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Mandatory Premarital Medical Examinations


12 14 09

 

 

Mandatory Premarital Medical Examinations
Sheikh `Abd al-Rashîd Qâsim

With advancements in genetic engineering opening up new possibilities – and with the spread of diseases like AIDS – there is considerable pressure to require prospective spouses to undergo pre-marital medical exams. Some countries in the Arab world, like Syria , Tunisia , Morocco , the UAE, and Saudi Arabia , have encouraged their citizens to go for such pre-medical exams. Some have made doing so a legal requirement for marriage.

There are genetic diseases that are widespread in some societies. A person carrying the gene for this sickness is not necessarily going to be sick. However, he can pass on this sickness to his children if he marries a woman who is a carrier of the same gene. According to Mendel’s laws of heredity, statistically one-fourth of their children will be expected to be stricken by the disease.

When there are a large number of carriers for a particular genetic disease in a given population, the possibility of the disease being contracted becomes high. This is especially the case where people have a tendency to marry within their own families, preferring their cousins to others.

Benefits of premarital medical examinations:

The benefits of the couple having a pre-marital medical examination are as follows:

1. The prospective marriage partners will know beforehand about the possible genetic diseases that their children might inherit. This knowledge broadens their choices. They may choose not to have children or not to get married in the first place.

2. It becomes possible to give prospective marriage partners valuable medical advice on the basis of their past medical histories, the results of the clinical examination, and the differences in their blood types.

3. Thalassemia is a disease that is prevalent in the Mediterranean region. Preventative measures can be taken against the occurrence of this disease so that parents who are carriers can achieve a healthy newborn.

4. Premarital medical examinations protect people from contracting from their prospective partners contagious diseases that they might have.

5. The marriage contract is a serious commitment that is supposed to be permanent and stable. If it surfaces after marriage that one of the spouses has a disease, this could lead to a termination of the marriage if the other party refuses to stay with the person on account of the illness.

6. Premarital medical examinations allow each party to the marriage to be certain whether his or her prospective partner is fertile and able to produce children. It also allows each of them to know their prospective partner’s ability to have intimate relations.

7. Premarital medical examinations help to prevent the spread of contagious diseases and reduce the number of children born with debilitating genetic diseases that are costly to both the family and to society at large.

Negative consequences:

The possible negative consequences of premarital medical examinations are as follows:

1. People sometimes believe that these exams will protect their families from genetic diseases. This is simply not true. One reason for this is that the exams typically only test for two or three genetic diseases that are prevalent among the local population.

2. People are sometimes led to believe that marriages within the family are the direct reason for the presence of hereditable diseases in our society. This assumption is completely false.

3. The results of the test might inadvertently become public. This could have painful consequences for the person so exposed, especially for a woman. Regardless of what her medical condition was, she could easily find herself without any further marriage proposals it is becomes known that her marriage was cancelled after the results of her medical examination came out.

4. The results of the test can ruin some people’s lives and cause them to worry and despair when they come to know that they or their children could possibly contract a disease for which there is no medical cure.

5. The costs of the tests may be prohibitive for some people. In a situation where the government makes a premarital medical examination a precondition for marriage, this could lead to numerous problems. Considering how easy it is to secure medical certificates from some public and private hospitals, trafficking in false documents could easily become a black market industry.

The Islamic ruling on mandatory premarital medical examinations:

Is it permissible for a government to require prospective marriage partners to undergo a medical examination as a precondition of marriage or is it something that must remain merely optional?

Contemporary scholars and researchers disagree on this matter and their various opinions may be summarized as follows:

The first opinion is that it is within the government’s jurisdiction to pass a law obligating prospective marriage partners to undergo a medical examination before they will be permitted to get married. Permission to marry will not be given unless the parties can produce medical certificates proving they had taken these tests. This is the opinion of Muhammad al-Zuhaylî, Nâsir al-Maymân, Hamadâtî Mâ’ al-`Aynayn Shabîhunâ, `Abd Allah Ibrâhîm Mûsâ, Muhammad Shabîr, `Ârif `Alî `Ârif, and Usâmah al-Ashqar.

The other opinion is that it is Islamically unlawful to compel prospective spouses to undergo premarital medical examinations. The government is merely allowed to encourage people to do so and educate them about its benefits. This is the opinion of `Abd al-`Azîz b. Bâz, `Abd al-Karîm Zaydân, Muhammad Ra’fat `Uthmân, and Muhammad `Abd al-Sattâr al-Sharîf.

The argument of those who support mandatory examinations is as follows:

1. Allah says: “Obey Allah and obey His Messenger and those in authority among you.” [ Sûrah al-Nisâ’ : 59] The argument here is that anything that is in itself permissible can be made mandatory by the Muslim ruler if it determined to be in the public interests.

2. Allah says: “Do not throw yourselves into destruction by your own hands.” [ Sûrah al-Baqarah : 195] Some diseases are sexually transmitted and since a medical examination can prevent the spread of such diseases to a prospective spouse, it becomes necessary.

3. Allah says: “Then Zachariah prayed unto his Lord and said: My Lord! Bestow upon me of Thy bounty goodly offspring. Lo! Thou art the Hearer of Prayer.” [ Sûrah Âl `Imrân : 38] Safeguarding the lineage is one of the six primary objectives of Islamic Law. Taking steps to ensure that future generations are free from genetic defects is fully consonant with this objective.

