Islamic Center of Southern California

The Arguments of Islamic Law Rulings on Recent Medical Issues

Topic Thirty

The Rulings Arising from the Discovery of AIDS

Definition and Division

A recently discovered disease is AIDS, which is a name used for the final stage of a chronic infection with the human immunodeficiency virus, which is characterized by clear disease symptoms, together with opportunistic infections and malignant tumors, due to the destruction, caused by that virus, of immune system cells, which resist bacteria and cancer cells.

A person's discovery that he has AIDS gives rise to many rulings, which are elaborated in the nine following points.

The First Point: AIDS as Regarded in Islamic Law

The Medical Viewpoint

AIDS is the acronym of a fatal disease known as Acquired Immunodeficiency Syndrome. It is a syndrome in the sense that it results when a number of symptoms correlate and coincide, and it is acquired because it is transmitted by infection and causes a serious deficiency in the immunity mechanisms created by God in all human beings. This deficiency makes an infected person vulnerable to bacteria, including those that do not usually cause human diseases and are, therefore, called opportunistic bacteria.

After infection with the human immunodeficiency virus (HIV) occurs, the virus penetrates into certain cells, multiplies gradually, and steadily destroys these cells. In most cases, within a short period of no more than two years after the detection of AIDS symptoms, the patient dies.

The infection goes through stages, one of the most important of which is the stage of latency, which ranges from few months to a few years. In children under two years, this stage is relatively small, while in adults it lasts 7-10 years, but it is reduced by the incidence of other, accompanying diseases; malnutrition; and pregnancy in the case of women.

A variety of neurological disorders are common in some stage of AIDS, and they may cause senility, which is common in the later stages in about one third of AIDS patients.

The Legal Position Chosen by the IOMS and Its Argument

In its seventh seminar in 1993, the IOMS chose to consider AIDS similar to other, familiar diseases, except in its later stages. The seventh recommendation of the seminar says, "Legally AIDS is not regarded as a fatal disease until all its symptoms appear, it keeps the patient from practicing his daily life activities, and it is expected to end in death."

The Second Point: The Ruling in Regards to Isolating an AIDS Patient

The Medical Viewpoint

Isolation means keeping the patient from transmitting the infection to others, and this a basic procedure in fighting infectious diseases in general.

Basically, HIV is transmitted through sexual intercourse, and the purpose of isolating a patient is to prevent the genital system secretion of an infected woman or the semen of an infected man from reaching the genital mucous membrane of a non-infected person.

Often, isolation serves the interest of the patient, who is protected against being infected with diseases transmitted by others while he is in a state of exhaustion. Isolation also allows intensive care to be provided to the patient.

The Legal Position Chosen by the IOMS and Its Argument

In its seventh seminar in 1993, the IOMS chose to declare that there is nothing to justify isolating the patient. The recommendations included the following:

First: Patient Isolation. Available medical information at present affirms that no AIDS virus is transmitted through cohabitation, touch, breathing, insects, or shared food, drink, lavatories, swimming pools, seats, or utensils. Nor is it transmitted through any other aspect of interaction in normal daily life. Mainly, the HIV is transmitted in one of the following manners:

1. any type of sexual intercourse;

2. transfusion of contaminated blood or its components;

3. using a contaminated syringe, particularly among drug users; and

4. transmission from an infected mother to her child.

On the basis of the above, there is no justification for isolating infected students, workers, or others from their healthy colleagues.

The Third Point: The Ruling on Deliberate Transmission of the Infection

The Medical Viewpoint

Man-made laws throughout the world have no penalty for a person when it is proved that he has deliberately infected others with HIV, after it has been established that he carries the virus or is infected with the disease, except in Federal Russia, where such a person is fined or imprisoned.

The Legal Position Chosen by the IOMS and Its Argument

The IOMS decided, in its seventh seminar in 1993, that the deliberate transmission of AIDS infection is forbidden, and its punishment ranges from discretionary punishment and retribution to the prescribed punishment of a terror campaign, in proportion to the seriousness of the crime. One of the seminar's recommendations is:

Second. The Deliberate Transmission of AIDS from an Infected Person to a Healthy One in Any Method. Such a deliberate action is forbidden and is regarded as a cardinal sin and a serious crime. It deserves secular punishment, which ranges in accordance with the seriousness of the crime and its effect on individuals and on society.

