Permission for Performing an Autopsy: The Pitfalls under Islamic LawAuthor(s): Isam GhanemSource: Arab Law Quarterly, Vol. 4, No. 3 (Aug., 1989), pp. 242-243Published by: BRILLStable URL: http://www.jstor.org/stable/3381324Accessed: 06/11/2009 04:21

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PERMISSION FOR PERFORMING AN AUTOPSY: THE PITFALLS UNDER ISLAMIC LAW

Dr Isam Ghanem* LLB, PhD, FBIM

I worked recently as a visiting consultant to three hospitals in a traditional Muslim country.

When I revised the practice on post-mortems, I was amazed to find that an Ameri- can hospital administrator had drawn up a Standard Practice (without consulting the legal adviser) which stated that legal next of kin in order of pnonty was the spouse.

I talked to a British pathologist who told me that he had realised that the Standard Practice was illegal under local law and that he therefore finds it necessary to apply for a court order every time he carries out a post-mortem.

The Alinistry of Health legal department personnel were trained in Arabic and French and could not revise the Standard Practice drawn up in English.

Now this is a particularly complicated subject under Islamic law. Before explaining the legal positiorl, it must be remembered that as crime is often a

family affair, permission for autopsy may not be forthcoming and the only safe way then is to apply for a court order.

Of course, in the case of non-A&uslims who are not permanently resident in such countries, the next of kin in order of priority could very well be the spouse. The appropriate Consul General should be consulted (preferably in advance, by obtaining standing directives).

The reason why there is a dearth of authority on the subject is the Islamic legal background.

The ruling by the Prophet Muhammad runs: "The breaking of the bone of a dead person is like the breaking of the bone of a live person". This dictum was related in the famous compilation of Imam Ahmad bin Hanbal whose doctrine is the dominant school in Saudi Arabia and Qatar.

Dissection was not practised in early Islam and it was only in the days of Rhazes, Avicenna and Averroes ( lOth-12th Century AD) that the Islamic legal maxim: "Necessity permits the forbidden" was invoked to investigate crime.

But the Muslim world waned and reverted in a few practical cases to the pre-Islamic posiiion of regarding the asaba the male agnateas the blood guardians.

The priority of male agnates is: (1) Sonanddescendants; (2) Fatherandascendants; (3) Brothers and nephews; and (4) Uncles and cousins.

* Advocate, Yemen and Dubai. Formerly lecturer at Ahmadu Bello University and Central London Polytechnic, Magistrate, Aden. Box 10263, Dubai, UAE. Box 1241, Sanaa, YAR. Box 4862, Crater, Aden.

243 PERhlISSION FOR PERFORMING AN AUTOPSY: PITiaLLS

Uterine relationship is outside the bounds of the agnatic tie. But as Islam made the mother) widow, daughter and sister heirs entitled to prescribed portions in the estate of the praepositus, when the Islamic revival began late in the nineteenth century, the question of blood guardian in surgical matters arose as an academic issue. It was evaded.

Sometimes autopsies were performed in London to avoid the issue. Now that there are post-mortem faciliiies in modern hospitals, but in traditional communities with hospital administrators whose M13A does not cover comparative forensic medicine, the issue has become truly vexed and is creeping into the crirninal courts.

The answer probably lies in the degrees of relationship for the purposes of legal deputi- satton or representatlon.

Most schools of Islamic law are agreed that an incapax relative (e.g., in coma) may be represented by the following relatives in order of pnonty:

(1) Father, son, mother; (2) Siblings, wife, grandfather and grandson; (3) Paternal and maternal uncles; and (4) Cousins.

The wife may not be related and yet she ranks as such for reason and public benefit Of course senility, minority, and incapacity disqualify an ostensible representative.

The age of majority is 15 according to most schools and sects, but for certain purposes such as trading it is 18. Therefore, perhaps, it is a fortion.

In the absence of a dispute amengst the legal deputies, an autopsy could be per- formed where a delay in securing a court order would affect the value of a major foren- S1C eXerClSe.

One thing is certain: the time has not yet come when autopstes can be performed for research purposes in the traditional Gulf states. Only necessity, which means criminal investigation, coupled with due consent may justify a post-mortem.

A hospital should go through the motions of obtaining the consent of Islamic next of kin because even if it meets with opposition) it cotlld approach the court with an application that narrows the issues atld helps in securing a judicial ruling on a delicate medico-legal aspect of Islarnic medical jurisprudence.

REFERENCES

E G Browne) Arabian Medicine (London) 1962). I Ghanem, Islamic Medical3runsprudence (London, 1982, Beirllt) 1986). M Ullman, Islamic Medtcine (Edinburgh, 1978).

This article was first published in Med. Sci. Law (1988) Vol. 28, No. 3.

Article Contentsp. [242]p. 243

Issue Table of ContentsArab Law Quarterly, Vol. 4, No. 3 (Aug., 1989), pp. 181-266Front MatterIntroduction [p. 181]The Injurious Acts under the Jordanian Civil Code [pp. 183-198]Insurance and Islamic Law: The Islamic Insurance Company [pp. 199-205]Arab Agreement for the Protection of Authors' Rights [pp. 206-215]The UAE Commercial Companies Law: Recalled to Life [pp. 216-223]Maritime Litigation in the GCC States [pp. 224-234]Ownership of Urban Realty by Non-Egyptians [pp. 235-241]Permission for Performing an Autopsy: The Pitfalls under Islamic Law [pp. 242-243]The Mejelle: Book XI: Agency [pp. 244-253]Commercial and Industrial Licences for Foreigners in Egypt [p. 254]Presidental Decree No. 399 of 1987 [p. 255]Note on the Government Guideline Prices for Land Subject to Foreign Ownership Provisions of Law No. 56 of 1988 [pp. 256-257]Ministerial Decree No. 572 of 1988 [pp. 258-259]Book ReviewsReview: untitled [p. 260]Review: untitled [p. 260]Review: untitled [p. 261]Review: untitled [p. 261]Review: untitled [p. 261]Review: untitled [p. 262]Review: untitled [p. 262]Review: untitled [pp. 262-263]Review: untitled [p. 263]Review: untitled [p. 263]Review: untitled [pp. 263-265]