4. The Prophet (peace be upon him) said: “Do not expose the healthy to the sick.” [ Sahîh al-Bukhârî ] This hadîth contains a command to avoid those who are beset with contagious or hereditable diseases. The Prophet (peace be upon him) also said: “Flee from a leper as you would flee from a lion.” [ Sahîh al-Bukhârî ]

5. Compulsory medical examinations are not a violation of individual freedom. They provide a benefit first to the individual and then to society at large. Though this policy might occasionally cause injury to an individual, the juristic principles outlined by Islamic Law instruct us to seek out the lesser of two evils and to allow for individual injury to occur in order to prevent harm from befalling the general public.

6. Such a policy is in conformity with the Islamic legal axiom that if it is possible to prevent something harmful from taking place, then this is preferable to waiting for it to happen and then having to remove it.

7. It is also in conformity with the legal principle that the means take the same ruling as the objectives they are employed to reach. Since the objective in this case is people’s physical and mental wellbeing, the means enacted to attain it should be considered lawful. Premarital medical examinations promote the wellbeing of future offspring as well as the welfare of the family and society. They spare society social problems and economic burdens. These are all goals that we are commanded by Islamic Law to try and realize.

As for those who consider mandatory premarital medical examinations to be unlawful, their argument is as follows:

1. The pillars and conditions for marriage are clearly delineated by the sacred texts. Adding other preconditions to the marriage is an alteration of Allah’s law. Therefore, all such conditions will be invalid. The Prophet (peace be upon him) said: “Every condition that is not found in Allah’s book is invalid.”

2. Marriage does not necessitate children. A person might marry just to enjoy the other’s companionship. There is no reason for such a person – for instance an elderly person – to undergo genetic testing.

3. Premarital medical testing usually tests for one or two diseases. Even if ten diseases were tested for, this would not be enough, since there are more than 8000 known hereditable diseases and more are being discovered every day. If we required prospective spouses to be tested for all of these diseases, marriage would become extremely difficult and moral decline would result.

4. The Prophet (peace be upon him) said: “If a man comes to you whose religion and character pleases you, then let him marry.” [ Sunan al-Tirmidhî ] The Prophet (peace be upon him) did not speak about his health. It is to be assumed barring any visible evidence to the contrary that a person is healthy. The Prophet (peace be upon him) therefore sufficed with mentioning a person’s religion and character.

5. The ruler’s prerogative to decree certain permissible matters as mandatory is allowed only in cases where there is a clear benefit to public welfare. This follows the general axiom of Islamic Law that the conduct of the ruler towards the subjects is always to be in accordance with the general welfare. The Prophet (peace be upon him) said: “Obedience is only in what is virtuous.” [ Sahîh al-Bukhârî and Sahîh Muslim ]

Requiring prospective spouses to undergo medical testing has serious negative consequences – that have already been mentioned – that outweigh the possible benefits.

6. The Prophet (peace be upon him) has related to us that Allah says: “I am as my servant’s good opinion of Me.” [ Sahîh al-Bukhârî and Sahîh Muslim ] A person seeking marriage should have a good outlook with respect to Allah, place his reliance on Him, and go forth with his marriage. Medical tests, moreover, occasionally give false results.

Our conclusions:

1. The woman’s guardian should have the right to demand that potential suitors should undergo a medical test if he has reason to suspect that he person has a contagious or a hereditable disease. This is needed especially in our times when diseases such as AIDS, syphilis, and gonorrhea are so widespread. AIDS has spread at an alarming rate among young people, if unofficial statistics are to be believed. The responsibility that a woman’s guardian has towards ensuring her wellbeing makes it incumbent upon him to require form any suitors whom he expects might carry a disease to undergo a medical examination. The suitor then has the choice to comply with the guardian’s wishes or to seek the hand of another woman.

The Islamic Law Committee of the Kuwaiti Ministry of Endowments issued the following ruling on the matter:

It is preferable – even obligatory in some instances – to require from those wishing to marry to undergo medical testing if there is a certainty or a possibility that a child born of the union will suffer from some defect. This is in accordance with the statement of the Prophet (peace be upon him): “Religion is sincere advice.” [ Majmû` al-Fatâwâ al-Shar`iyyah (2/307)]

2. If a certain disease is prevalent in a specific region, and the prospective spouses come from that region and are likely to be carriers of the disease, then there is nothing wrong with asking them to undergo medical testing before getting married to each other.

This is not, however, a general ruling. For example, in Saudi Arabia , sickle-cell anemia is very common in the Jâzân region but not elsewhere. Therefore, testing for this disease could only be mandated in that region.

3. People wishing to get married should be encouraged to go for medical testing. The people should be educated about the matter by way of the mass media and through the agency of the mosques.

4. Ministries of health and other official medical bodies should open centers for genetic testing and education wherein doctors can advise people on genetic issues and provide needed prenatal services to mothers regarding their and their unborn children’s health.

5. No one desiring marriage should be compelled by law to undergo a medical test. Experience has shown us that often when a couple’s medical tests result in them not getting married to one another, the woman is stigmatized and cannot find another suitor for marriage. She might as a consequence spend the rest of her life as a single woman. This increases the percentage of unwed women in society and contributes to a breakdown in morality, as has been seen in some of the countries that have legislated mandatory testing.