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Establishing the Legitimacy of a Child Between DNA Profiling and Classical

Methods of Islamic Law

Article · December 2017

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Isa Abdur-Razaq Sarumi Abdul Haseeb Ansari

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Journal of Islamic Law Review, Vol. 13, No. 2, December 2017, pp. 175-196

Genealogical relationship receives a special attention under Islamic Law that

the methods of its establishment and legal proofs for a valid establishment of
a child’s legitimacy have been comprehensively defined. These traditional
methods remain the sole arbiter whenever disputes arise until the emergence
of DNA profiling that almost subverts the hierarchy of the Islamic legal proofs.
This paper, therefore, explores the contemporary scholars’ polemics over the
position of DNA profiling among other Islamic legal proofs of establishing
the legitimacy of children. The paper finds that giving precedence to the
tradition methods of establishing a genealogical relationship over DNA would
not only safeguard the value of the family institution but also the divine
texts. The paper adopts qualitative doctrinal approach by revisiting classical
books with the available modern literature.

Genealogical relationship receives a special attention under Islamic

law that the means of its establishment and legal proofs for a valid
establishment have been comprehensively defined under Islamic law.
In no other area has Shari’ah been as detailed and specific as it is in
the area of family law. The Muslim jurists and judges have always
given precedence for these principles whenever disputes arise over a
genealogical claim based on the judgment of the Prophet (s.a.w)
between S’ad and ‘Abdullah ibn Zam’ah. One of the rationales behind
the comprehensive explanation is to safeguard one of the higher
objectives of Islamic law which prevention of lineage from
intermingling. Any child born through any of the legally established

* Ph.D. Scholar at Ahmad Ibrahim Kulliyyah of Laws, the International Islamic University
Malaysia, Malaysia, E-mail: saroommool@gmail.com
** Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, Malaysia,
E-mail: Ahaseeb111@yahoo.com
modes is automatically considered legitimate; such a child cannot be
disavowed except through the established imprecation by Shari’ah.
However, the emergence of biomedical technological developments,
associated with the discovery of deoxyribonucleic acid (DNA) testing
has triggered legal debates among the jurists. Employing DNA testing
to establishing the legitimacy of a child has triggered a new phase in
the legal research. Intellectual efforts (ijtihad) exerted by the
contemporary scholars over the legal characterization of DNA testing
has inevitably resulted in arriving at different opinions. Analogizing
DNA testing to physiognomy is uncontroversial among the
contemporary scholars, though the extent to which the analogy is
applied is highly controversial. Having agreed that the result of the
DNA testing is more definitive than the decision of physiognomists,
the main interest of this paper is to investigate the extent to which
DNA analysis can be used as evidence in establishing the legitimacy
of a child.
The history of DNA discovery goes back to 1953 when Francis H.C.
Crick and James D.Watson identified and described the double-helix
structure of DNA as the basic genetic repository of living organisms.
Every individual possesses his/her own unique DNA, which exists
in every cell of his/her body, be it a blood cell, sperm cell, or skin
cell. Only identical twins have the same DNA blueprint.1 Before the
discovery of DNA testing (genotype), blood group typing
(phenotype) was the established method of relationship verification.
Although blood group typing can be used to prove that individuals
are unrelated, it is not as effective in proving the opposite. It cannot,
therefore, be considered conclusive evidence in paternity
establishment disputes.2
DNA has become an invaluable instrument in the search for
justice. DNA evidence may play a significant role at various points
throughout the life of a criminal case, from the initiation of a criminal
investigation through post-conviction confirmation of the truth.3
Every human body is comprised of chemicals whose interactions and
synthesis are regulated by the genetic blueprint that was drawn at
the moment of conception. The genetic code determines each person’s
individual characteristics and in doing so, dictates that no two
persons, with the exception of identical twins, are the same.4
The analysis of deoxyribonucleic acid (DNA) began in medical
research. Scientific interest in the DNA structure arose in the early
20th century as biochemists began to define the classes of chemicals
that comprise us all. Initially, it was discovered that nucleic acids
were a major component of all cellular material. There are two
categories of nucleic acids: ribonucleic acid (RNA) and
deoxyribonucleic acid (DNA). Later, it was learned that DNA, rather
than RNA, is the repository of the genetic code. In 1953 James
Watson and Francis Crick published their seminal paper describing
the primary structure of DNA.5
Historically, identity testing in the forensic field started with the
analysis of the ABO blood group system. Later, new markers for
identity and paternity identification were based on variations of serum
proteins and red blood cell enzymes; eventually, the human leukocyte
antigen system was used.6 It was not until 20 years ago that Sir Alec
Jeffreys, professor and geneticist at the University of Leicester in the
United Kingdom (UK), pioneered DNA-based identity testing.7
The steps involved in DNA fingerprinting are as follows. First,
the DNA is extracted from the specimen (i.e., blood, semen, skin,
hair). After DNA extraction, restriction enzymes are added, which
work like scissors to cut the DNA into the smaller segments that are
different between individuals. The DNA segments are sorted by
agarose gel electrophoresis and visualised by staining with ethidium
bromide.8 A Southern blot is performed to transfer the DNA onto a
membrane. A radioactive probe is applied to the membrane, and the
pattern of DNA is detected by exposing the membrane to x-ray film.
