by Prof.Dr.Omar Hassan Kasule
Euthanasia is Greek for
good death which translates into English as easy death or mercy
killing. It was accepted by the ancient Greeks and Romans. Three
Asian religious traditions accept euthanasia: Buddhism, Shintoism,
and Confucianism. It was rejected by the 3 main monotheistic religions:
Christianity, Judaism and Islam. It 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
Active euthanasia, an
act of commission, is taking some action that leads to death like
a fatal injection. 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. The patient is then left to die from the underlying
disease. Sometimes a distinction is made between normal nutrition
and hydration on one hand and medical nutritional support involving
intravenous and naso-gastric feeding on the other hand. Euthanasia
can be by the patient or by the health care giver. Euthanasia can
be voluntary when the patient takes the decision, non-voluntary
when the decision is made by another person for an unconscious patient,
and involuntary when the decision is made contrary to the patient's
The following is a brief
summary of European and American arguments for and against euthanasia.
Two arguments are advanced for active euthanasia: (a) mercy killing
because of pain, psychological and physical suffering (b) the utilitarian
argument is that euthanasia is desirable because it relieves the
misery of the terminally ill. Two arguments are made against active
euthanasia. (a) killing is morally wrong and is forbidden by religion
(b) unexpected cures or procedures may be discovered to reverse
the 'terminal' condition.
Legalization of euthanasia
Controversies on legalization
of euthanasia in Europe and America are continuing. The argument
for legalizing euthanasia is that the individual's freedom entails
liberty or choice in all matters as long as the rights of any other
person are not infringed upon. The argument against legalizing euthanasia
is that it will lead to disrespect for human life. Euthanasia can
then be abused for criminal purposes. A financial motive is sometimes
advanced in favour of euthanasia. It costs money from the family
of the government to keep terminally sick people on life support
which will be wasted resources if they eventually die.
Use of textual, nass,
evidence has had limited success because the issues involved are
new and there are no relevant legal precedents. A new approach has
therefore become necessary. In its analysis of euthanasia, this
paper has used 2 general theories derived from the Qur’an, sunnah,
and consensus of scholars, ijma of scholars: General Purposes of
the Law, maqasid al sharia, and the General Principles of Fiqh,
al qawaid al fiqhiyyat.
Purposes of the law,
maqasid al Shariah
There are 5 necessities
that are generally referred to as the Purposes of the Law, maqasid
al sharia, arranged here in order of importance: religion,diin [D]
life, nafs[N], the mind, aql[A], progeny, nasl [N], and property,
maal [M]. Maintenance of life includes eating, drinking, and seeking
medical care. The 5 purposes are permanent and are unchangeable
(kulliyat abadiyat). al Shatibi discussed various situations that
guide the use of the 5 Purposes above. On earth, unlike heaven,
there is no absolute benefit, maslahat, or harm, mafsadat, the purpose
of the law is therefore to choose the best equilibrium. It is not
always true that benefits are permitted, halal, and harms are prohibited,
haraam. The law alone defines what is a benefit and what is a harm;
human intellect and desires are unreliable in this exercise.
Principles of the
law, al qawaid al fiqhiyyat
Five principles are recognized
by most scholars: Qasd, Yaqeen, Dharar, Mashaqqat & Aadat. Each
of the 5 Principles is a group of legal rulings or axioms that share
a common derivation by analogy, qiyaas. The Principle of Motive,
qasad [Q] states that each action is judged by the intention behind
it, al umuur bi maqasidiha. The Principle of Certainty, yaqeen [Y]
states that a certainty can not be voided, changed or modified by
an uncertainty, al yaqeen la yazuulu bi al shakk. The Principle
of Injury, dharar [D] states that an individual should not harm
others or be harmed by others, la dharara wa la dhirar. The Principle
of Hardship, mashaqqa [M] states that hardship mitigates easing
of the rules and obligations, al mashaqqa tajlibu al tayseer. The
Principle of custom, aadat [A], states that what is customary is
a legal ruling, al aadat muhkkamat. Unless contradicted specifically
by text, nass, custom or precedence is considered a source of law.
