Preservation of progeny, hifdh al nasl, is one of the five purposes of the Law, maqasid al shari’at.
The purpose is fulfilled by appropriate health care for children to grow into healthy adults able to reproduce. It is also
fulfilled by appropriate care during pregnancy and delivery to ensure a healthy outcome. The following medical procedures
help assure hifdh al nasl: genetic testing and counseling, Correction of disorders of the genital tract, and appropriate
and adequate medical care during pregnancy, delivery, and infancy. Treatment of infertility by various methods of assisted
reproduction fulfils the purpose of hifdh al nasl. Reproductive cloning is not considered a legitimate or safe method
of hifdh al nasl. Various forms of contraception, feticide, and infanticide violate the purpose of hifdh al nasl.
TO THE PURPOSES OF THE LAW
Background to Purposes of the Law, tarikh maqasid al shari’at
The 5th - 6th centuries of hijra were a period of several developments in the Law.
This was a time when the work on the fixed part of the Law was completed. Any further developments in the law after the 6th
century required opening up new the flexible part of the law that necessitated new tools. Purposes of the Law became the most
significant of these tools. It was at this time that al Ghazali (d. 505H) and his teacher al Juwayni introduced the ideas
that underlie the concept of maqasid al shari’at. Ghazzali's work was extended by Ibn Taymiyat (d. 728H) and
his student Ibn al Qayyim (d. 751H). The Andalusian Maliki scholar al Shatibi (d. 790 H) elaborated Ghazzali's theory and
his book al Muwafaqaat fi Usuul al Shari’at became a major reference on maqasid al shari’at and
was a prescribed textbook at Azhar University for several generations. Our subsequent discussion of the purposes of the law
will be based largely on al Shatibi's book.
The concept of maqasid al shari’at did not evoke much practical interest in the period 1st
– 14th century H. That period witnessed relatively little technological change in the ummah. In the
15th century of hijra, technological changes have created new and complex problems that require a bird's
eye view for solution that can be formulated with the aid of maqasid al shari’at because there are no directly
relevant textual references.
1.2 The Concept of Purposes of the Law, mafhuum maqasid al shari’at
The aim of ijtihad is to discover the purpose of the lawgiver in order to reach a legal ruling, hukm shar’i. Ijtihad in the closed part of the Law is referred to the text, nass. Ijtihad
in the open or flexible part of the law is referred to maqasid al shari’at. The maqasid are permanent, unchangeable, and consistent guidelines. They are derived form the text by induction and
are therefore definitive. They deal with whole (panoramic view) and not the parts. The term maqasid al shari’at
is generally used to refer to the 5 necessities, dharuuraat, that ensure human interests on earth and in heaven and
without which normal human life is impossible. The 5 purposes of the Law, maqasid al shari’at, arranged in order
of importance are: (a) preservation of religion, hifdh al diin; (b) preservation of life and health, hifdh al nafs,
(c) preservation of the mind, hifdh al 'aql; (d) preservation of progeny,
hifdh al nasl; (e) and preservation of property, hifdh al maal.
The concept of hifdh includes protection, preservation, and promotion. Hifdh al din is ‘aqidat, ‘ibadat and supporting functions
of activities of normal living, ‘aadaat, marital regulations, munakahaat, and civil transactions, mu’amalat.
Hifdh al nafs is protection of the body from harm and involves ‘aadaat, mu’amalaat, and criminal
justice, jinaayaat. Hifdh al nasl is assured by marriage, child-birth within the marital bond, and proper child
upbringing. Hifdh al ‘aql is assured by normal psychosocial relations as well as prohibition of alcohol and drugs.
Hifdh al maal is assured by property rights and prohibition of stealing and embezzlement. The 5 purposes are closely
related. Hifdh al nasl cannot stand alone. It is assured by all the remaining 4 maqasid each of which protects
and promotes life and health of children to grow up into healthy adults able to reproduce successfully. They also ensure the
health of parents (especially mothers) for optimum obstetric outcome. Hifdh al ddiin ensures sexual morality and therefore
a good reproductive outcome when child-birth as well as child rearing occur within the protection of the family institution.
Hifdh al nafs ensures the health of parents and their reproductive competence. Hifdh al ‘aql ensures mental
health required for successful child-rearing. Hifdh al maal ensures adequate financial and other material resources
to take care of pregnant and breast-feeding mothers as well as their children.