The result is a pattern of DNA bands that looks like a supermarket
bar code. Each individual has a signature fingerprint.9
The first DNA testing was carried out when a family from Ghana
immigrated to the UK and became citizens. However, one of the
sons went back to Ghana and was stopped from returning to the UK
because he had a forged passport. The family’s lawyer contacted
Professor Jeffreys and asked whether he could confirm that the boy
was, in fact, the mother’s son and not her nephew (she had several
sisters in Ghana). The situation was complicated by the absence of
the father.10 Samples of DNA were taken from the mother, from the
son whose identity was disputed, and from the mother’s three
undisputed children. The patterns confirmed the relationship between
the mother and the son in question. Moreover, the testing confirmed
that all four children had the same father.11
Since DNA is one of the modern scientific discoveries, its legal status
was not discussed by any of the classical Muslim jurists in a specific
manner. There are, however, established divine legal texts, generic
principles and maxims that are sufficient for every novel issue at every
time and place. The modern scholars have exerted their intellectual
efforts to give essential legal discourse filling loopholes on every issue
related to DNA. The legal status of employment of DNA in
establishing genealogy is one of these issues through which numerous
conferences and colloquiums have been conducted for the importance
of family establishment in Islam. The methodology adopted by the
scholars in characterization of DNA fingerprint and its incorporation
in establishment of child’s legitimacy would be treated accordingly
below
The contemporary scholars have employed this legal maxim (al-asl
fil ashyā al-ibāhah)12 to establish the permissibility of incorporation
of DNA as means to establish a genealogical relationship. The opinion
is based on the grounds that every novel issue that has no prohibition
neither from the Quran nor from the Sunnah of the Prophet (s.a.w)
or from the consensus of the Muslim jurists would fall under the
realm of permissibility.13
DNA is one of the modern scientific discoveries that no
prohibitive text has been recorded neither from the Quran nor Sunnah
or the scholars’ consensus. Therefore, the default ruling for DNA is
permissibility on the basis of the analysed maxim.14
The basis of evidence of this maxim (mā lā yatimmul al-wājib illa
bihi fahuwa wājib) is that the preservation of the progeny is one of
the fives necessities of Shari’a. Realization of this obligation sometimes
entails adoption or incorporation of DNA testing particularly in a
situation when babies are mixed up in the hospital, day-care and
babies born through In vitro fertilisation (or fertilization; IVF).
Employing DNA test to determine the children’s identity would
become imperative in this situation in that to avoid intermixing of
children.15
This maxim (mā kāna ablagh fi tahcīl al-maqcud al-shāri’ kāna
ahabb)16 explains, any objective among the objectives of should have
a means to actualize it, the means might be different in realisation,
though. Of the processes that would actualize the objectives in totality
and some would not. When two or more methods are available for
the realisation of the objective, the best among them becomes worthily
commendable provided it is not legally prohibited.17 The point in
the maxim is that the Islamic law has shown a considerable concern
for the establishment of the genealogical relationship and attributing
individuals to where they belong in the best way to preserve their
tribe. There are several means to actualize the required preservation
by Shari’ah, and DNA testing is a reliable scientific means to achieve,
more reliable than the physiognomic tradition. Besides, physiognomy
is sinking into oblivion where the predominant means of determining
the baby is through DNA testing in the case of a mix-up.18
Considering the solicitude of Islamic law towards the establishment
of the genealogical relationship, incorporation of physiognomy was
approved by the Prophet (s.a.w) and used by his companions to
acknowledge paternity. If adopting physiognomy that is based on
physical resemblance by the experts is legally recognised as a means
to determine the legitimacy of a child, it is more desirable to approve
adopting DNA testing that is more extremely accurate.19 DNA result
is more fastidious than physiognomy that which its accuracy is
scientifically proved to be 100% through concrete evidence of
laboratory tests for establishing or negating genealogy.20 Besides DNA
testing result is not typically determined by one or two persons as
known to the long physiognomic tradition.21
The contemporary Muslim jurists have upheld the validity of
adopting DNA testing to establish the true genealogical relationship
by considering it a strong circumstantial evidence on basis that its
result is reliably proved accurate beyond a reasonable doubt in
establishing a child’s legitimacy and illegitimacy.22 Additionally,
it is believed to be more convincing than some legally
established evidence like physiognomy and lot-casting (Qur’an)
that are considered last resort to determine the legitimacy of a
child. 23
It is evident from the proofs provided by the contemporary
Muslim jurists that employing DNA testing in investigating the
legitimacy of a child is legally permissible. The scholars’ efforts
indicate the validity for every time and place to address every novel
issue.
