Maqāṣidī Models for an “Islamic” Medical Ethics Problem-Solving or Confusing at the Bedside?
Main Article Content
Keywords
Bioethics, Brain death, Human interests, Clinical Ethics, Islamic Law, Fiqh
Abstract
The maqāṣid al-shari‘ah are championed as tools to address contemporary societal issues. Indeed, it is argued that maqāṣidbased solutions to present-day economic, political, and cultural challenges authentically bridge the moral vision of Islam with modernity. Advocates also stress that maqāṣidī models overcome shortcomings within fiqh-based strategies by bypassing their over-reliance on scriptural and legal hermeneutics, their dated views on social life, and their analytic focus on individual action. Herein I critically analyze efforts to bring maqāṣidī thinking to the clinical bedside. Specifically, I describe how leading thinkers such as Profs. Gamal Eldin Attia, Tariq Ramadan, Omar Hasan Kasule, and others build maqāṣid frameworks for medical ethics by expanding upon Imam Abū Ishāq al-Shāṭibī’s maqāṣid al-sharīʿah theory. I categorize these varied approaches into three types (field-based redefinition, conceptual extension, and text-based postulation) and detail how each sets up a specific method of medical ethics deliberation. Moving from the theoretical to the practical, I use a test case, a 19-weeks pregnant “brain dead” Muslim woman, to ascertain the goals of care and the respective moral responsibilities of her husband and the treating Muslim clinician using the three models. Next, I discuss the merits and pitfalls of each proposed solution and comment on how these match up with extant fiqh. To close the paper, I comment on the place of maqāṣidī thinking in Muslim engagement with contemporary biomedicine, contending that such frameworks are presently too underdeveloped for medical ethics deliberation at the bedside. Indeed, without further elaboration from theorists, appeal to the maqāṣid in medical ethics deliberation may provide clinicians, patients, and other stakeholders with ambiguous, incomplete, impractical, or otherwise problematic answers.
References
1 Pew Research Center, “Mapping the Global Muslim Population,” Mapping the Global Muslim Population, October 7, 2009, https://www.pewforum.org/2009/10/07/mapping-the-global-muslim-population/.
2 The term bioethics has many different definitions, but is a broad field of study that encompasses the ethical, social, and legal issues that arise in the life sciences and biomedicine. Bioethics discourses thus occur within many different settings including the hospital, the home, on public media and within legislative bodies. As a field bioethics is expansive and can be considered to contain several subfields including clinical medical ethics (or medical ethics for short) which focuses on issues arising at the level of the patient, family, and doctor during the course of healthcare decision-making. The focus of this paper will be on medical ethics as the realm of application for frameworks based on the higher objectives of Islamic law. See also Yacoub Ahmed, Abdassamad Clarke, and Abdel Aziz, The Fiqh of Medicine: Responses in Islamic Jurisprudence to Development in Medical Science (London: Ta-Ha, 2001); Abdulaziz Abdulhussein Sachedina, Islamic Biomedical Ethics: Principles and Application (New York: Oxford University Press, 2009); Mohammed Ali Al-Bar and Hassan Chamsi-Pasha, Contemporary Bioethics (Cham: Springer International Publishing, 2015); Alireza Bagheri and Khalid Abdulla Al- Ali, Islamic Bioethics: Current Issues and Challenges (London: World Scientific Publishing Europe Ltd., 2018); Aasim I. Padela, and Ebrahim Moosa, Medicine and Shariah: A Dialogue in Islamic Bioethics (Notre Dame: University of Notre Dame Press, 2020).
3 Morgan Clarke, Thomas Eich, and Jenny Schreiber, “The Social Politics of Islamic Bioethics,” Die Welt Des Islams 55, no. 3–4 November 2015): 265–77; Aasim I. Padela, “Islamic Bioethics: Between Sacred Law, Lived Experiences, and State Authority,” Theoretical Medicine and Bioethics 34, no. 2 (April 2013): 65–80; Mohammed Ghaly, “Islamic Bioethics: The Inevitable Interplay of ‘Texts’ and ‘Contexts’: Editorial,”Bioethics 28, no. 2 (February 2014): ii–v; Alireza Bagheri, “Islamic Bioethics,” Asian Bioethics Review 3, no. 4 (2011): 313–15.
4 Aasim I. Padela, Hasan Shanawani, and Ahsan Arozullah, “Medical Experts & Islamic Scholars Deliberating over Brain Death: Gaps in the Applied Islamic Bioethics Discourse,” The Muslim World 101, no. 1 (2011): 53–72; Aasim I. Padela, Ahsan Arozullah, and Ebrahim Moosa, “Brain Death in Islamic Ethico-Legal Deliberation: Challenges for Applied Islamic Bioethics,” Bioethics 27, no. 3 (March 2013): 132–39; Aasim I. Padela, “Public Health Measures & Individualized Decision-Making: The Confluence of the H1N1 Vaccine and Islamic Bioethics,” Human Vaccines 6, no. 9 (September 2010): 12015.
5 Omar Hasan Kasule, “Biomedical Ethics: An Islamic Formulation,” Journal of the Islamic Medical Association of North America 42, no. 1 (April 2010).
6 Gamal Eldin Attia, Towards Realization of the Higher Intents of Islamic Law: Maqasid al-Shari`ah: A Functional Approach (Herndon, VA: International Institute of Islamic Thought, 2007); Jasser Auda, Maqasid al-Shari`ah: A Beginner’s Guide (London: International Institute of Islamic Thought, 2008).
7 Mohammad Hashim Kamali, Maqasid al-Shariah, Ijtihad and Civilisational Renewal, Occasional Papers 20 (London: International Institute of Islamic Thought, 2012); Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law: A Systems Approach (Washington D.C.: International Institute of Islamic Thought, 2008).
8 This paper focuses on the intersection of maqāṣid with medical or clinical ethics decisions, rather than the larger field of bioethics.
9 Brain death is a misnomer and highly confusing entity. It is not total brain failure from a physiological sense, nor do criteria for assessing brain death require testing all parts of the brain. It is more appropriately thought of a prognostic entity than a diagnostic one. For the purposes of this paper I use the term to represent the clinical state of a human being that corresponds to meeting the neurological criteria for death in a legal jurisdiction. It is important to recognize these criteria may vary from country to country.
10 Imran Ahsan Khan Nyazee, Theories of Islamic Law (Islamabad: Islamic Research Institute, 2005); Ibrahim ibn Musa al-Shatibi, The Reconciliation of the Fundamentals of Islamic Law, translated by Imran Ahsan Khan Nyazee (Reading, UK: Garnet Publications, 2011).
11 Imran Ahsan Khan Nyazee, Islamic Jurisprudence: Usul al-Fiqh (Islamabad: Islamic Research Institute, 2000); Subhi Ragab al- Mahmasani, Falsafat Al-Tashri Fi al-Islam = the Philosophy of Jurisprudence in Islam, trans. Farhat Jacob Ziadeh (Leiden: Brill, 1961); Kamali, Principles of Islamic Jurisprudence.
