Islamic Center of Southern California

The Arguments of Islamic Law Rulings on Recent Medical Issues

Topic Eighteen

The Extent of Making Use of Aborted Fetuses, Surplus Zygotes, and Anencephalic Babies

Definition

This topic is related to the previous one, Transplanting and Implanting Cells of the Brain, since both deal basically with stem cells. It is also related to the subject of Transplanting and Implanting Human Organs.

Following the recent medical discovery of the therapeutic benefits of stem cells and embryonic tissues, the idea of acquiring such cells and tissues from illegitimate sources started to spread. Physicians suggest to officials some sources that do not violate religious teachings, ethics, or the law. All these are sources related to the early formation of a human being, the stem cells being the early elements from which a fetus forms, with all its cell types that are characterized by activity, adaptability, and freedom from stimulating reactions of immunological rejection.

These suggested sources are aborted fetuses, surplus zygotes, and anencephalic babies, all of which are practically or actually dead. The following defines these sources:

1. Aborted Fetuses are fetuses that are ejected from the uterus before their time. They are not fully formed and have no spirit, although their organs live for a short period.

2. Surplus Zygotes in the test-tube baby (embryo implant) procedure: A physician uses a number of a husband's sperm to inseminate an equal number of his wife's ova, and then implants one to three zygotes onto the wife's uterus wall to complete a pregnancy that can only start in this method. In most cases, when the implant succeeds only one of the three embryos grows.

The implanting procedure begins only after the physician has made sure that the insemination is successful, keeping the embryo in the laboratory for few days. Later, the doctor disposes of the surplus zygotes by burying or killing them; they certainly have no spirit, but they are alive and able to grow.

3. Anencephalic Babies: An anencephalic baby is a human being born without a head cavity and without brain lobes. It has only a brain stem that controls the basic, vital functions, such as respiration and blood circulation, when the baby is born alive. Its life, however, is short; it usually dies within a week after birth, and the longest time lived by such a baby was two months.

These three sources (aborted fetuses, surplus zygotes, and anencephalic babies) will be discussed separately in the following three cases, since there is some difference in the way of using them and in the rulings of some scholars concerning them.

The First Case: Medical Use of Aborted Fetuses

The Legal Position Chosen by the IOMS and Its Argument

The position adopted by the IOMS in its sixth seminar, An Islamic Perspective of the Implanting of Certain Human Organs, in 1989 was close to the opinion of the majority of scholars which finds making medical use of aborted fetuses lawful when it is subject to special controls and criteria. The recommendations of the seminar say:

The seminar finds that fetuses can be used as a source for organs wanted to be implanted in other human beings only when certain controls are applied as in the following cases:

No abortion should be effected in order for the fetus to be used as a source of organs to be implanted in another human being. Only fetuses from spontaneous or legally justified abortions can be used.

If the fetus has the potential to survive, medical treatment should focus on keeping it alive rather than on exploiting its organs.

The procedures of organ implants should never be used for commercial purposes.

Supervision of such matters should be entrusted to a recognized, trustworthy authority.

Under all circumstances, the human body should be respected and honored.

Remarks Concerning the IOMS Recommendations on Making Use of Aborted Fetuses

The IOMS limited its recommendation to the area of organ implants and relevant research. There are two other aspects of medical use of aborted fetuses, mentioned by physicians in detail, but the IOMS only referred to these.

I suggest that the phrase of "making use of aborted fetuses," at the opening of the recommendation, replace the phrase "organ implants." The same observation applies to the resolution of the Islamic Jurisprudence (fiqh) Academy in 1990, as it was influenced, on this subject, by the IOMS.

The Position of the Islamic Jurisprudence (fiqh) Academy

The Islamic Jurisprudence (fiqh) Academy discussed one aspect of the issue under consideration (Making Medical Use of Aborted Fetuses). That aspect was "Using Fetuses as a Source of Organ Implants," which is one aspect of making use of aborted fetuses.