One of the issues that incited juristic discourse among the
contemporary Muslim jurists is the legal status of DNA among other
legal means to establish child’s legitimacy under Islamic law. Some
scholars hold the opinion that DNA is at the same level with
physiognomy and cannot be equated with other legally established
proofs like firash, al-bayyina and al-iqrar. On the contrary, other
scholars opine that DNA is an independently valid proof on its own
and cannot be comparedd with physiognomy. Each group of the
scholars have substantiated their position with discursive proofs which
would be elaborated.
The majority of contemporary jurists hold the opinion that
unanimous traditional legal proofs that are comprised of firash, al-
bayyina, and iqrar remain optimal and the most desirable evidence.
If any of these proofs are provided, it is not allowed to resort to the
employment of DNA testing except in a disputing situation where
using of physiognomy is allowed.24
This opinion has been reiterated in the resolution of the council
of the international Islamic Fiqh academy of the organisation of
Islamic cooperation.25 Among the scholars who have conducted
painstaking research in favour of this opinion are, al-Qardagy,26
Wahabah al-Zuhaily,27 Nasir Farid,28 Umar Muhammad Sabil,29
Muhammad Sulayman al-Ashqar30 and some others.
Wahabah Zuhaily emphatically asserted that Islamic classical
methods of establishing legitimacy and illegitimacy of a child must
always take precedence over DNA testing. Firash, al-bayyina, istilhaq,
or iqrar are therefore remained prime means for establishing the
legitimacy of a child for the fact that these methods are established
by traditional legal text (nusus shar’iyyah). Therefore, these proofs
are to be favoured over physiognomy and DNA analysis except in
exceptional situations like disputing over a child without a
preponderant or convincing evidence from any of the
disputing parties or when the proofs that are provided appear
contradictory.31
Nasir Farid also elaborated that studying the legal proofs of the
Islamic for the establishment of genealogical relationship which are
legitimate marriage contract (firāsh), al-bayyina (evidence), al-iqrar
(acknowledgement), al-shahādah (witnessing) and qiyāfa
(physiognomy), it is obvious that physiognomy accords with DNA
in several aspects. Physiognomy is a branch of knowledge that is
based on studying the physical or outward appearance to ascertain
natural or biological lineage. Similarly, DNA is the material within
cells that contains each individual’s unique genetic information.32
On this basis physiognomy and DNA as legal proofs come before
the established legal proofs.33 These scholars have supported their
opinion with proofs from the Holy Quran, Sunnah of the prophet,
consensus and reasoning.
“The mothers shall give suck to their offspring for two whole years if the
father desires to complete the term. But he shall bear the cost of their food
and clothing on equitable terms.” 34
The scholars inferred from the above verse that attributing children
to their mother by virtue of birth and simultaneously attributing
same children to whom they were begotten for (wa ‘ala al-mauládi
lahu) who may not be the real biological father. Thus, once the child
is born through a legitimate marriage contract, the attribution to his
father occurs automatically as it is established in the Islamic tradition.
Therefore, DNA testing becomes unnecessary when the textual proofs
remain unimpaired.35
The proponents of this view have also supported their position with
famously narrated hadith from ‘Aisha (may Allah be pleased with
her.
Sa’d b. Abu Waqqas and Abd b. Zam’a (Allah be pleased with them)
disputed with each other over a young boy. Sa’d said: Messenger of Allah,
he is the son of my brother ‘Utba b. Abu Waqqas as he made it explicit that
he was his son. Look at his resemblance. Abd b. Zam’a said Messenger of
Allah, he is my brother as he was born on the bed of my father from his
slave-girl. Allah’s Messenger (s.a.w) looked at his resemblance and found a
clear resemblance with ‘Utba. (But) he said: “He is yours O ‘Abd (b. Zam’a),
for the child is to be attributed to one on whose bed it is born, and stoning
for a fornicator. Sauda bint Zam’a, O you should observe veil from him.”
So he did not see Sauda at all. Muhammad b. Rumh did not make a
mention (of the words): “O Abd.”36
In the above hadith, the power of legitimate marriage contract or
proprietorship is explicitly expressed by the clear verdict given by
the Prophet (s.a.w) even with a marked resemblance between the
claimed child and the fornicator. The striking resemblance of the
child to the fornicator did not induce the Prophet (s.a.w) to resort
to physiognomy which has a common denominator with DNA, he
rather gave preference to the legitimate establishment over
resemblance.37
The Islamic legal means to establish legitimate genealogical
relationship have established through Divine texts (Quran and
Sunnah) and consensus of the Muslim jurists. Giving precedence for
DNA over these established legal proofs is tantamount to suspension
and invalidation of Islamic law.38 Besides, most of the modern
scientific theories, no matter how accurate in the sight of the
specialists, it does not virtually free from doubt and sometimes proved
wrong by scientists.39 This has made Muslim jurists be strictly
adherent to prioritising the major sources of Islamic law.40 It is
inconceivable that DNA testing that is susceptible to compromise
or technical defects would have precedence over the classical methods
that have been established through the original sources of Islamic
legislation. In addition, absolute reliance on DNA testing for
establishing genealogical relationship would undoubtedly have
destructive implication on peoples’ privacy. This is absolutely
contradictory with the objective of Shari’ah.41
Some contemporary Muslim scholars are of the opinion that DNA
is in the same category with the classical means of establishing a
genealogical relationship. It is rather much stronger than the classical
means, so whenever there is a contradiction between the DNA result
and the classical methods, DNA result would be preferred. 42 The
arguments of these scholars are based on the following verse.
