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Avis juridiques (fatâwâ) et pratiques bioéthiques

Aspects of the Management of the Rising Life Comparing Islamic Law and the Laws of Modern Muslim States

De la manière de considérer l’aube de la vie : une comparaison entre droit musulman et droits des États musulmans contemporains
Dariusch Atighetchi
p. 305-329

Résumés

Sont présentées les principales positions musulmanes sur les thèmes relatifs à la contraception, l’avortement, la procréation artificielle, le clonage et les cellules souches. Cet article met ainsi en évidence la complexité et l’hétérogénéité des opinions énoncées par le droit musulman «classique» et par les opinions juridiques contemporaines. Il aborde également les conséquences sociales de l’utilisation des nouvelles technologies de procréation. Les différentes positions juridiques entre les États musulmans constituent des expressions dérivées d’un background juridique qui est en soi très riche et duquel peuvent se développer des législations très diverses relativement au sujet de la contraception, de l’avortement.…

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Texte intégral

1The Sharîa is the revealed Law of divine origin that regulates human actions which was built up into a fully comprehensive juridical system by Muslim jurisconsults (fuqâhâ’, ‘ulamâ’ and muftî) in the first centuries after the death of the Prophet Muhâmmad (632 AD).

2There are four sources for the Sharîa, which have different normative value, with the first three being of divine origin. The Qur’ân, the direct and literal word of God; the last and perfect revelation given by God to man which updates and supersedes the previous monotheist revelations, restoring the original Abrahamic monotheism. The Sunna is the collection of the «sayings» (hadîth, pl. ahâdîth, Arabic) – which run into dozens of thousands – of Muhammad, the last of the Prophets, the juridical value of which varies according to their authenticity. The Sunna represents the perfect integration of the Qur’ân as it completes it when the Qur’ân is silent and provides an authentic interpretation when it is ambiguous or incomplete. Ijmâ‘ is the uninterrupted and unanimous consensus of the doctors of the Law and/or of the community on specific subjects. Reasoning by analogy is a tool of logic by which new rules of conduct are deduced to meet new situations starting from the rules applied in similar cases in the Sacred Sources.

3SunniIslam (which includes 85 % of Muslims) is characterized by the absence of a supreme religious authority or teaching. The only unquestioned authorities are the rules and principles present in the Sacred Sources, elaborated between the 10th-12th centuries AD and since then considered eternal.

4In the Sunniworld there are four canonical schools of law (Hanafite, Malikite, Shafi‘ite and Hanbalite), the positions of which may differ on everything except on the foundations of the faith, worship and law.

5Regarding disagreements between Muslim jurisconsults, these may be overcome, with the passing of time, by the prevailing opinion which ends up by representing the consensus (ijmâ‘) of the Muslim community on the subject. The doctors of Muslim Law are consulted by the faithful on the religious legitimacy of recourse to modern techniques of diagnosis and therapy. The «scholars» may issue only fatwâ, i.e. simple legal opinions.

6At present, in the attempt to identify positions that are representative of the entire Muslim community, reference is increasingly made to the «recommendations» and «resolutions» expressed by collegial bodies (the Muslim World League, the Organization of the Islamic Conference...), although their intrinsic juridical value does not go far beyond that of a fatwâ, a legal opinion which can be contested by other individuals or collective juridical-religious subjects.

7Today, the authority of a muftî is mainly moral. It is the State that makes laws and the States are not obliged to follow the advices of Muslim jurists. Nevertheless, the opinions of the religious authorities are generally held in great consideration by the political authorities of Muslim States, especially on confusing subjects such as those discussed by bioethics.

Some positions of classical Islam on contraception

8The Qur’ân does not speak of contraceptive practices. The «sayings» (ahâdîth) of the Prophet Muhammad are discordant, despite the hadîth «Marry and multiply». Nevertheless, the most authoritative ahâdîth on contraception (present in the collections of Bukhârî and Muslim) do not prohibit the practice of coitus interruptus (‘azl).

9In the times of the Prophet, the Arabs were aware of the limited efficacy of coitus interruptus to avoid pregnancy. However, faith in divine omnipotence has modified ‘azl from an obstacle to God’s will – as maintained by Jews and Christians – to an instrument of divine will according to the Principle of Predestination : a child is born only if God so wills.

10The Qur’ân itself assimilates, on the one hand, wealth and children with ephemeral ornaments: « Les biens et les enfants sont l’ornement de la vie de ce monde. Cependant, les bonnes œuvres qui persistent ont auprès de ton Seigneur une meilleure récompense et [suscitent] une belle espérance » (XVIII, 46 ; LVIII, 9 and LVIV, 15) but, at the same time, offspring represent a divine blessing.

11Traditionally, Muslim law classifies human acts into five categories: compulsory, recommended, indifferent, reprehensible (makrûh) and forbidden (harâm).

12The most important classical juridical elaboration on the problem of ‘azl is to be found in the pages of a work by Ghazâlî (died 1111 AD), a Shafi‘ite jurist, entitled Vivification des Sciences de la foi.

  • 1   Ghazali, Le Livre des Bons Usages en Matière de Mariage, (From l’Ihiya Ouloum ed-Din, ou Vivifica (...)

13Ghazâlî described four dominant positions amongst his contemporaries1: those who consider that ‘azl is always licit, those who always prohibit it, those who allow it with the consent of the woman, those who allow it with a female slave. For this jurist, coitus interruptus is a permitted practice but at the same time reprehensible (i.e. makrûh), as for jurists procreation remains a meritorious action, abstention from which does not entail prohibitions.

14Amongst the reasons identified by Ghazâlî to justify coitus interruptus from the juridical point of view, two meet contemporary sensibility: to protect the woman’s health and beauty from the damage caused by pregnancy and birth, and to avoid numerous offspring if this compels the parents to commit unlawful acts to maintain their children.

15Regarding the economic aspect, the Qur’ân (XVII, 31) states: « Et ne tuez pas vos enfants par crainte de pauvreté; c’est Nous qui attribuons leur subsistance; tout comme à vous. Les tuer, c’est vraiment un énorme péché ». This passage and others have at times been interpreted as evidence of the opposition of the Qur’ân to contraception, whilst, in actual fact, these passages refer to the prohibition of causing the death of a child after birth, that is, infanticide.

16Ghazâlî was mainly interested in the motivations that would legitimise contraception, whilst he was less attracted by the analysis of the tools that could be used. This is the approach that has essentially been dominant in classic Muslim law.

Contemporary positions in favour of contraception

17Historically, Muslim legal literature has allowed sexual activity only with wives (up to four) and slave-concubines. Today, sexuality is allowed only between married partners. It is fundamental to remember that in Muslim contexts when speaking about contraception the main subjects of reference are legally married partners, not unmarried couples.

18As ‘azl is a male act which reduces female pleasure and female procreation, the majority of jurists have overcome this obstacle by having recourse to the husband obtaining the prior consent of his wife, applying the ahâdîth on the subject.

19The juridical schools still basically agree today on the respective positions maintained on the past.  

20Since the end of the Second World War, the great population growth has induced Muslim governments to take action.

21Thanks to the permissiveness shown by the Sunna, the Muslim world appears to promote easy recourse to the various contraceptive practices, without forgetting that this behaviour is merely tolerated and concerns only married couples.

22At the same time, since Islam is a «Religion-State» system, the numerical expansion of the community remains a value approved both by the supporters and the opponents of contraception.

  • 2   O. Schieffelin. (Ed.), Muslim Attitudes toward Family Planning, New York, The Population Council, (...)

23For example, in 1964, the Grand Muftîof Jordan, al-Qalqîlî, advocated marriage above all for the purpose of increasing offspring whose multiplicity implied «power, influence and invulnerability»2.

  • 3   A. R. Omran, Family Planning in the Legacy of Islam, London, Routledge, 1994, 215.

24In 1965, a document on the same subject by the Islamic Research Academy of al-Azhar stated: Islam wishes the multiplication of its children to reinforce the Muslim nation «from the social, economic and military point of view in order to increase its prestige and make it practically invincible»3.

25It is worthwhile recalling that those favourable to population control do not challenge the growth of the numerical force of Islam as such, but merely advocate its limitation or reduction in periods which are unfavourable from social and economic points of view.

  • 4   Arab Republic Of Egypt, Ministry Of Waqfs, Islam’s Attitude towards Family Planning, Cairo, 1994, (...)

