. communitarian decision-making. The traditional fiqh is based on an understanding of relationships that informs inheritance and kinship relationships, etc. The anxiety in Muslim circles is that the traditional kinship model will be reduced to the genetic model. When technology reveals new dimensions of the body and the self, what does that do to the traditional model? I can empathize with the permissibility of sperm donation because adultery is an impermissible physical act.
Sachedina: There is a tension in how Muslims define relationships. Communitarian ethics is not the only way to define Islamic ethics. I only say that relationships are very important and autonomy assumes a position below the communal concerns. The role of conscience is important in a way the iftaa has not given it attention. It is an empowerment of the individual that has not taken place in the Muslim world. The Qur’an is not only iconoclastic but also against he claims of special position by certain people, but in the culture that is not the case there is the desire to give others the decision.
Discussant: Imad-ad-Dean Ahmad
It is the fundamentals of the consideration of ethics in iftaa, rather than bioethics per se, that is at the heart of this talk. Understood this way I agree with its thrust. Like you I am a chaplain at a hospital, in my case at an Adventist Hospital, which emphasizes the spiritual as well as the material aspects of healing. Shariah is more than just the revealed law. We know it means “path.” This is because the Shariah, like the path to the well, is divine given and man’s job is not to invent it but to discover it.
Qur’an does identify the time of personhood (ensoulment) if you taken two different passages together. In one passage it says that the time of full dependency of a child on its mother is 30 months, and elsewhere it says the full term of weaning is 24 months. It is reason that offers no clear answer to the question of personhood. Simple arithmetic says there are an additional 6 months apart from the time of breast-feeding covered by the term of full dependency. If this six months follows weaning, then I have no idea what it means. However, if it precedes weaning, then it implies that the fetus is a person during the last six months of pregnancy. Then in the first three months it is not a person. There is a disagreement between the hadith that says ensoulment takes place after 120 days rather than 90 days, but that is not a problem for me as I always prefer the Qur’an over the hadith. When you try to obtain a purely rational or a purely scientific answer to the question that things get messy. Many atheists concerned over abortion have tried to define when personhood begins and their answers diverge all over the place: at conception, at birth, when the heart is audible, when brain waves appear, etc. They are trying to obtain physical answer to what is a metaphysical question.
I question the statement that argument of permission by necessity is based on the prohibition of difficulty in religion. I think it is based on multiple citations in the Qur’an giving explicit consent to eating otherwise haram food on the grounds of necessity (2:173, 6:119, 6:145, 16:115).
The argument that a female can sidestep the problem of being in the physical presence of an adult male co-worker by suckling him is not an example of the contradiction between reason and revelation so much as of poor reasoning. The hadith on which it is based (e.g., Sahih Muslim #3427), as you imply, should be dismissed on the moral weakness of the text.
On the question of whether physical copulation is necessary for adultery, I think we must remember that adultery comes from the root of adulteration, meaning of the “bloodline.” Substituting genes for blood does not alter the principle. I am not saying sperm donation is necessarily evil, I am only saying we should approach it the same way we approach adoption, of which it seems to be a variety.
I would like to apply your point on the difficulties caused by an absence of moral explanation more broadly. Where the Qur’an gives no reasons is where the problems become the most difficult, e.g., the distinction between riba and trade, and the restrictions on beating a woman.
Ayoub: I wonder what Khamenie did with the Qur’an and a hadith when he allowed a third party sperm donation: The verse “Know them by their fathers” and the hadith “the child belongs to the marriage bed.” Kinship is through rahm (the womb) not the blood.
Jourdan Hussein: Are we in Indonesia unrestrained by the four madhhabs because we are a different culture?
Sami Ayoub: You said the fuquha did not consider psychological harm, but is not a false accusation of adultery an example of psychological harm? Khaled Abul Fadl says that law and ethics do not always correlate. What is your view? It has been argued that the Mutazilites and the early Asharis started with deontological ethics and shifted to consequentialist ethics.