“Those who conceal the clear (Signs) We have sent down and the guidance
after We have made it clear for the people in the book on them shall be
Allah’s curse and the curse of those entitled to curse.”43
It is claimed that the clarity and accuracy of DNA testing when a
dispute arises are proved beyond a reasonable doubt compared with
the classical methods that are encircled with scepticism and
uncertainty44. And it is plausibly believed that the certainty has
precedence over doubt.45 Besides, it is extremely rare to find faults in
the DNA testing. For this reason, it should occupy an outstanding
position within the means of establishing legitimacy and illegitimacy
of a child and genealogical relationship at large for being more
accurate than physiognomy.46
It is scientifically proved that DNA testing is incredibly powerful
and 100% or 99.9% accurate for the identity verification which
makes it more definitive than shahāda, iqrār and firāsh that are
based on approximation. If these speculative proofs are regarded as
a legitimate method of establishing paternity out of a precautionary
measure, DNA should, therefore, should occupy a higher position.47
Hilālī asserted that after scientific clarification of DNA position,
it is to be treated as a physical feature and should not contradictory
with other Islamic evidentiary structures. He argued that DNA is
in the position of “condition” for the authenticity of the established
Islamic evidentiary proofs in respect of verification of identity.
‘Uthman also argues that DNA analysis can be used to verify other
traditional methods for paternity such as the testimony of witnesses
(shuadā).48 Al-Khayyat argues that DNA result is definitive in
paternity disputes by identifying the real father or mother of a child
with genetic traits. He claims the legal efforts made by the classical
scholars were virtually based on the speculative hypothesis that is
void of definitiveness. Since Allah, in His infinite mercy, has blessed
mankind with the sign of DNA that can authoritatively determine
the identity in the face paternity disputes, there is no need resorting
to uncertain means. 49 In reiterating the comprehensive of
DNA analysis, it is claimed that the classical methods of
establishing genealogical relationship are not devotional based
proofs (ta’abudiyyah) that not questioned after the emergence of
DNA. 50
Ultimately, it is claimed that all the classical proofs for the
establishment of genealogical relationship are speculative, meanwhile,
it has been conditioned that the speculative evidence should not be
at variance with reasoning.51 Claiming legitimacy of a child through
licit sexual relationship (firāsh) is to be rejected if it cannot be
rationalised. For example, if a woman gives a birth in a period less
than six months from her wedding day or from a husband who has
not reached the age of puberty, the child would not be affiliated to
her husband by the consensus of the scholars. As the scholars also
condition that claiming paternity of a child of unknown genealogy
should not contravene reason (‘aql). Therefore DNA becomes a
condition for the acceptance of firāsh, iqrar and shahāda as a sensory
and intellectual proof.52
Meticulously studying the two differing views and their
arguments on the legal status of DNA analysis, the preponderance
of the majority of scholars’ evidence is quite obvious. Giving
precedence for the established Islamic legal proofs (adilla shar’iyyah)53
over DNA results is the prevailing opinion held by the most
contemporary scholars at numerous conferences of the International
Fiqh academies. However, the scholars concur that DNA testing
occupies the status of physiognomy. There is no doubt that giving
precedence to the established legal proofs which have been agreed
upon from the time of the companions of the Prophet (s.a.w) is
tantamount to underestimation of the sources of Islamic law. Besides,
there have been reports over technical and laboratory errors during
the process of DNA replication.54 Human errors are also possible.
Contaminations, mislabelling,55 misrecordings,56 misrepresentations,
case mix-ups and interpretive errors may lead to false positive errors.57
Therefore, it is impermissible to employ DNA analysis to
investigate the legitimacy of a child in the following cases:
ā whenever the legitimate marriage contract is intact, it
is absolutely impermissible to employ DNA testing for
verification of a child’s legitimacy for the hadith of the Prophet,
“the child is to be attributed to the legitimate husband” (al-
walad lil al-firāsh). 58 This has long been a tradition
unanimously held by the classical jurists to avoid opening the
 floodgate for the deterioration of family values.59 In addition,
the family institution has been fortified with very strong
principles for the tranquillity of the society. General inclination
towards investigating the legitimacy of a child through DNA
analysis would be disastrous to the established tradition laid
through the main sources of Shari’a. Having apprehended the
devastating consequence of this issue by the contemporary
Muslim jurists, they have put forward at the seventh
resolutions of the Islamic Fiqh academy that it is impermissible
to employ DNA with the aim of investigating the legitimacy
of a child born through a legitimate marriage.60
ā It is impermissible to investigate of a
child whose legitimacy has been established through
acknowledgement and shahāda or bayyina for these means
are legally inexpugnable by DNA testing as previously
explained.
