ABSTRACT

The Islamic ethical theory on research is based on the 5 purposes of the Law, maqasid al shari’at,under which define the 5 necessities, dharurat, under which human experimentation is allowed: preservation of religion, life, progeny, the mind, and wealth. If any of the 5 necessities, al dharuraat al khamsat, is at risk permission is given to undertake experiments that would otherwise be legally prohibited. Therapeutic research fulfills the purpose of protecting health and life. Infertility research fulfils the purpose of protecting progeny. Psychiatric research fulfills the purpose of protecting the mind. The search for cheaper treatments fulfills the purpose of protecting wealth, hifdh al mal. The 5 principles of the Law (intention, certainty, injury, hardship, and precedent) constitute the Islamic ethical guidelines. Research is judged by its underlying and not expressed intentions. Research is prohibited certainty exists about beneficial existing treatment. Research is allowed if benefit outweighs the risk or if public interest outweighs individual interest. If the risk is equal to the benefit, prevention of a harm has priority over pursuit of a benefit of equal worth. The Law chooses the lesser of the two evils, injury due to disease or risk of experimentation. The principle of custom is used to define standards of good clinical practice as what the majority of reasonable physicians consider as reasonable. Under the doctrine of istishaab, an existing treatment is continued until there is evidence to the contrary. Under the doctrine of istihsaan a physician can ignore results of a new experiment because of some inclination in his mind. Under the doctrine of istislaah preventing a harm has priority over obtaining a benefit. Informed consent by a legally competent research subject is mandatory. Informed consent does not legalize risky non-therapeutic research with no potential benefit. Informed consent is violated in community-based experimentation in which individuals are not consulted. It is illegal to force participation of the weak (prisoners, children, the ignorant, mentally incapacitated, and the poor) in clinical trials. Research on fetal human tissues may encourage abortion. Objection to dissection of cadavers for medical education and post-mortem examination is on the basis of prohibition of mutilation but permission is given where necessity can be established. Use of human bodies in auto crass experiments is an affront to human dignity. Genetic experiments on human organisms, tissues, and cells give rise to many ethical problems. Transformed genes, molecules, and even microorganisms may cause diseases hitherto unknown. They may lead to new forms of environmental pollution. The Law allows research on ageing as long as the aim is not prolongation of life or preventing death because those aspects are under Allah’s control.

1. HISTORICAL BACKGROUND

Experiments on humans are as old as history. Early humans experimented with several plants and by trial and error found some to be useful as medicines and others to be poisonous. Such trials have continued throughout human history giving rise to a corpus of traditional medicine. Many medical systems including tibb nabawi represent empirical knowledge accumulated over time by many informal and often un recognized medical experiments. These early experiments were not planned in a systematic way neither were they documented. Planned medical experiments are quite recent. Galen is credited with being the founder of experimental medicine before 200 CE. In 1747 CE James Lind found out by experimentation that lemon juice prevented scurvy. Dr Edward Jenner found in 1798 that material from cowpox lesions prevented small pox. In 1914 Goldberger discovered the prevention of pellagra. Experiments were sometimes carried out on whole communities such as the study of vitamin C in the prevention of the common cold, the Salk and HBV vaccine trials, the multiple risk factor intervention trial (MRFIT) against cardiac disease, and fluoridation of community water supplies to prevent dental caries. Some trials are therapeutic such as the randomized study of aspirin myocardial infarction study. One of the earliest clinical trials was the use of streptomycin in the treatment of tuberculosis in 1948. Preventive studies such as the women’s health study in which vitamin C and low dose aspirin were given to prevent cancer and cardiovascular disease or the use of alpha-tocopherol and beta-carotene to prevent lung cancer among smokers. Modern sophisticated research on humans in search of new drugs is an outgrowth of these early efforts. Modern medicine would not have progressed as it has without some form of experimentation on humans. If a new drug is to be used on humans, it has to be tried on humans because animal experiments are not adequate and may not be relevant to humans.

