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Autopsy Islamic Law

Autopsy Islamic Law

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Autopsy Islamic Law
Autopsy Islamic Law

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Published by: dlnew on Apr 10, 2014
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Permission for Performing an Autopsy: The Pitfalls under Islamic Law Author(s): Isam Ghanem Source: Arab Law

Quarterly, Vol. 4, No. 3 (Aug., 1989), pp. 242-243 Published by: BRILL Stable URL: http://www.jstor.org/stable/3381324 Accessed: 06/11/2009 04:21
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Sanaa.the next of kin in orderof prioritycould very well be the spouse. The rulingby the ProphetMuhammad runs:"Thebreaking of the bone of a dead personis like the breakingof the bone of a live person". I wasamazed to find thatan American hospitaladministrator had drawnup a Standard Practice (withoutconsultingthe legaladviser) whichstatedthatlegalnext of kin in order ofpnontywas the spouse. Crater.Yemenand Dubai.by obtaining standingdirectives). The Alinistryof Health legal department personnel were trainedin Arabicand Frenchandcouldnot revisethe Standard Practice drawn up in English. Aden.and (4) Unclesandcousins. PhD.Box 1241. Of course.Dubai.This dictumwas relatedin the famouscompilation of ImamAhmadbin Hanbalwhosedoctrineis the dominant schoolin SaudiArabia and Qatar.Box 10263. (3) Brothers andnephews. FBIM I workedrecentlyas a visitingconsultant to threehospitalsin a traditional Muslim country. Avicenna and Averroes ( lOth-12th CenturyAD)that the Islamic legal maxim: "Necessitypermitsthe forbidden" wasinvokedto investigate crime. Aden. YAR. But the Muslimworldwanedandreverted in a fewpractical casesto the pre-Islamic posiiionof regarding the asaba the maleagnateas the bloodguardians. The reasonwhy there is a dearthof authority on the subjectis the Islamiclegal background. it mustbe remembered thatas crimeis often a familyaffair.UAE.PERMISSION FOR PERFORMING AN AUTOPSY: THE PITFALLS UNDER ISLAMIC LAW Dr IsamGhanem* LLB. . WhenI revisedthe practiceon post-mortems.permission for autopsymaynot be forthcoming and the only safe way then is to applyfor a courtorder. Beforeexplaining the legalpositiorl. * Advocate. Now this is a particularly complicated subjectunderIslamiclaw. The appropriate ConsulGeneral shouldbe consulted (preferably in advance. Formerly lecturer at Ahmadu Bello Universityand CentralLondon Polytechnic. Dissectionwas not practisedin earlyIslamandit was only in the days of Rhazes. The priority of maleagnatesis: (1) Sonanddescendants. (2) Fatherandascendants.Box4862. Magistrate. I talkedto a Britishpathologist who told me thathe hadrealisedthat the Standard Practice wasillegalunderlocallawandthathe therefore findsit necessary to applyfor a courtordereverytime he carries out a post-mortem.in the case of non-A&uslims who are not permanently residentin such countries.

son.IslamicMedical3runsprudence (London.g.and (4) Cousins. The age of majorityis 15 accordingto most schools and sects. grandfather andgrandson. I Ghanem. 1982. Sometimesautopsieswereperformed in Londonto avoidthe issue. No. 28. But as Islam made the mother)widow. coupledwith due consentmay justifya post-mortem.and incapacity disqualify an ostensiblerepresentative. Most schoolsof Islamiclaw are agreedthat an incapaxrelative(e.perhaps. Now that there are post-mortemfaciliiiesin modernhospitals. when the Islamicrevivalbeganlatein the nineteenthcentury. Sci. the question of blood guardianin surgicalmattersarose as an academicissue. 3.PERhlISSION FOR PERFORMING AN AUTOPSY: PITiaLLS 243 Uterine relationship is outside the boundsof the agnatictie. but for certain purposessuch as trading it is 18. (2) Siblings.it is a fortion.wife. mother. daughter and sisterheirsentitledto prescribed portionsin the estate of the praepositus. A hospitalshouldgo throughthe motionsof obtaining the consentof Islamicnext of kin becauseeven if it meets with opposition)it cotlldapproach the court with an application thatnarrows the issuesatldhelpsin securing a judicial rulingon a delicate medico-legal aspectof Islarnic medicaljurisprudence. The answerprobably lies in the degrees of relationship for thepurposes of legaldeputisatton or representatlon.IslamicMedtcine (Edinburgh. This articlewas first publishedin Med. M Ullman.but in traditional communitieswith hospitaladministrators whose M13A does not cover comparative forensicmedicine. In the absenceof a dispute amengstthe legal deputies.1978).minority. It was evaded. the issue has becometrulyvexed and is creepinginto the crirninal courts.Beirllt)1986). . The wife may not be relatedand yet she ranksas such for reasonand public benefit Of coursesenility. REFERENCES E G Browne)Arabian Medicine (London)1962).Onlynecessity. in coma)may be represented by the followingrelativesin order of pnonty: (1) Father. Law(1988)Vol. Therefore. (3) Paternal and maternal uncles..an autopsycould be performedwherea delayin securinga courtorderwouldaffectthe valueof a majorforenS1C eXerClSe.whichmeanscriminal investigation. One thingis certain: the time hasnot yet comewhenautopstes canbe performed for research purposesin the traditional Gulfstates.

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