Lecture for 4th year medical students on 11th
and 18th November 2000 by Professor Omar Hasan Kasule, Sr.
1.0 ASSISTED REPRODUCTION
B. In vivo insemination
C. In vitro fertilization
D. Other Alternatives
E. Issues of Paternity and Maternity
B.Population and birth control
D. Female contraception
3.0 SEX SELECTION and SEX CHANGE, al tahakkum fi al jins
A. Background to Gender Preference
B. Non-invasive methods
C. Sperm separation
E.Post-natal sex change
A. Background to cloning
B. Medical Benefits
C. Medical Dangers
D. Legal Implications
E. Socio-demographic Implications
1.0 ASSISTED REPRODUCTION
Infertility is defined as failure to get pregnant after 1 year of regular intercourse. Involuntary infertility
can be primary or secondary. Subferility is both partners may manifest as infertility. Both male and female infertility exist.
In situations of sub-fertility in both, complete infertility may ensue. Infertility is considered a serious condition because
it could lead to psychological distress, marital problems, and even marital failure. At the ummatic level widespread infertility
could spell demographic weakness, a security threat.
Infertility was mentioned in the Qur’an as ‘uqm (p. 821 3:40, 19:5, 19:8, 42:50). Desire of
parents for children is natural. The prophets Ibrahim and Zakariyyah made dua to Allah to give them offspring. Prophet encouraged
marrying young fertile women for glory of the ummah ‘Alaykum bi al abkaar (KS 546). Marrying women was considered a
source of good, khayr, inna khayra hadhihi al ummat akthahruhum nisa an (KS 546).
Natural causes of infertility: Natural causes of infertility may be male or female factors. The male factors
are: sperm anomalies, reduced sperm mobility, reduced sperm numbers, and impotence. Female factors are: anovulatory dysfunction,
hormonal imbalance, tubo-peritoneal disease, and cervical disease. Some factors operate in both males and females such as
congenital malformations, infections, neoplasms, immunological anomalies, and advanced age.
Causes of infertility related to life-style: sexually transmitted disease, long-term use of contraceptives,
age, infrequent coitus, unnatural coitus.
Infertility due to medical or surgical complications: irradiation, surgery, sterilization.
Female infertility: documentation of ovulation, evaluation of ovulation (basal body temperature, serum progesterone,
endometrial biopsy), tubal-uterine evaluation likehysterosalpingo-oophorectomy, laparascopy, Post-coital tests
Male infertility:Semen analysis, sperm antibodies
TRADITIONAL METHODS OF TREATMENT: MALE INFERTILITY
Medical Methods: treat infection, treat impotence.
Treat side effects: psychological, medical, legal, ethical
TRADITIONAL METHODS OF TREATMENT: FEMALE INFERTILITY
Medical methods: treat infections, hormonal imbalances, and stimulation of ovulation. Immune suppression for sperm
Surgical methods:can be used for congenital malformations, neoplasms,
and blocked fallopian tubes.
Treat side effects: psychological, medical, legal, ethical
LEGAL BASIS FOR SEEKING TREATMENT OF INFERTILITY: MAQASIDI ANALYSIS
Procreation for a married Muslim couple is considered among the necessities, dharuraat. It fulfils the purpose
of the law about hifdh al nasl. Parental rights are asserted under the purpose of the Law about protecting the lineage,
hifdh al nasab. a child is produced only through marriage, majiu al walad bi al zawaaj p 1323 , 4:1, 16:72, . LINEAGE, nasab: It is prohibited to claim a false lineage (KS 543)
B. IN VIVO INSEMINATION
Artificial intra-uterine insemination with husband’s sperm, talqiih sina’i dhaati is permitted
by the Law provided safeguards are taken to ensure that spermatozoa do not get mixed up in the laboratory or the clinic. There
is a consensus among jurists on prohibition of artificial in vivo insemination of a wife with donated sperm from a strange
man, talqiih sinna’i ajnabi,. There is a consensus among jurists on prohibition of artificial in vivo insemination
of a strange woman with the husband’s sperm
C. IN VITRO FERTILIZATION
The Law permits invitro fertilization if the sperm and ovum are from legally wedded husband and wife and the zygote
is implanted in the same wife. No paternity or maternity issues arise here.
