Faculty of Syariah and Law

Law of Torts II

LBA 2103

Lecturer:

Puan Asmidah binti Ahmad

Comparative Law Essay:

Euthanasia from Civil and Islamic Perspectives

Students:

Jalaluddin bin Embong 1080152

Adilah binti Hamzah 1080147

Euthanasia is a practice of ending the life of a person in a painless way. The term,

'Euthanasia' comes from the Greek words eu meaning God, and thanatos meaning death. Known

also as mercy killing or assisted suicide, it is usually practiced on a terminally ill person.

Euthanasia may be legal or illegal, depending upon a country's jurisdiction. For example,

euthanasia is legal in countries like Belgium, Norway, Sweden and Albania and widely practiced

in Netherlands, under the condition that the patient is suffering from chronic pain along with an

incurable disease.1 In the United States, euthanasia is illegal; whatever may be the condition of

the patient.

Though Hippocrates mentioned and opposed euthanasia in the Hippocratic Oath, the ancient

Greeks and the Romans were of the opinion that there is no need to preserve the life of a person

who has no interest in living. Hence, voluntary euthanasia was allowed in the ancient Greek and

Roman civilization.

Euthanasia is often called ―mercy killing‖. It is intentionally making someone die, rather

than allowing that person to die naturally. It is sometimes the act of ending someone‘s life, which

is terminally ill, or is suffering in severe pain. Euthanasia is mostly illegal in the world today.

Euthanasia can be considered a form of suicide, if the person afflicted with the problem actively

does it. The person volunteering to commit the act to such person can also be considered as

committing the act of murder.

In those times, euthanasia was divided into two types, namely voluntary and involuntary.

Euthanasia was voluntary when it was done with the consent of the patient/person; whereas

involuntary euthanasia referred to killing a terminally ill person without his/her consent. Many

1 Sheila Mclean.2002. Medical Law and Ethics. United Kingdom. Ashgate Dartmouth.p 261.

religions and medical practitioners opposed the idea of euthanasia and strongly claimed it to be

illegal.

In the 1930s, non-voluntary euthanasia was practiced for the first time by German

physicians, to eliminate the diseased and disabled among the German people in closed gas

chambers. The main purpose of the program was to get rid of handicapped children and people

with psychiatric problems. By 1945, it was estimated that 300,000 Germans had been killed. The

Nazis used the same gas chambers to exterminate captured Russians, gypsies and Jews.

Some clinicians consider euthanasia acceptable practice: others believe that it is never

acceptable. Giving a medicine with the primary intent to hasten death is unlawful. Giving a

medicine to relieve suffering much may, as a side effect, hasten death is lawful and can be

appropriate. It is recognized in English and Scottish law that increasing doses of analgesia

necessary for control of pain or distress may shorten life. The giving (usually) of opioids is for

the benefit of the patient during life not in order to cause or hasten death.2

In civil itself, there are so many contentions and arguments which lead to the moral or

immoral of this Euthanasia. The core arguments over the legislation of euthanasia do not seem to

have changed much over the 30 years. As in definition before, Euthanasia is intentionally making

someone die, rather than allowing that person to die naturally. It is sometimes the act of ending

someone‘s life, which is terminally ill, or is suffering in severe pain. Euthanasia is mostly illegal

in the world today but it is widely practised in Netherland. Euthanasia can be considered a form

2 Andrew Hockton.2002. The Law of consent to medical treatment. London. Sweet and Maxwell.p 194

of suicide, if the person afflicted with the problem actively does it. The person volunteering to

commit the act to such person can also be considered as committing the act of murder.3

Several philosophical thinkers have also criticized the issue of euthanasia. One says, the

person volunteering for euthanasia has a liberty to do what he/she wants. If the person does not

cause harm to others, it is the person‘s right, or liberty, to do what they please. If a person wants

euthanasia, then that person has the sole liberty to choose such an act, and depart society and life.

Nobody is being other than the person wishing it, and it is a volunteered act.

Another philosopher argues for approval of euthanasia, but killing human beings is wrong,

because it injures that person and goes against the preferences of self-preservation. However, he

says that the above is not present in the issue of euthanasia, so it may be permissible. He says

that not all killing is injury, so not all killing is wrong. One should pay attention to one‘s

expressed wishes he says. Euthanasia could be considered as doing a person a favor, because you

cannot injure something if you are relieving it of pain.

The positive side of Euthanasia is that it ends a person‘s suffering in this world. Many

physicians and psychiatrists believe that it may a humane act. From a virtue ethics point of view,

it may be appropriate. What we seek in human existence is to be happy, and find happiness.