1.3 The Purpose of Protection of Progeny, maqsad hifdh al nasl
The purpose of hifdh al nasl is fulfilled in the fields of activities
of normal living (‘aadaat), marriage and family (munakahaat), civil transactions (mu’amalaat),
and criminal justice (jinaayaat). All these fields are intimately related to medicine. In ‘adaat, good nutrition of young girls ensures
that they grow into healthy potential mothers who will bear healthy babies and are at low obstetric risk. Good nutrition in
pregnancy ensures optimal intra-uterine fetal growth and development and easier delivery with minimal intra-natal and post-natal
complications. All these measures taken together ensure healthy offspring.
In munakahaat, maintenance of progeny includes the regulations
about marriage, family life, and child upbringing. The Law on nafaqat for the mother and the child both during marriage
and after divorce ensure adequate financial and material resources for the health of the mother and the child. The laws about
determining paternity ensure that biological fathers have the legal and financial responsibility for physical care of their
children until they grow up.
In mu'amalaat, the laws of inheritance ensure proper transfer of property rights from the parents
to their young children so that they have the means to sustain them to grow into adulthood. The laws against illegal sexual
relations like zina and liwat ensure
that people marry and have children in a family unit. It is the experience of all human civilizations that the birth rate
falls in situations of wide-spread sexual immorality.
2.0 PRESERVATION OF PROGENY in
2.1 Genetic testing and counseling
Genetic testing and counseling play a role in hifdh al nafs by
ensuring delivery of healthy offspring. Pre marital counseling is recommended in marriages of close relatives. Genetic testing during pregnancy or soon after delivery can detect diseases to enable instituting
early treatment for a better health outcome. The objective of counseling before testing is to provide information about
the genetic disorders and the risks of disease to individuals and families so that they may make informed decisions about
marriage and child rearing.
2.2 Correction of disorders of the genital
Coitus serves 2 purposes: reproduction and
sexual enjoyment. The primary purpose of reproduction ensures hifdh al nasl. Sexual enjoyment is most probably a secondary
purpose that facilitates the primary purpose of reproduction. Foreplay is a sunnat and it allows both parties to be
psychologically and physiologically prepared for successful coitus and subsequent insemination and fertilization. Coitus is
forbidden during menstruation, post natal or post abortal bleeding. Coitus in these conditions may lead to ascending infection
of the genital tract that may cause sterility. Any disorders that interfere with successful coitus will hamper reproductive
capacity and violate the purpose of hifdh al nasl. The Law requires treatment of mental and physical causes of these
disorders in order to preserve reproductive function. Marriage is annulled when coitus is physically impossible and there
is no hope for a medical or surgical solution.
It is offensive, makruuh, for a male with no libido to marry. Lack of libido is
grounds for divorce or khulu’u. In cases of impotence marriage is nullified
after a grace period of 1 year during which medical treatment is sought. Impotence can be managed by drugs such as Viagra,
by surgical intervention, and by psychotherapy. Modern technology can enable insemination and fertilization in cases of complete
failure of erection. Pre-mature, delayed, or no ejaculations may not be sufficient grounds for divorce because they do not
completely abrogate the purpose of hifdh al nafs. Priapism causing physical harm to the wife should be treated because
it may interfere with successful coitus. Cases of cryptorchidism should seek counseling about fertility before marriage.
Kindness is required for wives when they experience
loss of libido, lack of sexual enjoyment, dyspareunia, and vaginismus. Medical and surgical intervention as well as psychotherapy
can be used to relieve these conditions in order to allow normal coitus. Lack of libido and sexual interest in a woman is
not considered a barrier to marriage. Sexual relation can be undertaken in prolonged DUB if care is taken to prevent ascending
infection. Surgical treatment of septate or imperforate vagina should be attempted before marriage dissolution due to non-consummation.
A spouse is legally liable for transmitting infection to the partner because that may destroy the reproductive function. A
proper balancing of harm, dharar, and benefit, maslahat, must be considered in treating benign malignancies
because of destruction of the reproductive function. Ovariectomy and hysterectomy for uterine fibroids destroy the reproductive
function and lead to psychological problems in a woman who then can no longer menstruate.
Disorders of gender differentiation and gender
identity are anatomical and physiological with serious behavioral and legal implications affecting marriage, procreation,
and inheritance. In cases of hermaphrodites, the Law allows genetic and other methods of investigation to arrive at a conclusion
on what is the definitive gender. Once this determination is made corrective medical and surgical measures are undertaken
to restore the genitals and try to preserve as much reproductive capacity as is possible.