According to some jurists, the Law permits invitro fertilization if the sperm is from a husband and the ovum is
from a legally wedded wife, and the zygote is implanted in a second wife of the husband. No paternity issues arise here. There
is controversy about maternity. Some scholars consider the woman who gave the ovum as the mother and the women who carried
the fetus in her uterus as a foster mother. Some jurists consider the mother who delivered the baby the legal mother.
There is consensus among jurists that invitro fertilization is prohibited if the sperm is from the husband and
the ovum is from the wife and the zygote is implanted in a surrogate mother.
There is consensus among jurists that a married woman cannot have a zygote implanted into her uterus if a sperm
from a donor who is not her husband fertilized it.
There is consensus among jurists that the Law prohibits implantation of a fertilized zygote in a wife if another
woman donated the ovum and the sperm is from her husband or a strange man.
D. OTHER ALTERNATIVES
ALTERNATIVES TO TECHNOLOGY
Foster care of husband’s children from co-wife or from previous marriage
Foster care for abandoned outside children
Polygamy can be an alternative to IVF for the man but not the women
The infertile couple can adopt a child provided information about its biological parents is not hidden
Patience and ibadat
The infertile couple can accept their fate and be patient
E. ETHICAL AND LEGAL ISSUE
Some Muslims will, despite the prohibition, still undertake the prohibited insemination or invitro fertilization
either due to ignorance or disobedience. Children will be born and legal issues will arise that cannot be brushed aside.
The issue of paternity and maternity is settled on the basis of biological inheritance. The position of the Law
is that the source of the ovum is the biological as well as the legal mother; the surrogate mother has rights as a foster
mother and these are well explained in the Law. In the same way the source of the sperm is the biological and also legal father.
The owner of the ovum is the biological as well as the legal mother. Some scholars had opined that the surrogate mother is
the legal husband of the surrogate mother is legal father on the basis of the hadith of the prophet, al walad li al firaash
wa li al ‘aahir al hajar. This hadith was in the special context of adultery by a married woman who gives birth
to a child. Since it was impossible at that time to be certain who the biological father was (it could be the legal husband
or the adulterer), the prophet ordained that the child should belong to the legal husband. This is understandable for the
protection of the interests and welfare of the child. It is also in conformity with the principle of the Law, qa’idat
al sharia, that certainty cannot be voided by doubt. In this case the legal husband is the certainty and the possibility
of the adulterer being the biological father is the doubt that could not be proved at that time to become a certainty. Even
with this ruling the legal husband still has a recourse to li’aan by which he can legally deny paternity if he has sufficient
personal presumption, not subject to legal proof, that the child is not his. Modern DNA technology removes any doubts about
paternity and maternity. It should be mandatory that in all cases of in vivo insemination, whether legal or not, DNA analysis
should be carried out to confirm maternity or paternity. Even in legal cases of insemination or fertilization, mistakes could
occur in the laboratory or clinic leading to mix-up of ova and sperms.
As regards unused fertilized ova, zygotes, there are four alternatives. There is consensus among jurists that they
can legally implanted at a later stage in the wife who was the source of the ovum so that she can have a second pregnancy;
this implantation must be carried out during the life of the husband to prevent him from having children after his death.
There is consensus among jurists that donating them to a childless couple so that they can be implanted in the wife, as a
surrogate mother, is prohibited by consensus of jurists. There is no consensus yet among jurists on the remaining 2 alternatives:
destroying them or using them for scientific research.