12 Ahmad al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law, translated by Nancy N. Roberts, abridged by Alison Lake (Herndon, VA: International Institute of Islamic Thought, 2013).
13 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (Oxford: Oxford University Press, 2009); Auda, Maqasid al-shari`ah; al- Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law.
14 Al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law, 284.
15 Shatibi, The Reconciliation of the Fundamentals of Islamic Law, 9.
16 Ibid., 10.
17 Al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law.
18 Shatibi, The Reconciliation of the Fundamentals of Islamic Law, 319.
19 Ibid., 14.
20 Ibid.
21 Attia, Towards Realization of the Higher Intents of Islamic Law.
22 Ibid.; al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law.
23 Abul Fadl Mohsin Ebrahim, “Vaccination in the Context of Al-Maqasid al-Shari`ah: Objectives of Divine Law and Islamic Medical Jurisprudence,” Arabian Journal of Business and Management Review (Oman Chapter) 3, no. 9 (May 2014): 44–52; Shaikh Mohd Saifuddeen et al., “Maqasid al-shariah as a Complementary Framework to Conventional Bioethics,” Science and Engineering Ethics 20, no. 2 (June 2014): 317–27; Omar Hasan Kasule, “Analysis of the Medical Decisions of the International Fiqh Academy from the Perspectives of the Maqasid Al Shari’at and Qawa’id Al Fiqh,” Integrated Medical Education Resources (blog), 2015, https://omarkasule-tib.blogspot.com/2015/06/150309p-analysis-of-medical-decisions.html; Omar Hasan Kasule, “Understanding Basic Principles of Maqasid Al Shari’at for Healthcare Workers,” Integrated Medical Education Resources (blog), 2009, https://omarkasule-tib.blogspot.com/2011/07/091018p-understanding-basic-principles.html; Omar Hasan Kasule, “Islamic Medical Ethics with Special Reference to Maqasid al Shari’at,” 2007, http://ihcmalaysia.my/index.php/list-of-publications/38-maqasid-syariah; Omar Hasan Kasule, “The Application of Maqasid Al Shari’at in Medical Practice,” Integrated Medical Education Resources (blog), 2006, https://omarkasule-tib.blogspot.com/2011/05/0609p-application-of-maqasid-al-shariat.html; Bouhedda Ghalia et al., “Medical Ethics in the Light of Maqāṣid al-sharīʿah: A Case Study of Medical Confidentiality,” Intellectual Discourse 26, no. 1 (June 12, 2018): 133–60; Abdul Halim Ibrahim et al., “Tri-Parent Baby Technology and Preservation of Lineage: An Analysis from the Perspective of Maqasid al-shari’ah Based Islamic Bioethics,” Science and Engineering Ethics 25, no. 1 (February 2019): 129–42; Abdul Halim Ibrahim, Noor Naemah Abdul Rahman, and Shaikh Mohd Saifuddeen, “Maqasid al-shariah as a Complementary Framework for Conventional Bioethics: Application in Malaysian Assisted Reproductive Technology (ART) Fatwa,” Science and Engineering Ethics 24, no. 5 (October 2018): 1493–1502.
24 I am aware of such teaching occurring in medical schools throughout Malaysia and more recently in Saudi Arabia.
25 Although there is reference to the maqāṣid in many medically-oriented fatāwa, most often reference to the maqāṣid is made in order to buttress fiqh-based ethical determinations. Moreover, given the genre, such writings are short and do not provide details on the deliberative frameworks using maqāṣid. As such I restricted my sources of study to the extant Islamic bioethics literature in English which provide the space for greater elaboration and represent attempts by Muslim scholars to engage contemporary medical ethics stakeholders.
26 At the same time, since the focus of my study was on scholarly writings that address medical ethics from a maqāṣidi perspective the sources I used may not represent each theoretical model fully. A fuller study is needed to comprehensively review how scholars have built upon al-Shāṭibī’s work to furnish newer models of the maqāṣid al-sharīʿah.
27 Kasule, “Biomedical Ethics,” 39.
28 Ibid.
29 Siti Hafsyah Idris, Abu Bakar Abdul Majeed, and Lee Wei Chang, “Beyond Halal: Maqasid al-Shari’ah to Assess Bioethical Issues Arising from Genetically Modified Crops,” Science and Engineering Ethics 26, no. 3 (June 2020): 1463–76.
30 Kasule, “Integrated Medical Education Resources.”
31 Ibid.
32 Ibid.
33 Ibid.
34 Ibid.
35 Ibid.; Kasule, “Biomedical Ethics”; Saifuddeen et al., “Maqasid al-Shariah as a Complementary Framework to Conventional Bioethics”; Kasule, “Integrated Medical Education Resources.”
36 Saifuddeen et al., “Maqasid al-Shariah as a Complementary Framework to Conventional Bioethics,” 324.
37 Kasule, “Biomedical Ethics.”
38 Abdul Halim Ibrahim et al., “Maqasid al-Shariah Based Islamic Bioethics: A Comprehensive Approach,” Journal of Bioethical Inquiry 16, no. 3 (September 2019): 333–45.
39 Saifuddeen et al., “Maqasid al-shariah as a Complementary Framework to Conventional Bioethics.”
40 Ibrahim et al., “Maqasid al-Shariah Based Islamic Bioethics.”
41 Saifuddeen et al., “Maqasid al-Shariah as a Complementary Framework to Conventional Bioethics”; Ibrahim, Rahman, and Saifuddeen, “Maqasid al-Shariah as a Complementary Framework for Conventional Bioethics.”
42 Ebrahim, “Vaccination in the Context of Al-Maqasid al-Shari`ah.”
43 Ghalia et al., “Medical Ethics in the Light of Maqāṣid al-Sharīʿah.”
44 M.M. Nordin, “Immunisation from the Perspective of Maqasid Shariah,” Bangladesh Journal of Medical Science 15, no. 2 (n.d.): 151–153.
45 Kasule, “Integrated Medical Education Resources,” 3.
46 Saifuddeen et al., “Maqasid al-Shariah as a Complementary Framework to Conventional Bioethics”; Kasule, “Integrated Medical Education Resources.”
47 Omar Hasan Kasule, “Islamic Medical Ethics with Special Reference to Maqasid al Shari’at,” 2007, http://ihcmalaysia.my/index.php/list-of-publications/38-maqasid-syariah.
48 Saifuddeen et al., “Maqasid al-Shariah as a Complementary Framework to Conventional Bioethics.”
49 Ebrahim, “Vaccination in the Context of Al-Maqasid al-Shari`ah.”
50 Ibrahim, Rahman, and Saifuddeen, “Maqasid al-shariah as a Complementary Framework for Conventional Bioethics,” 1496.
51 Ibid.; Ibrahim et al., “Maqasid al-shariah Based Islamic Bioethics”; Ibrahim et al., “Tri-Parent Baby Technology and Preservation of Lineage.”