26Islam refuses a «weak multitude» and this purpose can be fulfilled by applying the three points proposed by the Egyptian Ministry of Religious Affairs in 19944: promote temporary contraception during the period of breastfeeding, «total» contraception when the couple or one of them suffers from incurable hereditary pathologies. In addition, population control is suggested for parents who are incapable of bringing up their children in the respect of the juridical principle: damage must be avoided as far as possible.

27Mahmûd Shaltût, the maximum authority of Cairo’s University of al-Azhar in the 1950s and 60s, judged the legislative interference of the State illicit if it established by law the maximum number of children couples could be allowed to have. State intervention is licit in the case of women with too many children or parents who have hereditary pathologies.

  • 5   I. Nazer. H. S. Karmi et al. (Eds.), Islam and Family Planning: A Faithful Translation of the Ara (...)

28The conclusive document of the Rabat Conference (1971) on «Islam and Family Planning» considered family planning a practice that the couple could decide after freely agreeing, through using lawful means, on a pregnancy depending on their health, their economic situation and respecting their responsibility towards their children and themselves5. The Conference deemed it a priority for Muslim countries to dedicate energy to improve the quality of life of their citizens rather than limit interest to the numerical increase of the population.

  • 6   D. Atighetchi, Islamic Bioethics: Problems and Perspectives, Berlin-Dordrecht, Springer, 2009, 74

29Resolution 39 (1/5) on population control by the Council of the Academy of Muslim Law (fiqh) of Jeddah (Kuwait City, 1988) stated6: «general laws» which limit the procreative freedom of the couple are unlawful, sterilization is prohibited except in cases of necessity. In the meanwhile, it is lawful to temporarily control procreation to space out pregnancies or interrupt them for certain periods in cases of necessity recognized by the Sharî‘a ; in addition, this should be at the discretion of the couples after their prior agreement.

  • 7   M. S. Tantawi, La protezione dell’infanzia e la legge dell’Islam, «Dolentium Hominum», 1994, 25, (...)

30In a document of the 1990s, when he was the Grand Muftî of Egypt, M. S. Tantâwîpaid great attention to the protection of the strength of the Muslim community. In his opinion, economically strong countries with advanced social systems can increase their population whilst weak countries, without adequate resources, induce their inhabitants to a life of «parasites»: «We welcome a numerous, strong, responsible and creative population. As for a weak, ignorant and depraved population, it would be preferable for them to remain a minority»7.

Modern positions opposing contraception

  • 8 F. Rahman, Health and Medicine in the Islamic Tradition: Change and Identity, New York, Crossroad, (...)
  • 9 Omran, op. cit., 130.

31A minority of jurisconsults who oppose contraception as well as being transversal to the various legal schools of thought has always existed. They also base their opinions on some «sayings» of the Prophet, but which are considered less authoritative from the juridical point of view than those tolerating coitus interruptus. We can quote two of them. The first is still used today by those who are favourable to the growth of the population in the Muslim world and states that the Prophet will be proud, on the day of the Resurrection of the dead, of the number of Muslims compared to other communities and, for this purpose, exhorted the faithful to multiply8. The second is a hadith narrated by Khudâma Bint Wahb al-Asadiyya (in the collections by Muslim, Ibn Mâjâ…) according to which coitus interruptus is the equivalent of a secret or minor infanticide9.

32These opponents consider procreation as the fundamental purpose of marriage, also on the grounds of Qur’ân (II, 223): « Vos épouses sont pour vous un champ de labour; allez à votre champ comme [et quand] vous le voulez et oeuvrez pour vous-mêmes à l’avance ».

  • 10 A. Maududi, Birth Control, Lahore, Islamic Publications, 1993, 83.

33Maududi, a contemporary «radical» Pakistani author commented the Qur’anic passage as follows: God describes women as land, highlighting the fact that biologically man is a peasant and woman is a field; the purpose of their intercourse is procreation. The peasant cultivates land to produce crops, «take away this purpose, and the entire pursuit becomes meaningless»10. In other words, sexuality has a meaning only if practised to procreate.   

  • 11   J. Montague, «Islam and Family Planning», Cultures et Développement, 1975, 7 (1), 131-140, 137.

34Close to these positions are ‘Abd al-Halîm Mahmûd, Grand Muftî of Egypt (1973-1978) and the Egyptian jurist Abû Zuhrawho opposed population control with reasons that are still commonly held today at a popular level11: procreation is the purpose of marriage, contraceptives damage the collective morals, they are harmful for the health, the Imperialists spread contraception to limit the expansion of Islam, and there is room for many more Muslims in the world.

  • 12   Omran, op. cit., 215-216.

35The 1987 decision by the Academy of Muslim Law of Mecca (Saudi Arabia) also belongs to this trend of thought12:contraception is lawful if the pregnancy entails dangers for the health of the woman. In all other circumstances, contraception is a «serious sin».

36It is worthwhile pointing out the disparity of positions on contraception between the Academy of Muslim Law of Mecca in 1987 (quoted above) and that of the Academy of Muslim Law of Jeddah, Resolution 39 (1/5) of 1988, quoted earlier. These differences are anything but marginal.

37In general, the radical or «fundamentalist» Muslim component is in favour of an increase in the population as an anti-Western weapon, based on the Qur’anic passage (XI, 6): « Il n’y a point de bête sur terre dont la subsistance n’incombe à Allah ».

States and society

38The population policies implemented in Arab-Muslim countries also appear to be different. National legislations nevertheless refer to the legitimization of national religious authorities or bodies. In recent decades, almost all the most populous countries such as Egypt, Iran, Pakistan, Indonesia, etc. have inaugurated diversified policies of population control; the only exceptions are countries in desert areas such as Saudi Arabia which, for geopolitical reasons, need to increase their political weight also by increasing their numerical strength.

  • 13 For more information, see Atighetchi, Islamic Bioethics: Problems and Perspectives, op. cit., 86-8 (...)

39It is important to note how two leading Muslim countries, both from the historical-doctrinal and political points of view, namely Saudi Arabia and Iran, are committed to reinforcing the national and the international Muslim community. However, their population strategies seem opposed and yet they are based on an abundance of juridical and religious sources and formulations. In Saudi Arabia, the community is strengthened by increasing the number of the faithful, although contraceptives are easily found. For Iran, the same aim is also achieved by limiting the number of the faithful – otherwise the very survival of the community is at risk – and by increasing the quality of life of individuals. On 22/4/1993, the Parliament approved a law which imposed strong social obstacles on families after a third child. Condoms were already available in supermarkets, chemists’ shops... The pill is free of charge in public hospitals. Sterilization for both men (vasectomy) and women is encouraged. All methods and services are free of charge, including sterilization. Iran is today the largest producer of condoms in the Middle East, satisfying 90 % of domestic demand with its production13.

40With the exception of the Islamic Republic of Iran, the results of population policies in Muslim countries generally appear disappointing. There are today almost one and a half billion Muslims in the world, of whom the Arabs are only a minority (20% of the total) and constantly declining. For example, amongst non-Arab countries, Pakistan alone has seen its population grow from about 95 million in 1997 to over 160 million in 2007. In the same period, Bangladesh went from just over 104 million to over 143 million inhabitants. The most populated Muslim country in the world (as well as non-Arab) is Indonesia, with 224 million citizens, 90 % of whom are Muslims.

41Population growth is accompanied by conversions to Islam. Muslim preaching is particularly effective in multi-confessional African countries: between 1997 and 2007, Sierra Leone went from an animist majority of 51 %, followed by 39 % of Muslims and 4,7% of Protestants, to a 60 % majority of Muslims, followed by the animist (30 %) and Christian (10 %) minorities. The country is now a member of the Organization of the Islamic Conference (OCI). A similar trend can be seen in Guinea Bissau where, in just a decade, the number of animists has dropped from 65 % of the population to 39, 5% whilst Muslims have increased from 30 % to 46 %, becoming the relative majority. A similar trend can also be seen in Benin...

42Save exceptions, animists and traditional forms of worship have represented and represent the preferred reservoir for conversions to Muslim and Christian monotheism, but almost everywhere the percentage of conversions to Islam is much greater than those to other faiths; the geopolitical repercussions of the creation of new Muslim countries and/or of increasingly stronger Muslim minorities will soon carry their weight on the international context.

Classical sources and abortion

43The Qur’ân and the «sayings» of the Prophet contain multiple references to the development of the embryo.The most exhaustive of these passages is Qur’ân (XXIII, 12-14) – as well as (XL, 67), (LXXV, 36-40), (XXXV, 11)… – in which seven stages of development of the embryo in the mother’s womb from creation are listed : « [12] Certes, Nous avons créé l’homme d’un extrait d’argile [13] dont Nous avons fait ensuite une goutte de sperme déposée en un réceptacle bien protégé ; [14] puis Nous avons transformé cette goutte en un caillot de sang dont Nous avons fait un embryon où s’est dessiné le squelette que Nous avons recouvert de chair, pour en faire, en fin de compte, un nouvel être, bien différencié ».

