The Fiqh of HIV/ AIDS

By Shaykh Mushtaq Shaikh

“O Allah, I beg You for sound health, chastity, integrity, good character, and cheerful submission to fate.”[1] Noble Prophet Muhammad (Sallallahu Alayhi wa Sallam)

Introduction

No creature is immune from sickness. Humans to animals, fish to birds, all creatures are prone to illnesses throughout their earthly life. From all these creatures, Allah has bestowed upon the human species an advanced degree of intellect. It is through this blessing of Allah, that humans have been able to research and innovate lifesaving vaccines and medication to save not only its kind, but many other creatures from a myriad of diseases.

 

Humans have been successful in developing cures for potentially fatal diseases and viruses. This research has helped humans live healthier lives and be treated and cured in a more timely fashion. What was in the past incurable has now become treatable. Diseases that were once widespread and fatal have been eliminated. Despite such advances, there has also been a downside, the emergence of diseases, which were unheard of before. This has brought on new challenges to mankind, the challenge to engage in research and experiment, so if not the people of today, then maybe the generation of tomorrow would be the fortunate ones that would be cured and treated form the untreatable ailments of today. The Prophetic statement “There is no disease that Allah has sent down except that He also has sent down its treatment”[2] is true, so the question is not of ‘if’ but ‘when.’

In this twenty-first century, the greatest pandemic mankind is facing is HIV/AIDS. Thus far, 39 million people have died worldwide due to HIV/AIDS and approximately another 35 million are diagnosed with it. In 2013, approximately 1.5 million people died from HIV-related causes worldwide (World Health Organization (WHO), 2014 n.d.).[3] Anyone can be infected with any type of infection, virus or syndrome, regardless of gender, religion, ethnicity or class. This includes HIV/AIDS and for this deadly virus, there is currently no cure. In order to generate awareness and discussion on the enormity of this pandemic, the UN has declared December, 01, of every year as World AIDS Day.

Many Muslims avoid discussions on the subject of HIV/AIDS. Some are in denial of its existence within their communities and sincerely believe that it only affects non-Muslims. The reality is the Muslim community is not divinely protected from HIV/AIDS, for there are Muslims, male and female who are infected by it. Remaining in denial of its existence and turning a blind eye to the wrongful stigmatization of its victims will not only hamper the global fight against this pandemic, but most importantly, it will add to the emotional trauma that the infected individuals endure on a daily basis.

The Islamic scholars and jurists of India have recognized this global epidemic and the problems it has brought forth in the lives of the Muslims that are infected by it. These contemporary issues require Islamic solutions that are entrenched in Qur’an, Hadith and Islamic Jurisprudence (Fiqh).

• Is HIV/AIDS considered a Mardh (sickness) in Islam?
• Is an HIV/AIDS positive person a Maridh (a sick person)?
• In Islam, is it permissible to be tested for HIV/AIDS?
• Is it mandatory for an HIV/AIDS positive individual to disclose his/her status to their family, relatives, friends, etc. or may he/she choose to conceal it?
• What is the Islamic responsibility of fellow Muslims towards an HIV/AIDS positive person?
• Can a Muslim female who is HIV/AIDS positive terminate her pregnancy?
• Is a Muslim women justified to seek annulment (faskh) of her marriage upon confirmation that her husband is HIV/AIDS positive?
• Will she be entitled to seek dissolution of the marriage if he concealed his HIV/AIDS positive status at the time of marriage?
• What are the communal obligations of Muslims towards children that are HIV/AIDS positive?
• Does being HIV/AIDS positive imply that he/she is sinful?

These are some of the issues surrounding HIV/AIDS, which require Islamic directives for the patient, his/her family, doctors, relatives, friends and the general Muslim public.