52 Ghaiath Hussein, “What Can Ethics Learn from Islamic Legislation? An Islamic Approach to Moral Analysis Based on the Purposes of Islamic Legislation (Maqsid al-Shariya’a).”
53 Attia, Towards Realization of the Higher Intents of Islamic Law.
54 Auda, Maqasid al-shariah as Philosophy of Islamic Law; Ramadan, Radical Reform; Attia, Towards Realization of the Higher Intents of Islamic Law; Y. al-Qaradawi, “Medicine Containing Alcohol for Preservation Purposes.,” Halal Industry Development Corporation, accessed 2020, http://www.hdcglobal.com/publisher/pid/219ab653-c702-49b4-8598-ebb11c060596/container//contentId/f7f596a7-b417-4e7d-bdb2-06df1441629e; Yusuf Al-Qaradawi, The Lawful and the Prohibited in Islam (Kuala Lumpur: Islamic Book Trust, 2013).
55 Attia, Towards Realization of the Higher Intents of Islamic Law, 2007.
56 Ibid.
57 Ibid., 11.
58 Ibid., 195.
59 Ibid., 119
60 Ibid.
61 Ibid., 122.
62 Ibid., 32.
63 Ibid.
64 Ramadan, Radical Reform, 142.
65 Ibid., 136.
66 Ibid., 136.
67 Ibid., 138.
68 Ibid., 136.
69 Ibid., 139.
70 Tariq Ramadan, “The Challenges and Future of Applied Islamic Ethics Discourse: A Radical Reform?,” Theoretical Medicine and Bioethics 34, no. 2 (April 2013): 105–15.
71 Ramadan, Radical Reform, 159.
72 Ibid., 176.
73 It is critically important to recognize that al-Shaṭibī’s theory is connected to scripture. He uses induction to derive the essential human interests; thus his theory is based on scriptural texts. However this model does not go directly to those scriptural texts.
74 Ebrahim, “Vaccination in the Context of Al-Maqasid al-Shari`ah”; Kamali, Maqasid al-Shariah, Ijtihad and Civilisational Renewal; Aasim I. Padela, “The Essential Dimensions of Health According to the Maqasid al-shariʿah Frameworks of Abu Ishaq al-Shatibi and Jamal-al-Din-ʿAtiyah,” IIUM Medical Journal Malaysia 17, no. 1 (July 2018).
75 Al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law.
76 Nyazee, Theories of Islamic Law.
77 Padela, “The Essential Dimensions of Health According to the Maqasid al-Shariʿah Frameworks of Abu Ishaq al-Shatibi and Jamal-al-Din-ʿAtiyah.”
78 Aasim I. Padela, “The Perspectives of Islamic Jurists on the Brain Death as Legal Death in Islam,” Journal of Religion and Health 55, no. 4 (August 2016): 1215–17; Padela, Arozullah, and Moosa, “Brain Death in Islamic Ethico-Legal Deliberation”; Padela, Shanawani, and Arozullah, “Medical Experts & Islamic Scholars Deliberating over Brain Death”; Johannes Grundmann, “Shari`ah, Brain Death, and Organ Transplantation: The Context and Effect of Two Islamic Legal Decisions in the Near and Middle East,” American Journal of Islam and Society 22, no. 4 (October 1, 2005): 1–25; Birgit Krawietz, “Brain Death and Islamic Traditions: Shifting Borders of Life?,” in Islamic Ethics of Life: Abortion, War, and Euthanasia, ed. Jonathan E Brockopp (Columbia, SC: University of South Carolina Press, 2003), 194–213; Andrew C. Miller, Amna Ziad-Miller, and Elamin M. Elamin, “Brain Death and Islam,” Chest 146, no. 4 (October 2014): 1092–1101.
79 Majid Esmaeilzadeh et al., “One Life Ends, Another Begins: Management of a Brain-Dead Pregnant Mother-A Systematic Review,” BMC Medicine 8, no. 1 (December 2010): 74; Abuhasna Said et al., “A Brain-Dead Pregnant Woman with Prolonged Somatic Support and Successful Neonatal Outcome: A Grand Rounds Case with a Detailed Review of Literature and Ethical Considerations,” International Journal of Critical Illness and Injury Science 3, no. 3 (2013): 220.
80 American College of Obstetricians and Gynecologists, “Periviable Birth,” 2019, https://www.acog.org/en/clinical/clinical- guidance/obstetric-care-consensus/articles/2017/10/periviable-birth.
81 Farhat Moazam, “Islamic Perspectives on Abortion,” Bioethics Links 1, no. 2 (2005): 3–4; Muhammad ibn Adam Al-Kawthari, Birth Control & Abortion in Islam (Santa Barbara, Calif.: White Thread Press, 2006); Alireza Bagheri and Leila Afshar, “Abortion in Different Islamic Jurisprudence: Case Commentaries,” Asian Bioethics Review 3, no. 4 (2011): 351–55; Rhami Khorfan and Aasim I. Padela, “The Bioethical Concept of Life for Life: Abortion When the Mother’s Life Is in Danger in Judaism, Catholicism, and Islam,” Journal of the Islamic Medical Association of North America 42, no. 3 (December 26, 2010): 99–105; KM Hedayat, P. Shooshtarizadeh, and M. Raza, “Therapeutic Abortion in Islam: Contemporary Views of Muslim Shiite Scholars and Effect of Recent Iranian Legislation,” Journal of Medical Ethics 32, no. 11 (November 1, 2006): 652–57; H. Hathout, “Abortion and Islam,” Bulletin De La Societe Libanaise D’histoire De La Medecine, no. 3 (1992): 85–89; Oren Asman, “Abortion in Islamic Countries: Legal and Religious Aspects,” Medicine and Law 23 (2004): 73–89.
82 On the other hand, if the state was considered to be a dead one, the preservation of life does not apply for the mother. The lower order principles would have to be examined. However sustaining the mother advantages the preservation of life of the fetus, hence once can argue that the preservation of life remains applicable even if the mother is considered to be a dead person.
83 The previous note applies here as well.
84 Robert D. Truog, “Brain Death: Too Flawed to Endure, Too Ingrained to Abandon,” Journal of Law, Medicine & Ethics 35, no. 2 (2007): 273–81; Robert D. Truog, “Is It Time to Abandon Brain Death?,” Hastings Center Report 27, no. 1 (1997): 29–37; D. Alan Shewmon, “Brainstem Death, Brain Death and Death: A Critical Re-Evaluation of the Purported Equivalence,” Issues in Law & Medicine 14, no. 2 (1998): 125–45; A.R. Joffe, “Brain Death Is Not Death: A Critique of the Concept, Criterion, and Tests of Brain Death,” Reviews in the Neurosciences 20, no. 3–4 (January 2009); Amir Halevy and Baruch Brody, “Brain Death: Reconciling Definitions, Criteria, and Tests,” Annals of Internal Medicine 119, no. 6 (September 15, 1993): 519–25; Christopher James Doig and Ellen Burgess, “Brain Death: Resolving Inconsistencies in the Ethical Declaration of Death,” Canadian Journal of Anesthesia/Journal Canadien d’anesthésie 50, no. 7 (August 2003): 725–31; Robert M. Veatch and Lainie Friedman Ross, Defining Death: The Case for Choice (Washington, DC: Georgetown University Press, 2016).