If the intention of the person committing this deliberate action is to spread this malignant disease in society, his action amounts to a campaign of terror and corruption in the land and deserves one of the penalties prescribed in the verse on terror campaigns: "The repayment of those who wage a war against God and His Messenger, and endeavor to cause corruption in the land is to be killed or crucified, have their hands and feet amputated on alternate sides, or be banished from the land" (Al-Maaedah V: 33).

If, however, the intention of the person who deliberately transmits the infection is to pass the disease on to a particular person, using a method of transmission most likely to succeed, and the virus does pass on and the infection kills the recipient - the culprit should be killed in retribution.

If, on the other hand, the intention of the person who deliberately transmits the infection is to pass the disease on to a particular person, and the virus does pass on but the recipient survives - the culprit should be given the appropriate discretionary punishment. When the recipient dies, his heirs are entitled to blood money.

Discretionary punishment should also be given to a person with the intention of deliberately transmitting the infection to a particular person, but the latter does not get infected.

The Fourth Point: The Ruling on Aborting the Fetus of an HIV Patient

The Medical Viewpoint

So far, scientists have not been able to detect whether a fetus is infected while still inside the uterus. Some studies conclude that the percentage of transmitting the infection to a fetus during pregnancy does not exceed 10%, and it is believed that the infection takes place only in the late months of pregnancy.

Had science been able to diagnose the disease in a fetus at an early stage, that would probably be a justification of aborting that fetus in accordance with relevant rulings of Islamic Law, particularly since no remedy for this disease has been discovered yet.

A physician may recommend abortion as being in the mother's interest, because pregnancy reduces the latency period of the disease and hastens its maturity.

The Legal Position Chosen by the IOMS and Its Argument

The IOMS adopted the general ruling which prohibits abortion, particularly after the spirit is breathed into a fetus, except in cases of great medical urgency. One of the recommendations of the seventh seminar, held in 1993, says:

Third: Abortion in the Case of a Pregnant Woman Infected with HIV. The IOMS held a seminar on Reproduction in Islam in 1983, and in regards to the ruling on abortion, it came to the following conclusion:

An embryo is a living organism from the moment of conception, and its life is to be respected in all its stages, especially after the spirit is breathed in. Aggression against it, in the form of abortion, is unlawful except in cases of maximum medical necessity. Some participants, however, disagree and believe abortion before the fortieth day, particularly when there is justification, is lawful.

The current seminar believes that that ruling is valid in the case of a pregnant woman with HIV infection.

The Fifth Point: The Ruling on Custody and Nursing

When a Mother is Infected with HIV

The Medical Viewpoint

Only in very few cases throughout the world, it was established that HIV infection was transmitted through a mother's milk. Since no infection takes place through the digestive systems, it is believed that, in the rare cases in which AIDS is transmitted through nursing, it is the sucking of the infant, with the great pressure on the mouth mucous membrane that goes along with it, may cause the infection to be transmitted when the nipple is chapped and bleeding.

The Legal Position Chosen by the IOMS and Its Argument

In its seventh seminar, held in 1993, the IOMS decided to uphold a mother's right to the custody of her child even if she is infected with AIDS. The seminar says in one of its recommendations:

A. Since current medical information indicates that, as the case is with ordinary contact and cohabitation, there is no certain risk in the custody of a healthy infant by his HIV infected mother, the seminar sees no legal objection to such a custody.

B. Since the probability of a healthy child getting infected with AIDS through its mother while she nurses him is very slim - although this may happen due to the virus contained in the mother's milk or to the blood that gets into the infant's mouth when she has a chapped nipple - and since nursing has several benefits, the mother may nurse her child. She should, however, take all precautions to reduce the probability of the infant getting infected. The mother may also abstain from nursing her infant if a wet nurse is available to do the job or alternatives, other than the mother's milk, can give the infant sufficient nutrition.

The Sixth Point: The Right of a Free-from-Infection Spouse to

Ask for Separation from His/Her HIV-infected Partner

The Medical Viewpoint

The probability of HIV infection being transmitted from a sick spouse to a healthy one cannot be ruled out, particularly when no condom is used. Transmission of the disease from the male to the female is much more probable than the other way around.