HUMAN TRANSGRESSION

Humans are wont to transgress against other humans. The angels questioned the creation of Adam on the basis of human aggression and spilling of blood (2:30). The son of Adam committed the first homicide in human history (KS41 Bukhari K60 B1, Bukhari K87 B2, Bukhari K96 B15, Muslim K28 H27, Ibn Majah K21 B1, Ahmad 1:383, Ahmad 1:430, Ahmad 1:433). Daughters were buried alive in pre-Islamic Arabia (81:8). Dhu Nuwaas a Jewish King in Yaman persecuted believers by burning them alive (85:4-8). The Pharaohs carried out a systematic genocide of the Israelites (2:40). King Nimrod carried out an experiment to prove he could give and take life by ordering killing of one prisoner while sparing another one (2:258). King Muteesa I tested the efficacy of a new gun presented to him by ordering its use on any person outside the palace. There is great suspicion that nations that manufacture weapons encourage some low level conflicts for the purposes of testing their new weapons.

Human transgression has also manifested in several forms of human experimentation. The search for new cures using human experimentation showed extreme forms of human transgression and disrespect for human life in the Nazi and Japanese inhumane medical experiments on prisoners in the second world war. These were extreme but not isolated incidents. Despite the horror of the details revealed at the Nuremberg trials of Nazi medical experiments, unethical medical experiments without informing the subjects or getting their consent continued after the second world war. In the 1950s LSD and other drugs were used in experiments to discover drugs that could control human behavior. In 1953 a CIA employee used in an experiment on LSD without consent developed psychiatric symptoms and committed suicide. In 1953 Harold Blauer, a hospitalized psychiatric patient in a research project funded by the US Army, died after injection of mescaline. In the period 1940s to 1960s the US Atomic Energy Commission conducted experiments on unsuspecting subjects including children to study the effect atomic weapon irradiation. In 1954-56 elderly patients at the Brooklyn Jewish Chronic Diseases Hospital had cancer cells injected directly into their veins. In the period 1932-1972, 400 Black American men with syphilis were deprived of any treatment in a study of the natural history of syphilis. In 1946-1956 retarded teenage boys in Massachusetts had radioactive iron and calcium put in their breakfast cereals. In the early 1950s in Massachusetts pregnant women had radioactive iron injections to study fetal circulation. Some of the pregnant women involved in the thalidomide disaster were not informed of the experimental nature of the drug.

NUREMBER CODE 1946

Twenty-five physicians were charged at Nuremberg after World War II for Nazi inhuman experimentation on humans. Seven were acquitted, 9 were imprisoned, and 9 were sentenced to death. The Nuremberg code was laid down in 1946 in response to the criminal Nazi experiments on humans during the war. The main provisions of the code were: (a) Voluntary informed consent (b) No random or unnecessary experiments (c) Animal experiments and survey of disease natural history before subjecting humans to similar experiments (d) Avoiding unnecessary physical and mental suffering (e) The researchers must be scientifically qualified (f) subjects can withdraw at any time (g) the investigation is stopped if the patient is in danger. There was however no mention of experiments involving children.

HELSINKI DECLARATION

The World Medical Association drew up the Helsinki Declaration, incorporating the Nuremberg code, in 1964. The latest version (1996) was approved by The 48th Assembly of the World Medical Association held in South Africa in 1996 approved the latest version. The code is divided into three sections: Introduction, Basic principles, clinical research, and non-clinical research.

The introduction asserted that the primary duty of the physician was to act in the best interests of the patient. It pointed out the role of research in advancing knowledge of diagnosis, therapy, or prophylaxis with the caution that such research always carries a risk to the subject. A distinction was made between clinical research involving search for new treatment and diagnostic modalities and purely scientific research that had no direct benefit to the patient. This distinction is however questionable because clinical research in based on prior basic scientific research. The code also alluded to environmental concerns and the welfare of animals used in research.