Suffering from a terminal illness, or affliction, could inhibit one‘s happiness in life. If the goal is

to be happy, then Euthanasia would be an answer for this person. Euthanasia may even bring

about happiness in that it is what the person desires and wants, in order to no longer to be a

burden to his/her family. Also, Euthanasia would stop the pain and not prolong the dying

process.

3 Sheila Mclean.2002. Medical Law and Ethics. United Kingdom. Ashgate Dartmouth.p 261.

The negative side of euthanasia is that it goes against natural law ethics, because we do not

let nature take its course. We are disturbing what is occurring or happening naturally to the

person. Every person has a natural inclination to continue living. It is also said that euthanasia

denies us the dignity of dying like human beings. According to Thomas Aquinas, God‘s is the

one who can take lives of a person and law as the will of God or as a mirror and part of the

divine world order. Basically it means that, it is not of another human being to take another

man‘s life. This in a simple word is unnatural.4

Euthanasia is a topic of such sensitivity and conflict that any robust contribution to the

debate will raise the ire and disgust of some, especially where non-voluntary euthanasia is on the

agenda. It is to the great credit of Ken Mason that he has made important contributions to this

and many other contentions topics in medical law and on some of this important work in the

hope that we follow his example, albeit arriving at rather different conclusions.5

In conclusion, Euthanasia is an ethical question among doctors. Euthanasia shall not be

allowed at all. Question such as abuse of power and ethical conducts may on be answered when

implementation has been done. Thus, we do not have to take the risk by legalizing it and later

regret the decision done.

Therefore, the law should protect Euthanasia as a fundamental civil right. Decriminalizing

physician-assisted suicide does not mean that doctors must agree to Euthanasia but rather, that

patients have the right to choose doctors who are willing to ease their suffering. Any individual

who opposes Euthanasia should by all means refuse to take part in it. Individuals who suffer

from terminal illnesses and individuals who are in extremely compromised medical situations

4 Robert M. Baird and Stuart E. Rodenbaum. Euthanasia: The Moral Issues. New York. Prometheus Books.p 259

5 Sheila A.M McLean. 2006. First Do No Harm. England. Ashgate Publishing Limited.p 459

should be able to choose Euthanasia as a civil and legal right. Health care practitioners have an

ethical duty to honor the wishes of their patients and to heal their patients in body, mind, and

soul. Moreover, doctors and health care practitioners should become more educated about

situations that might warrant mercy killing. If Euthanasia remains a taboo subject, no health care

practitioner has the opportunity to make the professional decisions that are judicious and

humane. Family members also have a moral duty to respect the wishes of their loved ones. End-

of-life decisions are a deeply personal and even though a mother or a son might not agree, they

still have the ethical obligation to honor a wish to terminate a painful or traumatic life.

Ultimately, Euthanasia is a personal choice that deserves protection under the law so that, like

abortion, it can be practiced safely and under the care of a licensed physician.6

Islam has its own stand on the issue of mercy killing. The act of mercy killing is

forbidden for it encompasses a positive role on the part of the physician to end the life the patient

and hasten his death via lethal injection, electric shock, sharp weapons, etc. This is an act of

killing, and killing is a major sin and thus forbidden in Islam. Besides, from an Islamic point of

view, the aim of medicine is to maintain, sustain and improve the quality of remaining life-

medicine does not have an aim to prevent death or prolong life because the matter of life and

death is in the hands of Allah the Almighty God. The life on earth has a fixed and limited span

and no one has the power to extend it even for a brief moment7.

The position of Brain death in Islam— Among Muslim religious scholars, the subject of

brain death was discussed for the first time at the Second International Conference of Islamic

Jurist in Jeddah 1985. However, no decree was passed except for calls further studies on the

subject to be carried out. At the third International Conference of Islamic Jurist in Amman in

6 Ibid

7 Umar Hassan Kasule. 1999. Current Medical Services: an Islamic Perspective. Kuala Lumpur: IKIM. p.146.

1986, brain-death was accepted as death. The resolution reads: ―A person is pronounced dead

and consequently, all dispositions of the Islamic law in case of death apply if one of the law

following conditions has been established.

Firstly, there is total of cessation of cardiac and respiratory functions, and doctors have

ruled that cessation is irreversible. Secondly, there is total cessation of all cerebral functions and

experienced specialized doctors have ruled that such cessation is irreversible and the brain has

started to disintegrate. In this case, it is permissible to take the person off resuscitation apparatus,

even if the function of some organ such as heart, are still artificially maintained‖8. The Counsel

of Islamic Fiqh Academy or Rabiat Al ‗Alam al-Islami, during its tenth session held in Makkah

al Mukarramah, the Kingdom of Saudi Arabia decided that a patient who is on life support

machines may be removed off the machines only if three expert physicians confirm the brain is

no longer functioning as supposed to, and that the damage of the brain is irreversible. However,

under the Shariah ruling, death will only be pronounced on a patient when respiration and the

heart beat ceases upon switching the equipment9.