Having clarified the status that DNA occupies among other classical
means of establishing the legitimacy of a child, the contemporary
scholars have stipulated several situations when employment of DNA
analysis are allowed.
(i) When babies are mixed up in the hospital61 and day care
centres: it is allowed to employ DNA testing when babies
get mixed up which might occur by mistake or otherwise
that identifying them may be difficult for their parents.62
(ii) When babies are mixed up due to natural disasters,
accident, and wars and the identity of the victims becomes
problematic.63
(iii) It is allowed to employ DNA testing where is a mixed up of
in vitro fertilisation or artificial insemination64 procedures
to avoid attributing the foetus to wrong parents.65
(iv) When two or more people claim a child of unknown
genealogy or a foundling, it is allowed to resort to DNA
testing to the revelation of his true father.66
(v) When a baby is born through a doubtful sex (wat’u al-
shubha) of an invalid marriage like shighar marriage,
mut’an or marrying a divorced woman or a widow whose
waiting period has not completed. Affiliation of such a child
to the first and second husband might be questionable.
The case could, therefore, be solved through resorting to
DNA testing in the way classical scholars used to resort to
lot-casting or physiognomy.67
(vi) When there is doubt over the period of gestation after a
marriage contract of fewer than six months. This could
happen when a woman is divorced after being consummated
by her husband with the assurance of completing sixty days
of her waiting period. If the woman gets married to another
husband and gives birth in a period less than six lunar
months68 . In this case, the legitimacy of the child is
questionable and resorting to DNA testing is allowed.69
(vii) When a husband doubts the legitimacy of his child due to
clear dissimilarity and other reasons, it is allowed by some
contemporary jurists to employ DNA testing. The husband
should be satisfied if DNA result affirms the legitimacy of
the child or he could, however, resort to imprecation if
otherwise.70
(viii) In the case of returning of prisoners of wars and a lost
person having wandered away from his family, and his
lineage for a long period of time, if they claim affiliation
to a family without a proof, DNA testing could be
employed for clarification of their identity and their
affiliation to the claimed family.71
(ix) In a case when a person of unknown genealogy claims
affiliation to a particular tribe DNA testing might be
employed to investigate the validity of the claim.72
(x) In a situation when a married woman is raped and if her
husband is sceptical about the paternity of the child born
after that horrific incident, DNA testing may be resorted
to.73
 (xi) When a husband disavowed a child born by his divorced
wife claiming that her period of gestation is questionable,
DNA testing can be carried out.74
It is evident from the above resolutions75 that all the cases
mentioned are restricted to disputing matters and not in clash with
any of the methods approved Shari’ah. If any of the classical legal
proofs (bayyina, firash, iqrar) is involved, employment of DNA
testing would be rendered invalid.
1. Even though contemporary Muslim jurists have held the
permissibility of employment of DNA test in certain situations,
they have rather set out conditions in order to avoid being
inconsistent with the principles and objectives of Shari’a which
may consequently lead to harm. These conditions are divided
into two different categories: Legal and technical conditions.
These conditions are based on the resolution of the Islamic Fiqh
Council
i) Employment of DNA testing should not be conducted to
investigate the legitimacy of a child of a legally established
family to avoid opening floodgates to an unfounded
suspicion and precarious society. However, it allowed
employing DNA testing where there is a mixed up of babies
in hospitals as previously expatiated.76
ii) DNA testing should not contradict reasoning. For example,
running DNA testing for a person claiming paternity to a
child of his age group or claiming a child without reaching
puberty.77
iii) DNA testing should not be in contravention of the original
texts from Quran and Sunnah to avoid suspension of Allah’s
injunction. For example, no scientific proof can have
precedence no matter how definitive over firash.78
iv) DNA testing should not be employed by an individual but
through judiciary order or through a constituted authority
to avoid gambling with the principles of Shari’ah.79
v) Private and commercial sectors with special interests should
be prevented from conducting DNA testing and punitive
measures be imposed on anyone caught to avoid destroying
the family institution.80
vi) Experts to conduct DNA testing should be known for
integrity, honesty and perfection in the field and there should
not be relationship or enmity between the claimants and
people to conduct DNA testing.81 Composition of a special
committee genetic fingerprint in each country involving
forensic specialists, doctors and administrators, and would
be responsible for overseeing the results of DNA and the
adoption of results
vii) DNA testing should comprise of forensic specialists, doctors,
a legal practitioner and administrators to oversee the result.82
viii)The DNA sample analysis must be conducted by an upright
Muslim because his report will serve as a testimony and, as
the Shari’ah stipulates, a non-Muslim’s testimony in a case
involving a Muslim is acceptable only in cases of wasiyyah
(will and testament) during travel and the like.
Contemporary scholars have devised different approaches to
establishing the legality of incorporation of DNA profiling through
the employment of the Islamic legal maxims and analogical deduction.