The following basic principles were included in the code. Research on human subjects must conform to generally accepted scientific principles and must be preceded by laboratory and animal experiments. A competent and independent committee must approve the research protocol, setting out all details of the research and a statement of adherence to the Helsinki declaration. The research is carried out by qualified researchers and under the supervision of a medically qualified person who must assume full responsibility for the welfare of the research subjects. The research must be preceded by careful risk-benefit assessment. The research can be carried out only if its risks are predictable, the objectives are important when considered with the potential risks, and the benefits outweigh the risks. Research subject integrity in the form of privacy, physical, and mental welfare must be respected. Research subjects are entitled to full disclosure that covers the aims, methods, and potential hazards of the research before they give their voluntary informed consent. They should be informed that they are free to abstain from the study or to withdraw at any stage. Proxy consent is obtained for the legally incompetent, children or the mentally retarded. Results of the research will be accepted for publication only if they are accurate and conform to the principles of the Helsinki Declaration.

The declaration defined and approved clinical research as medical research combined with medical care. The physician is free to use a new therapeutic or diagnostic measure that in their judgment has hope of improving life and alleviating suffering. The potential benefits, hazards, and discomfort of the new method must be weighed against the best current and available diagnostic and therapeutic methods. Use of a placebo in a control group is allowed if no better method is available.

The declaration defined non-clinical biomedical research as non-therapeutic research involving humans carried out only on volunteers either healthy volunteers or patient volunteers. In case of patient volunteers the experimental design should not be related to their illness. The lead physician in the research team retains responsibility for subject welfare. The research is terminated as soon as is judged harmful to the research subjects. In any case the interests of science and society should never take precedence over the welfare of the research subjects.

ISLAMIC CRITIQUE OF THE WESTERN ETHICAL CODES

The Nuremberg and Helsinki codes on experimentation have not been successful in stopping unethical research on research subjects who are weak members of society. As mentioned above, many unethical experiments were carried out in the US soon after Nuremberg. The basic failure is that these codes lack a clear identity. They are neither law that is enforceable using the normal legal procedures nor are they moral standards that are enforced by the inner conscience of the experimenter. These codes are a reflection of the secularization of western society in which morality was divorced from law and public affairs. Ethical codes are a bad attempt to mitigate the bad effects of a divorce that should have never been allowed to occur in the first place.

Islam looks at problems of human experimentation as purely legal issues. The Law provides adequate guidelines and safeguards. Islamic Law, unlike western law, incorporates morality in its fabric. There is therefore no need to have special ethical codes outside the Law.

2. PURPOSES OF THE LAW IN HUMAN EXPERIMENTATION NECESSITIES, NEEDS, and REFINMENTS

Ethical issues of human experimentation can be discussed from the vantage point of the purposes of the law as set out by the lawgiver. The purposes can be divided into three categories: necessities, dharuraat; needs, haajiyaat, and refinements, tahsiinaat. Normal human life cannot exist and continue without dharuuraat. Haajiyat are for the proper functioning of life beyond the requirements of basic survival. They serve the purpose of lifting difficulty, haraj, from people that would arise of the law provided only for dharurat. Tahsinaat aim at achieving a higher level of human dignity. Human experimentation in order to fulfill dharurat has priority over that research that aims at fulfilling hajiyat. The Law will allow taking a higher risk for dharurat than for hajiyat. Experimentation for refinements may not be considered at all if there is any risk. The 5 dharurat recognized by the law are preservation of religion, life, progeny, the mind, and wealth. An example of a dharurat is a life-saving drug like insulin for the insulin-dependent diabetic. An example of a haajat is a drug to treat mild anxiety. An example of a tahsin is a cosmetic cream or female circumcision, al khafdh.

PURPOSE OF PROTECTION OF RELIGION, hifdh al din

Experiments on humans become unethical when the scientists involved are not guided by morality. Thus violation of the purpose of protecting religion brings cruelty and injustice in its wake.