44The last phrase of the verses (XXIII, 12-14) « un nouvel être, bien différencié » introduces the concept of the infusion of the soul into the foetus by God. Animation highlights the superiority of man (who is a creature with a soul, whilst remaining a «servant of God») with respect to every other living creature. In addition, two phases in foetal development are distinguished: the first where the soul is not present, the second animated.

45The authentic «sayings» of the Prophet complete the passages from the Qur’an. As the Qur’an (XXIII,14) does not specify when the infusion of the soul takes place, this information is revealed by a number of ahâdîth found in the collections of Bukhârî, Muslim and Nawâwî, as well as others.

  • 14 Glossary of Hadiths, in I. Nazer. H. S. Karmi et al. (Eds.), Islam and Family Planning: A Faithful (...)

46In Bukhârî, Muhâmmad states: «The germ of every one of you is concentrated in his mother’s womb in the form of a drop for forty days; then he becomes a clot of blood for the same period; then he becomes a piece of flesh for the same period; then the angel is sent to him to ensoul him»14 Other positions exist which have traditionally and for various reasons remained minority ones. For example, a «saying» in Muslim indicates how on the 42nd night after ejaculation, an angel sent by God begins to differentiate the organs of the foetus, but no mention is made of infusion. Similarly, two ahâdîth in Nawâwî mention the descent of the angel after 40 or 45 nights. Historically, all the passages on these subjects have aroused a large number of different opinions.

The importance of the infusion of the soul

47Before the infusion of the soul, the Hanafiteschool of thought (dominant in the Muslim world since the Ottoman Empire) traditionally appeared to be the one most willing to tolerate abortion, which is allowed or only lightly reproached. However, a valid justification was required, the most frequent being the existence of a child to breastfeed when a new pregnancy was started. These justifications ended up by limiting the tolerance initially expressed.

  • 15   Ghazali, Le Livre des Bons Usages en Matière de Mariage, op. cit., 90.

48One of the most instructive Shafi’ite opinions is again that of Ghazâlî (died 1111) who repeats, step after step, the seven stages listed in the Qur’an (XXIII, 12-14). Ghazâlî states: « Le premier degré de l’existence, c’est que le sperme dégoutte dans l’utérus et se mélange avec le sperme de la femme et devienne ainsi réceptif à la vie; détruire cela constitue (déjà) un attentat contre un être existant, si la gouttelette de mélange devient grumeau (mudgha) et ‘alaqa, l’attentat est déjà plus grave; il l’est encore davantage lorsque l’âme y a été insufflée et qu’il a pris forme humaine ; mais le comble de l’atrocité est atteint quand le crime est commis après que le foetus est né vivant »15 (Ihy ‘Ulûm ad-Dîn 2,58).

49From Ghazâlî onwards, there are main two interpretations in Muslim law on the phenomenon of abortion. The first prohibits abortion from fertilization, with the exception of therapeutic abortion. The second interpretation, perhaps the most widespread, places the emphasis on the temporal progression of the gravity of the act of abortion.

50Nevertheless, the majority of Shafi‘ite jurists allowed abortion within 40 or 42 days with the authorization of the spouses and it prevalently remains a legally detestable (makrûh) act. Many Hanbalites tolerated the interruption of pregnancy within 40, 80 or 120 days of fertilization. The last «canonical»Sunni school, the Malikiteschool, is the strictest, with the majority prohibiting abortion even during the first 40 days of pregnancy; at the same time, they agree on prohibiting it after four months whilst therapeutic abortion is accepted. The explanation for this severity lies in the concept of the embryo as a creature awaiting the soul God has destined for it.

51Abortion is traditionally prohibited after the infusion of the soul with exeptions.

52As far as therapeutic abortion is concerned, the majority of the doctors of the law recognize a greater value for the mother than for the foetus, based on at least three principles: the mother is a form of life that has already developed and can still be a source of a new life, the legal principle of the «lesser evil», the principle of the tree and the branch where the latter (the foetus-branch) can be sacrificed for the survival of the former (the mother-tree).

53A transversal minority of jurisconsults who have opposed therapeutic abortion even after animation has also always existed, on the grounds of two considerations: there is no certainty that the mother will die if the foetus is not aborted, this doubt is sufficient not to kill it, e.g. Ibn Abdîn (Hanafite jurist, died 1836); after infusion the foetus is a human being and, as such, must always be defended (e.g. fatwâ by the Grand Muftî of Egypt ‘Abdul-Majîd Sâlim in 1937).

54Conclusion: there has always essentially been agreement in prohibiting (harâm) procured abortion after infusion of the soul (120 days after fertilization or another earlier date), except in the case of therapeutic abortion. On the contrary, before infusion, opinions on abortion are historically contradictory, varying from authorization to dissuasion to condemnation.

  • 16 See Atighetchi, Islamic Bioethics: Problems and Perspectives, op. cit., 100-105.

55Criminal law obviously supported this perspective16. «Classic» Muslim law generally punished abortion of a foetus with a soul (i.e. after 120 days or another date) which was extracted alive (having shown some signs of life such as breathing, coughing, sneezing, etc.) but died immediately afterwards, by diyya or the full blood price, similarly to the murder of an adult individual, which corresponds on average to 100 camels or 200 cattle or 1000 dinar... On the other hand, if after animation the foetus is stillborn, recourse is made to the ghurra, a reduced variant of the diyya. A majority of jurists calculated the ghurra at 1/20 of the value of the diyya. The question is different before the infusion of the soul. In this phase, the «scholars» do not even agree on the obligation to pay the ghurra (for abortion) by that date.

  • 17 See R. Aluffi Beck-Peccoz, La modernizzazione del diritto di famiglia nei paesi arabi, Milano, Giu (...)

56The Sharî‘a fixes the minimum period of pregnancy at 6 months, but does not lay down the time of the start of gestation. For the Hanafite school of thought, for example, this start is calculated from the conclusion of the marriage contract and sexual intercourse between the partners is not indispensable17. On the other hand, for the other schools of law, the presumption of paternity is calculated from the coupling of the spouses.

  • 18 J. Colin., L’enfant endormi dans le ventre de sa mère, Presses Universitaires de Perpignan, 1998. (...)

57Muslim law does not explicitly fix the maximum duration of pregnancy. The idea that it could last only 9 months was agreed on by a minority school, the Zahirites, whilst the Sunni schools of law often had recourse to the theory of the sleeping foetus which allowed extending the pregnancy well beyond that limit18. The Malikite extended to as much as seven years. The theory of the sleeping foetus, the non-scientific nature of which was well known to the jurists of the past, performed socially useful functions in particular because it allowed the children born out of adultery or fornication to establish a juridical relationship between father and son avoiding serious social and criminal consequences for the child (illegitimate) and the mother (guilty of adultery).

Current trends

  • 19   V. Rispler-Chaim, The Right not to be born, in J. E. Brockopp (Ed.), Islamic Ethics of Life, Colu (...)

58Infusion imposes a transformation on the foetus with effects on its «right» to life. For example, shaykh Sha‘râwî of Egypt stated that on the 120th day, the foetus went from a state of a potential human being with few rights (insān bi-l-quwwa) to that of a real human being (insān bi-l-fil) against whom every aggression can be punished (in Liwâ’ al-Islâm, 6/4/1989, 55)19.

  • 20   D. Santillana, Istituzioni di diritto musulmano malichita con riguardo anche al sistema sciafiita (...)

59In actual fact, the Sharî‘a protects some rights of the foetus before birth. Consequently, according to some jurists if, when there is an inheritance, there is an heir that is about to be born, the division should be made after birth, or, according to other jurisconsults (Ibn ‘Âsim, Khalîl, Dasûqi) the part that should go to the newborn should be kept aside. The portions mentioned are obviously subject to the birth of the foetus20. This protective attitude towards dawning life was expressed by the Prophet when he delayed corporal punishment on a pregnant adulterous woman until after the birth of her child, or after weaning.

60There are jurists and doctors who «ignore» or criticize the concept of infusion. They are often authors who are oriented towards a radical rejection of abortion as they fear that the legal status of the embryo before animation is weakened compared to the embryo with a soul.