85 Ayman Shihadeh, “Introduction: The Ontology of the Soul in Medieval Arabic Thought,” The Muslim World 102, no. 3–4 (October 2012): 413–16; Jihad Hashim Brown, The Problem of Reductionism in Philosophy of Mind and Its Implications for Theism and the Principle of Soul: Framing the Issue for Further Islamic Inquiry, Tabah Papers Series 7 (Abu Dhabi: Tabah Foundation, 2013); Faisal Qazi et al., “Framing the Mind–Body Problem in Contemporary Neuroscientific and Sunni Islamic Theological Discourse,” The New Bioethics 24, no. 2 (May 4, 2018): 158–75; Timothy J. Gianotti, Al-Ghazali’s Unspeakable Doctrine of the Soul: Unveiling the Esoteric Psychology and Eschatology of the Ihya, Brill’s Studies in Intellectual History 104 (Leiden: Brill, 2001); Omar Sultan Haque, “Brain Death and Its Entanglements: A Redefinition of Personhood for Islamic Ethics,” Journal of Religious Ethics 36, no. 1 (March 2008): 13–36; Ebrahim Moosa, “Languages of Change in Islamic Law: Redefining Death in Modernity,” Islamic Studies 38, no. 3 (1999): 305–42; Ahmet Bedir and Sahin Aksoy, “Brain Death Revisited: It Is Not ‘Complete Death’ According to Islamic Sources,” Journal of Medical Ethics 37, no. 5 (May 2011): 290–94.
86 Al-Kawthari, Birth Control & Abortion in Islam; Moazam, “Islamic Perspectives on Abortion”; Marion Katz, “The Problem of Abortion in Classical Sunni Fiqh,” in Islamic Ethics of Life: Abortion, War, and Euthanasia, ed. John Brockopp (Columbia, SC: University of South Carolina Press, 2003), 25–50; Thomas Eich, “Induced Miscarriage in Early Mālikī and Hanafī Fiqh,” Islamic Law and Society 16, no. 3–4 (2009): 302–36; Muhammed V. Stodolsky and Aasim I. Padela, “Abortion in Hanafi Law,” in Abortion: Global Positions and Practices, Religious and Legal Perspectives, ed. Alireza Bagheri (Cham: Springer, 2021), 127–36; Mohammed Ghaly, “The Beginning of Human Life: Islamic Bioethical Perspectives,” Zygon® 47, no. 1 (March 2012): 175–213.
87 Moosa, “Languages of Change in Islamic Law”; Padela, Arozullah, and Moosa, “Brain Death in Islamic Ethico-Legal Deliberation.”
88 Margaret Lock, “On Dying Twice: Culture, Technology and the Determination of Death,” in Living and Working with the New Medical Technologies: Intersections of Inquiry, ed. Margaret Lock, Allan Young, and Alberto Cambrosio (Cambridge University Press, 2000), 233.
89 Aasim I. Padela, “Social Responsibility and the State’s Duty to Provide Healthcare: An Islamic Ethico-Legal Perspective,” Developing World Bioethics 17, no. 3 (December 2017): 205–14; Padela, “The Essential Dimensions of Health According to the Maqasid al-Shariʿah Frameworks of Abu Ishaq al-Shatibi and Jamal-al-Din-ʿAtiyah.”
90 Abrar Khan, “Brain Death Legislation and Organ Transplantation in the Islamic World,” Middle East Health Magazine, September 2009, http://www.middleeasthealthmag.com/; Miller, Ziad-Miller, and Elamin, “Brain Death and Islam.”
91 Blair Wendlandt et al., “Modifiable Elements of ICU Supportive Care and Communication Are Associated with Surrogates’ PTSD Symptoms,” Intensive Care Medicine 45, no. 5 (May 2019): 619–26; Jesse J. Miller et al., “Decision Conflict and Regret among Surrogate Decision Makers in the Medical Intensive Care Unit,” Journal of Critical Care 32 (April 2016): 79–84; Cynthia J. Gries et al., “Family Member Satisfaction With End-of-Life Decision Making in the ICU,” Chest 133, no. 3 (March 2008): 704–12; Blair Wendlandt et al., “Risk Factors for Post-Traumatic Stress Disorder Symptoms in Surrogate Decision-Makers of Patients with Chronic Critical Illness,” Annals of the American Thoracic Society 15, no. 12 (December 2018): 1451–58.
92 Grundmann, “Shari`ah, Brain Death, and Organ Transplantation”; Padela, “The Perspectives of Islamic Jurists on the Brain Death as Legal Death in Islam”; A. Sachedina, “Brain Death in Islamic Jurisprudence”, 2009, http://people.virginia.edu/~aas/article/article6.htm; Krawietz, “Brain Death and Islamic Traditions.”
93 Padela, “The Perspectives of Islamic Jurists on the Brain Death as Legal Death in Islam”; Al-Bar and Chamsi-Pasha, Contemporary Bioethics; Dariusch Atighetchi, Islamic Bioethics: Problems and Perspectives, International Library of Ethics, Law, and the New Medicine 31 (New York: Springer, 2009).
94 Padela, Arozullah, and Moosa, “Brain Death in Islamic Ethico-Legal Deliberation.”
95 One could argue that since rulings I quote are about non-pregnant patients who reach the state of brain-dead physiology, they are not applicable; rather, fresh rulings are needed for this scenario. While that might be true, the point is to show that there is some potential dissonance between established fiqh and the maqāṣidbased medical ethics approaches presented. Proponents may argue that the role of maqāṣid-based analysis is to motivate new rulings, and that the dissonance is a positive feature of these medical ethics models. This reasoning does have some merit.
96 Omar Qureshi and Aasim I. Padela, “When Must a Patient Seek Healthcare? Bringing the Perspectives of Islamic Jurists and Clinicians into Dialogue,” Zygon® 51, no. 3 (September 2016): 592–625; Mohammed Ali Albar, “Seeking Remedy, Abstaining from Therapy and Resuscitation: An Islamic Perspective,” Saudi Journal of Kidney Diseases and Transplantation 18, no. 4 (2007): 629–37.
97 Aasim I. Padela and Omar Qureshi, “Islamic Perspectives on Clinical Intervention near the End-of-Life: We Can but Must We?,” Medicine, Health Care, and Philosophy 20, no. 4 (December 2017): 545–59.
98 Attia, Towards Realization of the Higher Intents of Islamic Law.
99 Jonathan E. Brockopp, ed., Islamic Ethics of Life: Abortion, War, and Euthanasia (Columbia, SC: University of South Carolina Press, 2003); Al-Bar and Chamsi-Pasha, Contemporary Bioethics.