THE PURPOSE OF PROTECTION OF LIFE, hifdh al nafs

Experiments on humans for the purpose of finding new cures for disease fulfill the purpose of protecting health and life. Often the benefit is general for the whole society and not for subjects of the research. Phase 1 and phase 2 clinical trials may have no direct benefit to the patient but they provide basic scientific information. Phase 3 trials have potential benefit for the patient. Phase 4 trials have a general societal benefit. The state has a responsibility for the life and health of its citizens. It therefore must promulgate and enforce laws on the conduct of human experiments in order to prevent abuses. It must be involved in the approval of drugs and devices for experiments as well as ethical approval of protocols. The following are considered before approving an experimental drug for experimentation: knowledge about the drug from previous studies, consideration whether further research is needed, benefit and hazards to patients. Licensing a drug after for marketing is a new experiment involving many humans with its benefits and hazards. Post-marketing surveillance, phase 4 of the clinical study, is as important as the earlier phases.

Death or other forms of injury consequent from an experiment trigger a criminal charge of unintended manslaughter for which compensatory and not punitive damages are awarded, diyat. Informed consent of the victim or his written statement relieving the physician or experimenter from liability is not admissible as defense in this case. The strictness of the law on this matter is intended more for societal benefit to put those engaged in experimentation on their toes so that mistakes are not made. The risks involved in experimentation may appear to contradict the purpose of preserving life. We may use the analogy of jihad to understand the underlying legal issues. Jihad is a noble objective for which the purpose of preserving life may be violated. The soldier in jihad knows that he has a high probability of being injured but cannot be 100% certain that he will be injured. If there is certainty, yaqeen, in jihad that injury will occur then it is illegal to join battle because there is a higher principle of never deliberately throwing oneself to destruction, la tulquu bi aydiikum ila la tahaluka. Injury or harm in an experiment is only a potential but not a certainty. Any human experiment will be deemed illegal if there is a 100% certainty of a hazard.

THE PURPOSE OF PROTECTION OF PROGENY, hifdh al nasl

Research on methods of curing infertility fulfils the purpose of protecting progeny. The whole of medicine especially pediatrics and obstetrics also fulfils this purpose. Good health of potential parents ensures that they will be healthy enough to bear the next generation. Good prenatal and obstetric care ensures delivery of a healthy baby who therefore has more chances of growing into a healthy adult.

THE PURPOSE OF PROTECTION OF THE MIND, hifdh al ‘aql

Research on cure of mental conditions fulfills the purpose of protecting the mind. Research on other somatic diseases fulfils the same purpose because any disease will through pain, suffering, and loss of function lead to mental symptoms of depression and anxiety. Research on drugs and nutrients that alter the mind is justified in order to protect humans from such deleterious effects.

THE PURPOSE OF PROTECTION OF WEALTH, hifdh al mal

In general good health ensures a healthy workforce that works to generate wealth for the community. Human experimentation may lead to safer, more effective, and cheaper methods of treating disease which saves wealth.

3. PRINCIPLES OF THE LAW IN HUMAN EXPERIMENTATION

THE PRINCIPLE OF INTENTION, qaidat al maqsad

The basic principle is that each action is judged by the intention behind it, al umuur bi maqasidiha. A research protocol is judged by the underlying objectives of the researcher as manifest in actual implementation and not the stated objectives that may be deceptive. Means are judged with the same criteria as the intentions, al wasail laha hukm al maqasid. If the intention, qasd, is wrong the means, wasiilah, is wrong and vice versa. Under this principle a research protocol with beneficial scientific results will be rejected if the methods used are unethical.

THE PRINCIPLE OF CERTAINTY, qaidat al yaqeen

Human experimentation is carried out because of uncertainty about what is the best treatment. If there is certainty that the current treatment is the best that there can be, an unlikely practical situation, then there is no legal justification for further research. Further research cannot commence on the basis of some doubt about an existing treatment method. According to the principle is that certainty cannot be removed by doubt, al yaqeen la yazuulu bi al shakk, there must be some empirical evidence of low efficacy in the current treatment or probable efficacy in the new treatment before an experiment is authorized. Scientific conclusions are relative, probabilistic, and never 100% certain. The Law recognizes the following descending order of gradation: certainty, yaqeen; predominant conjecture, ghalabat al dhann; conjecture, al dhann; and doubt, al shakk. Yaqeen, is a situation when there is no doubt. Dhann, is a situation in which there is some evidence in favor of one option but that evidence is not strong enough to rule out the other alternatives. Shakk, is the opposite of yaqeen and is a situation in which there are two or more competing options with no sufficient evidence to prove one of them as the most valid. Since yaqeen is unattainable in science, we can make decisions based on ghalabat al dhann. In the absence of ghalabat al dhann, existing treatments should continue in force until there is compelling evidence to change them, al asl baqau ma kaana ala ma kaana. The above principles can protect against proliferation of human experiments that are unnecessary and are harmful but yet leave room for those that have a good prospect of reaching a better treatment modality.