In Malaysia, the medical fraternity has been practicing the concept of brain death since

1970, but mostly limited to the specialist. At the first Conference of the Fatwa Committee on

Religious Matter on 23rd

and 24th

June 1970, the medical procedure of heart and cornea

transplantation was accepted. This indirectly signified the religious acceptance of brain-death as

heart for transplantation could only be obtained from brain-death cadavers. Later in 1989, the

National Fatwa Council adopted brain-death as the criterion of death.

8 Albar, M.A. 1996. Islamic Ethics of organ Transplation and Brain Death. Saudi Journal of Kidney Disease and

Transplantation (7). p. 109-114 9 The Counsel held on 17

th – 21

st October 1987. Cited in ‘Abul Fadl Mohsin Ebrahim. 1998. Organ Transplantation

Contemporary Islamic Legal and Ethical Perspectives. A.S.Nordeen. p. 101.

Prohibition of Mercy killing—Modern Islamic fatwa do not differentiate between the

various means of mercy killing. Muslim jurists consider all form of euthanasia as murder and

explicitly prohibited. Since, according to Islam, human body is not owned by anyone except

Allah. Then, there is no one free to do as he or she likes, what more to kill it. Thus, the mercy

killing of terminally ill patient is forbidden in Islamic law10

. For example, Libya Act of Medical

Responsibility (1986) article 12 provides;

―Termination of a patient‘s life is not to be considered even for severe malformation, incurable

disease, and terminal fatal illness or for severe pains even if the patient demands so. The fact that

a patient‘s life dependent on artificial means is irrelevant to this prohibition.‖11

.

This position is based upon two principles in Muslim culture. Firstly, Shariah places

more emphasis on the sanctity of human life than the secular system. Suicide like euthanasia

prohibited in the Quran itself. Allah states in a Quranic verse:

―And do not kill or destroy yourselves12

‖.

There is another verse about persons who do not have the right to die by themselves:

―And make not your own hands contribute to your destruction13

‖.

According to Islamic law, Allah is the Creator of Life. A person does not own his or her life and,

therefore cannot terminate it.

10 n.a. 1999. “The Since & Theology of Death”. Journal IKIM vol. 7. No. 1. Jan/June. p.54 11

Richard Freeland. 1997. “Euthanasia & Islamic Law”. Medico-Legal Journal. Vol. 65. No. 4. United Kingdom: Greenwich Medical Media Ltd. p. 197 12

Al-Quran. An-Nisa’ 4:29 13 Al-Quran. Al-Baqarah 2:195

Then second principle in our Muslims culture is illness. That is regarded as a test which must be

borne with fortitude.

―O you who believe! Seek help with patience, perseverance and prayer, for Allah is with those

who patiently persevere14

‖.

The position which Islamic Law takes is therefore quite clear. All forms of participation

in ending another‘s life expose a person to criminal liability. However, the offender may escape

serious punishments because the Islamic Penal System preserves the ancient right of pardon for

the next of kin. Islamic law thus differs from English Law in two aspects. Firstly, English Law is

unclear whether it is condemns euthanasia or clinically assisted death as immortal. Secondly, the

sentencing structure in English Law is uncertain15

.

Medieval Islamic sources report that cases of mercy killing were ore often performed by

Muslims upon himself rather than by others. These were mainly aimed at relieving one of

intolerable pain. Examples quoted were of men wounded in battles and bleeding to death who

choose to terminate their ordeals by stabbing themselves. Al-Bukhari reported Junub ibn

Abdullah relating the prophet (p.b.u.h) as saying; ―A wounded man killed himself prematurely,

that is before his actual death came. Upon this Allah ordained: ―O My Creature, you gave your

life too soon. I have made your entry into heaven unlawful‖16

.

In recent cases of mercy killing, the medical personnel are sometimes asked to terminate

life by their patients. The Islamic prescription requires that a Muslim doctor and nurse strive to

14

Al-Quran. Al-Baqarah 2:153 15

Richard Freeland. 1997. “Euthanasia & Islamic Law”. Medico-Legal Journal. Vol. 65. No. 4. p. 197 16 Abu Daud. Hassan, A. 1998. Sunan Abu Daud. Kitab Al-Janaiz. Vol. 2. Lahore. p. 884

maintain, and not destroy the life of the patient. When he or she terminated life, it was as if

medicine had been used in contradiction to the purpose it was created by Allah17

.