PURPOSES OF HUMAN REPRODUCTION
The purposes of the human reproductive function can be considered at the individual, family, community, and human
levels. Reproduction at an individual level fulfils a deeply felt human desire for self-perpetuation in order to achieve a
form of immortality. Parents are proud of their children, al tafakhur bi al awlaad
(p 1322 9:55, 9:85) and naturally desire to have many, al takathur bi al awlaad
(p 1322 9:69, 18:39, 19:77, 34:35, 57:20). Children help cement and strengthen the marital bond. As regards the community
level, the prophet encouraged Muslims to have as many offspring as possible to give glory to the ummat so that it may be the
largest of communities. When righteous people have many children and bring them up to be righteous they will be spreading
light and truth in the next generation in a very effective demographic strategy. At the level of the human species, reproduction
is necessary to ensure survival of the human race. Contraception in all its forms runs contrary to the objective of human
reproduction mentioned above especially the human survival instinct. Contraception is against basic human nature. There must
exist very strong reasons and motivators to make humans limit their reproductive capacity.
LOW HUMAN FERTILITY
Human fertility is very low. Conception can occur only in a narrow window of 3-4 days in the menstrual cycle when
the ovum is released. Both the ovum and the sperm have a limited life span. Human conception is of low efficiency. Many ova
and sperms are shed but are not utilized. It is possible for one man to be the father of all humans on earth because he produces
enough sperms over his lifetime. Humans, unlike some animals, do not time their copulation to coincide with the release of
the ova. Despite the low fertility humans down the centuries have for various reasons wanted to control conception and birth.
Offspring resembles both parents because they both contribute to the genetic material (KS 574). Quantitatively
both parents have equal contributions of genetic material to the offspring. The final appearance of the offspring is not an
‘average’ of the two parents because recessive genes from one parent are overshadowed by dominant ones from the
other parent in determining particular traits.
Marrying and getting offspring is obligatory, wajib, for the community
otherwise it will weaken and disappear. This fulfils the purpose of the Law, maqsad al shari’at, to protect and
preserve progeny, hifdh al nasl. Any policy or practice at the community or national level to control births is repugnant
to the Law. It is highly recommended that each individual couple play their role in fulfilling the purpose of the Law by having
children. Thus procreation for the individual is under the legal rubric of permissibility, ibaahat, and not obligation,
dharuurat. In any special situation of low Muslim population and there is an economic or military need for more births,
then procreation becomes a personal obligation, fardh ‘ain, on every couple. There is a basic permissibility of contraception
as is clear from the hadith of the prophet on coitus interruptus, tarkhis fi al ‘azal (KS 154). It is however
considered offensive, karahiyat al ‘azal (KS 155) and is prohibited without the wife’s permission, karahiyat
al ‘azal ma’a al hurrat (KS 155).
Since child-bearing is one of the purposes of marriage, any decisions on contraception require mutual agreement
between the two spouses otherwise one can claim denial of parenthood rights in marriage. In cases in which contraception is
a necessity, dharuurat, for preserving the life of the mother, the agreement of the husband is not required but he has the
option of recourse to divorce. Choice of the method of contraception must be based on the purposes and principles of the Law.
It should not encourage immorality or in any way be conducive to spread of evil, fasaad, in violation of the purpose
of preserving religion, hifdh al ddiin. It should not be harmful to the life and health of any of the parents under
the purpose of preserving life, hifdh al nafs. It should also not destroy life of the zygote or fetus because it is
life preserved under the purpose of hifdh al nafs. It should not be a cause of stress that can lead to severe psychological
disturbance in violation of the purpose of preservation of intellect, hifdh al ‘aql. It should not permanent
and irreversible because it would violate the principle of preservation of progeny, hifdh al nasl. Jurists have discussed
sterilization of both males and females and have not reached a consensus. Each of the following indications of sterilization
has been discussed but with no unanimity: prevention of hereditary diseases, high maternal obstetric risk at a subsequent
pregnancy, medical conditions aggravated by pregnancy, mental instability, and purely economic considerations.