THE PRINCIPLE OF INJURY, qaidat al dharar

Human experimentation has associated potential hazards and risks. These risks have to be balanced against the injury by disease and the potential benefit from the new treatment. The basic principle is that injury, if it occurs, should be relieved, al dharar yuzaal. Thus a clinical trial in search of an effective cure for a disease is an attempt to remove an injury. Preventive clinical trials are justified under the principle that an injury should be prevented as much as is possible, al dharar yudfau bi qadr al imkaan. The new treatment being sought should not be as harmful as the disease condition according to the principle that an injury is not relieved inflicting or causing an injury of the same degree, al dharar la yuzaal bi mithlihi. Decisions to proceed with human experimentation involve a careful balancing of benefits and risks. The easiest situation is when the potential benefit far outweighs the potential risk, in which case the research proceeds in pursuit of the benefit. If the risk is equal to the benefit, we use the principle that prevention of a harm has priority over pursuit of a benefit of equal worth, dariu an mafasid awla min jalbi al masaalih. If the risk is more than the benefit for the individual research subject, but there is a larger societal benefit, we may proceed with the research under the principle that public interest has priority over individual interest, al maslahat al aamat muqaddamat ala al maslahat al khaassat. The individual may have to sustain a harm in order to protect public interest, yatahammalu al dharar al khaas li dafiu al dharar al aam. In some situations benefits may not figure in the equation; the consideration being the injury of the disease against the potential risk of the experiment. The principle of the law used is to choose the lesser of the two evils, ikhtiyaar ahwan al sharrain.

PRINCIPLE OF HARDSHIP, qaidat al mashaqqat

Hardship mitigates easing of the sharia rules and obligations, al mashaqqa tajlibu al tayseer and necessity legalizes the prohibited, al dharuraat tubiihu al mahdhuuraat. If any of the 5 necessities, al dharuraat al khamsat, is at risk permission is given to undertake experiments that would otherwise be legally prohibited. Committing the otherwise prohibited action should not extend beyond the limits needed to preserve the purpose of the law that is the basis for the legalization, al dharuraat tuqaddar bi qadriha. Necessity however does not permanently abrogate the patient’s right, al idhtiraar la yubtilu haqq al ghair. The law asserts vicarious liability. It is illegal to get out of a difficulty by delegating to someone else to undertake a harmful act, ma haruma fi’iluhu, haruma talabuhu. Thus legal action will be brought against all officials in the chain of command for negligence in experiments in their institution even if they did not personally take part.

THE PRINCIPLE OF CUSTOM or PRECEDENT, qaidat al urf

The principle of custom is used to define standards of good clinical practice. The basic principle is that custom or precedent has legal effect, al aadat muhakkamat. What is considered customary is what is uniform, widespread, and predominant, innama tutabaru al aaadat idha atradat aw ghalabat, or is predominant, widespread, and not what is rare, al ibrat li al ghaalib al shaiu la al naadir. Thus the standard of clinical care or experimental procedure is what the majority of reasonable physicians consider as reasonable care and which constitutes a professional standard. An innovative therapy is departure from the standard care. It is however allowed under the law but the physicians will be held liable for any injuries to the patient. This liability also arises even if standard care were used. The Law recognizes that what is customary changes with time, la yunkiru taghayyur al ahkaam bi taghayyuri al azmaan wa al ahwaal wa al aadaat wa a’raaf.

THE DOCTRINE OF ISTISHAAB

This is continuation of an existing ruling either affirming, ithbaat, or denying, dafau. Matters are left as they are until there is evidence to the contrary. Recourse is made to istishaab if there is no evidence, daliil. This doctrine has the same impact as the principle of yaqeen discussed above.