  • 21 Imana Ethics Committee, Islamic Medical Ethics: The IMANA Perspective (PDF format), in www.imana.or (...)

61Amongst the very many contemporary medical and legal opinions, the Ethics Committee of the Islamic Medical Association of North America21 deems the interruption of pregnancy lawful within the first 120 days to save the life and/or health of the mother from serious psychological or physical damage; in addition, abortion is allowed in the same period in the case of fatal but also non-fatal malformations of the foetus. Lastly, abortion is authorized in cases of rape, incest and war crimes.

62In 2004, the latest version of the Islamic Code of Medical Ethics of the Islamic Organization for Medical Sciences (IOMS, Alexandria, Egypt) prohibited abortion unless the health and life of the mother  were threatened and, in any case, within the first 120 days22.

  • 23 M. Borrmans, Islam et contraception, « Se Comprendre », 1979, 79/9, 1-9, 6-7.

63Many contemporary documents appear more restrictive as they espouse the traditional Malikite approach. For example, in 1971 the final declaration of the Islamic Conference on birth control, held in Rabat (Morocco) stated: « le Congrès est de l’opinion que tous les Jurisconsultes musulmans sont d’accord pour le déclarer religieusement interdit (harâm) après le quatrième mois, sauf en cas de nécessité extrême, c’est-à-dire pour sauver la vie de la mère. En outre, la «saine opinion» va jusqu’à l’interdire en n’importe quelle autre période de la grossesse, sauf en cas de nécessité extrême, pour mieux protéger la vie de la mère, nonobstant l’existence de multiples opinions, chez les Jurisconsultes, à ce sujet »23.

  • 24 Statement of the Islamic Research Academy on the Occasion of the United Nations Conference on Popul (...)

64In August 1994, at the Cairo Conference on «Population and Development», the Islamic Research Academy of the University of al-Azhar deemed abortion unlawful even in the cases of adultery and rape, except when the mother’s life was in danger24.

65As far as a pregnancy which is the result of fornication or adultery is concerned, according to the opinion of many Muslim «scholars», life cannot end with killing the foetus which would pay for the sin of the couple with its life. Recourse is made to the Qur’ân (XVII,15): « Et nul ne portera le fardeau d’autrui ». Furthermore, the principle of the right to life is believed to be greater and autonomous with respect to the circumstances and ways in which it started.

  • 25   Atighetchi, Islamic Bioethics: Problems and Perspectives, op. cit., 115-116.

66The many cases of Muslim women raped by non-Muslims in Bosnia and Kosovo reopened the debate on the lawfulness of abortion. The Sharî‘a aims to protect the material and numerical development of the Muslim community (the umma’) which is also achieved thanks to the obligation of marriage between Muslim partners or between a Muslim man and a woman belonging to another religion of the Book (Judaism and Christianity) as the child takes the father’s religion. In the case of a non-Muslim father, however, the umma would be weakened. Rape compromises the social condition of the Muslim woman who becomes a victim of ostracism by society and risks being unable to find a husband; her illegitimate son, on the other hand, is marginalized as a «bastard» (walad az-zinâ)25. These problems have convinced many doctors of the law to have a tolerant attitude towards the abortion of raped women, in particular Bosnian Muslims.

  • 26 Islamic Medical Association of South Africa, Objection to the Enactment of Termination of Pregnancy (...)

67The Islamic Medical Association of South Africa, in a comment on the new South African law of 27/9/1996 which liberalized abortion within the first 12 weeks, limited the possibility of abortion in Islam to three situations26: when the mother’s health would be seriously damaged by the continuation of the pregnancy; in the presence of anomalies that would be fatal for the foetus; in the case of incest and rape.

  • 27 Atighetchi, Islamic Bioethics: Problems and Perspectives, op. cit., 117.
  • 28 Ibid.

68In October 1999, Nasr Farîd Wassal, Grand Muftî of Egypt, stated in the newspaper al-Ahram27 that in the event of rape it is lawful (halâl) for a woman to abort within 120 days of pregnancy as rape is equivalent, for a woman, to psychological murder in a cultural and religious context where a woman’s virginity is an indispensable condition for marriage. On the other hand, in 2005, the Grand Muftî of Egypt, ‘Ali Jum‘a, defined killing an innocent foetus as sacrilege, even if the result of incest or rape; abortion is lawful exclusively to save the mother’s life but only before infusion of the soul on the 120th day28.

  • 29   M. A. Albar, «Counselling about Genetic Disease: an Islamic Perspective», Eastern Mediterranean H (...)

69The Academy of Muslim Law of Mecca (a body of the MWL), at its 12th session in 1990, approved the abortion of an incurably handicapped foetus within 120 days of fertilization with the prior consent of the parents29.  

The law in some countries

70Only a minority of Muslim states make explicit reference to the many criteria of the Sharî‘a to regulate abortion (for example, infusion of the soul, blood price...) as well as to a criminal system inspired by the Sharî‘a; this does not prevent these laws from being different (e.g. Iran, Pakistan and Saudi Arabia). The laws of other countries may include some elements of religious origin (e.g. the limit of 120 or 40 days for abortion). The majority of countries makes no explicit reference to Muslim parameters in their legislation on abortion.

  • 30 République Tunisienne, Code Pénal, Tunis, Imprimerie Officielle de la République, 1997, 54-55.

71In Tunisia the Law of 26/9/1973 modified article 214 of the Tunisian Criminal Code in liberal terms which still allows free abortion in the first three months of pregnancy in hospitals30. After this period, abortion is possible when the health and psychological balance of the mother are at risk or if the child will suffer from a serious illness or handicap.

72With respect to positive law, the majority of Tunisian ‘ulamâ’ seem to follow the classic approach, tolerating the interruption of pregnancy before infusion on the 120th day after fertilization if there are valid reasons.

73In Egypt the 1937 Criminal Code with articles 60-61 and 260-264 still represents the main legislative reference to regulate abortion. Abortion is always prohibited under articles 260-264. Under article 260, anyone voluntarily causing abortion through blows is punishable by up to 15 years of forced labour. Under article 263, medical personnel guilty of abortion are liable to forced labour. The application of these prohibitions is moderated by articles 60-61. The former states that some actions carried out in good faith do not come under criminal law. According to art. 61, an individual who commits a crime in a state of need, to avoid a grave danger that threatens himself or another person, cannot be punished. This article would also justify therapeutic abortion to protect the woman’s health; approval by two doctors and the consent of the couple are required.

74In actual fact, the state law does not appear to be particularly respected and voluntary interruption of pregnancy is not difficult, especially for women belonging to the affluent classes. Nevertheless, the great fear of abortionist doctors of being legally prosecuted has contributed to the development of illegal abortion which at present seems to be the main cause of mortality amongst mothers.

  • 31 Islamic Penal Code of Iran (translated by A.R. Naqvi), «Islamic Studies», 1986, 25 (2), 243-273, 27 (...)

75In December 1982, the Criminal Code of Iran31 in the diyat (diyya) section, disciplined abortion with a series of articles which were subsequently reconfirmed in the Criminal Code of July 1991 (articles 487-497). The diyat is the sum of money to be paid to the person (or his/her heirs) who has suffered damage. The Code (1982) reiterates the stages of embryonic development listed in the Qur’an (XXIII,12-14). The diyat to be paid for the interruption of the procreative process when the sperm is still deposited in the uterus is 20 dinar (Section 194). The abortion of a clot of blood (Arabic ‘alaqa) corresponds to 40 dinar. The diyat for the abortion of a small unformed mass of flesh (mudgha) is 60 dinar. The diyat for the abortion of a foetus of which the bones are already formed but not yet covered by flesh is 80 dinar. The diyat for the abortion of a foetus of which the flesh and bones are formed, but without a soul, is 100 dinar. In these first five phases, the law does not distinguish between the abortion of males or females. For an aborted foetus after the infusion of the soul, if it is male, the full diyat must be paid (corresponding to 100 camels or 200 cows or 1000 gold dinar etc.) whilst if it is female the diyat is halved.

  • 32 Kaffara or expiation of the repentant guilty party in Muslim law consists of giving goods to the po (...)

76The diyat for an abortion is to be made by the aggressor, whilst if the abortion is the result of an accident it is the clan that pays (‘aqîla or relatives on the paternal side), independently of whether the foetus has been animated or not (S. 199). Expiations (kaffara)32 are not contemplated for abortion before the foetus has been animated whilst for an abortion during the following phases, expiation and the full payment of the diyat are both required (S. 200).