From Oct. 22 – 24, 1995, the Islamic Fiqh Academy of India or more commonly known as IFA – India, held its eighth seminar at Aligarh Muslim University in Aligarh, Utter Pradesh, India. One of the topics of deliberation was Islam and AIDS. More than fifty Islamic scholars and jurists presented their research papers on this topic. This humble work is primarily based on the research that was presented in that seminar, but other scholarly studies on this topic have also been consulted. References to these sources will be provided where necessary.

I have divided this work under five subtitles. Sickness in Islam, in which I have presented the divine wisdom behind sickness as explained to us by the Noble Prophet Muhammad (Sallallahu Alayhi wa Sallam) along with the virtues of patience and visiting the sick. The second subheading is HIV/AIDS, in which I have included some basic information with regards to HIV/AIDS from the World Health Organization’s website, mainly its definition, different modes of transmission, treatment, etc. The third part covers the shariah guidance surrounding HIV/AIDS, for eg. HIV/AIDS and marriage, abortion, disclosure of his/her positive status, patient rights i.e. duties of family, society and friends towards patient, rights of infected children and their education, passing judgement on an infected person, is HIV/AIDS Allah’s punishment, etc. The fourth part is on the subject of Preventive Strategies. The final part concludes with the resolution that was adopted by the Islamic Fiqh Academy of India. I ask Allah to accept this humble work and I ask Him to provide comfort and care for all those people in the world that are infected with this deadly virus.

Sickness in Islam

Health and sickness are from Allah, yet every human prefers longevity and sound health over ailment. Prophetic traditions have mentioned four reasons as to why Allah would inflict sickness upon his servants.

• To test the patient i.e. does he/she bear it with patience or not
• To purify the patient of his/her sins
• To elevate the spiritual status of the patient
• To punish the afflicted in this life for a sin he/she has committed

Below are some narrations that would substantiate the above mentioned reasons.

It has been reported by Mahmud ibn Labid (Radi Allah anhu) that the Noble Prophet (Sallallahu Alayhi wa Sallam) has said, “When Allah loves a group of people, He afflicts them with trials. Anyone who forbears patiently, (the reward) for patience is written for him and anyone who becomes impatient, impatience is written for him.”[4]

Abu Hurayrah (Radi Allah anhu) reports, “The Noble Prophet (Sallallahu Alayhi wa Sallam) has said, ‘A believing man or a believing woman continues to remain under trials and afflictions on his own self, on his children and his wealth, until he meets Allah in such a condition that not a single sin remains on him.’”[5]

Sa’id ibn Wahb (Rahmatu Allah alayh) reported that he was with Salman (Rahmatu Allah alayh) when the latter went to visit a sick person from the Kindah tribe. When he entered, Salman (Rahmatu Allah alayh) said to the man, “Good news! Allah will use the illness of a believer to expiate his sins. The illness of a wrongdoer, however, is like a camel bound by its owner and then set free; it has no idea why it was bound or why it was set free.”. [6] Aisha (Radi Allah anha) reported that the Noble Prophet (Sallallahu Alayhi wa Sallam) said, “When a believer falls sick, Allah purifies him just as a furnace removes impurities from iron.”[7]

Abu Hurayrah (Radi Allah anhu) reports, “The Noble Prophet (Sallallahu Alayhi wa Sallam) has said, ‘(When) Allah grants a higher status to a person, but his deeds do not entitle him to such a status, then Allah continues to afflict him (with trials and hardships) that cause him inconveniences because of which he reaches the higher status.’”[8]

Abdullah ibn ‘Umar (Radi Allah anhu) reports, “The Messenger of Allah (Sallallahu Alayhi wa Sallam) turned to us and said: ‘O Muhajirun, there are five things with which you will be tested, and I seek refuge with Allah lest you live to see them: Immorality never appears among a people to such an extent that they commit it openly, but plagues and diseases that were never known among the predecessors will spread among them.’”[9]

Whatever the wisdom may be behind Allah’s decision, the fact remains that Islam has always had a sympathetic attitude towards people afflicted with any type of sickness. It is for this reason multiple traditions of the Noble Prophet (Sallallahu Alayhi wa Sallam) have been narrated in which he has encouraged people to show sympathy and compassion towards those afflicted with illness. Numerous virtues for visiting the sick (Iyaadah) have been recorded in the Prophetic traditions. His visits to a young Jewish boy who was lying sick in bed, his close and Noble Companions[10], children[11] and a bedouin, are all testimony to the fact that regardless of religion, race, age, ethnicity, class or gender[12], a sympathetic caring non-judgemental attitude towards patients is the Noble Prophetic way.