The customary must also be old and not a recent phenomenon.
Purposes of the Law
(maqasid al sharia)
(i) 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 preserving life does not imply human ability
to delay death or lengthen the life-span because those are the prerogatives
of God alone.
(ii) Euthanasia violates
the purpose of preserving religion, hifdh al ddiin, because it involve
a human attempt to violate the divine prerogative of giving and
taking away life.
(iii) Euthanasia can
indirectly lead to the violation of the purpose of preserving progeny
by cheapening human life thus encouraging suicide, homicide, and
genocide. (iv) 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 principle of intention,
qasad, is invoked in 3 situations.
(a) 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 mawasid 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 maxim of the law is that an act is illegal
whether done by the person or by an agent, ma haruma fi'iluhu haruma
b) 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.
(c) 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
In both cases (a) and
(b) there is a possibility of bad intention in euthanasia decisions.
The general principle of the law if 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 certainty,
yaqeen, in invoked in three situations:
(a) definition of death
requires that there should be no doubts at all (al yaqeen la yazuulu
bi al shakk). Of all available definitions of death, it is only
the traditional definition of death as cardio-respiratory failure
that is accepted by all. There is no diubt about its irreversibility.
Brain death, partial or complete, is still controversial and it
is possible that new medical technology could reverse brain death.
The implication of death definition is that once a person is declared
dead with certainty, the withdrawal of life support does not constitute
homicide and is not a case of euthanasia. Since there is no new
unanimously-agreed definition of death, we have to stick to the
traditional one. The provision of the law is that existing assertions
should continue in force until there is compelling evidence to change
them, al asal baqau ma kaan ala ma kaana.
(b) There is doubt about
the legality of the living will because it is made by a person in
perfect health. The same person could have different opinions when
in terminal or severe illness. Islamic law in general discourages
speculative or hypothetical thoughts or actions that are taken before
the event. There is also doubt about the right of a person to make
decisions about the disposition of his or her life because life
belongs to Allah only and it is He alone who disposes. The Islamic
law of wills deals with property and even in that domain, there
are restrictions on how much can be willed as gifts with the rest
being distributed among the inheritors according to the law. It
is therefore untenable that in the case of euthanasia the living
will is accepted without restriction.
(c) In the emotionally-laden
and psychologically-stressed situation of terminal illness, there
no certainty that the patient's consent to withhold or withdrawal
treatment and nutrition is a true expression of their free wish.
Under the law some forms of coercion, istikraah, invalidate decisions
such as this one.
The principle of injury,
dharar, asserts that 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 can not 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,
mashaqqat, could be invoked wrongly in euthanasia situations. 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 a handicapped invalid,
psychological and emotional stress 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
can not 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, al aadat has several applications in euthanasia.
Aadat is defined as what is uniform, wide-spread, 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.
Custom is invoked in 2 situations
a) Definition of death
is based on custom and precedent. The traditional definition of
cardio-respiratory failure is the only one that fulfils the criteria
of custom above and will have to be accepted until a better definition
evolves and gains wide acceptance.
(b) The role of the physician
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
(c) 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
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.
Binding legal rulings,
General binding legal
rulings, fatwah, can not be made on most issues related to euthanasia;
each case should be considered on its own merits. The rapid changes
in medical science also make a general binding fatwah even more
irrelevant because the balance of harm and benefit change almost
daily with discovery of new drugs and surgical technics. Legal rulings
change with the change of time, taghayyur al ahkaam wa taghayyur
al zamaan. This paper does not pretend to give any legal rulings,
fatwa, on the issues raised. It makes analyses that clarify the
issues from the legal and medical points of view. It asserts that
general purpose fatwah are irrelevant in this situation because
there are many parameters that go into making a decision including
the inclinations and feelings of the patient, conflicts of interests,
and psychological factors. Since these factors are intangibles that
are difficult to put into the equation, it is felt that physicians
and fuqaha should confine themselves to clarifying the issues and
leaving the final decision to those most concerned. The terminally
ill patient, who takes a major risk, should make the final informed
decisions after clarification of the medical, legal, and ethical
issues by physicians and fuqaha.. Self-interest may motivate some
members of the family and others with personal interest to hasten
the legal death of the terminally ill patient. According to Islamic
law, any inheritor who plays any role direct or indirect in the
death of an inheritee can not be an inheritor, mirath al qaatil.
