Fiqh-i Pizishki (Medical Jurisprudence) by Seyyed Mostafa Mohaghegh Damad (review)

The study of biomedical ethics analyses the ethical way of dealing with medical matters such as fertility, abortion, and organ donation. Within Islam, this field uses the Qur’an and hadiths to provide guidelines for dealing with these issues. In Fiqh-i Pizishki, biomedical ethics from an Islamic point of view is examined by Ayatollah Seyyed Mostafa Mohaghegh Damad, an Islamic scholar who spans both the classical Islamic and modern academic traditions, in that he is both a mujtahid and holds a doctorate in law from Belgium.

Mohaghegh Damad indicates that his motivation for writing this book was to provide a book to teach medical jurisprudence to physicians (31). It opens with a brief discussion on jurisprudence and its principles, various types of Islamic schools, and a chronology of Shi‘a jurisprudence. In Part 1, Chapters 4 and 5 are devoted to jurisprudence and its principles and applications, respectively. Part 2, which is divided into two chapters, focuses on the current regulations of medical jurisprudence and the obligations of physicians. In addition, Mohaghegh Damad elaborates on some jurisprudential principles which are frequently used in medical discourse, namely the ghurur principle (which states that if someone deceives another person, the initial person will be held responsible); the principle of avoidance of harm (nafy al-darar, based on the hadith ‘la darar wa la dirār fi al-islam’ – namely, ‘no harm and no harming in Islam’); and the principle of doing good (qa‘idat al-ihsan, based on Qur’an 6:91).

Part 3, which is the focal point of the book, is dedicated to some important and frequently discussed areas of medical jurisprudence such as suicide, abortion, infertility treatment, organ donation, and dying patients. The second chapter in Part 3 gives a thought-provoking and slightly controversial account of suicide. Here the author begins with a chronology of suicide. After critiquing the opinions of early Christians and contemporary intellectuals in regards to suicide, he then proceeds to an ethical discussion of suicide, followed by an examination of suicide according to different Islamic schools thought. Finally, he examines relevant Qur’anic verses, such as verses 2:195, 2:173, 4:29-30, 5:5, 6:119 and 6:145, and concludes that ‘there is no argument over the impermissibility of various types of suicide. There must be a distinction between murder and self-protection. Although murder is impermissible, self-protection against death is not obligatory.’ This stance contradicts much of the exegetical tradition. He also mentions that, while suicide is considered a major sin, it does not entail consequences for a Muslim in this world – for example, it does not prevent a Muslim from receiving a ritual burial.

Mohaghegh Damad also addresses abortion. A brief history of abortion is presented and embryonic development is accounted for from both the medical and Islamic viewpoints, as found in Qur’anic verses 23:12-14. He provides a definition of life in its different possible nuances, substantiating it through some traditions from Imam Muhammad al-Baqir (A) and Imam Zayn al-‘Abidin (A). Mohaghegh Damad holds abortion impermissible except under certain conditions. To support the impermissibility of abortion, he presents evidence from verses 17:33 and 5:32 as well as from a number of traditions. In addition to this evidence, the author also presents specific arguments in favour of the impermissibility of abortion. For instance, since sperm removal is considered impermissible in a number of traditions, the author concludes that abortion is also impermissible. Consensus exists among Shi‘a and Sunni scholars on this point.

Although Mohaghegh Damad agrees that abortion is impermissible, he mentions five conditions under which it is allowed. The first condition is when an embryo dies inside the mother’s womb. The second condition is in the case where the mother has been raped, as long as the embryo has not yet developed a spirit. After the fourth month of...