Laws on homicide to protect a person‘s life-- In the case of active euthanasia, a doctor

causes death of a patient with the help of drugs. The active act of killing and therefore the doctor

will be liable for homicide unless exempted by the Shariah on any circumstances. Thus, the

Islamic Penal Code provides the defenses below;

Good Motive— The Shariah law, determines the offences of murder and manslaughter,

similarly as the common law. Both systems regard motive as irrelevant to a person‘s intention18

.

Abdul Qadir Awdah declares that the Shariah law from the outset has drawn a clear distinction

between intending to commit a wrong and the motive which impels the criminal to do such

wrong. Therefore, it does not attach any significant to motive in determining the guilt of the

accused or its enduing penalty. It is immaterial whether a killing is committed by a noble motive

such as for vengeance and protection of one‘s dignity or it is committed with a base of motive of

killing for the sake of stealing19

.

Consent of victim – consent of victim is not a defense for the accused under Common

Law. Therefore, the consent of victim is quite delicate under the Shariah Law. The Shariah has a

distinct feature regarding the law of homicide. It allows the victim‘s heir to pardon he accused.

The effect such as pardoning is that the qisas is withheld, diyyah is demanded or the accused is

completely forgiven gratuitously. The question naturally arises whether the consent of the victim

17 Risper Chaim, V. 1993. Islamic Medical Ethics in the 20th Century. London: E.J. Brill. pp. 94-99. 18

Richard Freeland. 1997. “Euthanasia & Islamic Law”. Medico-Legal Journal. Vol. 65. No. 4. p. 199 19

Sayd Sikandar Shah. 1996. “Mercy killing is Islam: Moral and Legal Issues”. Arab Law Quarterly. Vol. 1. No. 2. p. 110. Cited in Muhammad Abdul Latif. 1999. The right to die: A Comparative Analysis of the Common Law. Islamic law & Malaysian Position (Master Thesis) IIUM. p.78

can be seen as pardoning. If it can be seen as pardoning then an accused cannot be punished for

voluntary euthanasia.

The right to pardon is the right of the heirs of the victim. Al-Sarakhsi, representing the

Hanafi view, holds that pardon by the victim is void on the basis of juridical deduction (al-

Qiyas). The reason is that it is the right of the heirs to pardon after victim‘s death. The victim‘s

pardon in advance has the effect of nullification of a right of the heirs to pardon after victim‘s

death. The victim‘s pardon in advance has the effect of nullification of a right has not become

due20

. However on the basis of the principle of juristic preference (al-Ihtihsan) it is valid because

their legal heirs are entitled to pardon by the way of succession from the victim21

.

Al-Dasuqi, representating the Maliki School, emphasize that if a person before infliction

of a deadly blow, says to another that he exonerates him from the ability for killing him, it has no

validity, since he has exempted the accused before such right was due to him. However, majority

of the jurist observed that the qisas punishments is such a case should be withheld because of the

doubt created by the fact of consent22

.

Besides, it must be noted that consenting to euthanasia should be seen as quite a distinct

issue than the concept of pardoning under Islam Criminal Law. The jurist discussed pardoning

under Shariah in the ground of victim who, after receiving the injury, forgives the offender due

to some reasons like; the offender being a blood relative, or the only bread winner of the of a

family. However, in the ground of consenting to euthanasia the situation is very different. It is

20 Sayed Sikandar Shah Haneef. 2000. Homicide in Islam. Kuala Lumpur: A.S Nordeen. p. 18 21 Sayed Sikandar Shah. 1996. “Mercy killing in Islam: Moral & Legal Issues”. Arab Law Quarterly. Vol. 1. no. 2. p.112. cited in Muhammad Abdul Latif. 1999. The right to die: A Comparative Analysis of the Common Law. Islamic law & Malaysian Position (Master Thesis) IIUM. p.79 22 Sayed Sikandar Shah Haneef. 2000. Homicide in Islam. p.24

not a mere forgiveness as intended by Shariah, it is rather an active desire on the part of the

victim that someone kills him. It is on the part of the victim very close to suicide, which is

absolutely prohibited by Islam, and on the part of the accused it is a clear case of homicide. In

addition, when it is forbidden that a thing should be done, it is also forbidden that it should be

asked for. It is invalid if anyone does indeed consent to such acts. Therefore, it is stated that the

consent of the victim is not a defense for euthanasia under the Shariah by the following reason;

consent cannot be equated to the concept of pardon under the Shariah, and the victim cannot give

consent to someone to kill since he or she is not allowed to kill himself.

