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Euthanasia: Ethic-Legal Issues by Prof.Dr.Omar Hassan Kasule Sr. INTRODUCTION Definition of euthanasia 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 wish. Morality of euthanasia 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. METHODS Analytic paradigm 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. RESULTS 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 talabuhu. 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 care. 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 euthanasia. 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. DISCUSSION Binding legal rulings, fatwah 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. Actions 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 of life 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 treatment 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 arrest (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. CONCLUSION Our 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. SUMMARY 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. REFERENCES:
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