Mujiburrahman: I helped translate a book by Abdul-Fadl Ibrahim on animal organ transplantation and others issues ten years ago. What are your views?
Sachedina: Khamenie’s fatwa was rescinded by himself in the next edition. I think senior mujtahids must have drawn his attention to his error. He often has a committee sits with him and advises him on iftaa. Khamenie was politically promoted; his scholarship is managed by others. The senior mujtahidîn disagreed with him on this issue. A Ph.D. student of mine has completed a dissertation on fertility clinics in Iran, and the senior (first tier) ulama have not agreed. Khamenie is in the third tier.
M. Ayoub: What happens to those who followed his first edition?
Sachedina: Slander is a public crime, but rape, which is a trauma, was not necessarily recognized as a public crime, until Bosnia. There rape was used as a weapon of war. Imam Khomeini has declared rape a harm permitting abortion in the first thirteen days, but others disagree. I think our criticism is introducing the subject of moral reasoning into the fiqh.
Most Mu`tazila accepted the deonotological, but the Asharis did not because they think only God knows good and evil. The medical community respects the chaplains, but the ultimate decision is made by the ethics committee in the hospital. Our influence depends on how much faith they have in us.
As for rethinking the fiqh in a cultural context, fiqh means to understand. I think fiqh as an activity is different from the Shariah. It is a growing body of knowledge, and the fiqh will be different according to culture.
Anwar Haddam: I am trying to clarify hukm and tawsiyya. I believe morality has always been there, but there has been a lack of understanding the issues.
Dawood Nassimi: The fitra is not sufficient; we need revelation. The texts have many references to conscience. The Qur’an emphasizes imân more than ihkâm, because once you have submitted Allah’s guidance is sufficient for you.
Honerkamp: In rural areas of Morocco I’ve seen women nursing their infants by the side of the road and no one is shocked or even surprised. I don’t think our current Puritanism was the norm when the ahkâm was established. Giving an illegitimate child the name of ibn abîhî (“child of his father”) today would mark a child for life. We have to find maslaha for the individual because we know the blame for the illegitimate child is not upon him.
Adam Shaikh: Even in the time of the Prophet (saws) we find people who differed in the interpretation of the Qur’an al Hadith, such as the people who were told to pray when they reached the Bani Quraiza. Umar ibn Khatab suspended the hadd of theft to much controversy. The stages of the fetus are mentioned in the Qur’an and I like what al-Ghazali said, that life starts at fertilization and is like the contract of buying or selling so that destroying the embryo at any of the three stages has its penalty of a named monetary amount: `arsh = 10 dinar, or double or triple. There is also the question of who dies first and who dies second as regards taxing inheritance.
Sachedina: What I have understood is there is an enforcing body for hukm, but the mufti is dependent on the one who follows him. Khamenie’s fatwa (which was requested by doctors) was not adopted by the government. Akhlâq or morality is essentially intertwined with fiqh. The language of the Prophet was alkhlâq, but that was before you had an Islamic state. Conscientious objection is not developed in the fiqh. For me, usûl al fiqh is ethical. Al wahy awla min al `aql. There is clearly a link, but it is not well developed. I am not saying all Muslim jurists ignore ethics.
The early sahâba saw the Qur’an as the Prophet and the Prophet as the Qur’an because it was not there in a manuscript form, so imân in the Qur’an required submission to the Prophet. Today it is a struggle to keep the two together.
Our fuquha said when the identity of the father is not known he must be known by the mother’s name specifically to avoid such stigma. People who were called ibn abîhî or such were being insulted, sometimes for political reasons.
We are teaching the wasiyya (Islamic will) today.
Sarah Albrecht: You contrasted the Western focus on the individual with the Muslim focus on the individual as part of a family or community. How does this affect the Muslim immigrant?
Sachedina: It was my colleagues who emphasized autonomy, which prompted me to ask why is the opinion of the individual more important than that of the family? Sometimes the illness is such that the person is not able to make that decision and we empower the family to make the decision. When I needed a stent in Iran, the doctors would not accept my approval without consulting with my family.
Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute