This post is part of the Digital Islamic Law Lab (DILL) series, in which a Harvard student analyzes a primary source of Islamic law, previously workshopped in the DIL Lab.
In 1983 at its Third Islamic Summit Conference, the Organization of Islamic Cooperation founded the International Islamic Fiqh Academy (“IIFA”).[1] Based in Jeddah, Saudi Arabia, the IIFA is tasked with the advancement of knowledge in the fields of culture, science, and economics.[2] The IIFA engages in ijtihād—Islamic legal interpretation—to evaluate technological and social developments and publish its recommendations and resolutions.[3] In 1997 and the IIFA’s Ninth Session, the IIFA produced a resolution on Acquired Immuno-Deficiency Syndrome (“AIDS”) and fiqh rules applicable to it.[4] A summary of Resolution 90/7/9 and its analysis and conclusions are addressed below.
Source:
Resolution 90/7/9 Concerning Acquired Immuno-Deficiency Syndrome (AIDS) and Fiqh Rules Applicable to It, in International Islamic fiqh academy, resolutions and recommendations of the council of the islamic fiqh academy 1985-2000, 194–97 (Islamic Research and Training Institute ed., 2000).
Summary:
Resolution 90/7/9 (“Resolution”) cites primarily to a compendium of “research papers forwarded to the [IIFA] on the subject of AIDS” and to the Qur’ān.[5] The Resolution addresses six different issues relevant to the treatment of individuals diagnosed with AIDS: (1) it is not necessary to isolate patients;[6] (2) deliberate transmission of AIDS to a healthy individual is ḥarām—Sharī‘a proscribed—and is “considered among the major evil sins and transgressions”;[7] (3) abortion of a fetus by a mother infected with AIDS is impermissible;[8] (4) it is permissible for a mother infected by AIDS to retain custody of her child and to breastfeed her child;[9] (5) it is permissible for a wife to seek separation from a husband infected with AIDS;[10] and (6) AIDS is considered terminal according to Sharī‘a when “all of its symptoms are present and the victim is no longer capable of carrying out ordinary living, and death is imminent.”[11]
Analysis & Conclusions:
First, the Resolution addresses isolation. Relying exclusively upon medical data and the research papers forwarded to the IIFA, the Resolution states that the communication of the AIDS contagion “does not take place through cohabitation, ordinary contact, breathing, insect bites, sharing of food, drink, swimming pools, seats, table-ware, or any other aspects of ordinary cohabitation.”[12] Additionally, the Resolution declares that communication of the AIDS contagion is limited to the following four methods: “sexual contact in any form; transfusion of contaminated blood or of its by-products; use of contaminated needles, especially among drug-addicts, as well as shaving blades; and transmission from an affected mother to her child during pregnancy or at birth.”[13]
Because communication of the AIDS contagion is restricted to the aforementioned methods and because ordinary cohabitation does not necessitate one of the aforementioned methods of communication, the isolation of AIDS victims from their healthy peers “is not a necessity in the eyes of Sharī‘a[.]”[14] Although the Resolution does not account for special carve outs or exceptions in its conclusion, it is presumed that the outlined methods of communicating AIDS can be used for case-specific determinations for individuals whose specific circumstances would involve one of the four methods.
Second, the Resolution proscribes the deliberate transmission of AIDS. “If the willful perpetrator’s aim is to spread [AIDS], then this act is considered ḥirābah—a criminal act directed against humanity—and a vicious act of evil-spreading[.]”[15] The Resolution supports its conclusion with a verse from the Qur’ān on ḥirābah: “The punishment of those who wage war against God and His Apostle, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter.”[16]
Accordingly, the Resolution holds that, if the perpetrator’s intent was to contaminate a specific person and if the victim is contaminated and remains alive, then “the deliberate transmitter is subjected to appropriate ta‘zīr sanctions—dissuasive punishment as may be decided by Sharī‘a judges.”[17] Ta‘zīr sanctions are also considered if the perpetrator attempted, but failed, to contaminate an individual.[18] If, however, the intentional contamination occurred and the contamination results in the death of the victim, then the “death penalty is considered for the transgressor.”[19] The Resolution does not address the legality of the unintentional transmission of AIDS. Additionally, the Resolution does not distinguish between intent to have unprotected sexual intercourse—which seems more like recklessness—and intent to contaminate. By failing to distinguish between reckless transmission and willful transmission, an individual who willfully engages in unprotected sexual intercourse with actual knowledge of his AIDS-positive status and that sexual intercourse is a viable transmission method of AIDS may be regarded by the Resolution as a deliberate, willful contaminator.
Third, the Resolution forbids the abortion of a fetus by an AIDS infected mother. This conclusion depends upon the medical data received from the scientific research papers forwarded to IIFA to establish the “fact that transmission of [AIDS] only takes place … at an advanced stage of pregnancy (after the fetus is invested with life) or during delivery[.]”[20] Because contamination of the fetus with AIDS does not occur until after the fetus has been invested with life, abortion of a fetus in such circumstances is impermissible according to Sharī‘a.[21] Here, the reasoning of the Resolution remains opaque. It is presumed that the IIFA intended the implication that, because there is a chance that the fetus will be born healthy and because contamination occurs after the genesis of life, abortion is impermissible.
Fourth, the Resolution permits the custody and breastfeeding of a child by an AIDS infected mother. Relying upon medical data and scientific research, the Resolution concludes that, because there is no proven danger in an AIDS victim-mother retaining custody of and breastfeeding her child, then “there is no Sharī‘a objection … unless there is a medical report to the contrary.”[22] Additionally, the Resolution utilizes analogical reasoning, expressly connecting the quality and manner of contact involved in maternal custody and breastfeeding to ordinary association and cohabitation from its first conclusion on isolation.
Fifth, the Resolution declares that there is a right for a healthy spouse to seek separation from a partner affected by AIDS.[23] The Resolution bases its conclusion on the fact that AIDS is a contagious disease primarily transmitted through sexual contact.[24] Although the text of the conclusion expressly mentions that a “wife may seek separation from the affected husband[,]”[25] it is presumed that the husband may seek separation from his affected wife as well because of the title of the conclusion—which specifically mentions “a healthy spouse”[26]—and the traditional disparity of power in Sharī‘a separation proceedings. By expressly mentioning “the healthy spouse,” the Resolution implies that, in the event of a marriage of two affected spouses and barring other exigent circumstances, neither would be permitted in divorcing the other.
Sixth, the Resolution determines the necessary conditions for when AIDS is considered a terminal disease according to Sharī‘a: “all of its symptoms are present and the victim is no longer capable of carrying out ordinary living, and death is imminent.”[27] Here, the Resolution is silent regarding the sources of its reasoning and provides no guidance in defining imminence.
Recommendations:
The Resolution concludes with a separate section addressing its recommendations for further inquiry. The first recommendation issued by the IIFA expressly defers for future judgment the “issue of the right to conjugal intercourse” for AIDS victims.[28] Presumably, the issue will concern whether an AIDS victim is permitted to engage in sexual intercourse given that the primary method of communicating the disease is through sexual contact. Finally, the Resolution urges the continuation of the checking system[29] during the Ḥajj season “to ensure that pilgrims are free from contagious disease.”[30] The Resolution does not express its motivation for this particular concern. Having enumerated the only viable methods of AIDS transmission, this recommendation seemingly implies concern for extramarital sexual relations among pilgrims. Additionally, although the Resolution discusses AIDS extensively, it does not directly or indirectly address the common association between homosexuality and AIDS.
Notes:
[1] International Islamic Fiqh Academy, http://www.iifa-aifi.org (last visited Oct. 4, 2019).
[2] Id.
[3] See, e.g., International Islamic fiqh academy, resolutions and recommendations of the council of the islamic fiqh academy 1985-2000 (Islamic Research and Training Institute ed., 2000).
[4] Id. at 194–97 (Res. 90/7/9 “Concerning Acquired Immuno-Deficiency Syndrome (AIDS) and Fiqh Rules Applicable to it”).
[5] Id. at 194–95.
[6] Id. at 194.
[7] Id. at 195.
[8] Id. at 196.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 194.
[13] Id. at 195.
[14] Id.
[15] Id.
[16] Id. (citing Surat Al Ma’idah v. 36).
[17] Id.
[18] Id.
[19] Id.
[20] Id. at 196.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id. at 197.
[29] The Resolution does not explain this system. It is presumed that it is a system that documents and registers victims infected with AIDS.
[30] International Islamic fiqh academy, supra note 3, at 197.