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ISLAMIC MEDICAL EDUCATION RESOURCES 04

0604-RULINGS ON EUTHANASIA FROM THE PERSPECTIVE OF PURPOSES OF THE LAW AND PRINCIPLES OF THE LAW

Published in the 2005 Year Book of the Federation of Islamic Medical Associations by Dr Omar Hasan Kasule MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine, Institute of Medicine, Universiti Brunei Darusssalam omarkasule@yahoo.com

DEFINITION OF EUTHANASIA:

Euthanasia is Greek for good death which translates into English as easy death or mercy killing. Other terms similar to euthanasia are aid-in-dying or physician-assisted suicide. In essence it is painlessly putting to death persons suffering from painful and incurable disease or incapacitating physical disorders. Euthanasia was accepted by the ancient Greeks and Romans. It is accepted by 3 Asian religious traditions: Budhism, Shintoism, and Confucianism. It is rejected by the 3 main monotheistic religions: Christianity, Judaism and Islam. Euthanasia has its supporters and opponents in all countries.

 

Two types of patients are involved in euthanasia: (a) a patient in a persistent vegetative state who is awake but is not aware of self or the environment. Such a patient has no higher brain functions and is kept 'alive' on artificial life support: respirators, heart-lung machine, and intra-venous nutrition (b) patient in terminal illness with a lot of pain, psychological suffering and loss of dignity. The patient may or may not be on life-support.

 

TYPES OF EUTHANASIA:

A distinction is made between active euthanasia which is making a patient die and passive euthanasia which is letting a patient die. Active euthanasia, an act of commission that causes death, is taking some action that leads to death like a fatal injection. Depending on the underlying intention, niyyat or qasd, the same action could be considered normal therapy or could be considered euthanasia. For example terminal sedation can be a therapeutic action against pain or can be an act of euthanasia. Sedation has a dual effect; it controls pain while at the same time leading to respiratory depression that can end in death.

 

Passive euthanasia, an act of omission, is letting a person die by taking no action to maintain life. Passive euthanasia can be withholding or withdrawing water, food, drugs, medical or surgical procedures, resuscitation like CPR, and life support such as the respirator. A do not resuscitate order (DNR) is also a form of passive euthanasia. In passive euthanasia the patient is then left to die from the underlying disease. The distinction between passive euthanasia and withdrawal of life support when there is no evidence and hope of recovery depends on the underlying intention, niyyat or qasd. The outward actions may be the same but the niyyat determines whether it is euthanasia or allowable withdrawal of life support in a hopeless case.

 

Euthanasia can be by the patient or by the health care giver. It can be voluntary when the patient takes the decision, non-voluntary when another person makes the decision for the unconscious patient, and involuntary when the decision is made contrary to the patient's wish. It may be assisted when the physician provides knowledge and skills that the patient uses to carry out an act of euthanasia.

 

EUTHANASIA and THE PURPOSES OF THE LAW, maqasid al shariat[i]

The purpose of life

The purpose of preserving life, hifdh al nafs, makes any form of active or passive euthanasia illegal. Life and good health must be protected and promoted in all circumstances. This includes, inter alia, adequate nutrition, hydration, prevention and treatment of any illness and disease. Every disease has a treatment known or discoverable by further scientific research. The purpose of life applies to life whatever its quality.

 

The purpose of ddiin

Euthanasia is illegal because it violates the purpose of preserving religion, hifdh al ddiin. It involves a human attempt to appropriate the divine prerogative of giving and taking away life.

 

The purpose of progeny

Euthanasia can indirectly lead to the violation of the purpose of preserving progeny, hifdh al nasl, by cheapening human life thus encouraging feticide and infanticide.

 

The purpose of wealth

The enormous resources used to care for terminal patients have to be considered in the light of the purpose of preserving wealth, hifdh al maal. Those resources, if from the family, could have been used to care for the orphans and widows left behind. If they are from the state they could have been used to care for many poor and disadvantaged persons. Using them in a case with no hope of eventual recovery could be a form of waste. The issue of resources can be used as an argument for withdrawal of useless life support but cannot be used for euthanasia. The difference lies in the underlying intention.

 

EUTHANASIA and THE PRINCIPLES OF THE LAW, qawaid al shari’at[ii]

The principle of intention, qa’idat al qasad

There is no legal distinction between active and passive euthanasia because the Law considers only the intentions behind human actions and ignores the terminology used, al ibrat fi al maqasid wa al ma'ani wa laisa li al alfaadh wa al mabaaani. Since both active and passive euthanasia have the same intention of ending the life of a terminally ill patient, they are the same action under the law. The physician who advises, assists, or carries out a euthanasia operation at the instructions of the patient in full knowledge of the underlying intention is committing a crime. The physician involved in euthanasia either as an active participant or an advisor may have intentions relating to self-interest and not the interests of the patient or those of religion. These could include trying to get rid of a difficult medical case, cutting costs of intensive and expensive terminal care, or possible ulterior material, political, or social motives. Members of the family may have the intention of hastening death in order to inherit the deceased's estate. They may also want to avoid the costs of terminal care. In all cases above there is a possibility of bad intention in euthanasia decisions. The general principle of the law is to give priority to prevention of evil over accrual of a benefit. Thus euthanasia is forbidden because of the potential evil inherent in it.