77On 21/6/2005, the Iranian Parliament approved a new law that allowed abortion within the first four months of pregnancy to save the mother’s life and when the foetus is seriously handicapped. Abortion after rape is not contemplated.

78Article 24 of the Ministerial Resolution of 23/1/1990 of Saudi Arabia includes both the time limits of 40 and 120 days to regulate abortion. The article prohibits the interruption of pregnancy except if performed to save the mother’s life; however, abortion is possible in the first four months when there is the certainty that the pregnancy will seriously harm the woman’s health.

79The wording of the article in question includes Resolution n° 140 of the Saudi Council of the Grand ‘Ulamâ’ of 19/2/1987 which sets out the prohibition of abortion: in the first 40 days abortion is lawful to produce a legitimate benefit (not specified) or to avoid foreseen damage (not specified). From the 40th day until the end of the 4 months, abortion is lawful if pregnancy will harm the woman’s health. After four months, abortion is lawful if the continuation of the pregnancy will cost the mother her life.

80The Academy of Muslim Law (a body of the Muslim World League), at its 12th session in  Mecca in 1990,  approved abortion within the first 120 days from conception if the foetus is affected by an incurable handicap and life, after birth, will be abject for the newborn and family. The prior consent of both parents is required.

81In Algeria the Criminal Code of 8/6/1966 in paragraphs 304-307 and 309-313 prohibits the interruption of pregnancy. Subsequent laws made abortion legal to save the mother’s life, but also to protect her physical health from serious risks (Law no. 76-79 of 23/10/1976) and her mental health (Law on Mental Health no. 85-05 of 16/2/1985). Therapeutic abortion is allowed before the foetus is vital.

  • 33   M. Borrmans, Fatwa-s algériennes, in B. Scarcia Amoretti, L. Rostagno (Edited by), Yad Nama, Roma (...)

82It is worthwhile comparing these laws with the fatwâ, of 15/2/1973, by the then Chairman of the Higher Islamic Council of Algeria, shaykh Ahmad Hammânî33. According to Hammânî, Muslim jurisconsults agree on the compulsory nature of recourse to the «blood price» when a foetus that has already been formed is aborted, whilst there is no agreement for the earlier stages of embryonic development. Therapeutic abortion becomes legitimate to protect the life but also the health of the mother. However, Hammânî continues, after «full human configuration» (about 120 days) voluntary abortion is no longer lawful.

83The Indonesian Criminal Code of 1/1/1918 was based on the Dutch Criminal Code. In order to fight the practice of abortion in the country, paragraph 348 and following prohibited abortion in all cases (including therapeutic abortion) inflicting severe penalties for those responsible for abortions, for the pregnant woman who attempts to interrupt her pregnancy and for the doctors involved who are also banned from the medical profession. Since 1992, Health Law no. 23 has accepted abortion to save the life of a pregnant woman and/or the future life of her foetus. It is the woman who takes the decision; approval by her husband or family is required if the woman is incompetent or unconscious. The law is restrictive but not greatly respected; there is a very high number of illegal abortions and back-street abortions are common.

The situation today on assisted procreation

84Muslim law considers marriage a duty, on condition that the man can maintain his family and can make the nuptial gift to the woman. Celibacy is not appreciated as it is considered a state against nature.

85The social position of the Muslim woman has always been conditioned by her procreative ability; sterility greatly damages her status, even harming her self-esteem. According to the rules of the Sharî‘a as a whole, the legal position of women, in the family, differs from that of men. If the woman is sterile, the man can remarry, without repudiating his first wife, as Muslim law allows polygamy with up to a maximum of four wives. Alternatively, the husband can repudiate his wife. On the contrary, when it is the husband that is sterile, the Sharî‘a does not give the woman the possibility of repudiating her husband. However, in many legislations in force in Muslim countries, as marriage  retains its nature as a private contract, the woman can insert some conditions in her favour into the contract (for instance, the husband cannot marry another woman, that he is not sterile etc.), infringement of which, by the husband, gives her the right to ask for divorce.

86A premise to all further information is that the Qur’ân and the «sayings» of the Prophet condemn as fornication (zinâ) all intercourse between a man and a woman who is not his wife or slave, «Et n’approchez point la fornication. En vérité, c’est une turpitude et quel mauvais chemin !» (Qur’an : XVII, 32). Sexuality is allowed exclusively within marriage. The term zinâ includes both fornication and adultery (both of which are harshly punished by the Sharî‘a) and at present recourse to techniques of heterologous artificial procreation is assimilated, from the juridical point of view, with an act of zinâ.

87As the only legitimate filiation is with respect to the figure of the father, the children generated following intercourse between an individual and a women who is not his wife (a relationship of zinâ) do not belong to the paternal family; they have no bonds with the father, no right to his inheritance; the illegitimate child (walad az-zinâ) has bonds only with his mother and her family. This traditional approach has been modified in some contemporary legislations. For example, the new version of the Personal Status Law (Muddawana) in Morocco (2004, art. 142) introduces the figure of the mother:«La filiation se réalise par la descendance de l’enfant de ses parents».

  • 34   Coran 33,4-5: « 4. Allah n’a pas placé à l’homme deux cœurs dans sa poitrine. Il n’a point assimi (...)
  • 35   The few exceptions include Tunisia which introduced adoption with law no. 27 of 1958.

88When the couple cannot have children of their own, they cannot adopt as adoption is prohibited by the Sharî‘a based on the Qur’an (XXXIII, 4-5)34. Only a particular type of adoption, called «reward» or «testamentary» is accepted, according to which a family can bring up a child without considering it their son as it continues to be related to its biological family. For example, article 46 of the Algerian Family Code (1984) declared: «Adoption is prohibited by the Sharî‘a and by the law» and a similar prohibition is in force in many Arab countries35. Although the Qur’ân prohibits legal adoption, at the same time it encourages bringing up and educating orphans; nevertheless there is still great cultural resistance to this humanitarian solution in Arab and Muslim countries.

  • 36   M. Borrmans, « Fécondation artificielle et éthique musulmane », Lateranum, 1987,  LIII, 1, 88-103 (...)

89There are countless legal-religious and medical documents on methods of artificial procreation, some of which we will mention here. In Mecca in 1985, the 8th session of the Academy of Muslim Law, a body of the Muslim World League (MWL), pronounced itself in a decision on artificial fertilization36. The document deems the techniques of internal and external homologous fecundation (i.e. in vivo and in vitro) lawful, whilst all the other systems of assisted procreation are prohibited (harâm), coming under the category of acts of zinâ.

  • 37 A Ruling of the Fiqh Academy of Makkah, in A. R. AL Gindi (Ed.), Human Reproduction in Islam (1983) (...)

90During the 8th session, the decision adopted at the 7th session, held in 198437 was also re-examined. It had tolerated recourse to in vitro fertilization in a polygamous relationship, i.e. through implanting an embryo produced by the gametes of the husband  and one of his wives (without a uterus) in another of his wives. In the Islamic context, this practice maintains the relationship of procreation within the same (polygamous) family nucleus, therefore it would be a technique of homologous artificial fertilization whilst in the West, where polygamy is not allowed, the practice becomes a heterologous technique.

91To question the resolution of the previous session, the 8th session analysed two extreme cases which lead to rejecting the embryo-transfer between wives of the same husband. Whilst it is true that the only valid filiation is that with respect to the paternal figure, the 8th session wanted to guarantee – through this rejection – a definite filiation for the child with regard to the mother as well. Naturally there are different opinions. In Lebanon, where polygamy is present, eggs can be donated within the same family group.

  • 38 D. Atighetchi., Islam e Bioetica, Roma, Armando Editore, 2009, 125-126.

92In addition, the 7th session in 1984 had also evaluated the legal «status» of the second mother, i.e. the «carrier» who is considered by some as equivalent to a «milk mother» of the child or a wet nurse, whilst the woman who provides the egg cell is the real biological and legal mother. Vice versa, according to other experts, the real mother is only the woman who carries the embryo in her womb until birth, based on Qur’ân (XLVI, 15): « sa mère l’a péniblement porté et en a péniblement accouché » and similar passages which underline how motherhood is characterized by sacrifice, patience, tolerance and suffering38.

93Amongst the techniques on which the religious authorities do not agree, mention can be made of the possibility of making a woman pregnant after the menopause ; or the possibility of using a cryo-preserved embryo from gametes of spouses who are still living.

  • 39 G. I. Serour (Ed.), Ethical Guidelines for Human Reproduction Research in the Muslim World, Cairo, (...)