100 Daniel Beck, “Between Relativism and Imperialism: Navigating Moral Diversity in Cross-Cultural Bioethics,” Developing World Bioethics 15, no. 3 (December 2015): 162–71.
101 I am using the term “Islamicize” provocatively in reference to the Islamicization of sciences projects carried out in the last century, and the term “missionary bioethics” refers to how secular forces export values through bioethics work. See Raymond De Vries and Leslie Rott, “Bioethics as Missionary Work: The Export of Western Ethics to Developing Countries,” in Bioethics around the Globe, ed. Catherine Myser (New York: Oxford University Press, 2011), 3–18.
2 The term bioethics has many different definitions, but is a broad field of study that encompasses the ethical, social, and legal issues that arise in the life sciences and biomedicine. Bioethics discourses thus occur within many different settings including the hospital, the home, on public media and within legislative bodies. As a field bioethics is expansive and can be considered to contain several subfields including clinical medical ethics (or medical ethics for short) which focuses on issues arising at the level of the patient, family, and doctor during the course of healthcare decision-making. The focus of this paper will be on medical ethics as the realm of application for frameworks based on the higher objectives of Islamic law. See also Yacoub Ahmed, Abdassamad Clarke, and Abdel Aziz, The Fiqh of Medicine: Responses in Islamic Jurisprudence to Development in Medical Science (London: Ta-Ha, 2001); Abdulaziz Abdulhussein Sachedina, Islamic Biomedical Ethics: Principles and Application (New York: Oxford University Press, 2009); Mohammed Ali Al-Bar and Hassan Chamsi-Pasha, Contemporary Bioethics (Cham: Springer International Publishing, 2015); Alireza Bagheri and Khalid Abdulla Al- Ali, Islamic Bioethics: Current Issues and Challenges (London: World Scientific Publishing Europe Ltd., 2018); Aasim I. Padela, and Ebrahim Moosa, Medicine and Shariah: A Dialogue in Islamic Bioethics (Notre Dame: University of Notre Dame Press, 2020).
3 Morgan Clarke, Thomas Eich, and Jenny Schreiber, “The Social Politics of Islamic Bioethics,” Die Welt Des Islams 55, no. 3–4 November 2015): 265–77; Aasim I. Padela, “Islamic Bioethics: Between Sacred Law, Lived Experiences, and State Authority,” Theoretical Medicine and Bioethics 34, no. 2 (April 2013): 65–80; Mohammed Ghaly, “Islamic Bioethics: The Inevitable Interplay of ‘Texts’ and ‘Contexts’: Editorial,”Bioethics 28, no. 2 (February 2014): ii–v; Alireza Bagheri, “Islamic Bioethics,” Asian Bioethics Review 3, no. 4 (2011): 313–15.
4 Aasim I. Padela, Hasan Shanawani, and Ahsan Arozullah, “Medical Experts & Islamic Scholars Deliberating over Brain Death: Gaps in the Applied Islamic Bioethics Discourse,” The Muslim World 101, no. 1 (2011): 53–72; Aasim I. Padela, Ahsan Arozullah, and Ebrahim Moosa, “Brain Death in Islamic Ethico-Legal Deliberation: Challenges for Applied Islamic Bioethics,” Bioethics 27, no. 3 (March 2013): 132–39; Aasim I. Padela, “Public Health Measures & Individualized Decision-Making: The Confluence of the H1N1 Vaccine and Islamic Bioethics,” Human Vaccines 6, no. 9 (September 2010): 12015.
5 Omar Hasan Kasule, “Biomedical Ethics: An Islamic Formulation,” Journal of the Islamic Medical Association of North America 42, no. 1 (April 2010).
6 Gamal Eldin Attia, Towards Realization of the Higher Intents of Islamic Law: Maqasid al-Shari`ah: A Functional Approach (Herndon, VA: International Institute of Islamic Thought, 2007); Jasser Auda, Maqasid al-Shari`ah: A Beginner’s Guide (London: International Institute of Islamic Thought, 2008).
7 Mohammad Hashim Kamali, Maqasid al-Shariah, Ijtihad and Civilisational Renewal, Occasional Papers 20 (London: International Institute of Islamic Thought, 2012); Jasser Auda, Maqasid al-Shariah as Philosophy of Islamic Law: A Systems Approach (Washington D.C.: International Institute of Islamic Thought, 2008).
8 This paper focuses on the intersection of maqāṣid with medical or clinical ethics decisions, rather than the larger field of bioethics.
9 Brain death is a misnomer and highly confusing entity. It is not total brain failure from a physiological sense, nor do criteria for assessing brain death require testing all parts of the brain. It is more appropriately thought of a prognostic entity than a diagnostic one. For the purposes of this paper I use the term to represent the clinical state of a human being that corresponds to meeting the neurological criteria for death in a legal jurisdiction. It is important to recognize these criteria may vary from country to country.
10 Imran Ahsan Khan Nyazee, Theories of Islamic Law (Islamabad: Islamic Research Institute, 2005); Ibrahim ibn Musa al-Shatibi, The Reconciliation of the Fundamentals of Islamic Law, translated by Imran Ahsan Khan Nyazee (Reading, UK: Garnet Publications, 2011).
11 Imran Ahsan Khan Nyazee, Islamic Jurisprudence: Usul al-Fiqh (Islamabad: Islamic Research Institute, 2000); Subhi Ragab al- Mahmasani, Falsafat Al-Tashri Fi al-Islam = the Philosophy of Jurisprudence in Islam, trans. Farhat Jacob Ziadeh (Leiden: Brill, 1961); Kamali, Principles of Islamic Jurisprudence.
12 Ahmad al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law, translated by Nancy N. Roberts, abridged by Alison Lake (Herndon, VA: International Institute of Islamic Thought, 2013).
13 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (Oxford: Oxford University Press, 2009); Auda, Maqasid al-shari`ah; al- Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law.