It is therefore impossible for any member of the close family to
take part in euthanasia decisions. Physicians and other health care
givers may abuse euthanasia and kill whom they want. They could
be bribed to kill people by either family members or others.
Terminal illness involves
acts of commission or omission that require definition and description
of actions. All actions are judged by their intentions, niyyat.
The last stage of the act is what defines its nature (al a'maal
bi khawatimiha). Actions can be (a) obligatory, wajib (b) offensive,
makruh (c) recommended, mandub (d) prohibited, haraam (e) permitted,
halal. The basic default position is permission, al asal fi al umuur
al ibaahat. There are rewards or penalties for each action depending
on the mode of commission or omission. Committing an obligatory
act brings rewards and omitting it brings penalties. Committing
an offensive act brings no penalty but omitting it brings a reward.
Committing a recommended act brings rewards but omitting it brings
no penalty. Committing a prohibited act brings penalties and omitting
it brings a reward. It is therefore clear from the above that there
is a difference between acts of commission and acts of omission.
This difference disappears at the level of the intention. If both
types of act have the same intention, they are not different in
the eyes of the law. This conclusion makes the distinction between
active and passive euthanasia untenable. The physician is responsible
for his actions and can not claim that he is acting on the patient's
instructions. An action is haraam whether done by the person or
is done by another on his/her behalf, ma haruma fi'iluhu haruma
talabuhu. The physician carries the most responsibility for such
an action because the major responsibility for a bad act rests on
the person who performs it last, al fi;ilu yudhhafu ila al fa'ili
al akhiir. Final legal responsibility is with the physician who
carried out the act and not the patient who requested it, yudhaafu
al fi'ilu ila al fa'ili la ila al amir ma lam yakun mujabaran. In
case of two actions being required at the same time, the rejection
of prohibition, haraam, takes precedence over carrying out the permitted,
halal. Alleviation of the evil takes precedence over establishing
benefit, dar'u al mafasid muqaddam muqaddam ala jalb al masalih.
If a choice between 2 actions has to be made, the lesser evil is
chosen, ihktiyaar aqallu al dhararain..
Ownership and control
The central legal and
ethical issue in euthanasia is ownership of life. Do humans own
or control their lives? Do they have a right to take that life under
any or all conditions?. The Islamic position is that life belongs
to Allah. It is He who gives and takes away life. No human can give
or take it. Despots like Pharaoh and Nimrod were severely condemned
by the Qur'an for their mistaken belief that they controlled human
life by deciding who would be executed and who would be spared.
The moment of death, ajal, is under the control of Allah and the
human has no say in this matter; the human can not and should not
attempt to hasten or delay the ajal. The prohibition on life applies
equally well whether for self, suicide, or others, homicide or genocide.
The concept of freedom and individual choice does not apply here
for 2 reasons (I) life does not belong to the human (ii) taking
life will cause harm to the family and society in general. An individual's
freedom of choice is constrained by the harm it causes others.
Consent to medical
The extent to which a
patient has a right to refuse or discontinue treatment is a question
of dispute. A patient who has legal competence, ahliyyat, makes
final decisions about medical treatment and nutritional support.
A patient should be fed according to his wishes and forced only
if there is an immediate threat to life. The conditions of legal
competence are: adulthood, soundness of the mind, freedom from duress
or compulsion, and complete understanding of the medical and legal
issues involved. These conditions rarely obtain in a situation of
terminal illness. The use of a living will has been proposed as
a way around this. The person writes a will while still healthy
specifying preferences for medical procedures in cases of terminal
illness. The will may also confer powers of attorney on any other
person to make the necessary decisions. In our opinion a living
will is a non-binding recommendation because it is made for a hypothetical
situation. It is most likely that the person making the will would
decide differently if in an actual situation of terminal illness.