Three issues should be noted because they help in reaching the legal ruling:

The first issue is the reduced sexual power of an infected husband.

The second issue is the probability of children being born with the disease when one of the parents in infected.

The third issue is that the correct usage of a condom, when the husband has no other venereal disease, make the possibility of transmitting the infection to the wife almost nil.

The Legal Position Chosen by the IOMS and Its Argument

The IOMS ruled in its seventh seminar in 1993 that a healthy spouse may request to be separated from his/her diseased partner, since this is a fatal disease. A recommendation of the seminar is:

Fifth: The Right of the Healthy Spouse of a Married Couple to Appeal for Separation from the Partner Infected with AIDS. The seminar finds that either spouse can file for separation from his/her diseased partner, the disease being fatal and mainly transmitted through sexual intercourse.

The Seventh Point: The Ruling on Sexual Intercourse When a Spouse Is an AIDS Patient

The Medical Viewpoint

Experiments have demonstrated that using a condom considerably reduces the likelihood of HIV infection. The probability of infection in the case of one intercourse does not exceed 0.5%, which means one case in every two hundred, unless the other spouse is already infected with another venereal disease, in which case the percentage goes up to 2%.

The Legal Position Chosen by the IOMS and Its Argument

In its seventh seminar in 1993, the IOMS upheld the right of a healthy spouse to abstain from sexual intercourse with his/her diseased partner. One of the seminar's recommendations says:

Sixth: The Right of Sexual Intimacy. If one of the spouses is infected with AIDS, the non-infected partner may abstain from sexual intimacy, because of the above-mentioned fact that sexual intercourse is the main channel of HIV infection.

If, however, the healthy spouse is willing to engage in sexual intercourse, precaution calls for using a condom, which, if used properly, reduces the probability of infection and pregnancy.

The Eighth Point: The Rights of an AIDS Patient

The Medical Viewpoint

It is not necessarily true that an AIDS patient must have been infected through having sex. Some patients get the disease through contact with contaminated blood. An AIDS patient does not transmit the infection to his colleague at work or to anyone else he deals with in the normal contacts of everyday life, except in very limited cases in which blood gets mixed up as a result of wounds or something similar. The HIV infection is not transmitted by insect bites or through touching the perspiration or urine of an infected person, inhaling droplets of his saliva, or sharing his food utensil or anything related to the digestive system.

The Legal Position Chosen by the IOMS and Its Argument

The IOMS, in its seventh seminar in 1993, called for treating an AIDS patient in society the same way as any other person and for giving him some priority in receiving treatment. The general recommendations of the seminar include the following:

An AIDS patient has the right to receive the treatment and health care that his condition calls for, regardless of the method in which the disease has been transmitted to him.

He should report his infection to his physician to protect the latter and his other patients from the probability of being infected. The physician has to treat such a patient, taking the necessary precautions to protect himself and others.

An AIDS patient should be taught how to keep his condition from getting worse. It is not admissible to be unjust to such a patient, or to fail or taunt him on account of his disease.

The Ninth Point: Prevention of HIV Infection

The Medical Viewpoint

Because so far, no adequate remedies or preventive vaccines are available for AIDS, protection from the disease can only be by avoiding what causes it. Its causes are of two types:

1. Major causes: These include sexual intercourse, the transfusion of blood or its components, and transmission from an infected mother to her baby, most often during childbirth, when the baby is contaminated by infected genital discharges.

2. A minor cause: Transmission through the mother's milk in very limited cases.

The Legal Position Chosen by the IOMS and Its Argument

In its seventh seminar in 1993, the IOMS called for proper education and advice to enable people to avoid being infected with HIV. The general recommendations of the seminar include the following:

1. Official and public agencies should endeavor to educate society members, alerting them to the threat of AIDS and teaching them how the infection is transmitted and how to protect themselves from it, with a stress on chastity and virtue.

2. Islamic education should be introduced into the curricula of all education levels, so that it complements other items in the curricula and contributes to building the personality of each individual in a manner that serves the best interests of individuals and society and guarantee protection from this calamity. Islamic Center of Southern California