THE DOCTRINE OF ISTIHSAAN

This is preference for one qiyaas over another because of evidence that the mujtahid feels more comfortable with or which is stronger. The evidence or reasoning may not be obvious, qiyaas khiffi. The doctrine operates in a clinical situation in which a physician obtains experimental evidence about the efficacy of a new treatment but continues to use the old treatment because of some inclination in his mind. This problem does not arise if Bayesian inference is used. The experimenter will have to state a probability of prior belief in the efficacy of the new treatment. The results of the experiment are then used to generate a posterior probability from the prior probability. The posterior probability may reinforce or decrease the original assumption. In this way prior clinical experience or judgment is combined with new experimental evidence to reach a practical conclusion.

THE DOCTRINE OF BENEFIT, ISTISLAAH

Istislah is obtaining a benefit, jalb manufa’at, and preventing a harm, dafiu mafsadat. Preventing a harm has priority over obtaining a benefit, dafiu al mafsadat muqaddamu ala jalb al maslahat. Human interest or benefit is the primary purpose of the law and is considered in three types. Recognized benefits, maslahat mu’utabarat, are those related to the 5 purposes of the law: ddiin, nafs, nasl, ‘aql, & maal. Considerations of most clinical trials fall under recognized benefits. Abrogated benefits, maslahat mulghaat, are imaginary and are not real for example planning a clinical trial of medication to change the appearance of normal males to females or drugs to increase liver metabolism of alcohol and thus enable addicts to take more alcohol with delayed intoxication. Unclassified benefits, maslahat mursalat, are those for which the law did not mention any explicit text about their recognition or abrogation. Benefits of human experimentation may be considered under maslahat mursalat following conditions laid down by the Malikis: conformity to the purposes of the law, mulaimat li maqasid al shariat; being logical, ma’aquul; being necessary, dharuuri; serving public and not personal or private interest; and being real and not imaginary benefits.

Consideration of maslahat arises when we have to compare an existing to a new innovative treatment. The potential benefit from the new treatment must be more than the standard treatment for the experiment to be allowed to proceed. Consideration of maslahat also distinguishes a patient as a subject from a healthy volunteer; the former may get some personal benefit from the experiment since experimentation is combined with care whereas the latter has no benefits at all but may be exposed to hazards. Therapeutic research has immediate benefits whereas the benefits of non-therapeutic research are remote. In non-therapeutic research, the subjects are volunteers who may be healthy with or patients. In a randomized trial, subjects who receive a placebo have no benefit and no hazard but of they are patients they are missing the potential benefits of either the traditional or the innovative treatment.

4. INFORMED CONSENT

The commonest and most serious problem in human experiments is lack of proper informed consent. The following captive populations may be used in research without their knowledge or consent: hospitalized patients, institutionalized children, the mentally abnormal, army or police personnel, laboratory assistants or medical students. The process of full disclosure that precedes patient consent usually creates enough transparency in the research process to prevent fraud and malpractice. Consent to participation in an experiment does not void the duties and obligations of the traditional doctor-patient relationship. Under the doctrine of sadd al dhari’at and in the interest of the public, the subject cannot consent to relieve the physician from liability for negligent medical care or injury from the experimental procedures. The law on the basis that a person with full legal competence would not give consent if all the implications and hazards of the experiment were explained to him or her does not recognize consent to an experiment with a clear preponderance of harm. The Law as a contract under which the patient expects reasonable care as well as expressed or implied warranties and guarantees recognizes the doctor-patient relationship. In an experiment the research protocol is considered part of the contract and any protocol violations are considered a breach of contract for which relief can be sought in a court of law under the doctrine that Muslims are bound by the conditions of their agreement, al muslimuum ‘ala shurutihim.

Consent is allowed under the doctrine of the human temporary custody of life. Life belongs to Allah but a human has temporary custody during his adult lifetime. It is wring to argue that a human cannot make any decision to participate in an experiment with potential hazard to life because he has no control over his life. He however is accountable for any decisions made such as consenting to a highly risky experiment that has no potential benefits.

