Islamic Center of Southern California

The Arguments of Islamic Law Rulings on Recent Medical Issues

Topic Fifteen

The Conflict between Secular Law or Administrative Instruction and Islamic Law in Health Practice

Definition

A physician might find himself in a religious dilemma due to a law or an administrative instruction from his superior that is in conflict with the stipulations of Islamic Law. How should he act in such a situation? Is obedience of the law or instruction an excuse that waives his responsibility? Examples of such conflicts are the following.

1. Human law may permit the disclosure of a patient's secret, while keeping it is considered necessary in Islamic Law. An example is revealing to a husband that his wife has had a hymen patching surgery before their wedding, when no suspicion of a criminal action is being involved, or a case where the law forbids disclosing a patient's secret while Islamic Law requires advice to be extended on the basis of that secret, such as telling a person that his fiancé(e) has a hereditary disease.

2. The law makes no distinction between male and female physicians in treating a patient, with his consent, regardless of the patient's gender. Meanwhile, sometimes a husband insists on following some considered opinions (fatwas) of Islamic Law which forbid having his wife treated by a male physician, although a delay of her treatment may be hazardous.

3. Some human laws prohibit abortion even when it is medically necessary to save the mother's life. On the other hand, some laws permit abortion after the spirit is breathed into the fetus, which means a physician's refusal to fulfill the wish of a patient amounts to declining to perform his job, which he has sworn to perform for friend and foe.

The Legal Position Chosen by the IOMS and Its Argument

The IOMS adopted in its third seminar, the Islamic View Concerning Certain Medical Practices, in 1987 the position of some researchers and participants in the discussion, which holds that an employed physician may not use an administrative instruction as an excuse, and should not worry about obedience to his superior. The IOMS recommended educating physicians on this point.

The IOMS also endorsed the point of view of most scholars that, in general, a conflict between human and Islamic Law does not exist in practical life. The recommendations of the seminar say:

The seminar has discussed the subject of "The conflict between the Law and Islamic Legislation," and on the basis of the cited examples of cases in medical practice in Islamic countries, it is clear that, in general, there is actually no situation that causes a dilemma to a physician while performing his job.

Observing the rules of Islamic Law is a general obligation for all Muslims, whether they are workers in health professions or not. If man-made law gets in conflict with Islamic legislation, the former should be revised to correspond to the latter. A Muslim physician has no choice other than observing Islamic Law.

The seminar recommends that the syllabi of courses taught in medical schools and health science institutes, as well as courses of continuing training, should include materials that introduce to students the stipulations of both Islamic and human law which regulate their rights, obligations, jurisdiction, and responsibilities in their practice of health professions. Islamic Center of Southern California