B.POPULATION AND BIRTH CONTROL
We have to distinguish population control as a national policy from family planning as a choice that individuals
and families make. The motivations for population control at the community or national level are based on greed not to share
wealth. Malthusian theories and Darwinism provide a philosophical framework for this type of thinking. The motivation at the
individual or family level varies by the level of economic development. In rich industrialised countries, birth control is
done not for fear of poverty because individuals and the society have resources to look after more children; the main reason
is desire for freedom either to enjoy life fully without being disturbed by looking after children or the freedom to indulge
in sexual intercourse without consequences. In poor countries the elite have the same motivation for birth control as the
industrialised countries. The poor and the disadvantaged fear inability to look after additional children, and fear for the
health of the mother and the offspring. There are valid reasons for family planning for an individual family that the Law
recognizes provided the couple involved are making a voluntary decision and free choice. There is no basis in Law for instituting
population control as a community or national policy. Allah provides for all creatures and the argument that the resources
of the earth are limited is not acceptable. The problem in the world today is not limited resources but inequitable distribution
of resources. The rich use a disproportionate share of the resources and in the greed of not wanting to share with the poor;
they become strong proponents of population control in poor communities. They also fear that the poor may use their numbers
to try to break up the unjust system of resource distribution.Thus population
control policies have many aspects that have to be considered carefully:military
and security, political, economic, moral, and cultural.
Contraception: Contraception was practised by all societies past and present. Ancient Egypt,
ancient Greece, and the Roman Empire
all had contraceptive methods though in many cases of doubtful effectiveness. Arabs in the pre-Islamic period used coitus
interruptus, ‘azl. The sex revolution of the 1960s was made possible by the development of the contraceptive
pill. For the first time in human history an effective birth control method became widely available and encouraged much promiscuity
in all countries of the world. With availability of effective contraceptives population control policies have become more
effective. Many countries have instituted punitive measures for couples that have more than the set number of children. Many
incentives were offered for smaller families. The effects are already obvious. Some countries in Europe
are already experiencing a demographic problem of too few young people and too many old people and are having second thoughts
about population control.
Abortion: Abortion was used in the past and continues to be used by those who do not want to bear children
and find themselves pregnant. It is a crime under the Law because it involves destruction of life.
Infanticide, wa'ad: The pre-Islamic custom of killing girls, qatl al banaat fi al jaahiliyyat was condemned by the Qur'an (p. 914 6:137, 6:140, 6:151, 17:31, 60:13). Killing
of children for fear of poverty, qatl al awlaad khashiyat ‘imlaaq (p. 498 6:151, p 498 17:31). The Qur’an
refuted the economic reason for wanting smaller families by informing us that each animal, daabat, has its provisions
from Allah (p. 498 11:6) and that the animal does not carry its provisions with ir (P. 499 29:60). Those innocent children
will enter jannat (, KS 575). Pharaonic Egypt
instituted a population control policy when the number of Banu Israil increased. Selective infanticide of boys was carried
out, qatl al awlaad 'inda al fara'inat (p 914 2:49, 7:127, 7:141, 14:6, 28:4, 28:9,
Genocide: Ethnic cleansing and other forms of genocide have been a characteristic of the 20th
century and are likely to continue into the next century.
MALE REVERSIBLE METHODS: The reversible methods for males are the condom, coitus saxanicus, coitus reservatus,
and coitus interruptus. Coitus interruptus is allowed, tarkhiss al 'azal (KS 154
KS 154-155: Bukhari K67 B96; Bukhari K82 B4; Bukhari K77 B18; Muslim K77 H15-H28; Abu Daud K12 B46; Tirmidhi K9 B39; Nisai
K26 B55; Ibn Majah K9 B30; Darimi K71 B36; Muwatta K29 H95-H97, H99, H100; Ahmad 3:22, 26, 33, 47, 49, 51, 53, 57, 59, 63,
68, 71, 72, 82, 88, 92, 93, 140, 309, 312, 313, 377, 380, 386, 388, 450; Ahmad 6:361; Tayalisi H 1244, 1697, 2175, 2177, 2193,
2207). Although permitted, coitus interruptus is considered offensive, karahiyat al
'azal (KS 155: Muslim K1 H31; TirmidhiK9 B40; Ibn Majah K9 B61; Muwatta
K29 H98;Ahmad 1:380, 397, 439; Ahmad 6:361, 434; Tayalisi H 396. It is forbidden
if the wife does not give permission, al nahyu 'an al 'azal illa bi idhniha (KS
155: Ahmad 31).