14 Al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law, 284.
15 Shatibi, The Reconciliation of the Fundamentals of Islamic Law, 9.
16 Ibid., 10.
17 Al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law.
18 Shatibi, The Reconciliation of the Fundamentals of Islamic Law, 319.
19 Ibid., 14.
20 Ibid.
21 Attia, Towards Realization of the Higher Intents of Islamic Law.
22 Ibid.; al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law.
23 Abul Fadl Mohsin Ebrahim, “Vaccination in the Context of Al-Maqasid al-Shari`ah: Objectives of Divine Law and Islamic Medical Jurisprudence,” Arabian Journal of Business and Management Review (Oman Chapter) 3, no. 9 (May 2014): 44–52; Shaikh Mohd Saifuddeen et al., “Maqasid al-shariah as a Complementary Framework to Conventional Bioethics,” Science and Engineering Ethics 20, no. 2 (June 2014): 317–27; Omar Hasan Kasule, “Analysis of the Medical Decisions of the International Fiqh Academy from the Perspectives of the Maqasid Al Shari’at and Qawa’id Al Fiqh,” Integrated Medical Education Resources (blog), 2015, https://omarkasule-tib.blogspot.com/2015/06/150309p-analysis-of-medical-decisions.html; Omar Hasan Kasule, “Understanding Basic Principles of Maqasid Al Shari’at for Healthcare Workers,” Integrated Medical Education Resources (blog), 2009, https://omarkasule-tib.blogspot.com/2011/07/091018p-understanding-basic-principles.html; Omar Hasan Kasule, “Islamic Medical Ethics with Special Reference to Maqasid al Shari’at,” 2007, http://ihcmalaysia.my/index.php/list-of-publications/38-maqasid-syariah; Omar Hasan Kasule, “The Application of Maqasid Al Shari’at in Medical Practice,” Integrated Medical Education Resources (blog), 2006, https://omarkasule-tib.blogspot.com/2011/05/0609p-application-of-maqasid-al-shariat.html; Bouhedda Ghalia et al., “Medical Ethics in the Light of Maqāṣid al-sharīʿah: A Case Study of Medical Confidentiality,” Intellectual Discourse 26, no. 1 (June 12, 2018): 133–60; Abdul Halim Ibrahim et al., “Tri-Parent Baby Technology and Preservation of Lineage: An Analysis from the Perspective of Maqasid al-shari’ah Based Islamic Bioethics,” Science and Engineering Ethics 25, no. 1 (February 2019): 129–42; Abdul Halim Ibrahim, Noor Naemah Abdul Rahman, and Shaikh Mohd Saifuddeen, “Maqasid al-shariah as a Complementary Framework for Conventional Bioethics: Application in Malaysian Assisted Reproductive Technology (ART) Fatwa,” Science and Engineering Ethics 24, no. 5 (October 2018): 1493–1502.
24 I am aware of such teaching occurring in medical schools throughout Malaysia and more recently in Saudi Arabia.
25 Although there is reference to the maqāṣid in many medically-oriented fatāwa, most often reference to the maqāṣid is made in order to buttress fiqh-based ethical determinations. Moreover, given the genre, such writings are short and do not provide details on the deliberative frameworks using maqāṣid. As such I restricted my sources of study to the extant Islamic bioethics literature in English which provide the space for greater elaboration and represent attempts by Muslim scholars to engage contemporary medical ethics stakeholders.
26 At the same time, since the focus of my study was on scholarly writings that address medical ethics from a maqāṣidi perspective the sources I used may not represent each theoretical model fully. A fuller study is needed to comprehensively review how scholars have built upon al-Shāṭibī’s work to furnish newer models of the maqāṣid al-sharīʿah.
27 Kasule, “Biomedical Ethics,” 39.
28 Ibid.
29 Siti Hafsyah Idris, Abu Bakar Abdul Majeed, and Lee Wei Chang, “Beyond Halal: Maqasid al-Shari’ah to Assess Bioethical Issues Arising from Genetically Modified Crops,” Science and Engineering Ethics 26, no. 3 (June 2020): 1463–76.
30 Kasule, “Integrated Medical Education Resources.”
31 Ibid.
32 Ibid.
33 Ibid.
34 Ibid.
35 Ibid.; Kasule, “Biomedical Ethics”; Saifuddeen et al., “Maqasid al-Shariah as a Complementary Framework to Conventional Bioethics”; Kasule, “Integrated Medical Education Resources.”
36 Saifuddeen et al., “Maqasid al-Shariah as a Complementary Framework to Conventional Bioethics,” 324.
37 Kasule, “Biomedical Ethics.”
38 Abdul Halim Ibrahim et al., “Maqasid al-Shariah Based Islamic Bioethics: A Comprehensive Approach,” Journal of Bioethical Inquiry 16, no. 3 (September 2019): 333–45.
39 Saifuddeen et al., “Maqasid al-shariah as a Complementary Framework to Conventional Bioethics.”
40 Ibrahim et al., “Maqasid al-Shariah Based Islamic Bioethics.”
41 Saifuddeen et al., “Maqasid al-Shariah as a Complementary Framework to Conventional Bioethics”; Ibrahim, Rahman, and Saifuddeen, “Maqasid al-Shariah as a Complementary Framework for Conventional Bioethics.”
42 Ebrahim, “Vaccination in the Context of Al-Maqasid al-Shari`ah.”
43 Ghalia et al., “Medical Ethics in the Light of Maqāṣid al-Sharīʿah.”
44 M.M. Nordin, “Immunisation from the Perspective of Maqasid Shariah,” Bangladesh Journal of Medical Science 15, no. 2 (n.d.): 151–153.
45 Kasule, “Integrated Medical Education Resources,” 3.
46 Saifuddeen et al., “Maqasid al-Shariah as a Complementary Framework to Conventional Bioethics”; Kasule, “Integrated Medical Education Resources.”
47 Omar Hasan Kasule, “Islamic Medical Ethics with Special Reference to Maqasid al Shari’at,” 2007, http://ihcmalaysia.my/index.php/list-of-publications/38-maqasid-syariah.
48 Saifuddeen et al., “Maqasid al-Shariah as a Complementary Framework to Conventional Bioethics.”
49 Ebrahim, “Vaccination in the Context of Al-Maqasid al-Shari`ah.”
50 Ibrahim, Rahman, and Saifuddeen, “Maqasid al-shariah as a Complementary Framework for Conventional Bioethics,” 1496.
51 Ibid.; Ibrahim et al., “Maqasid al-shariah Based Islamic Bioethics”; Ibrahim et al., “Tri-Parent Baby Technology and Preservation of Lineage.”
52 Ghaiath Hussein, “What Can Ethics Learn from Islamic Legislation? An Islamic Approach to Moral Analysis Based on the Purposes of Islamic Legislation (Maqsid al-Shariya’a).”
53 Attia, Towards Realization of the Higher Intents of Islamic Law.
54 Auda, Maqasid al-shariah as Philosophy of Islamic Law; Ramadan, Radical Reform; Attia, Towards Realization of the Higher Intents of Islamic Law; Y. al-Qaradawi, “Medicine Containing Alcohol for Preservation Purposes.,” Halal Industry Development Corporation, accessed 2020, http://www.hdcglobal.com/publisher/pid/219ab653-c702-49b4-8598-ebb11c060596/container//contentId/f7f596a7-b417-4e7d-bdb2-06df1441629e; Yusuf Al-Qaradawi, The Lawful and the Prohibited in Islam (Kuala Lumpur: Islamic Book Trust, 2013).
55 Attia, Towards Realization of the Higher Intents of Islamic Law, 2007.
56 Ibid.
57 Ibid., 11.
58 Ibid., 195.
59 Ibid., 119
60 Ibid.
61 Ibid., 122.
62 Ibid., 32.
63 Ibid.
64 Ramadan, Radical Reform, 142.
65 Ibid., 136.
66 Ibid., 136.
67 Ibid., 138.
68 Ibid., 136.
69 Ibid., 139.
70 Tariq Ramadan, “The Challenges and Future of Applied Islamic Ethics Discourse: A Radical Reform?,” Theoretical Medicine and Bioethics 34, no. 2 (April 2013): 105–15.