The Law is very explicit about the need for consent by a patient. Nobody can be given any medicine or nutrition against his or her will ( ). Human autonomy or privacy is respected even if the refusal of treatment is illogical or is based on false premises. Thus all subjects of a clinical trial must give voluntary consent before being part of the experiment. Consent can be coupled with a contractual relation in which specified conditions of treatment can be detailed and that contract is enforceable by the Law however any clause that exempts the experimenter from liability for harm to the patient is null and void.

Consent is related to the fine balance between benefit and risk in an experiment. It is only the subject of the experiment who has the most objective assessment of risks because his welfare is at stake. Others may have other interests or pressures that color their judgment. The consent of a minor raises serious problems. The Law allows a guardian to make decisions on behalf of the minor if they are clearly beneficial to the minor. The Law frowns on any decisions that may be disadvantageous to the minor. Since a clinical trial has both benefits and hazards, the decision is very difficult to make. A minor child with insight, mumayyiz, can be allowed to express his or her views but the final decision rests with the guardian.

Consent can only be given by a person judged by the Law to be legally competent. Many experimental subjects in en-ethical research are captive populations who cannot fulfill the conditions of legal competence. Hospitalized patients may not feel free to refuse participation because they feel indebted or under the control of the physicians. Physicians are looked at as authority figures expected not to do harm. Children and the mentally deficient may not have the intellectual competence to evaluate the risks and benefits involved in an experiment in order to make an informed decision. Prisoners, armed forces and police personnel, medical students may have undue pressure from superiors to consent to research that they would normally refuse.

5. OUTSTANDING ETHICO-LEGAL ISSUES

NON THERAPEUTIC EXPERIMENTS

Non-therapeutic experiments have no direct or immediate benefit to the subject of the study but may on the other hand expose him or her to hazards. These experiments are however necessary to generate scientific data on which subsequent therapeutic trials can be based. Phase 1 and phase 2 clinical trials are non-therapeutic trials on terminal patients who are not likely to benefit from the treatment. They however provide pharmacodynamic, pharmacokinetic, and efficacy data used to design phase 3 studies.

COMMUNITY-BASED EXPERIMENTATION

Experiments in which whole communities and not individuals are inducted into an experiment such as fluoridation of drinking water raises an important issue of informed consent. Many individuals either do not like to participate or are not in a position to give informed consent

THERAPEUTIC CLINICAL TRIALS ON HUMANS

Therapeutic trials involve clinical trials of new drugs, clinical trials of new procedures, or clinical trials of new medical devices. Research subjects are either patients (terminal or recovery possible) or healthy volunteers (paid or unpaid). The major ethical issues that arise are: (a) forced participation of the weak (prisoners, children, the ignorant, mentally incapacitated, and the poor), risk to life (short and long term), and lack of informed consent. The prophet forbade participating in jihad without the blessings of the parents, la yaghzu illa bi ridha al waalidayn (KS174). Using the analogy of jihad, any person of whatever age must seek the blessings of the parents before participation in a clinical trial. A wife can not participate in a clinical trial without the husband’s permission.

RESEARCH ON HUMAN TISSUES

Human tissues used in research may be from living persons, dead bodies, or aborted fetuses. The main ethical issue that arises is lack of proper informed consent and the possible increase in abortions for the sake of obtaining fetal tissue for experimentation. A property and ethical issue may arise over ownership of cell lines and other biological products developed from human tissues and patented for commercial use.

ANATOMY: DISSECTION OF CADAVERS

Dissection of cadavers is very importance for medical education. There are really no alternatives to dissection. Cadavers may be abandoned persons or vagrants who have no relatives to bury them. Cadevers may also be bought or donated. The main ethical issues that arise are: human dignity, Informed consent, and final burial of all remains.