The Law has provisions to protect the physical and mental health and well-being of a pregnant woman. The Law obliges
the father to provide adequate material support, nafaqat, for a pregnant mother so that she may be in the best nutritional
and health status to ensure a healthy reproductive outcome. A pregnant woman is excused from duties that involve physical
exertion detrimental to the health of the fetus. She is also forbidden from activities and behavior that jeopardize infant
health such as smoking, alcohol, exposure to toxic chemicals and radiation. Standing up, qiyaam;
bowing, ruku’u; prostration, sujuud,
and sitting, juluus, in salat may be difficult for a woman in advanced pregnancy and modifications are necessary.
A pregnant woman may be excused from fasting, saum. If the excuse is based on fear of nutritional deficiency in the
mother or in both the mother and the fetus, the missed fasting must be made up. If the exemption is based on fear of harm
to the fetus alone, expiation is by feeding the poor. A woman in advanced pregnancy has limited ability to do physical work,
at home or outside the home, and has to be excused. Sexual intercourse is physically cumbersome in advanced pregnancy. It
may also introduce infections in the birth canal. In the rare instance of placenta previa it may provoke potentially
fatal bleeding. There is no ruling against breast-feeding in pregnancy. It is a medical necessity since breast milk is the
best food for a baby. A pregnant woman can be divorced but cannot be forced out of her house until after delivery. Fixed legal
punishments, huduud, cannot be carried out in pregnancy until after delivery and suckling of the baby.
The delivery process has many risks for the mother and the infant. Salat is not physically possible in the advanced
stages of labor and immediately after delivery. Saum in labor is not recommended. Physical activities of hajj are not recommended
in advanced pregnancy.
Difficult medical decisions may have to be made in obstructed labor. These decisions involve essentially making
a difficult choice between the life of the mother of the life of the infant. Immediate medical intervention is in favor of
the mother but the infant may not be mature enough to survive. Delay of intervention could put the mother at higher risk but
it gives the infant more time to mature. In this case the choice is between endangering 2 lives and endangering one life.
Immediate intervention is good for the mother. Delay of intervention puts the mother at higher risk as well as the unborn
fetus because fetal welfare depends on maternal welfare. The logical choice is therefore to put maternal interest above fetal
interest. In cases of hemostatic disorders and ecclampsia, termination of the pregnancy may be the best way to save the mother’s
life but it will adversely affect the fetus who may not yet be viable extra-uterine.
The immediate post-partum period is a period of vulnerability for the mother and the infant. Post-partum infection
and hemorrhage may impair the health of the mother. Women in post-natal bleeding are excused from salat like those
in menstruation. Post-natal mothers are excused from saum but they have to make up later. Sexual intercourse is forbidden
during post-partum bleeding, nifaas. This will decrease the risk of ascending infection of the genital tract. The mother
has 3 basic rights: health care and nutrition; shelter; and payment for breast-feeding if divorced.
The infant has the right to general health care and nutrition. Nutrition and healthcare for infants and children
contribute directly to preservation of progeny by ensuring that children grow into healthy adults able to reproduce.
Onset, continuation, and end of lactation are under endocrine & neural control, neuro-humoral. Lactation can
be affected by the psychological state of the mother. Drugs can also affect lactation either enhancing or suppressing it.
The Qur'an set the statutory period of breast-feeding as 2 full years, muddat al ridha'a. No maximum period was set.
However maternal milk is not sufficient as a sole nutrient after 6 months and has to be supplemented. The father has to give
financial compensation to a divorced wife who is breast-feeding his child. Breast feeding is so important that the Law allows
breastfeeding by a woman who is not a biological mother. On the basis of necessity, dharuurat, the Law permits collecting
milk from several lactating mothers in a milk bank and using it to feed premature babies or those who have no natural mothers.
Because of the importance of breastfeeding, a nursing mother is allowed to combine 2 prayers. A nursing mother may not fast
and make up later. New ijtihad is needed on the minimum period of maternal leave since the Qur’an sets a limit
of 2 years.
2.6 Assisted Reproduction
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 that is a security threat. Treatment of infertility fulfils the purpose of hifdh al nasl.
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. The
Law prohibits artificial in vivo insemination of a wife with donated sperm from a strange man or in vivo insemination of a
strange woman with the husband’s sperm, talqiih sinna’i ajnabi.
