ABSTRACT
The paper using the theory of purposes of the Law, analyzes ethico-legal issues
related to autopsy. Cadaver dissection and autopsy for educational or forensic purposes was permissible in the past under
the principle of necessity, dharuurat. Modern technological innovations on alternative methods of teaching anatomy
cast doubt on the continuing validity of the necessity argument for educational cadaver dissection and autopsy. Research on
the recently dead can be permissible under the principle of necessity if it is necessary for improved medical care. In cases
of permissible cadaver dissection, autopsy, and research; the following conditions must be fulfilled: proper informed consent
from the family and the deceased (where feasible), a legal opinion from a local jurist, treating the body with respect during
the procedure, and proper burial of the body after the procedure.
1.0 INTRODUCTION
1.1 Respect for the dead corpse
All four manipulations on the dead corpse (embalming, cryopreservation, autopsy,
and research) would violate the Law because they lead to delay of burial, involve disrespect, and physical violation of the
body. The extreme respect shown to the corpse can be derived from the hadith of the prophet forbidding damaging the corpse
or breaking its bones during washing[i]. They could be forbidden unless there is a necessity, dharurat, directly relevant to one of the 5 purposes of
the Law, maqasid al shari’at. In cases of permissible cadaver
dissection, autopsy, and research; the following conditions must be fulfilled: proper informed consent from the family and
the deceased (where feasible), a legal opinion from a local jurist, treating the body with respect during the procedure, and
proper burial of the body after the procedure.
1.3 Analysis based on purposes of the Law, maqasid al
shari’at.
The legality of the procedures is discussed based on the theory of the 5 Purposes
of the Law, that assure protection of ddiin, life & health, progeny, intellect, and wealth. Principles of
the Law, qawa’id al shari’at, are employed to support reasoning where there are apparent conflicts among
the principles. The opinions expressed in this paper are academic in nature. Legal rulings on actual cases should be sought
from the relevant authorities in the community.
1.5 Respect for
the dead body and human dignity:
The human has dignity in both life and death. Respect for the dead body is the guidance of the prophet
to stand up when a funeral procession passes by, al qiyaam li al janaazat[ii]. It is dignity to be buried whole. Surgical operations on the body
are an affront to the dignity. The prophet forbade mutilation, nahyu al muthla[iii]. Removal of some parts is looked at with disfavor. In cases in which
a body is buried without some of its parts, the parts when found later are washed, prayed for and buried in the same grave. Post-mortem examination will lead to delay of burial when the sunnah is to bury as
soon as possible. Delay of the burial affects human dignity because of deteriorations in the body including a bad smell.
2.0 AUTOPSY[iv]
2.1 Definition
The term autopsy or necropsy is used to refer to dissection and examination
of a dead body to determine the cause(s) of death. It may be carried out for legal or for educational purposes.
2.2 Historical background
Autopsies were carried out by 2 Greek physicians, Herophilus and Eraststratus,
in Alexandria
around 300 BC. The famous Roman physician Galen carried out autopsies in the 2nd century AD to correlate symptoms
and pathology. However autopsy did not become popular until the European Renaissance when taboos against dissecting the human
body were breached. Autopsy enabled more detailed understanding of anatomy and disease that opened new horizons for medicine.
By the 18th and 19th centuries AD autopsies were carried out in Europe
and new techniques of examination were introduced.
2.3 Purposes of autopsy
Post-mortem examination serves several purposes. It can be done for scientific research to understand
the natural history, complications, and treatment of a disease condition. It can be done for further education of physicians
and medical students especially when they compare their clinical diagnosis with the evidence from autopsy a process usually
referred to as clinico-pathological correlation. The lessons learned will improve their diagnostic and treatment skills in
the future and decrease the incidence of clinical mistakes. Post mortems are also undertaken for forensic purposes to provide
evidence on the timing, manner, and cause of death. Legally the courts may require
scientific proof of the cause of death in order to make decisions regarding various forms of legal liability.
2.4 The procedure of the autopsy
The first step in an autopsy is examination of the exterior of the body. Then
the body cavity is opened to examine the internal organs. Organs may be removed for examination or may be examined in situ.
After the examination removed organs are returned and the external incision is sewed up restoring the body to almost its original
appearance with the sole exception of having an incision. During the examination tissues and fluids are removed for further
examination that may include histological, microbiological, or serological procedures.
2.5 Ethico-legal issues cadaver
dissection for medical education
Permissibility under the principle
of necessity, dharuurat: Dissection of cadavers has been very important for medical
education over the past decades when there was really no alternatives to dissection. Cadaver dissection was therefore permissible
under the legal principle of necessity, dharuurat. The reasoning is that cadaver
dissection enables future doctors to be trained well to treat patients which fulfils the second purpose of the Law, preservation
of life or hifdh al nafs. The situation of necessity explained above takes precedence
over considerations of violating human dignity by dissecting the body under the general principle of the Law that necessities
legalize what would otherwise be prohibited, al dharuuraat tubiihu al mahdhuuraat.
However human dignity cannot be violated more than necessary. The body should still be handled with respect and consideration.
All tissues cut away should be buried properly and the remaining skeleton should also be buried in a respectful way. There
are issues of consent, sale of bodies, wills etc that we need not discuss here because there are legal doubts about the necessity
of cadaver dissection in the traditional way.
Alternative ways of achieving
the educational objectives: The following arguments cast doubt on the degree of necessity for cadaver dissection
in medical education. The cadaver is treated before dissection and does not truly represent the structure or appearance of
tissues in a living person. Secondly with availability of computer graphics and anatomical models, medical students can learn
human anatomy very conveniently and more efficiently.
2.6 Ethico-legal issues in autopsy for educational purposes
Permissibility under the principle of necessity, dharuurat: Autopsy for educational purposes can be permitted under the principle of necessity, dharuurat, as argued above
for cadaver dissection. However this can only be carried out if there is informed consent from the family members who have
the authority to consent as prescribed by the Law. As far as possible this consent should take into consideration the will
of the deceased on this matter if it was known before death.
Alternatives to autopsy: The necessity of educational autopsies
can be reduced by modern endoscopic and imaging technology that can enable inspecting internal structures without the making
an incision to inspect internal tissues. If the educational objective can be achieved fully using such technology then the
rational for the necessity will disappear and educational autopsies will be considered repugnant to the Law.
2.7 Ethico-legal issues in autopsy for legal or forensic purposes
The necessity of a forensic post-mortem is based on the paramount paradigm of Islamic Law to ensure
justice. If the only way evidence about a crime on a deceased is by an autopsy then it becomes a necessity to carry put the
autopsy. A forensic or medico-legal autopsy is more detailed in that it tries to look for clues to the motivation and method
of death. It is equally important to record some findings as it is to record negative findings. The deceased should be identified
accurately. Documentation is very thorough. The time of death must be estimated. The postmortem record is a legal document
that can be produced in a court of law.
[i] (Hadith no 468 in Buloogh al Maraam fi adillat al ahkaam by Imaam ‘Asqalani
and reported by Muslim)
