EUTHANASIA (MERCY KILLING)
AND THE ISLAMIC LAW PERSPECTIVE
BY
B. A. OMIPIDAN1
INTRODUCTION
Euthanasia is a contemporary issue in the jurisprudence of right, a lot
of persons have argued in favour of the fact that when somebody is in
pains such that to leave him in that state would be tantamount to
allowing him suffer that more, they argued further that the safest
thing to do is to help such person(s) terminate his/her/their lives.
Religiously and more particularly, Islamic law and some moralists are
vehemently opposed to this position. To them, God is the creator of
livers and reserves the right to take same as at and when due. To
them, no matter the precarious condition of a creature of God, there is
still hope for survival as the popular appreciation of this work, an
attempt shall be made to define Euthanasia, both under the Common
and Islamic law.
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1.
LL.B (Hons) (UNILORIN), L.LM, (IFE), Lecturer, Department of Islamic Law Faculty of
Law, University of Ilorin
DEFINITIONS:
Euthanasia is derived from a Greek phrase meaning “easy death” i.e
called mercy killing’, in which one person intentionally brings about a
gently pain-free death for another suffering from an incurable and
painful disease.
According to the Black law Dictionary, Euthanasia has been defined
as “the act of practice of painlessly putting to death, persons suffering
from incurable and distressing disease as an act of mercy 2. Equally
the Encyclopedia Britannica calls euthanasia, mercy killing from the
Greek meaning of a good death refers to the inducement of death
especially the putting to death of incurable or terminally ill patients
painlessly and at their request3.
In the view of the laber’s cyclopedia medical Dictionary, Euthanasia is
defined in similar terms as an easy, quite and painless death. It went
further to add that Euthanasia involves the deliberate ending of the
life of people with incurable or terminal illness of unbearable
suffering.
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2.
3.
With pronunciation centennaial Edition (1891-1991) p. 544
In 30 volumes micropaedia V.III Edition 1943-1974 p. 1006
While Duhaime’s on-line legal Dictionary refers to Euthanasia as “the
putting to death by painless method of a terminally ill or severely
debilitated person through the omission (intentionally withholding a
life euthanasia”) or commission of an act “active euthanasia)4
It is equally important to examine the definition of Euthanasia by the
Declaration on Euthanasia of the sacred congregation for the Doctrine
of faith (1980). According to them, Euthanasia is “an act or omission
which of itself or by intention causes death, in order that all suffering
in this way may be eliminated. From the above definition it can be
deduced that Euthanasia can be voluntary or compulsory.
The above position can be said to represent the common law position,
even though same is, still controversial, considering the fact that not
all of them (common law proponents and those in the medical line) are
in support of Euthanasia.
Under Islamic law, Allah is regarded as the sole Law GIVER. The
primary sources of Islamic law are the Holy Quran, Sannah of prophet
Muhammed (SAW) popularly know as hadith, the consensus of the
Ulama (ljam) and analogical deduction (Qiyas). Therefore whatever
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4.
Dulhaime’s on line legal Dictionary p. 29
may have been decreed lawful remains lawful and that which is
forbidden remains forbidden.
It is in the light of the above Islamic law regards the sanctity of life as
not negotiable. The reference here was the declaration of Allah, when
Caine killed his brother Abel the sons of Adam) “Allah’s Declaration is
as follows:
“On that account, we ordained for the children of Israel that if any one
slay a person- unless it be for murder or spreading mischief in the
land, it would be as if he slew the while people. And if any one save a
life, it would be as if he saved the life whole people”5
Human life is regarded as one of the basic values of mankind which is
to be jealously protected. He cannot kill or harm any other person
except in extreme circumstances permitted under the shariah and
vice- versa. Based on the above and the verses of the Holy Quran that
shall be examined in the latter part of this work, Euthanasia in
whatever from is not permitted in lslam.
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5.
Quran 5:32
Specifically, Euthanasia does not exist under lslamic law. a person or
group of person are not allowed in any circumstances to put an end to
the life of another except where same occurs naturally i.e the giver of
soul, (Allah) has taken back his soul.
EUTHANSIA UNDER THE COMMON LAW
As earlier stated Euthanasia may be voluntary or compulsory under
the common law. Voluntary Euthanasia occurs when a person who is
terminally ill or incurably sick wishes to die and request someone to
Based on this description, the poser here will be.