In vitro fertilization, al talqiih al istinaa’e al khaariji, is permitted by the Law if the sperm
and ovum are from legally wedded husband and wife and the zygote is implanted in the same wife. According to some jurists
the Law permits in vitro 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. In vitro 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. A married woman cannot have a zygote implanted
into her uterus if a sperm from a donor who is not her husband fertilized it. Sperm banks are a form of zina are not allowed. 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
2.7 Reproductive cloning
Reproductive cloning was achieved in sheep. It seems technically feasible in humans. It is not creation of new
life from basic organic and non-organic matter since creation of life de novo is
the prerogative of Allah alone. Cloning is a form of asexual reproduction (no male-female interaction) that is common in plants
and animals. Adam and Isa were humans from asexual reproduction. 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. 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.
Reproductive cloning cannot be used to achieve the purpose of hifdh al nasl. 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, Allah 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 a 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.
Cloning has some medical benefits such as supply of organs for transplantation. It may lead to new diseases and
medical problems. The major ethical issues in cloning are: loss of human uniqueness and individuality, hazardous unexpected
products from cloning, and criminal misuse of the cloning technology. Legal issues will arise in inheritance of the real son
and the cloned son.
Reproduction fulfils a human desire for enjoyment of children, and strengthening the ummat. Contraception negates these objectives and is undertaken for very strong reasons. Marrying and getting
offspring are obligatory, wajib, for the community and fulfils the purpose of protecting
and preserving progeny, hifdh al nasl. Procreation for the individual couple is mubaah
or mustahabb in normal circumstances but becomes wajib in situations of military or economic weakness. There is basic permissibility of contraception from the
hadith on coitus interruptus. Decisions on contraception must be by mutual consent of the spouses. If contraception
is a dharuurat for preserving the life of the mother, the husband’s agreement
is not required. Choice of the method of contraception must be conform to the purposes of the Law (hifdh al ddiin, hifdh al nafs, hifdh al ‘aql, & hifdh al nasl). Contraception as part of a national
population control policy is prohibited by Law. The permissible reversible methods for males are the condom, coitus saxanicus,
coitus reservatus, and coitus interruptus.
Permissible reversible methods for females are either mechanical (the diaphragm, the cervical cap, the vaginal sponge)
or chemical (spermicides and oral contraceptive pills). Some forms of IUD are not permitted because they cause early abortion.
The safest and perhaps the least effective is the rhythm method.
Availability of safe contraception removes the fear of pregnancy and encourages sexual promiscuity. It also encourages
temporary sexual unions devoid of child responsibilities. Wide spread use of contraception will eventually cause population
imbalance by age. Widespread practice of birth control makes it easier to accept and practice genocide by decreasing respect
for human life. Thus if contraception is allowed without adequate legal controls, will eventually violate the purpose of hifdh
2.9 Feticide (abortion) and infanticide
Feticide by abortion and infanticide violate the purpose of hifdh al nasl. Illegal feticide and infanticide
are committed for various reasons: avoiding consequences of sexual immorality, poverty, rape, gender preference, and serious
disease of the mother and child. Abortion is criminal homicide because life is considered to start at conception and not as
claimed at ensoulment, nafakh al ruuh. Abortion is immoral because it encourages sexual immorality and promiscuity
without fear of pregnancy. The Law prescribes severe punitive measures for causing illegal abortion of a fetus. Diya
is paid if the fetus comes out with signs of life and dies thereafter. Ghurrat, which is less than diya, is
paid if the fetus comes out dead. The physician or any other accessory to abortion is guilty of the offense of causing abortion
even if either or both parents consented to the procedures.
Abortion is the lesser of two evils in cases of serious maternal disease because one life is lost instead of two.
In all forms of abortion whether legal or illegal, the aborted fetus must be treated with respect. It must be washed, shrouded,
and buried properly.
Infanticide can be in the form of child neglect and child abuse. Social injustice manifesting as poverty is responsible
for a lot of feticide and infanticide. Poor mothers who do not get adequate nutrition and medical care have a higher rate
of fetal loss and poor pregnancy outcomes. Their children are born pre-mature of small for gestation age and succumb easily
to disease and die. Children born in poor families and communities have higher morbidity and mortality.
THE 5 PURPOSES of the LAW, maqasid
of religion, hifdh al diin
of life and health, hifdh al nafs
of the mind, hifdh al 'aql
of progeny, hifdh al nasl
of property, hifdh al maal.
PROMOTION of hifdh al nasl
testing and counseling
of disorders of the genital tract
care during pregnancy, delivery, and infancy
of infertility by various methods of assisted reproduction
cloning is not hifdh al nasl.
VIOLATION OF hifdh al nafs