DNA profiling has been considered among substantial proofs that
can be adopted as substantial evidentiary supports in a dispute.
However, the idea of comprehensive incorporation of DNA by
grouping it in the same category with other classical means of
establishing the legitimacy of a child is quite implausible let alone
elevating it over them. It is, therefore, submitted from the from the
scholars’ discourse that DNA results are almost definite in establishing
the legitimacy of the child. However, studying the scholars’ arguments
on the legal status of DNA testing among other traditional modes of
establishing the legitimacy of a child, it is concluded that DNA testing
should not be given precedence over the legally established evidence
(adillah shar’iyyah) like shahadah iqrar and firash. Even though the
scholars admitted the definitiveness of DNA results, there is a
possibility of the occurrence of human and technical errors. That is
why it is not allowed to use DNA for verification of the legally
established lineage, and in a case of dispute over the claim of paternity
between a legitimate husband and an (adulterer), the child is to be
attributed to the husband as long as he (the child) is not disavowed
through the imprecation, even if DNA results favour the latter.
Ultimately, it is suggested that Shari’ah scholars, medical scientists
and administrative authority in the Muslim countries should supervise
DNA results, create an accurate mechanism to prevent frauds and
contamination and all that is negatively related to the human efforts
in the laboratories.
1. Shirelle Phelps and Jeffrey Lehman (eds.), “DNA Evidence,” in West’s
Encyclopaedia of American Law, 13 vols. (Detroit: Gale, 2005), 3:485-
9.
2. Chadarevian, Soraya de. “Portrait of a discovery: Watson, Crick, and
the Double Helix.” Isis 94, no. 1 (2003): 90-105.
3. Kreeger, Lisa R., Danielle M. Weiss, American Prosecutors Research
Institute, and United States of America. Forensic DNA Fundamentals
for the Prosecutor: Be Not Afraid. American Prosecutors Research
Institute, 2003.
4. ibid
5. Watson and Crick, A Structure for Deoxyribose Nucleic Acid,
NATURE, April 2, 1953, available at, http://biocrs.biomed.brown.edu/
Books/Chapters/Ch%208/DH-Paper.html.
6. Weedn VW. Forensic DNA tests. Clin Lab Med. 1996; 16: 187–196.
7. Hypervariable ‘minisatellite’ regions in human DNA. Jeffreys AJ, Wilson
V, Thein SL Nature. 1985 Mar 7-13; 314(6006):67-73.
8. Jean E. McEwen, “Genetic Information, Ethics, and Information
relating to Biological Parenthood,” in Encyclopaedia of Ethical, Legal,
and Policy Issues in Biotechnology, eds. Thomas H. Murrary and Maxwell
J. Mehlman, 2 vols. (New York: Wiley, 2000), 1:357.
9. 5. Jeffreys AJ, Wilson V, Thein SL. Individual-specific ‘fingerprints’ of
human DNA. Nature. 1985; 316: 76–79.
10. Saad, Rana. “Discovery, development, and current applications of DNA
identity testing.” In Baylor University Medical Center. Proceedings, vol.
18, no. 2, p. 130. Baylor University Medical Center, 2005
11. 7. Jeffreys AJ, Brookfield JF, Semeonoff R. Positive identification of an
immigration test-case using human DNA fingerprints. Nature. 1985;
317:818–819.
12. Ibn Taymiyyah expatiated that the basis of this legal maxim is that
people’s daily dealings are not considered impermissible except what is
prohibited by Quran, Sunnah and the consensus of the Muslim jurist.
Conversely, the act of worship is strictly confined to what has been
legislated by the Lawgiver. See al-SIyasa al-Shar’iyyah fi Islahi al-Ra’i
wa al-Ra’iyyah, (Makkah: ‘Alam al-Nashr wa al-Taozi’i, 1997), 220.
13. Abdallah, Salam. “Islamic ethics: an exposition for resolving ICT ethical
dilemmas.” Journal of Information, Communication and Ethics in
Society 8, no. 3 (2010): 289-301.
14. Muslih al-Najjar, al-Ba’mat al-Wirāthiyya fi al-Fiqh al-Islamī, Majalla
al-Buhut al-Fiqhiyy al-Mu’a’ira, 2004 edition, vol. 17-65, 195.
15. Muslih al-Najjar, 45.
16. Ibn taymiyyah, Majmá’ al-Fatāwa, (Cairo: Dār al-wafā, 2005), vol.21,
308.
17. Aisha Ibrahim Ahmad, 65.
18. Aisha Ibrahim, Ithbāt al-Nasab fi Dauhi ‘Ilmi al-Wirātha, a Master
Dissertation at Faculty of Law and Shari’a, Islamic University, Gaza,
2012, 65-66.
19. Umar ibn Muhammad Sabil, al-Ba’mat al-Wirāthiyya wa Mada
Istikhdāmuha fi al-Nasab wa al-Jināya, research presented at the
sixteenth session of Muslim World League Islamic Fiqh Academy in
Makkah, held on 5th October, 2002,186.
20. See Al-Qardagy ali muhyiddin, al-Basmat al- Wirathiyyah min mandhuri
al-Fiqh al-Islamiy, a research presented at the sixteenth Islamic Fiqh
Council, Makkah, held on the 5th October, 2002, vol.3, 63-64.
21. Ashraf Abdul- al-Razaq, Mauqif al-Ba’mat al-Wirāthiyya min Wasāil
al-Nasab (Egypt: dār al-Naha al’Arabiyya, 2006), 118-119.
22. Sufyan ibn Umar, al-Nsab wa Mada al-T’athīrāt al-Mustajiddāt al-
‘Ilmiyya al-Mu’acira, (Riyadh: Dār al-Kunáz Ishbiliyya li al-Nashr wa
al-Tauzī’, 2007), 241.
23. Muslih al-Najjar, 46.
24. Sufyan ibn Umar, 345.
25. It has been asserted in the seventh resolution of the Islamic Fiqh
Academy on DNA and its benefits that DNA analysis needs to carried
out with adequate precaution and should never be prioritized over the
Islamic classical proofs like firash, bayyinah and iqrar. Though it is at
the same category with physiognomy (qiyafa) that could resorted to
when children are mixed up at hospital and a child of unknown
genealogy. See the international Islamic fiqh academy (IIFA) in its 20th
session held on 13th September, 2012, in Wahran, Algeria.
26. See Al-Qardagy ‘Ali muhyiddin, al-Bacmat al- Wirāthiyya min man“ári
al-Fiqh al-Islami, a research presented at the sixteenth Islamic Fiqh
Council, Makkah, held on the 5th October, 2002, vol.3, 63-64.
27. See al-Zuhaily Wahabah, al-basmat al-Wirathiyyah wa Majālāt al-
Istifadat Mihah, a Research Presented at the Sixteenth Session of the
Islamic Fiqh Council, Makkah, held on the 5th October, 2002, vol.3.
28. Nasir Farid, al-basmat al-Wirathiyyah wa Majalat al-Istifadat Miha, , a
Research Presented at the Sixteenth Session of the Islamic Fiqh Council,
Makkah, held on the 5th October, 2002, vol.3, 102.
29. Umar Muhammad Sabil, al-basmat al-Wirathiyyah wa Madah
Mashru’iyyat istikhdamiha fi al-Nasab wa al-Jinaya a Research Presented
at the Sixteenth Session of the Islamic Fiqh Council, Makkah, held on
the 5th October, 2002, vol.3, 173.
30. Sulyman al-Ashqar, Ithbāt al-Nasab bi al-basmat al-Wirathiyyah, a
research presented at the Seminar of Genetics, Genetic Engineering,
Human Genome and Genetic Treatment, Kuwait, 1981.
31. Wahbah al-Zuhaily, 22.
32. See Lichter, Peter, Thomas Cremer, J. Borden, L. Manuelidis, and D.
C. Ward. “Delineation of individual human chromosomes in metaphase
and interphase cells by in situ suppression hybridization using
recombinant DNA libraries.” Human genetics 80, no. 3 (1988): 224-
234.
33. Nasr Farid Wasil, 106.
34. Baqarah, verse 233.
35. Aisha Ibrahim, 69.
36. Sahih Muslim 1457 Book 17, Hadith 46.
37. Ibid. 70.
38. Sufyan ibn Umar, 243.
39. Nasir Abdullah al-Miman, al-basmat al-Wirathiyyah wa Majāl
Istikhdāmiha fi Majāl al-libb al-Shar’i wa al-Nasab, Majalla al-Shari’a
wa al-Qanán Juwailiyya, vol.18, 218.
40. Ashraf Abdul al-Razaq, 97.
41. Sufyan ibn Umar, 246.
42. Among these scholars are Ra’fat ‘Uthman, S’addin al-Hilaly in his book
titled “al-Basmat al-Wirathiyyah, wa ‘Alaqatuha al-Shar’iyyyah” and
Muhammad Ghannam in his article titled “al-Basmat al-Wirathiyyah
fi al-Ithbat” presented at the United Arab Emirates University
Conference themed “Genetic Engineering between Law and Shariah”,
2002, vol. 2, 7-5.
43. Baqarah, 159.
44. Farid al-Shamal, Taqniyyāt al-Bacmat al-Wirāthiyya fi Qaāya al-Nasab
wa ‘Alāqatuha bi al-Shari’a al-Islamiyyah, a Research presented the
Conference on Genetics, Genetic Engineering, Human Genome and
Genetic Treatment, Faculty of Law and Shari’a, United Arab Emirates
University, 5-7 may, 2002, vol.4, 1478.
45. Abdul al-Qadir al-Khayyat, 16.
46. Bandar ibn Fahd al-Suwailim, al-Bacmat al-Wirāthiyya wa Atharuha
fi al-Nasab, Majalla al-‘Adli, Ministry of Justice, Saudi Arabia, 2008,
vol.37, 121.