94Regarding assisted procreation, an important point of reference has been established in the recommendations made at the first international conference on the «Bioethics in Human Reproduction in the Muslim world»39 held in 1991 at the University of al-Azhar in Cairo (Egypt). The document underlines the following points. Research on in vitro fecundation is allowed if the gametes belong to spouses and if the fertilized egg is transferred to the womb of the wife. The donation of and trade in gametes are prohibited. The transfer of the fertilized egg to a «surrogate mother» is prohibited, including between wives of the same husband. The number of embryos that can be transferred into the womb must not be greater than 3-4. The eggs fertilized in excess can be cryo-preserved; they can be transferred to the wife only if the marriage is in force. Therapeutic research on pre-embryos requires the consent of the partners. Research aimed at modifying the hereditary characteristics of the foetus is prohibited, including to choose the gender.

  • 40   See Atighetchi, Islamic Bioethics: Problems and Perspectives, op. cit., 153-154.

95In actual fact, the Muslim positions on the subject of pre-selection of the gender of the foetus do not appear univocal40.

Society

  • 41   A. E. Mayer, «Libyan Legislation in Defense of Arabo-Islamic Sexual Mores», The American Journal (...)

96The Arab Republic of Libya was the first Arab country to pass legislation with Law no. 175 of 7/12/1972, art. 403 a-b of the Criminal Code prohibiting any type of artificial insemination41. This approach was modified in 1986 when Law no. 17 concerning medical responsibility through which artificial insemination and homologous IVFET in the case of necessity, with the consent of the spouses and a valid marriage, was approved.

97In Muslim countries, the cryo-preservation of embryos still arouses perplexities on the legal-religious level as well as causing resistance at the level of hospital organization. Recourse to micromanipulation, especially the technique called intracytoplasmic semen injection (ICSI, microinjection through micro-pipettes of a spermatozoid directly into an ovocyte), is very important in the cases of male infertility as it is forbidden to use sperm donors. ICSI is regulated by the law and/or practised in Egypt, Saudi Arabia, Turkey, Iran, Jordan etc..

98Lastly, an example of a law inspired by the Sharî‘a can be found in Tunisian law no. 93 of July 2001. Art. 4 limits recourse to techniques of artificial procreation to living married couples. According to art. 5, the fertilization of gametes and the implant of the embryo must take place only in the presence of the spouses and with their written authorization. The donation of gametes and of embryos is prohibited (art. 14-15). Art. 6 allows a bachelor undergoing treatment that can damage his/her procreative capacity to freeze his/her gametes which can be used after marriage. Cloning is prohibited (art. 8). Art. 11 specifies that the cryo-preservation of gametes or embryos requires the written consent of the spouses; the procedure can have a duration of five years and can be renewed for another five years.

99The ban on the donation of sperm and egg cells to the married couple from strangers is also prevalent in the Shi’ite world (which includes about 15% of the world’s Muslims, especially in Iran, Iraq and Lebanon). However, the possibility of recourse to ijtihâd, i.e. the personal interpretation of the sources (formally not legitimized in Sunni Islam since the 10th-12th centuries AD), has encouraged the production of many highly diversified positions.For example, for some Shi‘itejurisconsults, the only child without hereditary rights and juridical relations with his father is the one that is the result of a directadulterous intercourse.

  • 42   M. C. Inhorn, «Making Muslim Babies: IVF and Gamete Donation in Sunni Versus Shi’a Islam», Cultur (...)

100In a fatwâ of 1999, the spiritual leader of the Islamic Republic of Iran, Ayatollah Ali Hussayn Khamenei, declared that the artificial donation of female gametes «is not legally prohibited»42. Khamenei also seems open to compromise regarding the donation of sperm. Khamenei actually maintains that there is an act of zinâ (adultery and fornication)only when there is direct sexual intercourse. Consequently, heterologous artificial techniques, as they do not entail an «in vivo» sexual contact, would not be fully considered as a prohibited practice. For the same reason, Khamenei does not believe recourse to temporary marriage – the so-called mut‘a or marriage of pleasure – is necessary between the husband of a sterile woman and an unmarried donor who would thus be united in marriage until the donation of the female gametes to the sterile wife, in order to avoid the accusation of sexual relations outside marriage (zinâ).

101The best known Lebanese Shi’ite authority, ayatollah M.H. Fadlallah, refuses the donation of sperm but accepts the donation of the female gamete. Like Khamenei, he rejects temporary marriage (mut‘a) to avoid acts of zinâ. Despite the opinions of Fadlallah and Khamenei, the majority of Shi’ite scholars in favour of the donation of ovules believe that it is indispensable for the man and the female donor to contract the temporary marriage deemed lawful by the Iranian Civil Code (art. 1075-1077). On 27/8/2002, the Iranian Parliament authorized in vitro fertilization. In 2003, the Parliament also approved the donation of embryos from married couples to other married but sterile couples. In the same year, the Parliament prohibited the donation of sperm.

  • 43   D. Atighetchi, «La procreazione assistita nelle società islamiche: bioetica, diritto, costume e r (...)

102At present, several cases of surrogate maternity are reported in the Islamic Republic of Iran whilst programmes for the donation of ovules and embryos have been started in the majority of clinics performing IVFET43. There is, in every case, a commercial transaction with few rules and controls. The mut‘a marriage is often performed in the presence of only one witness and is not registered. The anonymous female donors can marry «temporarily» with a simple written agreement, without meeting the women receiving the eggs or their temporary husbands; they can receive their fee (about US $ 500) after the gametes have been taken without providing any personal information to the receiving couple nor receiving any information about them.   

103The Grand Ayatollah of Iraq, as-Sistânî, deems homologous techniques lawful. In addition, the sperm of a husband can be lawfully fertilized in vitro with the ovules of a female donor.

104In conclusion, the Sunnite prohibition of donation by third parties is weakened by the possibility of recourse to heterologous practices in Shi‘ite Islam. Any tolerance towards the donation of gametes mainly regards the female gamete (ovules) and not the male one (spermatozoids).

The debates on cloning

  • 44   N. F. Wasil, «Compendio sulla ricerca della clonazione umana e giudizio della medicina e della sc (...)

105Cloning, i.e. the reproduction of genetically identical individuals can be obtained by transferring the nucleus or by embryo splitting. The element that has aroused greatest discussion is asexual reproduction. The penultimate Great Muftî of Egypt, N. Farîd Wassal, presented human cloning as an immoral and Satanic practice: «There is no greater error or sin than to wish to change the creation of God»; a human being created this way is an exact copy obtained with a procedure other than that designed by God. The union between a man and a woman continues to be the only way to procreate that can ensure well-being and harmony for man: «Human cloning will completely change what God has created, bring ruination to the Earth, lead to a change in human reproduction and in social relations. This will affect the bonds of the individual with the family, families amongst themselves and their bonds with the State and society... therefore Islam does not admit this practice… and closes the door on scientific experiments on it»44. Wassel is, on the other hand, in favour of therapeutic cloning as it is for the benefit of man.

106Egypt’s sheikh Yûsuf al-Qaradâwî appears to be of a less radical opinion: cloning does not manipulate creation because the techniques is successful only if God wishes. Qaradâwîis concerned by the practical and social consequences of the existence of several identical copies of the same individual. The main effect is on the model of the traditional family: marriage becomes useless because procreation can be obtained through cloning; the egg and the womb belong to the woman and are sufficient for procreation to the extent of making the presence of a man superfluous. A similar imbalance would lead to unlawful relations between men and women as is believed to take place in the West45. In addition, the «photocopy» effect causes serious consequences as the partner might fail to recognise the «original» spouse, this giving rise to adulterous relationships. Vice versa, therapeutic cloning is deemed a useful practice for the common good (maslaha): if research makes it possible to clone organs such as the heart, liver, kidneys etc. to benefit those who are in need of them, this is lawful from the religious point of view and the researchers will receive their just reward from God.

107In general, gene therapy, i.e. the introduction of a healthy gene into somatic cells (of the lymphatic system, of the blood and bone marrow in cases such as cystic fibrosis, haemophilia ...), if performed for therapeutic purposes, is approved of by Islam as it does not involve any offspring. Vice versa, gene therapy on stem cells (gametes, precocious embryos) is refused as it affects offspring.

  • 46 Islamic Reseacrh Academy Of The University Of Al-Azhar, «Progetto di Dichiarazione sulla Clonazion (...)

108According to the Academy of Muslim Law (10th Session, Jeddah 1997), but above all for the Islamic Research Academy of al-Azhar46, cloning techniques do not represent an act of creation; only God is capable of creating from nothing, without previous examples – Qur’an (LII, 35-36), (XIII,16), (XIX,19), (XXII,73-74) – whilst cloning is only capable of mixing together elements that God has already created.