Narrated by Anas (Radi Allah anhu), “A Jewish boy used to serve the Noble Prophet (Sallallahu Alayhi wa Sallam) and he became ill. The Noble Prophet (Sallallahu Alayhi wa Sallam) went to pay him a visit and said to him, ‘Embrace Islam,’ and he embraced Islam.” Al-Musaiyab (Rahmatu Allah alayh) said, “When Abu Talib was on his deathbed the Noble Prophet (Sallallahu Alayhi wa Sallam) went to visit him.” [13]

Abdullah ibn Abbas (Radi Allah anhu) narrates, “That the Noble Prophet (Sallallahu Alayhi wa Sallam) went to visit a sick bedouin.” [14]

Narrated by Jabir (Radi Allah anhu), “The Noble Prophet (Sallallahu Alayhi wa Sallam) came to visit me (while I was sick) and he was riding neither a mule, or a horse.” [15]

Abu Hurayrah (Radi Allah anhu) reports, “The Noble Prophet (Sallallahu Alayhi wa Sallam) has said, ‘Whosoever visits a sick person or visits his Muslim brother, a caller calls out, ‘You are blessed and your steps are blessed and you have made an abode in Paradise.’”[16]

Ali (Radi Allah anhu) narrates, “I heard the Noble Messenger of Allah (Sallallahu Alayhi wa Sallam) saying, ‘No Muslim who visits a sick Muslim in the morning except that seventy thousand angels invoke blessings on him till the evening; and if he visits him in the evening then seventy thousand angels invoke blessings on him till the morning and for him there is a garden of fruits in Paradise.’”[17]

The Noble Prophet’s (Sallallahu Alayhi wa Sallam) love, concern and care for the sick manifested itself in the form of a variety of prayers that he recited at different occasions[18] (Al-Nawawi 2000, 157-161). At times he would place his blessed hand on the patient while reciting the prayer[19]. Some of these prayers are:

“O Allah, the Lord of the people! Remove the trouble and heal the patient, for You are the Healer. No healing is of any avail but Yours; healing that will leave behind no ailment.” [20]

“Do not despair, it is a cleansing from sins if Allah wills.” [21]

When the Noble Prophet (Sallallahu Alayhi wa Sallam) visited Salman (Radi Allah anhu) while he was sick, the Noble Prophet (Sallallahu Alayhi wa Sallam) made the following prayer: “O Salman! May Allah grant you cure and pardon you and may He protect your religion and your health until the time of your death.” [22]

If the following prayer is recited seven times near a sick person, Allah will definitely cure him/her provided it is not the time of his/her death. [23] “I beseech Allah, the Great, the Lord of the Great Thorne, to cure you.”

Apart from prayers, the Noble Prophet (Sallallahu Alayhi wa Sallam) also encouraged the sick to seek treatment and cure for their ailment, for there is no sickness without a cure[24]. The form of treatment can be medicine[25], charity[26], ruqyah[27] or a combination of some, or all of these methods. The Noble Prophet (Sallallahu Alayhi wa Sallam) himself sought treatment while he was ill. [28]

Based on the above narrations it is evident that Islam’s teachings towards the sick are one of sympathy, compassion, mercy and care. The Prophetic practice was to provide emotional support through prayers and words of comfort. Never did he deride or belittle the sick, but on the contrary he visited them and instructed his followers to seek their prayers when visiting them. Umar (Radi Allah anhu) reports, ‘The Noble Prophet (Sallallahu Alayhi wa Sallam) said to me, ‘When you visit a sick person, ask him to supplicate for you, for verily his supplication is like that of the angels.’”[29]

HIV/AIDS:[30]

• definition
• signs & symptoms
• transmission
• risk factors
• diagnosis
• treatment
• cure

Definition:

The Human Immunodeficiency Virus (HIV) targets the immune system and weakens people’s surveillance and defense systems against infections and some types of cancer. As the virus destroys and impairs the function of immune cells, infected individuals gradually become immunodeficient. Immune function is typically measured by CD4 cell count. Immunodeficiency results in increased susceptibility to a wide range of infections and diseases that people with healthy immune systems can fight off.

The most advanced stage of HIV infection is Acquired Immunodeficiency Syndrome (AIDS), which can take from 2 to 15 years to develop depending on the individual. AIDS is defined by the development of certain cancers, infections, or other severe clinical manifestations.

Signs & Symptoms

The symptoms of HIV vary depending on the stage of infection. Though people living with HIV tend to be most infectious in the first few months, many are unaware of their status until later stages. The first few weeks after initial infection, individuals may experience no symptoms or an influenza-like illness including fever, headache, rash or sore throat.

As the infection progressively weakens the person’s immune system, the individual can develop other signs and symptoms such as swollen lymph nodes, weight loss, fever, diarrhoea and cough. Without treatment, they could also develop severe illnesses such as tuberculosis, cryptococcal meningitis, and cancers such as lymphomas and Kaposi’s sarcoma, among others.

Transmission

HIV can be transmitted via the exchange of a variety of body fluids from infected individuals, such as blood, breast milk, semen and vaginal secretions. Individuals cannot become infected through ordinary day-to-day contact such as kissing, hugging, shaking hands, or sharing personal objects, food or water.

The transmission of HIV from an HIV-positive mother to her child during pregnancy, labour, delivery or breastfeeding is called vertical or mother-to-child transmission (MTCT). In the absence of any interventions HIV transmission rates are between 15-45%. MTCT can be nearly fully prevented if both the mother and the child are provided with antiretroviral drugs throughout the stages when infection could occur.

Risk Factors

Behaviours and conditions that put individuals at greater risk of contracting HIV include:

• having unprotected anal or vaginal sex;
• having another sexually transmitted infection such as syphilis, herpes, chlamydia, gonorrhoea, and bacterial vaginosis;
• sharing contaminated needles, syringes and other injecting equipment and drug solutions when injecting drugs;
• receiving unsafe injections, blood transfusions, medical procedures that involve unsterile cutting or piercing; and
• experiencing accidental needle stick injuries, including among health workers.

Diagnosis

An HIV test reveals infection status by detecting the presence or absence of antibodies to HIV in the blood. Antibodies are produced by an individual’s immune system to fight off foreign pathogens. Most people have a “window period” of usually 3 to 6 weeks during which antibodies to HIV are still being produced and are not yet detectable.

This early period of infection represents the time of greatest infectivity, but transmission can occur during all stages of the infection. If someone has had a recent possible HIV exposure, retesting should be done after 6 weeks to confirm test results, which enables sufficient time to pass for antibody production in infected individuals.

Treatment

HIV can be suppressed by combination antiretroviral therapy (ART) consisting of three or more antiretroviral (ARV) drugs[31]. ART does not cure HIV infection but controls viral replication within a person’s body and allows an individual’s immune system to strengthen and regain the capacity to fight off infections. With ART, people living with HIV can live healthy and productive lives.

Is there a cure for HIV?

There is no cure for HIV. But with good and continued adherence to antiretroviral treatment, the progression of HIV in the body can be slowed to a near halt. Increasingly, people living with HIV can remain well and productive for extended periods of time, even in low-income countries.