Consent of the relatives or family – Consent of the relatives or family is also applicable

under the Shariah because the heirs of the victim have the right to pardon the accused. The

question arises the prior consent given by heirs of the victim to the doctor to do euthanasia

towards the patient would be valid and free the doctor from liability. This provision of pardoning

has its own objectives as mentioned earlier. In the absence of proper understanding of the

objectives of pardon, it can be subjected to severe abuse. For example, the heirs of an incurably

ill patient reach an understanding with the doctor to use their discretion of pardon if he put the

patient to death by using lethal injections. Then as agreed before, the heirs use their discretion of

pardon to relieve the doctor of the liability for euthanasia. This is clearly not the desired

application of the discretion of pardon23

.

Purposes of the law – New approaches has been revealed through theories derived from

Quran‘s, sunnah and consensus of scholars, ijma of scholars. There are five necessities that are

23

Muhammad Abdul Latif. 1999. The Right to Die: A Comparative Analysis of the Common Law, Islamic Law & the Malaysia Position.(Master Thesis) IIUM. Ibid. pp. 80-81

generally referred to as the purposed of law. There are; religion, life, mind, progeny and

property.

The purpose of preserving life makes any form of active or passive euthanasia illegal.

Life and good health must be protected and promoted in all circumstances. This includes, inter

alia, adequate nutrition, hydration, prevention and treatment of any illness and disease. Every

disease has a treatment known or discoverable by further scientific research. The purpose of

preserving life does not imply human ability to delay death or lengthen the life-span because

those are the prerogatives of Allah alone.

Euthanasia violates the purpose of preserving religion because it is involve a human

attempt to violate the divine prerogative of giving and taking away life. Euthanasia can indirectly

lead to the violation of the purpose of preserving progeny by cheapening human life thus

encouraging suicide, homicide and genocide.

The enormous resources used to care for terminal patients who have to be considered in

the light of the purpose of preserving wealth. Those resources, if from the family, could have

been used to care for many poor and disadvantaged persons. Using them in a case with no hope

of eventual recovery could be a form of waste24

.

In conclusion, active euthanasia is not permissible under the Malaysian Law because it is

immoral act contrary to the principles of the sanctity of life. In short, it is unethical for a

physician to interfere with death of patients which has been fixed by Allah. Muslims jurists

consider all forms of euthanasia as murder and explicitly prohibited. Since, according to Islam,

human body is not owed by anyone except Allah. Then, no one is free to do so as he or she likes,

24 Umar Hassan Kasule. 1999. Current Medical Services: An Islamic Prespective. Kuala Lumpur: IKIM. p.155

what more to kill it. Thus, mercy killing of terminally ill patients is forbidden under the Islamic

Law. Moreover, Article 5(1) of the Federal Constitution concludes that any person‘s life could

not be terminated whether by himself or by the assistance of someone. However, the right to

euthanasia should not be allowed to any person because this right will lead to abusements. Any

physicians do not have the right by law to terminate a patient‘s life. The Malaysian Penal Code

also concludes that physicians who commit mercy killing with the intention can be made liable

for culpable homicide.

BIBLIOGRAPHY

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legalisation.United Kingdom.Cambridge University Press.

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2. Zuriyati Abdul Razak.2004. Mercy killing under the Malaysian and Shariah Law. Pandan

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Prometheus Books.

7. Umar Hassan Kasule. 1999. Current Medical Services: an Islamic Perspective. Kuala

Lumpur: IKIM.

8. Albar, M.A. 1996. Islamic Ethics of organ Transplation and Brain Death. Saudi Journal

of Kidney Disease and Transplantation.

9. ‗Abul Fadl Mohsin Ebrahim. 1998. Organ Transplantation Contemporary Islamic Legal

and Ethical Perspectives. A.S.Nordeen.

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No. 4. United Kingdom: Greenwich Medical Media Ltd.

11. Risper Chaim, V. 1993. Islamic Medical Ethics in the 20th Century. London: E.J. Brill.

12. Syed Sikandar Shah. 1996. ―Mercy killing is Islam: Moral and Legal Issues‖. Arab Law

Quarterly.

13. Sayed Sikandar Shah Haneef. 2000. Homicide in Islam. Kuala Lumpur: A.S Nordeen.

14. Muhammad Abdul Latif. 1999. The right to die: A Comparative Analysis of the Common

Law. Islamic law & Malaysian Position (Master Thesis) IIUM.