 

The principle of injury, qa’idat al dharar

No one should be hurt or cause hurt to others, la dharara wa la dhiraar. Decisions on euthanasia hurt patients in their life and health. The family is also hurt emotionally and psychologically by the death of the patient. The family hurt is accentuated by feelings of guilt about the euthanasia decision. The converse argument could be made that continuation of the pain and suffering of the patient under life support in terminal care, the emotional and psychological burden on the patient and the family, and the material costs of expensive terminal care constitute an injury to all involved.

 

The law requires that any injury should be mitigated to the extent possible, al dharar yudfau qadira al imkaan. However one injury cannot be removed by another injury of similar magnitude, al dharar la yuzaal bi mithklihi. A lesser injury could be used to remove a bigger injury,  al dharar al ashadd yuzaalu bi al dharar al akhaff. It is therefore wrong under the law to mitigate the physical and emotional injury of terminal illness by another and bigger injury of euthanasia.

 

When faced with 2 evils, the lesser one is chosen, ikhtiyaar ahwan al sharrain. This is interpreted to mean that continuation of painful terminal life is better that euthanasia.

 

A further argument against euthanasia is that a person should bear personal injury if that prevents public or widespread injury, yatahammal al dharar al khaas li daf'ui al dharar al 'aam. Suffering of some individuals in terminal life is preferable to legalizing euthanasia because euthanasia could be criminally abused leading in some cases to genocide. Public interest takes precedence over personal interest, al maslahat al aamat muqaddamat ala al malahat alkhhaasat. Preventing evil from euthanasia takes precedence over any consideration of benefits from it, dar'u al mafasid awla min  jalbi al masalih.

 

The principle of hardship, qa’idat al mashaqqat,

Hardships necessitate relaxing the law, al mashaqqa tajlibu al tayseer. The pain and suffering of terminal illness are not among the hardships recognized by classical jurists. The life of handicapped invalids as well as psychological and emotional stresses due to illness are difficult situations but do not reach the level of the legally defined hardship. In general in cases of hardship where a clear necessity is established, the prohibited can be allowed at least temporarily until the hardship is relieved, al dharuraat tubiihu al mahdhuraat. A necessity is defined in law as what threatens any of the 5 purposes of the law namely religion, life, intellect, progeny, and wealth. Euthanasia cannot be accepted as a necessity since it destroys and does not preserve 2 of the purposes of the law: religion and life.

 

The principle of custom or legal precedent, qa’idat al aadat

Custom, ‘aadat is defined as what is uniform, widespread, predominant, and not rare, al ibrat li al ghaalib al shaiu la al naadir. Once a custom is established it must be accepted until there is evidence to the contrary. Custom has the force of law, al aadat muhakkamat. The role of physicians has customarily been known to be preservation of life. It is therefore inconceivable that they could be involved in any form of euthanasia that destroys life. The principle of custom is also used to define what is customary medical care to distinguish it from heroic efforts that are sometimes employed in euthanasia. It is a crime to fail to provide care that is customarily accepted as appropriate. There is no obligation to institute heroic measures that are out of the ordinary.

 

Other applicable  principles of the law:

A distinction in law exists between withholding life support and withdrawing it. The issue is legally easier if life support is not started at all according to a pre-set policy and criteria. Once it is started, discontinuation raises legal or ethical issues. The principle of the law that applies here is that continuation is excused where commencing is not, yughtafar fi al baqa ma la yughtafar fi al ibtidaa. Continuation is easier that starting, al baqau ashal min al ibtidaa. Euthanasia like other controversial issues in better prevented than waiting to resolve its attendant problems, al maniu afdhal min al raf'iu

 

CONCLUSION

Our analysis has shown that there is no legal basis for euthanasia. Physicians have no right to interfere with ajal that was fixed by Allah. Disease will take its natural course until death. Physicians for each individual patient do not know this course. It is therefore necessary that they concentrate on the quality of the remaining life and not reversal of death. Life support measures should be taken with the intention of quality in mind. Instead of discussing euthanasia, we should undertake research to find out how to make the remaining life of as high a quality as is possible. The most that can be done is not to undertake any heroic measures for a terminally ill patient. However ordinary medical care and nutrition cannot be stopped. This can best be achieved by the hospital having a clear and public policy on life support with clear admission criteria and application to all patients without regard for age, gender, SES, race, or diagnosis.


[i] Abu Ishaq al Shatibi. Al Muwafaqaat fi Usuul al Shari’at. Dar al Kitaab al Aalamiyyah Beirut ? date

[ii] Ali Ahmad al Nadawi. Al Qawa’id al Fiqhiyyat. Damascus 1414H.

ęCopyright Professor Omar Hasan Kasule, Sr April 2006