109Before expressing its negative opinion, the al-Azhar document lists the arguments in favour and against cloning. Two reasons are given in favour: greater genetic knowledge will allow further improving medical and pharmacological applications; it would be possible to clone a genius or a leader with a noble soul.

110The arguments against cloning are more developed. The technique («Dolly» type) is far from being effective. As only one case out of 300 has been successful, it is impossible to apply a technique with few chances of success to man. The natural union between male and female encourages the variety and spread of stronger and more adaptable beings. Cloning is a procedure that is too complicated with respect to the natural union designed by God (Qur’ân XXX, 21). Cloning deprives men of the good feelings and emotions that characterize them when they come face to face with nascent life. If for cloning we remove the cell from one woman, the ovule from a second woman and then we implant everything in the womb of a third woman, who is the mother: the owner of the cell or of the ovule or of the womb from which the cloned being emerges? A cloned man is destined to face additional moral, social and health difficulties as he will be excluded from the community. If the aim is to clone a genius of science, art etc., the copy concerns only physical characteristics, whereas intelligence and feelings cannot be cloned. If many attempts at human cloning fail, what will happen to the deformed and mutilated beings that are produced? Will they be killed? Will their organs be sold? Will they be put into a zoo?

111In conclusion, according to al-Azhar, Islam encourages science that is useful for man. When the common good is superseded by harmfulness, the practice must be prohibited and cloning comes under this case.

  • 47   See Atighetchi, Islamic Bioethics: Problems and Perspectives, op. cit., 245-247.

112As is the case with the opponents of cloning (the majority), those in favour of cloning also base their arguments on different reasons47. In general, they deny that the technique opposes divine will because the act is successful only if God so wishes (as is the case with IVF and contraception). In addition, those in favour accept it only in a married couple, for example with the DNA taken from the husband and implanted into the wife’s egg. According to another approach, human cloning is believed to represent a rehearsal of human Resurrection by God on the Day of Judgement.  

Genetics and socio-cultural characteristics

  • 48   Centre for Arabic Genomic Studies (CAGS), www.cags.ae.

113Some social and cultural characteristics of the Arab and/or Muslim world form a privileged object for genetics. Qur’ân (IV, 23-24) prohibits marriage between certain degrees of kinship but not between cousins. Nevertheless, in Muslim countries, marriages between consanguines (especially cousins) have always continued for social and economic as well as geographic reasons and appear to be constantly on the increase (e.g. in the Gulf)48 although governments and  medical and religious authorities denounce the risks for the offspring of such marriages.

114This habit has increased the rate of pathologies due to autosomal recessive genes (auto-recessive pathologies) in Arab countries (i.e. cystic fibrosis, spinal muscular atrophy, congenital surrenal hyperplasia, phenylketonuria, etc.) compared to other countries in the world where diseases due to dominant autosomal genes are more widespread (e.g. Huntington’s chorea, Willebrand’s disease, etc.). Before marriage, it would be very useful to identify, through genetic consulting, not only the genetic status of the individual but also trace the clinical history of the whole family. However, the desire to find a bride/groom often dissuades the partner from doing tests and, to an even greater extent, prevents the partner from revealing to their family or the family of their future spouse that they are carriers of pathologies that could compromise the health and/or life of future children. The families themselves (frequently very large) appear reluctant to undergo screenings even when a brother or sister of the future couple suffers from phenylketonuria or other transmissible pathologies.

115In other words, people prefer not to know whether they are carriers of certain pathologies, especially in the cultural areas where marriage unites not only two individuals but two families with all the psychological and social effects involved. In the last place, many families are religiously willing to accept handicapped children, which is an attitude based on faith in God and on the idea of predestination. This can also be a reason for not taking prenatal tests.

  • 49 Albar, «Counselling about Genetic Disease: An Islamic Perspective», EMHJ, 1999, 5 (6), 1129-1133.

116There has been discussion for many years in the Middle East on the possibility of passing laws that make pre-matrimonial tests and genetic consulting compulsory to identify at least sickle cell anaemia and the carriers of the gene of thalassemia, very common in Arab countries (from 5 to 10% of the population) due to the high rate of marriages between blood relatives; these tests would be a requisite to obtain legal authorization for marriage49, but countless problems are involved: the test is expensive and the endemic poverty makes it prohibitive for the poorest except in some oil-rich countries which can cover the costs; the majority of the governments have other priorities due to limited resources. Furthermore, a test imposed as compulsory would offend the autonomy of the individual. Lastly, if the test were positive for one or both the partners, is it lawful to prevent their marriage and who would have that authority?

117Despite doubts and resistance, for several years and to varying extents, Saudi Arabia, the UAE, Kuwait, Bahrain, Tunisia, Turkey, Iran, etc., have introduced certain pre-matrimonial tests for the purpose of identifying the genetic status of the couple in order to allow the partners to learn in time of any serious health risks that can be transmitted to their children. However, the couples often refuse genetic consulting due to scant knowledge on the subject but also due to the widespread refusal of abortion for seriously handicapped foetuses. In these cases the frequent absence of treatment for children affected by serious or fatal genetic or other pathologies often means that the couple considers it pointless to do certain tests before and during pregnancy.

118Lastly, in some traditionalist areas where marriages are often arranged by families, these agreements are unlikely to be annulled by families even though brothers and sisters of the future couple are already affected by transmissible genetic pathologies.

Conclusion

119The concise account of the main positions on the start of life in Muslim contexts shows the highly complex and varying positions (only briefly mentioned) expressed by «classic» Muslim law and contemporary juridical opinions.

120In Muslim countries, the laws on the phases of the «start of life» are diversified especially when considered in «the particular». In addition, the positions adopted by these countries (e.g. on population control) are pragmatic and are easily confirmed or have precedents in positions (including minority positions) which are present in «classic» Muslim law. Social, geographical and cultural differences can further vary the traditional rich juridical background. In practical terms, common roots in the Sacred Sources have not prevented the formation of an inter-Muslim pluralism on these topics. In our opinion, this pluralism characterizes almost all Muslim bioethical thought, to the extent that it is possible to speak of Muslim bioethics (in the plural).

121Recognising the value of nascent life is common to all the major religions. However, this value is elaborated from the specific characteristics of each faith and religious law. Infusion of the soul is one element which is discussed systematically in Muslim law and its importance is so great as to have a transversal effect on all the aspects connected with the approach to nascent life.

122Amongst the consequences, the reflection on embryonic stem cells appears emblematic: according to many Muslim «scholars» (perhaps the majority) these cells do not have a soul (animation takes place on the 40th or 120th day after fertilization) and are cultivated outside the woman’s body. A potential human life exists prior to animation and becomes a more complete human being after animation. This is why the use of stem cells and research on pre-embryos is not deemed to raise major ethical issues. All the more so because the «certainty» of important therapeutic success in research on stem cells satisfies the principle of the public good (maslaha) of the community. For this reason, research on supernumerary embryos, which otherwise would die, can also be acceptable. It is hardly surprising that since 2003, Iran has been one of the most active countries in the world in producing, cultivating and freezing embryonic stem cells.

123On the contrary, according to other Muslim experts, life must be respected even from its earliest stages as embryonic stem cells, pre-embryos and embryos are destined by God to form the future human being and therefore, their use in experimentation and in therapeutic cloning should be prohibited, independently of the infusion of the soul. There are several interesting intermediate positions between these two extremes.

124The uncertainties on this topic are inevitably reflected on the official positions of Muslim countries. For example, on 8/3/2005, when the «United Nations’ Declaration on Human Cloning» (a document with the value of a recommendation) was voted, prohibiting all forms of human cloning, the majority of Muslim countries were amongst the member states that abstained or were absent. The main reason was the juridical and ethical evaluation to give to stem cells and research on pre-embryos before the infusion of the soul.

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Notes

1   Ghazali, Le Livre des Bons Usages en Matière de Mariage, (From l’Ihiya Ouloum ed-Din, ou Vivification des Sciences de la foi), Paris-Oxford, Maisonneuve-Thornton, 1953, 88-89.

2   O. Schieffelin. (Ed.), Muslim Attitudes toward Family Planning, New York, The Population Council, 1974, 3.

3   A. R. Omran, Family Planning in the Legacy of Islam, London, Routledge, 1994, 215.

4   Arab Republic Of Egypt, Ministry Of Waqfs, Islam’s Attitude towards Family Planning, Cairo, 1994, 19-26.

5   I. Nazer. H. S. Karmi et al. (Eds.), Islam and Family Planning: A Faithful Translation of the Arabic Edition of the Proceedings of the International Islamic Conference held in Rabat (Morocco), December 1971, Beirut, International Planned Parenthood Federation, 1974, Vol. II, 483.