71 Ramadan, Radical Reform, 159.
72 Ibid., 176.
73 It is critically important to recognize that al-Shaṭibī’s theory is connected to scripture. He uses induction to derive the essential human interests; thus his theory is based on scriptural texts. However this model does not go directly to those scriptural texts.
74 Ebrahim, “Vaccination in the Context of Al-Maqasid al-Shari`ah”; Kamali, Maqasid al-Shariah, Ijtihad and Civilisational Renewal; Aasim I. Padela, “The Essential Dimensions of Health According to the Maqasid al-shariʿah Frameworks of Abu Ishaq al-Shatibi and Jamal-al-Din-ʿAtiyah,” IIUM Medical Journal Malaysia 17, no. 1 (July 2018).
75 Al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law.
76 Nyazee, Theories of Islamic Law.
77 Padela, “The Essential Dimensions of Health According to the Maqasid al-Shariʿah Frameworks of Abu Ishaq al-Shatibi and Jamal-al-Din-ʿAtiyah.”
78 Aasim I. Padela, “The Perspectives of Islamic Jurists on the Brain Death as Legal Death in Islam,” Journal of Religion and Health 55, no. 4 (August 2016): 1215–17; Padela, Arozullah, and Moosa, “Brain Death in Islamic Ethico-Legal Deliberation”; Padela, Shanawani, and Arozullah, “Medical Experts & Islamic Scholars Deliberating over Brain Death”; Johannes Grundmann, “Shari`ah, Brain Death, and Organ Transplantation: The Context and Effect of Two Islamic Legal Decisions in the Near and Middle East,” American Journal of Islam and Society 22, no. 4 (October 1, 2005): 1–25; Birgit Krawietz, “Brain Death and Islamic Traditions: Shifting Borders of Life?,” in Islamic Ethics of Life: Abortion, War, and Euthanasia, ed. Jonathan E Brockopp (Columbia, SC: University of South Carolina Press, 2003), 194–213; Andrew C. Miller, Amna Ziad-Miller, and Elamin M. Elamin, “Brain Death and Islam,” Chest 146, no. 4 (October 2014): 1092–1101.
79 Majid Esmaeilzadeh et al., “One Life Ends, Another Begins: Management of a Brain-Dead Pregnant Mother-A Systematic Review,” BMC Medicine 8, no. 1 (December 2010): 74; Abuhasna Said et al., “A Brain-Dead Pregnant Woman with Prolonged Somatic Support and Successful Neonatal Outcome: A Grand Rounds Case with a Detailed Review of Literature and Ethical Considerations,” International Journal of Critical Illness and Injury Science 3, no. 3 (2013): 220.
80 American College of Obstetricians and Gynecologists, “Periviable Birth,” 2019, https://www.acog.org/en/clinical/clinical- guidance/obstetric-care-consensus/articles/2017/10/periviable-birth.
81 Farhat Moazam, “Islamic Perspectives on Abortion,” Bioethics Links 1, no. 2 (2005): 3–4; Muhammad ibn Adam Al-Kawthari, Birth Control & Abortion in Islam (Santa Barbara, Calif.: White Thread Press, 2006); Alireza Bagheri and Leila Afshar, “Abortion in Different Islamic Jurisprudence: Case Commentaries,” Asian Bioethics Review 3, no. 4 (2011): 351–55; Rhami Khorfan and Aasim I. Padela, “The Bioethical Concept of Life for Life: Abortion When the Mother’s Life Is in Danger in Judaism, Catholicism, and Islam,” Journal of the Islamic Medical Association of North America 42, no. 3 (December 26, 2010): 99–105; KM Hedayat, P. Shooshtarizadeh, and M. Raza, “Therapeutic Abortion in Islam: Contemporary Views of Muslim Shiite Scholars and Effect of Recent Iranian Legislation,” Journal of Medical Ethics 32, no. 11 (November 1, 2006): 652–57; H. Hathout, “Abortion and Islam,” Bulletin De La Societe Libanaise D’histoire De La Medecine, no. 3 (1992): 85–89; Oren Asman, “Abortion in Islamic Countries: Legal and Religious Aspects,” Medicine and Law 23 (2004): 73–89.
82 On the other hand, if the state was considered to be a dead one, the preservation of life does not apply for the mother. The lower order principles would have to be examined. However sustaining the mother advantages the preservation of life of the fetus, hence once can argue that the preservation of life remains applicable even if the mother is considered to be a dead person.
83 The previous note applies here as well.
84 Robert D. Truog, “Brain Death: Too Flawed to Endure, Too Ingrained to Abandon,” Journal of Law, Medicine & Ethics 35, no. 2 (2007): 273–81; Robert D. Truog, “Is It Time to Abandon Brain Death?,” Hastings Center Report 27, no. 1 (1997): 29–37; D. Alan Shewmon, “Brainstem Death, Brain Death and Death: A Critical Re-Evaluation of the Purported Equivalence,” Issues in Law & Medicine 14, no. 2 (1998): 125–45; A.R. Joffe, “Brain Death Is Not Death: A Critique of the Concept, Criterion, and Tests of Brain Death,” Reviews in the Neurosciences 20, no. 3–4 (January 2009); Amir Halevy and Baruch Brody, “Brain Death: Reconciling Definitions, Criteria, and Tests,” Annals of Internal Medicine 119, no. 6 (September 15, 1993): 519–25; Christopher James Doig and Ellen Burgess, “Brain Death: Resolving Inconsistencies in the Ethical Declaration of Death,” Canadian Journal of Anesthesia/Journal Canadien d’anesthésie 50, no. 7 (August 2003): 725–31; Robert M. Veatch and Lainie Friedman Ross, Defining Death: The Case for Choice (Washington, DC: Georgetown University Press, 2016).
85 Ayman Shihadeh, “Introduction: The Ontology of the Soul in Medieval Arabic Thought,” The Muslim World 102, no. 3–4 (October 2012): 413–16; Jihad Hashim Brown, The Problem of Reductionism in Philosophy of Mind and Its Implications for Theism and the Principle of Soul: Framing the Issue for Further Islamic Inquiry, Tabah Papers Series 7 (Abu Dhabi: Tabah Foundation, 2013); Faisal Qazi et al., “Framing the Mind–Body Problem in Contemporary Neuroscientific and Sunni Islamic Theological Discourse,” The New Bioethics 24, no. 2 (May 4, 2018): 158–75; Timothy J. Gianotti, Al-Ghazali’s Unspeakable Doctrine of the Soul: Unveiling the Esoteric Psychology and Eschatology of the Ihya, Brill’s Studies in Intellectual History 104 (Leiden: Brill, 2001); Omar Sultan Haque, “Brain Death and Its Entanglements: A Redefinition of Personhood for Islamic Ethics,” Journal of Religious Ethics 36, no. 1 (March 2008): 13–36; Ebrahim Moosa, “Languages of Change in Islamic Law: Redefining Death in Modernity,” Islamic Studies 38, no. 3 (1999): 305–42; Ahmet Bedir and Sahin Aksoy, “Brain Death Revisited: It Is Not ‘Complete Death’ According to Islamic Sources,” Journal of Medical Ethics 37, no. 5 (May 2011): 290–94.