The academy's resolution 58/5/6 says:

In its sixth conference, held in Jeddah in the period of 17 - 23 Shaaban 1410 H. (14 - 20 March 1990), the council of the Islamic Jurisprudence (fiqh) Academy - after reviewing the papers and recommendations related to this subject, being one of the subjects of the sixth jurisprudence (fiqh) seminar in Kuwait in 23 - 26 Rabee' I, 1410 H. (23 - 26 October 1989), held in collaboration between this Academy and the Islamic Organization of Medical Sciences - decides the following:

1. Fetuses can be used as a source for organs wanted to be implanted in other human beings only when certain controls are applied.

a. No abortion should be effected in order for the fetus to be used as a source of organs to be implanted in another human beings. Only fetuses from natural, accidental, or legally justified abortions can be used. No surgical operation may be performed to get the fetus out except when saving the life of its mother is involved.

b. If the fetus has the potential to survive, medical treatment should focus on keeping it alive rather than on exploiting its organs. If it has no potential to survive, it can be made use of only after it dies and in accordance with the conditions set in resolution 1 of the fourth session of this Academy.

2. The procedures of organ implants should never be used for commercial purposes.

3. Supervision of such matters should be entrusted to a recognized, trustworthy authority.

The Second Case: Making Use of Surplus Zygotes (Embryos) in Test-Tube Baby Procedures

The Legal Position Chosen by the IOMS and Its Argument

The position adopted by the IOMS in its third seminar, the Islamic View Concerning Certain Medical Practices, in 1987 on the question of surplus zygotes was also close to the opinion of the majority of scholars which finds making medical use of such inseminated ova lawful, subject to the controls that prevent any confusion of lineage and any aggression against human dignity. The recommendations of the seminar say:

The ideal situation in the case of surplus inseminated ova is to have no surplus to start with. Scientists should go on with their research so that a method could be found to store the unfertilized ova, maintaining their ability to be positively inseminated later.

The seminar recommends that scientists refrain from inseminating more than the number of ova needed, thus no surplus is left. When this is complied with, there would be no need for concern about the fate of unneeded inseminated ova.

If there is a surplus, the majority hold that inseminated ova have no legal sanctity of any kind, and no respect is due to them before they are planted onto the uterus membrane. Therefore, there is no prohibition against destroying such ova in any manner.

Some scholars, however, believe that such an inseminated ovum is the first phase in the creation of a human being, who has received the blessings of God. Therefore, of the options of destroying it, using it in further research, or allowing it to have a natural death, the last, they say, seems to be the least unlawful since it involves no active aggression against human life.

Scholars have agreed to reaffirm the fifth recommendation of the seminar on Reproduction in Islam of 1983, concerning the surrogate uterus, which considers it unlawful to implant a zygote in another woman. Sufficient precautions should be taken to prevent using a zygote for an illegitimate pregnancy. It is also agreed to reaffirm the fourth recommendation of the Reproduction seminar, which warns against experimentation aimed at changing the inborn qualities bestowed by God and against exploiting science for evil, corruption, and destruction. The seminar recommends that Islamic legal controls should be set to enforce that warning.

The sixth seminar, held in 1989, said in its recommendations:

The seminar reviewed the thirteenth and fourteenth recommendations made in the third IOMS seminar - held in Kuwait from 20-23 Shaaban 1407 (18-21 April, 1987) - which dealt with "The Fate of Inseminated Ova."

The seminar endorsed those two recommendations and added to them the following:

A. In reference to the statement at the opening of recommendation thirteen that the ideal situation is to have no surplus to start with, with unfertilized ova being kept to be used later, the seminar takes note that this has become technologically possible, and some Western countries, West Germany in particular, is following this method.

B. To the majority's opinion, opposed by some scholars, that inseminated ova may be killed in any manner before they are implanted in the uterus, it is added that there is no objection to use such ova in scientific experimentation, but not to foster their growth. Some scholars are completely against this view.