POST-MORTEM EXAMINATION

Post-mortem examination serves several purposes. It can be done for scientific research to understand the natural history, complications, and treatment of a disease condition. It can be done for further education of physicians and medical students especially when they compare their clinical diagnosis with the evidence from autopsy. The lessons learned will improve their diagnostic and treatment skills in the future. Post mortems are also undertaken for forensic purposes to provide evidence on the timing, manner, and cause of death. The ethical issues that arise are: removal of parts of the body, dignity of dead, risk of disease spread, informed consent of the deceased or the family, and delay of burial. Post mortem may be visualized as mutilation of the body that is forbidden.

The human has dignity in both life and death. Respect for the dead body is the guidance of the prophet to stand up when a funeral procession passes by, al qiyaam li al janaazat (KS160 Bukhari K23 B47, Bukhari K23 B48, Bukhari K23 B49, Bukhari K23 B50, Muslim K11 H73, Muslim K11 H74, Muslim K11 H75, Muslim K11 H76, Muslim K11 H79, Muslim K11 H80, Abudaud K20 B42, Tirmidhi K8 B51, Nisai K21 B45, Ibn Majah K6 B34, Muwatta K16 H33, Ahmad 1:60, Ahmad 1:64, Ahmad 1:68, Ahmad 1:72, Ahmad 1:82, Ahmad 2:265, Ahmad 2:287, Ahmad 3:25, Ahmad 3:41, Ahmad 3:47, Ahmad 3:51, Ahmad 3:53, Ahmad 3:97, Ahmad 3:295, Ahmad 3:319, Ahmad 3:329, Ahmad 3:346, Ahmad 3:445, Ahmad 3:446, Ahmad 3:447, Ahmad 4:164, Ahmad 4:346, Ahmad 4:388, Ahmad 4:391, Ahmad 4:413, Tayalisi H1803, Tayalisi H2184). It is dignity to be buried whole. Surgical operations on the body are an affront to the dignity. The prophet forbade mutilation, nahyu al muthla (KS175 Abudaud K15 B110, Tirmidhi K19 B48). Removal of some parts is looked at with disfavor. In cases in which a body is buried without some of its parts, the parts when found later are washed, prayed for and buried in the same grave. Post-mortem examination will lead to delay of burial when the sunnah is to bury as soon as possible. Delay of the burial affects human dignity because of deteriorations in the body including a bad smell. The balance of benefits and harms is difficult because intangibles like human dignity are involved. The benefit, maslahat, of medical education vs the harm of body mutilation. muthlat. Where foul play is suspected, a post mortem examination becomes mandatory.

PREGNANT WOMAN

If a pregnant woman dies, attempts should be made to remove the fetus if it is alive and viable. If the fetus is also dead, the issue is not clear. Removing the fetus is mutilation of the body for no clear purpose.

CARCASSES IN AUTO CRASH EXPERIMENTS

Use of human bodies in auto crass experiments is an affront to human dignity. It however provides valuable data that is used in improved auto engineering for human safety.

GENETIC ENGINEERING

Genetic experiments on human organisms, tissues, and cells give rise to many ethical problems. Transformed genes, molecules, and even microorganisms may cause diseases hitherto unknown. They may lead to new forms of environmental pollution.

ALTERING HUMAN BEHAVIOUR

Drugs and surgical procedures that alter human behavior violate the purpose of preservation of the mind, hifdh al ‘aql. Artificial alteration of the mind may be voluntary (medical, social, perversion), or forced (abuse of prisoners and dissidents, experimentation on humans, criminal purposes).

RESEARCH ON LONGEVITY

There is basically no ethical problem in the scientific research on cell aging as well as epidemiological studies on risk factors of senescence. What matters is the intention behind the research and to what use that research will be put. If the underlying intention is to prevent or delay death, the research is not ethical. The life span is fixed for each individual and cannot be changed. If the intention of the research is to understand the aging process so that preventive measures can be taken to maintain as high a quality of life as possible, then such research is ethical and is acceptable. Present epidemiological and cell biological knowledge indicates that many measures can be taken to control the aging process. Better nutrition (especially green vegetables and fruits), early detection and treatment of disease, sheltering from cosmic radiation and other environmental exposures, can delay the aging process. This does not however delay the ajal because any other competing cause of death could operate HISTORICAL BACKGROUND

Islam and Medical Ethics