(a)
Whether a person has a duty to live?
(b)
Whether a person has right to die?
It is submitted that the answer to the first question should be that a
person have a duty to live. This is based on the fact that municipal
law punishes, attempted suicide, included in this category are aiding,
abetting and procuring voluntary euthanasia as murder. With regard
to the second question, the answer is an emphatic No. The reason
being that customary law in Africa considers suicide as a taboo and
an abomination. It important to equally note that the United Nations
Declaration of Human Right and the National Constitutions of states
including Nigeria except for certain changes, does not recognize the
right to die.
COMPULSORY EUTHANASIA
Euthanasia can be said to be compulsory when a person who is
infirm, mentally deficient or physically handicapped is killed without
his consent. This is popularly referred to as “Mercy Killing”. The
pertinent question is, whether inspite of his miserable condition, the
victim has a right to liver?.
It is important to state here that a type of compulsory euthanasia
which was practiced by the beleaguered Nupes in Niger State of
Nigeria as well as other ethnic groups in Nigeria during the inter and
intra-tribal wars of the 19th-20th centuries is the killing of infants who
due to some illness or physical pain (including acute hunger and
thirst) cried ceaselessly, while the family or parents took refuge in a
cave or other hideouts exposing the people to possible discovery by
the marauding slave traders. The children were killed not to ‘stock’
pure but to keep it from possible enslavement and extermination 6, an
exercise in self-presentation on the part of the parents.
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6.
Indeed, this type of compulsory euthanasia was widely and commonly practiced by
all during the inter-tribal and intra tribal wars of the 18th-19th centuries in Nigeria.
For instance, according to once octogenarian woman Alhaja Sabitiyu Ayinla who
claimed to have witnessed the Ijebu-Adubi (Yoruba inter-tribal wars in the 19th
century. Parents while fleeing from their military adversaries, as a rule, flung away
their own little children when the cries became too joud and long not to attract the
attention of the enemy, and abandoned them to die. C. F. Nigerian Tribune, Thur.
July 7, 1994 under the caption “cover”.
In general, I submit with respect, that no one is permitted for
whatever reason, to terminate the life of another person, no matter
how worthless, precarious or over burdering such life may appear to
be. This is because the right to life is an absolute one imposing a
correlative absolute duty on all other persons to infringe this right.
Fine, the woman carrying a pregnancy wants the about to born baby,
but the truth is that, that newly born baby has a right to live and to
therefore terminate or abort the child is an infringement on the life of
that child.
However, it would appear that in the 90s there has been laws
permitting voluntary euthanasia under certain ‘Strict Conditions’ one
of such permission is in Netherlands wherein a law permitting
voluntary euthanasia under the following ‘strict conditions’.
(a)
the patient must have been under unbearable pain;
(b)
the decision to die must come from such a patient before the
mercy killing is carried out by the doctor;
(c)
the patient must repeatedly request to die in a clear state of
mind7.
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7.
C.F. National Concord (Nigeria) Feb. 10, 1993, p. 14. The penalty for infringement
Similarly, in 1995, one of the States in Australia legalized voluntary
euthanasia in terminal cases. And in the same year, another Australia
State legalized voluntary euthanasia even in non-terminal cases8.
One remarkable point of note with regard to Nigeria is the fact that
even though both voluntary and compulsory euthanasia are regarded
as criminal, it would appear that the latter (compulsory euthanasia) is
condoned by general custom but not by customary law as earlier
explained in this work.
Another major poser concerning compulsory euthanasia is whether it
is normal that modern medical knowledge be used to prolong the lives
of the infirm and the invalid. Some of which are in vegetative
conditions, thereby making a heavy burden on their fit relations who
will have to run helter and skelter for their well being and the society
as well.
There seems to be answer for the above in the views of some writers,
these group of writers typified in Normal St. John Steva’s9 hold the
view that such lives are of value to society in that they elicit feelings of
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8.
B.B.C News, Mon 16/10/95, 2.43pm Nigerian time (13 43G.M.T) under this law, the
first case ever of legal voluntary euthanasia occurred in North Australia, CF BBC
News 16/9/96 6hrs G.M.T.
9.