MALE IRREVERSIBLE METHODS: Vasectomy is the only available irreversible contraceptive method for males. It has
minimal medical side effects that must be considered. The psychological side effects are more severe: regret over missed births,
inability to have children after sterilization, need for more children after divorce & remarriage or when all children
D. FEMALE CONTRACEPTION
FEMALE REVERSIBLE METHODS: Reversible methods for females are either mechanical or chemical. The mechanical barriers
are: the diaphragm, the cervical cap, the vaginal sponge, and the IUD. Often neglected and not mentioned are the traditional
non-invasive methods of sexual abstinence and using the natural rhythm of menstruation to avoid coitus during the fertile
days of the menstrual cycle. Each of these methods has advantages and side effects that are either physical or psychosocial.
Spermicides kill sperms. The Intra-uterine device prevents implantation of a fertilized ovum and is considered
an early form of abortion since life starts at conception. The safest and perhaps the least effective is the rhythm method;
pregnancy will still result even if it is used carefully. It however has no associated legal or ethical problems. The oral
contraceptive pill suppresses ovulation. The OC has revolutionised contraceptive practice since its development in the
1960s. It is largely responsible for the excesses of the sex revolution in which people saved from fear of pregnancy engaged
in sex on an unprecedented scale. The sequential progesterone-estrogen pill's mechanism of action involves: inhibition of
ovulation by suppressing FSH and LH, alteration of cervical mucosa and inhibiting sperm transport, interference with ovum
transport, and inhibition of implantation by suppressing normal endometrial development. Besides its contraceptive actions,
the pill is useful in menstrual regulation. Among its adverse effects are: circulatory disorders such as MI, venous thrombosis,
CVA, and HT; abnormal uterine bleeding, carbohydrate intolerance, neoplasia, and gall bladder disease.
FEMALE IRREVERSIBLE METHODS: There are two main irreversible methods for females: tubal ligation and hysterectomy.
Tubal ligation is a simple surgical procedure that is reversible with much difficulty. Hysterectomy is not done deliberately
for purposes of contraception. It is carried out for some other purpose and it serves the additional purpose of contraception.
Availability of safe contraception removes the fear of pregnancy and encourages more people to engage in illegal
extra-marital sexual activity such as teenage sex, pre-marital sex, and adultery. The spread of zina is a direct cause of
Availability of safe contraceptives will encourage temporary unstable unions because people are not worried about
child responsibilities. Thus couples will marry with secret intention to divorce, zawaaj bi niyyat al talaaq
Population equilibrium cannot be predicted by mathematical equations and cannot be controlled by policies and regulations.
Attempts at population engineering lead to imbalances. Population imbalances result from widespread birth control at the community
or national levels. The impact of birth control policies may be more in population sub-groups leading to political tensions.
Decrease of population may lead to military and economic weakness.
PRELUDE TO GENOCIDE
Widespread practice of birth control makes it easier to accept and practice genocide.
3.0 SEX SELECTION and SEX CHANGE, al tahakkum fi al jins
A. BACKGROUND TO GENDER PREFERENCE
Sex preference is natural. Most human societies prefer male children. The prophet Zakariyyah asked Allah for a
male offspring. Omran also had wanted a male offspring but got a female instead, Maryam. Gender selection is by Allah (shura:
49) and no human efforts will contradict Allah’s will. Human efforts can only succeed if Allah wills so. Efforts to
get an offspring of a particular gender are in general permissible because the dua that prophets made are considered part
of the effort. Discussion centers around the methods used because some are permitted while others are prohibited.
B. NATURAL METHODS: not effective?
Selecting days of copulation before and after ovulation
Changing upper vaginal chemistry artificially
C. ARTIFICIAL METHODS
Separation of male and female sperms by centrifuging and invitro insemination
Invitro fertilization: gender pre-selection and implanting only zygotes of desired gender?
