Islamic Center of Southern California

The Arguments of Islamic Law Rulings on Recent Medical Issues

Topic Thirty Seven

The Genetic Imprint and Its Role in Confirming Parentage

Definition

1. The term "genetic imprint" is a descriptive phrase consisting of two words:

a. Genetic. The Arabic word is an adjective of heredity, a discipline that studies the transmission of biological traits from one generation to another and interprets the phenomena associated with that transmission.

b. Imprint. The Arabic word basmah is a colloquial word for "sign," and has been approved by the Academy of Arabic as a word denoting a fingerprint. In origin, the word is derived from a root used to denote something thick.

2. The first person to use the term "genetic imprint" was Professor Alec Jeffrey in 1985, who discovered that the deoxyribonucleic acid (DNA) of every individual is as unique as his finger prints. Later, Eric Lander called it the ultimate confirmation of identity.

3. As a scientific term and as a term of Islamic jurisprudence (fiqh), the genetic imprint is the test that determines a person's identity and his relationship to those who brought him into being. This is done through testing fragments of the DNA found in any cell. The fragments form bars, each with two chains; each chain takes the form of cross lines arranged according to the order of amino-acid bases. One of the chains is the hereditary characteristics from the father, and the second, those from the mother. The combination of the two chains gives every human being characteristics that distinguish him from other people. For such a test, equipment with highly sophisticated technology are used, and the test data are easy to be read, saved, and kept in computer files by a trainee. They are stored until they are needed.

The Legal Position Chosen by the IOMS and Its Argument

In its twelfth seminar in 1998, the IOMS acknowledged the value of the genetic imprint and the fact that it is almost error-proof in determining biological parentage and confirming identity, and is as good an evidence as tracing similarities. The seminar, however, was reluctant to recommend it as a proof in confirming parentage and took upon itself to hold a discussion session with the aim of arriving at suitable recommendations on this question.

On May 3 and 4, the IOMS fulfilled its pledge, and a discussion session to look into the validity of genetic imprints as evidence in confirming or refuting parentage was held.

The session was concluded with recommendations that included assigning to genetic imprints the same function as tracing similarities and resorting to it only when there are conflicting claims with equal evidence on both sides. In cases where there are no conflicting claims, the claim of a father is admitted, while decision on a mother's claim is deferred for further consideration. The session came up with controls for using the evidence of the genetic imprint rather than tracing similarities.

One of the recommendations of the twelfth seminar in 1998 is:

The seminar has discussed the question of the genetic imprint, which is the elaborate genetic structure that establishes the identity of a particular individual. In practice, the genetic imprint is an almost error-proof method of determining biological parentage and confirming identity, particularly in the field of forensic medicine, and is equal to other items of strong evidence that are admitted by most jurists in cases other than those of applying prescribed punishments. It is a great contemporary development in the area of tracing similarities, which the majority of Islamic jurisprudence (fiqh) schools rely on in determining a contested parentage. A genetic imprint test, however, should be made at several laboratories.

As regards using this method to confirm parentage, due to the fact that the different opinions of jurists on the subject create a need for a more thorough studies of its various aspect, the seminar calls for a discussion session in which specialized jurists and physicians participate in order to arrive at suitable recommendations on this question.

The recommendations of the discussion session of the year 2000 on the validity of the genetic imprint as evidence include the following:

Having looked into those rulings, the comments of jurists, the explanation of the genetic imprint made by scientists from the Genetics Center, and the detailed discussion and debate on the subject - the participants have arrived at the following:

1. Every human has his own, unique genetic pattern in every cell in his body, which is not shared by any other individual throughout the world. This pattern is known as the genetic imprint. In practice, the genetic imprint is an almost error-proof method of determining biological parentage and confirming identity, particularly in the field of forensic medicine, and is equal to other items of strong evidence that are admitted by most jurists in cases other than those of applying prescribed punishments. It is a great contemporary development in the area of tracing similarities, which the majority of Islamic jurisprudence (fiqh) schools rely on in determining a contested parentage. Therefore, the seminar decides that, with all the more reason, the genetic imprint evidence should be admitted in all the cases in which tracing similarities is applied.

2. The discussion session rules that the genetic imprint should be resorted to in cases where, in the absence of other evidence or with both (or all) sides having equal evidence, more than one man claims the fatherhood of a child whose lineage has not been established.

3. A person who claims to be the parent of a child whose lineage is unknown is entitled to the parentage of that child when his claim satisfies the conditions set by Islamic Law. Consequently, such a person has no right to withdraw his claim, any denial of one of that person's other children of the kinship of the claimed child is not admitted, and the genetic imprint evidence is not applicable in such a case.

4. The admission of some siblings that a child of unknown lineage is their sibling is not binding to the other siblings, the lineage cannot be confirmed, the consequences of the admission is limited to the inherited share of the siblings making the admission, and the genetic imprint evidence is not admitted in such a case.

5. In the discussion of this subject, varying points of view were made and the debate went on for a long time on whether a woman's claim of parentage is admissible in the case of a child of unknown lineage. It was therefore decided to allow more time for the consideration and investigation of this question.

6. The genetic imprint is not accepted as evidence of a "conjugal bed," since the proof of marriage has to follow the procedures set in Islamic Law.

7. The participants believe that the following controls should be operative when a genetic imprint test is to be made:

a. A test should be made only after permission from the concerned authority is obtained.

b. The test should be made in at least two different accredited laboratories, with proper precaution taken to guarantee that none of the laboratories involved has access to the findings of the other(s).

c. Government owned laboratories are preferable, but if such laboratories are not available, the test can be made at government-supervised laboratories. Whatever the case is, one condition that has to be met is that the applicable local and international conditions and controls are met.

d. Another condition is that the staff of these laboratories must be qualified and trustworthy, and none of them should be on terms of kinship, friendship, enmity or common interest with any of the claimants nor should have a record of a dishonorable offense or an act of dishonesty. Islamic Center of Southern California