47. Bandar Fahd al-Suwailim 129.
48. Muhammad Ra’fat ‘Uthmān, al-Mādda al-wirāthiyya al-jīnûm (Cairo:
Wahba Bookstore, 2009), 325- 339.
41. S’aduddeenHilaly, al-Basmat al-wirathiyyah wa ‘Alaqatuha al-shar’iyyah
(Kuwait University, 1st edition), 316.
49. Abdul al-Qadir Khayyat, 20.
50. S’aduddin al-Hilaly, 316.
51. Sufyan umar, 350.
52. Ibid. 350.
53. The established legal proofs (adilla shar’iyyah) for determining
legitimacy of a child primarily include legitimate marriage contract
(firash), witness/evidence (shahada/bayyina), and acknowledgement
(iqrar).
54. Friedberg, Errol C. “The intersection between the birth of molecular
biology and the discovery of DNA repair.” DNA repair 1, no. 10 (2002):
855-867.
55. McNabb, S. J., Christopher R. Braden, and Thomas R. Navin. “DNA
fingerprinting of Mycobacterium tuberculosis: lessons learned and
implications for the future.” Emerging infectious diseases 8, no. 11
(2002): 1314-9.
56. Huggins, R. M. “On the robust analysis of variance components models
for pedigree data.” Australian & New Zealand Journal of Statistics 35,
no. 1 (1993): 43-57.
57. Koehler, Jonathan J. “Error and Exaggeration in the Presentation of
DNA Evidence at Trial.” (1993).
58. Husni Mahmud ‘Abd al-Dāim, al-Basmat al-wirathiyyah wa Mada
Hujiyyatuha fi al-Ithbāt (Alexandria, Dār al-Fikr al-Jāmi’ī, 2008), 774.
59. Muhyiddin al-Qardagy, 59.9
60. Scholars have differentiated between individual and general
investigation of child’s legitimacy. See ‘Aisha Sultan al-Marzuqi, ithbat
al-Nasab fi daui al-Mu’tayat al-‘Ilmiyyah al-Mu’asira, a PhD Thesis at
faculty of Dar al-‘Ulum, Cairo University, 2000, 312.
61. One of the similar cases of this happened in Malaysia where two babies
were mistakenly swapped at a medical centre by the staff. The babies
were eventually returned to their biological parents following the release
of DNA test result. <http://www.themalaymailonline.com/malaysia/
article/baby-mix-up-solved-with-dna-test> accessed on 18th February,
2017.
62. Ashraf abd Razaq 106.
63. Al-Qardagi Muhyiddin, 60.
64. 1) IVF or in vitro fertilization, also known as artificial insemination is
a procedure whereby the woman’s eggs are extracted and fertilized with
the husband’s or donor’s sperm in the laboratory using a receptacle
similar to a test-tube. That’s why a baby conceived in this way is called
a ‘test-tube’ baby. This procedure is obviously carried out for infertile
couples and mothers who cannot bear children. In Islam this will be
allowed under the following conditions:
(a) Sperm used must be that of the husband. Using donor sperm is
not permissible.
b) The husband should not use masturbation as a means to collect
sperm. Instead Shari’ah allows coitus interruptus as well as
masturbation of the husband by the wife.
c) Surrogacy should not be resorted to. That is, once the sperm and
the ova are fertilized, this matter should not be implanted into the
womb of another woman who will act as a surrogate mother for
the couple. This is sometimes done when the infertile mother has
too weak a womb to carry a pregnancy to its term. The fertilized
eggs must go back into the womb of the mother. This is the verdict
of the Islamic Fiqh Council of the Organization of the Islamic
Conference in which it says: There is nothing wrong with resorting
to this in the case of need, but it is absolutely essential to take all
necessary precautions.
Majallat al-Majma’ (3/1/423).
65. Aisha Ibrahim al-Muqādima, 81.
66. Al-Zuhaili Wahba Mustafa, 24.
67. Ashraf ‘Abdul al-Razaq, 108
68. Six months is considered the minimum period of gestation unanimously
agreed upon Muslim jurists.
69. ‘Aisha Ibrahim, 83.
70. Al-Qardagi ‘Ali Muhyiddin, 60. See Nasr Farid Wasil, 109.
71. Al-Zuhaili Wahba, 29.
72. Aisha Ibrahim, 84.
73. Al-Qardagi ‘Ali Muhyiddin, 80.
74. Ibid. 80.
75. The aforementioned resolutions have been recommended by the Islamic
Fiqh Academy Muslim World League in Makkah at its fifteenth session
 held on the 31st of October, 1998, to complete the study of research
and studies and developments on the subject of DNA.
76. Al-Qardagi ‘Ali Muhyiddin, 46.
77. Khalifa al-K’aby, 49.
78. Husni Mahmud ‘Abd al-Dāim, 481
79. Bandar ibn Fahd al-Suwailim, 130.
80. Husni Mahmud ‘Abd al-Dāim, 479.
81. Ibid. 479.
82. Bandar ibn Fahd al-Sawailim, 130.

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