Sex change by genetic engineering has been carried out in animals. ?Technically possible in humans but not yet attempted.
Exposure of the fetus to specific hormones may affect embryological development of the sex organs
Amniocentesis and chromosomal analysis may be followed by abortion. The position of the Law is that what leads
to haram is also haram. Amniocentesis cannot therefore be offered unless there is a definite medical indication.
D.POST-NATAL SEX CHANGE
Sex change operations for hermaphrodites
E. LEGAL RULINGS
Some jurists consider sex selection permissible for the couple but are prohibited when they are part of community
or national policy. There are long-term consequences that must be considered. Severe gender imbalance will threaten marriage
and lead to family breakdown. Eventually the purpose of the law to preserve progeny, hifdh al nasl, cannot be fulfilled.
A. BACKGROUND TO CLONING
NATURE OF CLONING
Cloning was achieved in sheep by transfer of a nucleus from the somatic cell of an adult animal into an egg whose
nucleus had been removed. A live sheep was subsequently born (1, 2, 4). This process seems to be technically feasible in humans
but has not yet been attempted.
Cloning is not creation of new life from basic organic and non-organic matter. Creation of life de novo is the prerogative of God alone. Cloning starts with a living nucleus with its genetic characteristics
(3). The DNA in the nucleus programs the product resulting from cloning. A tissue or a whole organism may be cloned.
Cloning as a concept goes far beyond the natural method of human sexual reproduction. If human cloning is ever
achieved in practice, it will not be the first exception to human sexual reproduction. The Prophet Adam had neither a father
nor a mother. The Prophet Isa had a mother but no father. Asexual reproduction is common in the animal and plant kingdoms.
Bacteria, viruses, and other microorganisms reproduce asexually.
Cloning is a form of reproduction without male-female interaction. The clone is the exact replica of original.
Genetic recombinations that are responsible for the great variety of normal reproduction do not occur in cloning.
Cloning relates to a powerful human emotion of self-perpetuation. The desire to perpetuate their kind or continue
living in some way is a very strong drive in humans. It is satisfied partly by the sexual reproductive process in which the
person's identity continues in their offspring. The emotion is also obvious in animist beliefs in ghosts and ancestral spirits.
Reincarnation is another interpretation of self-perpetuation. The ancient Egyptians preserved their dead as mummies in the
hope they will live again. Many political leaders have tried to leave behind monuments so that the future generations may
know about their achievements.
The Islamic tradition discourages speculative thinking about hypothetical events. Issues are discussed from the
legal and ethical aspects after they have occurred. We therefore cannot engage in a detailed discussion of cloning until it
has occurred and we see its implications in practice.
QUALITY OF LIFE
The issue of quality of life arises in the case of cloning if ever it becomes a reality. The product of cloning
will not have the same quality, as we know it in humans today. This is because a human is both matter and spirit. During the
first trimester of intra-uterine development the soul, God inserts ruh, into the body.
There is one ruh for each being. Thus the cloned product cannot have a ruh and will therefore not be human being, as we know. The product of cloning will have all the biological properties
of the ordinary human being but will not have the spiritual qualities. Thus the life of the cloned product will be of little
or no quality. We can only speculate how that cloned product will behave. The possibilities are frightening as the brave new
world of biotechnology unfolds.
B. MEDICAL BENEFITS
Supply of organs for transplantation?
Preservation of progeny, hifdh al nasal?
Multiply gifted persons?
C. MEDICAL DANGERS
New diseases and problems
D. LEGAL –ETHICAL IMPLICATIONS
Inheritance: cloned son vs real son
Immortality: so no inheritance?
Human cloning although not yet achieved has already raised a lot of ethical controversies. The ethical debate on
human cloning has been complicated be sensational media reporting. The public is not aware of the biological end ethical issues
involved (4). The major ethical issues raised are: loss of human uniqueness and individuality, hazardous unexpected products
from cloning, and criminal misuse of the cloning technology (2).