Norman St. John Stevas, the right in life. 1964
compassion and mercy in those who take care of them. In addition, it
may make the it to appreciate the fortune of their well being and
thereby resolve to be more useful to themselves and to society this
position seems to be opposite to the views of lslmic law, as shall be
seen later.
On this same poser, Glanvile Williams is however of the opinion that
keep what he calls “human monsters” and the information so as to
benefit from their agonies and sufferings would be tantamount to
sheer cruelty.
In spite of the position of Glanville William as posited above, it would
appear that the writer has left an important question unanswered and
which is to the effect that “what right has a person to extinguish a
human life he does not and cannot create”
At this juncture, it is important to examine the case of ANTHONY
BLAND V. AIREDALE NATIONAL HEALTH SERVICE TRUST10
In this case the appellant, Anthony Bland, a 17 years old football fan
had been seriously injured in a disaster, which occurred at
Hillsborough Stadium, England, in 1989. His lungs were crushed in
the accident as a consequence of which supply of oxygen to his brain
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10.
(1993) 2 WLR 316
was interrupted, resulting in an irreversible damage to the center of
his brain leaving him for three years in a persistent vegetative state. In
that condition, he could neither drink nor feed nor have any
meaningful stimuli from his surrounding though he was breathing.
Food was fed into him by a pump through a tube passed from his
nose down the back of his throat into his penis, which from time to
time caused infection and required dressing and antibiotic treatment.
His limbs were rigidly contracted while his legs were unnaturally
contorted because of the stiffness of his joints. His condition was
pitiably miserable. Medical opinion was unanimous that his condition
was helpless and hopeless, his father in consort with the respondent,
(the hospital authority responsible for his treatment) brought an
application for declaration from the family division of the High Court
seeking the court’s permission to lawfully discontinue all life.
Sustaining treatment to Anthony so as to end his life and he could die
peacefully with the greatest possible dignity and with the least pain
suffering and distress not only for himself but also for his family who
visited him regularly.
Consequently, the family division granted the declaration sought after
due investigation of evidence and of the applicable law. On appeal of
the official solicitor acting as guardian and litem, the court of appeal
dismissed the appeal to the house of Lords was also dismissed, and
the boy’s treatment ceased11. This position is totally unacceptable
under Islamic law because, under it (Islamic Law) the life belongs to
Allah and no one is allowed to take the life of another, save in
situation that shall be explained in the latter part of this paper.
I submit, though lslamically and morally that only God can decide
when a person dies or lives no matter how pitiable that person’s
condition way of interfering with nature. The reason being that a sick
person deserves to be treated until when when such person is well.
EUTHANASIA UNDER ISLAMIC LAW
As earlier stated, in the cause of this work, Euthanasia in whatever
form is not allowed in lslamic law. Thus there is nothing is nothing
like voluntary or compulsory euthanasia in lslamic law.
The Holy Quran and the sunnah of the Holy prophet Muhammed
(S.A.W) are explicit on this point. Thus one of the verses puts it this
way
“O you who believe… And do not kill yourself (nor kill one
another) surely, Allah is most merciful to you12” Another
verse puts it his way”… And that you slay not, the soul,
the slaying of which Allah has forbidden. Save in
accordance with the demand of justice that is what He
has enjoined upon you, that you may understand 13”
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11.
C.F.O.F. Emiri, “Euthanasia and Treatment ceasalian. A Paradox? Essence.
12.
Quran: 4:29
13.
Quran: 6:151
In the same vein, Allah states “And do not kill anyone whose killing
Allah has forbidden, except for a just cause. And whoever is killed
wrongfully, we have given his heir the authority (to demand law of
equality in punishment or to forgive, or taken Diyah (blood money)14
All the above verses of the Holy Quran were expressly explained by the
hadith of the Holy prophet Muhammad (SAW) in the following ways.
“…And if somebody commits suicide with anything in this world, he
will be tortured with that very thing on the day of judgment”15
Also Abu Hurairah marrated that the prophet said” He who commits
suicide by throtting shall keep on throtting himself in the Hell fire
(forever) and he who commits suicide by stabbing himself keep on
stabbing himself in the Hell fire”16
Thus a human being is required to take care of his soul and body
because these are gifts from the creator of such phenomena. There is
no illness without a cure by Allah, when a person dies, he/she dies
because it is the time ordained by Allah, when a person dies, he/she
dies because it is the time ordained by Allah, he/she should not be
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14.