The only binding will to the best of my knowledge is to will up
to one third of the property. The family represented by those who
are eligible to inherit, al warithiin, can legally reverse a living
will. They however have limited choices. They can never take any
decision that involves causing death either actively or passively
because that would automatically disinherit them. A patient who
can not speak could write their choices. Established sign language
can also be accepted, al isharat al ma'ahudat ka al bayan bi al
lisaan.. However no assumptions should be made about the choices
of a patient who is unconscious and can not communicate in any way,
la yunsab ila saakit qawl.
Definition of death
The manner in which death
is defined affects the ruling, hukm, about passive euthanasia. The
following are various definitions of death:
(a) traditional: cardio-respiratory
(b) Whole-brain death
(c) Higher brain death.
If a patient has higher
brain death, life support can be removed on the basis that he is
dead. If death is defined in the traditional way, life support can
not be withdrawn at any stage. Since he definition of death and
the exact time of its occurrence are still matters of dispute, a
major irreversible decision like withdrawing life support can not
be taken. Islamic law strictly forbids action based on uncertainty,
shakk. New treatment methods may be discovered to reverse 'terminal
illness' thus making 'defined death' not terminal. Before the discovery
of antibiotics TB was a terminal illness but it is now considered
an easily-cured disease. The question of quality of life is also
raised in the definition of life. The assumption is that there must
be some quality to human life for it to be worth living. The exact
definition of quality is still elusive. It is argued that euthanasia
saves the terminally-ill from a painful and miserable death. This
considers only those aspects of the death process that ordinary
humans can perceive. We learn from the Qur'an that the death of
non-believers is stressful in the spiritual sense. Believers can
have a good death even if there is pain.
Balance & equilibrium
The purpose of preserving
life may contradict the purpose of preserving wealth. Life comes
before wealth in order of priorities. This however applies to expenditure
on ordinary medical procedures and not heroic ones of doubtful value
because that would be waste of wealth, israaf, that has been condemned.
The patient's choices about food and medical treatment my contradict
the purpose of preserving life. Where life in under immediate threat,
the patient's desires may be overridden.
analysis has shown that there is no legal basis for euthanasia.
Physicians have not right to interfere with ajal which was fixed
by Allah. Disease will take its natural course until death. This
course is not known by physicians for each individual patient. It
is therefore necessary that they concentrates 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 can not 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.
The paper analyzes euthanasia
in its various forms employing the 5 Purposes of the Law, maqasisd
al sharia, and the 5 Principles of the Law, al qawaid al fiqhiyyat
al kulliyat. It reaches several conclusions: Active and passive
euthanasia are both illegal because the intention behind them is
the same, taking life. A physician is legally liable for any euthanasia
actions performed even if instructed by the patient. Euthanasia
is illegal under any of the situations described below: active and
passive euthanasia by the patient, active and passive euthanasia
by the physician with voluntary patient consent, active and passive
euthanasia by the physician with patient refusal, active and passive
euthanasia for unconscious patient. The only allowable actions are
patient refusal of normal food, hydration, or heroic medical procedures.
- Edwards RB, Graber GC: Bio-ethics.
Harcourt Brace Jovanovich, Publishers. New York 1988
- Munson R..: Intervention and Reflection:
Basic Issues in Medical Ethics. 5th Edition. Wadsworth
Publishing Company. New York 1996
- al Shatibi,Abu Ishaq (5th
century AH): Al muwafaqat fi usul Al Sharia Vol.2 : Kitaab Al
Maqasid. Dar Al fikr Al Arab. No date
- Al Nadawi, Ali Ahmad. Al Qawaid
al Fiqhiyyat. Dar al Qalam. Damascus1994 CE
- Al Zarqa, Ahmad bin al Sheikh
Muhammad. Sharh al qawaid al Fiqhiyyat. Dar al Qalam. Damascus.