Shariah Guidance Surrounding HIV/AIDS

Testing for HIV/AIDS

Testing for HIV is permissible just as any other regular blood test, urine test or screening for any infection. Many doctors offer an HIV test to their pregnant patients. It is permissible to undergo such a test for this would be considered a part of the routine health check and it would not be an indicator of immoral unislamic sexual activity. Unprotected sex is not the only method of transmission for this virus. A person can be infected with HIV and be totally unaware of it. An HIV test would be the only way to deny (or confirm) it. A negative test result would provide assurance of one’s status.

Is HIV/AIDS a Mardh (sickness) and an HIV/AIDS positive a Maridh (sick person)?

Al-Mawrid defines Mardh and Maridh as:

Mardh    – disease, malady, ailment, illness, sickness

Maridh   – sick, ill, ailing, diseased, sickly, invalid, unhealthy, unwell, unsound, patient

Lisaan al-Arab has the following definition:

Mardh    – نقيض الصحة ، يكون للإنسان و البعير  السقم

(sickness opposite of health, it affects humans and animals)

According to Edward W. Lane’s Arabic-English Lexicon[32], the definition is:

Mardh    – Disease, disorder, distemper, sickness, illness, or malady

Maridh   – Diseased; disordered; distempered; sick; or ill

Based on the above lexical information there is no doubt that HIV/AIDS is a Mardh and an HIV/AIDS patient a Maridh. Establishing this would entail that the numerous Prophetic traditions that have been narrated pertaining to sickness and the patient would undoubtedly apply to HIV/AIDS and an HIV/AIDS patient. This would now provide Islamic solutions and guidelines to many societal misunderstandings surrounding HIV/AIDS patients and communal responsibilities towards such patients.

Disclosure or Concealment of one’s HIV/AIDS positive status

Is it mandatory for an HIV/AIDS positive to disclose his/her status to his/her spouse, family, relatives friends, etc.? There is no easy answer or solution to this dilemma.

Proponents of disclosure base their argument on the principle of ‘smaller harm may be tolerated to avoid a greater harm.’ The ‘smaller harm’ in disclosure would be:

• Ostracization of the patient
• Misperception of the infected individual
• Social-stigma

The ‘greater harm’ that would be avoided in revealing one’s positive status would be:

• Transmission to family and friends due to absence of protective measures
• This is a punishment; therefore, it would serve as a warning for others involved in pre-marital sex, extra-marital sex or drug use. The harm inflicted upon communities due to these sins would be avoided.

The ‘smaller harm’ in disclosure only affects the patient, hence it is personal. The ‘greater harm’ in concealment is the likelihood of the spouse, unborn child and immediate family members to be infected because they would not be expected to adopt any protective measures, hence the possibility of transmission to near and dear ones is greater.

Some Islamic scholars have adopted the opinion of concealment. An HIV/AIDS positive is not bound by shariah to reveal his/her status. The ‘smaller harms’ that would result in discloser are a direct result of ignorance and lack of education with regards to HIV/AIDS, which is quite widespread within the Muslim community. This is what has led to the stigmatization of HIV/AIDS patients. Many understand HIV/AIDS to be a contagious disease that will fast track its victim and anyone coming in contact with him/her, towards death. A positive HIV/AIDS status is immediately conceived to be an inarguable and unquestionable evidence of the patient’s involvement in unislamic sexual activities.

An HIV/AIDS patient is a victim of a dreadful pandemic. Disclosing his/her status would result in being disowned, stigmatized and shunned by his/her spouse, immediate family, relatives, friends, and society in general. The possibility of the victim’s immediate family being ostracized also exists. This irrational and unjustifiable behaviour on behalf of the community would compound the emotional trauma and increase the patient’s suffering. It is due to this prevailing attitude that some Islamic scholars opine for concealment.

The scholars also argue that transmission of the virus does not occur by daily normal interactions with an HIV/AIDS patient. Living in the same dwelling, eating or working together, socializing with friends and family, hugging, kissing, touching, sitting next to a patient does not result in transmission, hence disclosing one’s positive status is not necessary.