Quran 17:33
15.
Related by Bukhai vol. 2 Hadith no. 446
16.
The picus predecessors of prophet Muhammed and his companions
killed because in the words of the proponent of euthanasia, he/she is
in a complete hopeless situation. An hadith of the Holy prophet is
apposite in this direction, wherein Anas narrated that the messenger
of Allah said. Almighty Allah has created the illness and the cure, so
see to cure yourselves.17
Therefore until one’s appointed time comes, it is a sin to kill only on
the excuse that the sick one is in an hopeless situation. No man,
except Allah can turn a termed hopeless situation into a hopeful one.
(emphasis mine). However, there are exceptions to the general rule of
sanctity of life. That is, in some situation under rule of person can be
taken in line with the verses quoted above. These situations are as
follows:
1.
During an inevitable war with infidels or rebels. This is a
situation wherein a person is killed in the battled front. Legally
this is allowed
2. When the Hadd (capital punishment) are being applied based on
the valid judgment of a competent court in line with the lslamic
procedural rules of Evidence trial. Instance under this category
include cases of adultery and Apostasy
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17.
Related by Ibn Majah
3. When Qisas is applied. That is when the law of equality in
punishment is to be applied when a person kills another and it
has not been compounded by the family of the murdered person
through the acceptance of Diyyah (Blood money) or total
forgiveness.18
All the above exceptions are based on the Hadith narrated by Ibn
Masud who reported that the prophet said. “The life of a Muslim
cannot be taken except in one of these cases: an adulterer, a
murderer and he who apostate and abandoned the Ummah19
Thus except in situations listed above, human soul is not to be
tampered with in any form. The Shariah has explained in explicit
terms, the conditions or circumstances wherein life can be taken
whether during war or in peace as enumerated with rigorous
prerequisites and precaution to minimize that event.
It is important at this juncture to say that some common law
countries and even the Christians are in support of the position of
Islamic Law with regards to euthanasia. An examination of some of
them is imperative.
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18.
Related by Bukhari and Muslim
19.
Muhammad Hashim Kamali “Principle of Islamic Jurisprudence 1989-1991, p. 287
Some citizens of the United States and United Kingdom have totally
kicked against the legalization of euthanasia, Nigerian law whether in
its criminal code or criminal procedure code respectively gave no room
to euthanasia.
“The Archbishop of York spoke in parliament of the danger of changing
the whole ethos of medicine and law if the absolute prohibition on
intentional killing were removed”.
Equally, of immense importance, was the statement of late Pope John
Paul II which he repeated in the 1995 papa encyclical thus “I confirm
that euthanasia is a grave violation of the law of God, since it is the
deliberate and morally unacceptable killing of a human person”.
CONCLUSION
In consideration of the arguments for and against Euthanasia by the
medico-legal views in the common law vis-à-vis that of the Islamic law
reveals that the issue of euthanasia remains the most controversial in
medical jurisprudence in the contemporary world and has continued
to be debated in most of the advanced countries of the world.
However, what is very clear is that Rights under whatever kind, has
its own limitations. Rights like Right to die when one feels to so do, is
totally unacceptable both to Islam and morality as earlier enunciated
in this work. This is because in the Shariah, there are standard
principles of law guiding all occurrences and affairs in the life of
mankind notwithstanding the city or period of man’s Sojourn on
earth. In other words, Shariah is an up to the minute corpus Juris
which is divinely designed for the betterment and smooth living of
mankind.
Thus Euthanasia is illegal in shariah be it voluntary or compulsory,
this is because sickness and healing are in the hands of Allah (S.W.T)
and no one can neither prolong nor shorten the life of a human being
through any artificial means of a particular medical procedure or
metaphysical means.
Finally, I submit humbly that divided opinions among jurists and
legislators concerning the legalization of euthanasia remain. The belief
that a person should be allowed to die with dignity and self respect
when he is no longer able to live in a dignified manner is countered by
the argument that the prohibition of intentional killing is, and must
remain, essential to our society, and that to allow it in any
circumstance would involve a serious denial of human dignity.