Interface between Law and Ethics in Islamic Bioethics: the Boundaries of Nonmaleficence in the Islamic Law of Paternity

Abstract

AbstractRefraining from intentional harm has been one of the fundamental principles of medical ethics. It can be traced to the beginning of the medical profession, as epitomized in the Hippocratic Oath and other classical texts on medical practice. In modern bioethics theory, both beneficence and nonmaleficence are listed among the basic principles guiding moral evaluation of concrete bioethical problems. Bioethics is a broad term that can be used to cover both medical ethics in the traditional sense and ethics in life sciences; particularly, the impact of modern biomedical technology on moral decision-making. Islamic bioethics denotes systematic analysis of bioethical problems in light of Islamic normative values and principles. Given the large scope of Islamic law – ranging from ritual purity to different types of civil and criminal regulations – Islamic bioethical analysis is not limited to abstract moral evaluation, but often involves an element of Islamic legal prescription. In the Islamic legal tradition, the principle of nonmaleficence can be traced to several injunctions prohibiting the infliction of intentional harm in the primary sources of Islamic law: the Qur’an and the Sunnah of the Prophet. These injunctions have been used for the construction of numerous legal rules in substantive law. Eventually, they developed into an inductive legal principle or maxim on the elimination of harm, al-darar yuzāl. In this paper I argue that in Islamic bioethics the definition of harm and its boundaries, in a given issue, is a function of balancing and reconciling perceived harm against other competing principles relative to the issue, in light of the overarching objectives of sharī`ah. I illustrate this point with two examples from the Islamic law of paternity: paternity of an illegitimate child; and the right of a putative biological father to challenge the presumed paternity of a legal father. Generally, Islamic law does not recognize paternity in these two cases. The paper investigates whether denial of legal paternity in both cases constitutes harm, and how this harm is balanced against other competing principles relative to the issue of paternity, such as: the best interest of the child; the sanctity of marriage; and the overarching objectives of sharī`ah, particularly the preservation of progeny and protection of honor. The paper compares these two examples with similar ones, such as: paternity of the foundling; and children of unknown paternity. Finally, the paper explores the impact of modern genetic technology on the Islamic law of paternity. and whether this technology could lead to a redefinition of harm or its boundaries in this issue.