6   D. Atighetchi, Islamic Bioethics: Problems and Perspectives, Berlin-Dordrecht, Springer, 2009, 74.

7   M. S. Tantawi, La protezione dell’infanzia e la legge dell’Islam, «Dolentium Hominum», 1994, 25, 261-266.

8 F. Rahman, Health and Medicine in the Islamic Tradition: Change and Identity, New York, Crossroad, 1989, 114.

9 Omran, op. cit., 130.

10 A. Maududi, Birth Control, Lahore, Islamic Publications, 1993, 83.

11   J. Montague, «Islam and Family Planning», Cultures et Développement, 1975, 7 (1), 131-140, 137.

12   Omran, op. cit., 215-216.

13 For more information, see Atighetchi, Islamic Bioethics: Problems and Perspectives, op. cit., 86-89.

14 Glossary of Hadiths, in I. Nazer. H. S. Karmi et al. (Eds.), Islam and Family Planning: A Faithful Translation of the Arabic Edition of the Proceedings of the International Islamic Conference held in Rabat (Morocco), op. cit., Vol. II, 539-540.

15   Ghazali, Le Livre des Bons Usages en Matière de Mariage, op. cit., 90.

16 See Atighetchi, Islamic Bioethics: Problems and Perspectives, op. cit., 100-105.

17 See R. Aluffi Beck-Peccoz, La modernizzazione del diritto di famiglia nei paesi arabi, Milano, Giuffrè, 1990, 157-158.

18 J. Colin., L’enfant endormi dans le ventre de sa mère, Presses Universitaires de Perpignan, 1998. Aluffi Beck-Peccoz, op. cit., 158-159.

19   V. Rispler-Chaim, The Right not to be born, in J. E. Brockopp (Ed.), Islamic Ethics of Life, Columbia, University of South Carolina Press, 2003, 81-95, 88.

20   D. Santillana, Istituzioni di diritto musulmano malichita con riguardo anche al sistema sciafiita, Roma, Istituto per l’Oriente, 1926-1938, Vol. I, 110.

21 Imana Ethics Committee, Islamic Medical Ethics: The IMANA Perspective (PDF format), in www.imana.org, 1-12, 9.

22 Ioms, The Islamic Code for Medical and Health Ethics, 2004, in www.islamset.com/ioms/Code2004/index.html, 1-61, 44.

23 M. Borrmans, Islam et contraception, « Se Comprendre », 1979, 79/9, 1-9, 6-7.

24 Statement of the Islamic Research Academy on the Occasion of the United Nations Conference on Population and Development in Cairo, in Al-Azhar Views on the Draft Programme of Action of the International Conference for Population and Development held in Cairo, Cairo, 1994, 5; International Islamic Center For Population Studies And Research (IICPSR), Islamic Manual of Family Planning, Cairo, IICPSR, 1998, 18 and 23.

25   Atighetchi, Islamic Bioethics: Problems and Perspectives, op. cit., 115-116.

26 Islamic Medical Association of South Africa, Objection to the Enactment of Termination of Pregnancy Legislation, 15 October 1997, in www.ima.org.za/abortion.html.

27 Atighetchi, Islamic Bioethics: Problems and Perspectives, op. cit., 117.

28 Ibid.

29   M. A. Albar, «Counselling about Genetic Disease: an Islamic Perspective», Eastern Mediterranean Health Journal, 1999, 5 (6), 1129-1133, 1132-1133.

30 République Tunisienne, Code Pénal, Tunis, Imprimerie Officielle de la République, 1997, 54-55.

31 Islamic Penal Code of Iran (translated by A.R. Naqvi), «Islamic Studies», 1986, 25 (2), 243-273, 270-271.

32 Kaffara or expiation of the repentant guilty party in Muslim law consists of giving goods to the poor, freeing slaves or prayer and fasting.

33   M. Borrmans, Fatwa-s algériennes, in B. Scarcia Amoretti, L. Rostagno (Edited by), Yad Nama, Roma, Bardi, 1991, Vol. 1, 83-107, 88-89.

34   Coran 33,4-5: « 4. Allah n’a pas placé à l’homme deux cœurs dans sa poitrine. Il n’a point assimilé à vos mères vos épouses [à qui vous dites en les répudiant] : ‘Tu es [aussi illicite] pour moi que le dos de ma mère’. Il n’a point fait de vos enfants adoptifs vos propres enfants. Ce sont des propos [qui sortent] de votre bouche. Mais Allah dit la vérité et c’est Lui qui met [l’homme] dans la bonne direction.
5. Appelez-les du nom de leurs pères : c’est plus équitable devant Allah. Mais si vous ne connaissez pas leurs pères, alors considérez-les comme vos frères en religion ou vos alliés. ».

35   The few exceptions include Tunisia which introduced adoption with law no. 27 of 1958.

36   M. Borrmans, « Fécondation artificielle et éthique musulmane », Lateranum, 1987,  LIII, 1, 88-103, 91-98.

37 A Ruling of the Fiqh Academy of Makkah, in A. R. AL Gindi (Ed.), Human Reproduction in Islam (1983), Kuwait, IOMS, 1989, 395-399, 398.

38 D. Atighetchi., Islam e Bioetica, Roma, Armando Editore, 2009, 125-126.

39 G. I. Serour (Ed.), Ethical Guidelines for Human Reproduction Research in the Muslim World, Cairo, IICPSR, 1992, 29-31.

40   See Atighetchi, Islamic Bioethics: Problems and Perspectives, op. cit., 153-154.

41   A. E. Mayer, «Libyan Legislation in Defense of Arabo-Islamic Sexual Mores», The American Journal of Comparative Law, 1980, 2, 287-313, 289.

42   M. C. Inhorn, «Making Muslim Babies: IVF and Gamete Donation in Sunni Versus Shi’a Islam», Culture, Medicine and Psychiatry, 2006, 30 (4), 427-450, 434-435.

43   D. Atighetchi, «La procreazione assistita nelle società islamiche: bioetica, diritto, costume e religione», Medicina e Morale, 2004, 5, 969-995.

44   N. F. Wasil, «Compendio sulla ricerca della clonazione umana e giudizio della medicina e della scienza nella Shari’a», in A. De Caro, La clonazione secondo il diritto islamico, Riguardo alla clonazione umana, Academic year 1999/2000, Roma, Università La Sapienza, (Degree Thesis), 159-167, 163.

45   A. Sachedina, Cloning in the Quran and Tradition, www.people.virginia.edu/~aas/article/article4.htm; Y. Al Qaradawi, Cloning and Its Dangerous Impacts, www.Islamonline.net

46 Islamic Reseacrh Academy Of The University Of Al-Azhar, «Progetto di Dichiarazione sulla Clonazione», 1998, in A. De Caro A., La clonazione secondo il diritto islamico, op. cit., 141-142.

47   See Atighetchi, Islamic Bioethics: Problems and Perspectives, op. cit., 245-247.

48   Centre for Arabic Genomic Studies (CAGS), www.cags.ae.

49 Albar, «Counselling about Genetic Disease: An Islamic Perspective», EMHJ, 1999, 5 (6), 1129-1133.

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Dariusch Atighetchi, « Aspects of the Management of the Rising Life Comparing Islamic Law and the Laws of Modern Muslim States », Droit et cultures, 59 | 2010, 305-329.

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Dariusch Atighetchi, « Aspects of the Management of the Rising Life Comparing Islamic Law and the Laws of Modern Muslim States », Droit et cultures [En ligne], 59 | 2010-1, mis en ligne le 06 juillet 2010, consulté le 24 juin 2017. URL : http://droitcultures.revues.org/2148

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Dariusch Atighetchi

Dariusch Atighetchi, Ph.D., est professeur de bioéthique islamique au Centre interdisciplinaire des études sur le monde islamique (CISMI) à l’Université de Rome II en Italie et à la Faculté de Théologie de Lugano en Suisse. Parmi ses principaux écrits, on compte : Islamic Bioethics: Problems and Perspectives, Springer, Dordrecht-Berlin, 2007 et 2009 ; Islam e Bioetica, Armando Editore, Roma, 2009 ; Islam, Musulmani e Bioetica, Armando Editore, Roma, 2002. dario_atico@iol.it

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