86 Al-Kawthari, Birth Control & Abortion in Islam; Moazam, “Islamic Perspectives on Abortion”; Marion Katz, “The Problem of Abortion in Classical Sunni Fiqh,” in Islamic Ethics of Life: Abortion, War, and Euthanasia, ed. John Brockopp (Columbia, SC: University of South Carolina Press, 2003), 25–50; Thomas Eich, “Induced Miscarriage in Early Mālikī and Hanafī Fiqh,” Islamic Law and Society 16, no. 3–4 (2009): 302–36; Muhammed V. Stodolsky and Aasim I. Padela, “Abortion in Hanafi Law,” in Abortion: Global Positions and Practices, Religious and Legal Perspectives, ed. Alireza Bagheri (Cham: Springer, 2021), 127–36; Mohammed Ghaly, “The Beginning of Human Life: Islamic Bioethical Perspectives,” Zygon® 47, no. 1 (March 2012): 175–213.
87 Moosa, “Languages of Change in Islamic Law”; Padela, Arozullah, and Moosa, “Brain Death in Islamic Ethico-Legal Deliberation.”
88 Margaret Lock, “On Dying Twice: Culture, Technology and the Determination of Death,” in Living and Working with the New Medical Technologies: Intersections of Inquiry, ed. Margaret Lock, Allan Young, and Alberto Cambrosio (Cambridge University Press, 2000), 233.
89 Aasim I. Padela, “Social Responsibility and the State’s Duty to Provide Healthcare: An Islamic Ethico-Legal Perspective,” Developing World Bioethics 17, no. 3 (December 2017): 205–14; Padela, “The Essential Dimensions of Health According to the Maqasid al-Shariʿah Frameworks of Abu Ishaq al-Shatibi and Jamal-al-Din-ʿAtiyah.”
90 Abrar Khan, “Brain Death Legislation and Organ Transplantation in the Islamic World,” Middle East Health Magazine, September 2009, http://www.middleeasthealthmag.com/; Miller, Ziad-Miller, and Elamin, “Brain Death and Islam.”
91 Blair Wendlandt et al., “Modifiable Elements of ICU Supportive Care and Communication Are Associated with Surrogates’ PTSD Symptoms,” Intensive Care Medicine 45, no. 5 (May 2019): 619–26; Jesse J. Miller et al., “Decision Conflict and Regret among Surrogate Decision Makers in the Medical Intensive Care Unit,” Journal of Critical Care 32 (April 2016): 79–84; Cynthia J. Gries et al., “Family Member Satisfaction With End-of-Life Decision Making in the ICU,” Chest 133, no. 3 (March 2008): 704–12; Blair Wendlandt et al., “Risk Factors for Post-Traumatic Stress Disorder Symptoms in Surrogate Decision-Makers of Patients with Chronic Critical Illness,” Annals of the American Thoracic Society 15, no. 12 (December 2018): 1451–58.
92 Grundmann, “Shari`ah, Brain Death, and Organ Transplantation”; Padela, “The Perspectives of Islamic Jurists on the Brain Death as Legal Death in Islam”; A. Sachedina, “Brain Death in Islamic Jurisprudence”, 2009, http://people.virginia.edu/~aas/article/article6.htm; Krawietz, “Brain Death and Islamic Traditions.”
93 Padela, “The Perspectives of Islamic Jurists on the Brain Death as Legal Death in Islam”; Al-Bar and Chamsi-Pasha, Contemporary Bioethics; Dariusch Atighetchi, Islamic Bioethics: Problems and Perspectives, International Library of Ethics, Law, and the New Medicine 31 (New York: Springer, 2009).
94 Padela, Arozullah, and Moosa, “Brain Death in Islamic Ethico-Legal Deliberation.”
95 One could argue that since rulings I quote are about non-pregnant patients who reach the state of brain-dead physiology, they are not applicable; rather, fresh rulings are needed for this scenario. While that might be true, the point is to show that there is some potential dissonance between established fiqh and the maqāṣidbased medical ethics approaches presented. Proponents may argue that the role of maqāṣid-based analysis is to motivate new rulings, and that the dissonance is a positive feature of these medical ethics models. This reasoning does have some merit.
96 Omar Qureshi and Aasim I. Padela, “When Must a Patient Seek Healthcare? Bringing the Perspectives of Islamic Jurists and Clinicians into Dialogue,” Zygon® 51, no. 3 (September 2016): 592–625; Mohammed Ali Albar, “Seeking Remedy, Abstaining from Therapy and Resuscitation: An Islamic Perspective,” Saudi Journal of Kidney Diseases and Transplantation 18, no. 4 (2007): 629–37.
97 Aasim I. Padela and Omar Qureshi, “Islamic Perspectives on Clinical Intervention near the End-of-Life: We Can but Must We?,” Medicine, Health Care, and Philosophy 20, no. 4 (December 2017): 545–59.
98 Attia, Towards Realization of the Higher Intents of Islamic Law.
99 Jonathan E. Brockopp, ed., Islamic Ethics of Life: Abortion, War, and Euthanasia (Columbia, SC: University of South Carolina Press, 2003); Al-Bar and Chamsi-Pasha, Contemporary Bioethics.
100 Daniel Beck, “Between Relativism and Imperialism: Navigating Moral Diversity in Cross-Cultural Bioethics,” Developing World Bioethics 15, no. 3 (December 2015): 162–71.
101 I am using the term “Islamicize” provocatively in reference to the Islamicization of sciences projects carried out in the last century, and the term “missionary bioethics” refers to how secular forces export values through bioethics work. See Raymond De Vries and Leslie Rott, “Bioethics as Missionary Work: The Export of Western Ethics to Developing Countries,” in Bioethics around the Globe, ed. Catherine Myser (New York: Oxford University Press, 2011), 3–18.
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Aug 8, 2022
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Padela, A. (2022). Maqāṣidī Models for an “Islamic” Medical Ethics: Problem-Solving or Confusing at the Bedside?. American Journal of Islam and Society, 39(1-2), 72–114. https://doi.org/10.35632/ajis.v39i1-2.3069
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Author Biography
Aasim Padela, Medical College of Wisconsin
Aasim I. Padela is the Chairperson and Director of the Initiative on Islam and Medicine. He is also Professor and Vice Chair of Research and Scholarship at the Department of Emergency Medicine; and Professor of Bioethics and Medical Humanities at the Institute of Health and Equity, both at the Medical College of Wisconsin. His scholarship broadly aims at improving health and healthcare through better accommodating religious values in healthcare delivery.