The seminar recommends that a committee should be set up to determine the controls of legitimacy.

The Position of the Islamic Jurisprudence (fiqh) Academy

The Islamic Jurisprudence (fiqh) Academy concurs with the opinion of the Islamic Organization of Medical Sciences on the subject of "The Fate of Surplus Zygotes." Its resolution 57/5/6 says:

In its sixth conference - held in Jeddah in the period of 17 - 23 Shaaban 1410 H. (14 - 20 March 1990) - the council of the Islamic Jurisprudence (fiqh) Academy:

after reviewing the papers and recommendations related to this subject, being one of the subjects of the sixth jurisprudence (fiqh) seminar in Kuwait on 23 - 26 Rabee' I, 1410 H. (23 - 26 October, 1989), held in collaboration between this academy and the Islamic Organization of Medical Sciences (IOMS); and

after reviewing the thirteenth and fourteenth recommendations made at the third IOMS seminar, held in Kuwait on 23 - 26 Rabee' I, 1410 H. (23 - 26 October, 1989), in collaboration between this academy and the IOMS, as well as the fifth recommendation of the first IOMS seminar, held in Kuwait on 11 - 14 Sha'ban, 1403 H. (24 - 27 May 1983), on the same subject - decides:

1. In light of the achievement that allows the storing of unfertilized ova to be used later, the insemination of ova should be limited to the number required to be implanted every time, to avoid having a surplus of inseminated ova.

2. When, for any reason, there is a surplus of zygotes, they should be left without any medical care until their life comes to a natural end.

3. It is forbidden to implant an inseminated ovum in a woman other than the one who has produced it, and sufficient precaution should be taken to guard against using a zygote in an illegitimate pregnancy.

The Third Case: Anencephalic Babies

The Legal Position Chosen by the IOMS and Its Argument

The position adopted by the IOMS in its sixth seminar, An Islamic Perspective of the Implanting of Certain Human Organs, in 1989 was the one reached by the majority of scholars which prohibits making any medical use of an anencephalic baby until its brain stem is dead. It was regarded as lawful to use life-sustaining equipment to keep the vital organs of such a baby functioning after its death, in order to use them in human organ transplantation procedures. The recommendations of the seminar say:

An Anencephalic Baby: As long as such a baby remains alive through the life of its brain stem, it must not be tampered with by removing any of its organs, until its death becomes certain. In this respect, such a baby does not differ from normal people.

When it dies, any removal of its organs should be subject to the valid rulings and conditions concerning transplanting the organs of the dead, such as valid permission, the absence of an alternative, the determining of necessity, and the other controls listed in resolution 1 of the the Islamic Jurisprudence (fiqh) Academy in its fourth session.

The seminar believes that there is no objection to keep such an anencephalic baby attached to life-sustaining equipment after the death of the brain stem, which can be diagnosed, to keep the vital organs of such a baby functioning, in order to transplant them to another human being, subject to the conditions listed in resolution 1 of the Islamic Jurisprudence (fiqh) Academy in its fourth session.

The position of the Islamic Jurisprudence (fiqh) Academy

The Islamic Jurisprudence (fiqh) Academy shares the opinion of the IOMS, which forbids transplanting the organs of an anencephalic baby before its death. The Academy's resolution 56/5/6 on transplanting brain cells says:

An Anencephalic Baby: Since it is alive at birth, it must not be tampered with by removing any of its organs until its brain stem dies. In this respect, it does not differ from normal people. When it dies, any removal of its organs should be subject to the valid rulings and conditions concerning transplanting the organs of the dead, such as valid permission, the absence of an alternative, the determining of necessity, and the other controls listed in resolution 1 of the fourth session of this Academy. There is no objection in Islamic Law to keep such an anencephalic baby attached to life-sustaining equipment after the death of the brain stem, which can be diagnosed, to keep the vital organs of such a baby functioning, in order to transplant them to another human being, subject to the conditions referred to. Islamic Center of Southern California