Despite being in favour of concealment, in some situations it would be mandatory to disclose his/her positive status, for eg. to one’s spouse and to an uninfected person who may come into contact with such bodily fluids that can transmit the virus.[33]

Does a HIV/AIDS positive status imply that the patient is guilty of sin?

Unfortunately the general understanding of many segments of society is that a person infected with HIV/AIDS is guilty of a major sin, hence he/she has now been punished by Allah through this deadly virus.

This mind-set is due to the lack of information pertaining to the different forms of transmission. Without a doubt, it is a universally accepted fact and studies have proven that the most common way to be infected with HIV is through unsafe sex and having multiple sexual partners, but this is definitely not the only mode of transmission. Any person, including Muslims can be infected with the HIV virus by:

1. Blood transfusion
2. Marital sex
3. Mother to Baby

In Saudi Arabia, from 1984 – 2001, 340 female Saudi citizens were diagnosed with the HIV virus. 25.3% was due to blood transfusion, 21.8% was due to marital sex, 7.9% was maternal transmission to female babies, 2.4% non-marital sex, 0.9% due intravenous drug abuse and the remaining 41.7% cases were unknown.[34]

Since the introduction of HIV screening of donated blood and blood products, transmission by blood transfusion has virtually been eliminated, but periodically cases of transmission due to error are reported. In February 2013, a 12 year old Saudi girl received a half a liter of HIV contaminated blood transfusion.[35] In countries where donated blood and blood products are not routinely screened, the possibility of transmission still exists.

When a HIV positive spouse chooses to conceal his/her status and engages in unprotective sex, the healthy spouse is at risk of being infected. According to Marina Mahathir, who headed the Malaysian AIDS Council for twelve years, “90% of women who have been infected with HIV have only ever slept with one man in their lives, their husbands.” [36] If the wife becomes infected and conceives, then the unborn baby is at risk.

Transmission from mother to baby can happen prior to birth, during delivery or nursing.

Due to multiple modes of transmission, an HIV/AIDS positive status does not imply that the patient is guilty of sin, hence it would not be permissible to label an HIV/AIDS patient as a sinner.

The Prophetic teachings lay great emphasis on protecting the honour of a Muslim. Suspecting a Muslim of adultery, fornication and drug usage solely on the basis of being HIV/AIDS positive is unethical, and contrary to Qur’anic teachings and Prophetic advice.

“As for those who hurt believing men and believing women without their having done anything (wrong), they shall bear the burden of slander and a manifest sin.”[37] [Qur’an 33:58]

“O you who believe, abstain from many of the suspicions. Some suspicions are sins. And do not be curious (to find out faults of others), and do not backbite one another. Does one of you like that he eats the flesh of his dead brother? You would abhor it. And fear Allah. Surely Allah is Most-Relenting, Very-Merciful.”[38] [Qur’an 49:12]

“Woe to every backbiter, derider.”[39] [Qur’an 104:1]

In a lengthy Hadith, Abdullah ibn Abbas (Radi Allah anhu) reports from the Noble Prophet (Sallallahu Alayhi wa Sallam), “….. the wealth, the blood, and the honour of a believer has been made respectable and Allah has forbidden us to suspect him (or her) of wrongdoing”[40].

Abu Dharr (Radi Allah anhu) heard the Noble Prophet (Sallallahu Alayhi wa Sallam) saying, “When any Muslim accuses another Muslim of a major sin or disbelief, the accusation will rebound  upon him (the one who utters it) if the other person is innocent.”[41]

Narrated by Abu Hurayrah (Radi Allah anhu), that the Noble Prophet (Sallallahu Alayhi wa Sallam) said, “Beware of suspicion, for suspicion is the worst of false tales.”[42]

The above narrations prove that to suspect a Muslim of sin, to slander him/her, to dishonour him/her, to indulge in their backbiting are all prohibited and declared by the shariah to be haram (unlawful).

Islamic Guidelines on Societal Responsibilities towards HIV/AIDS patients

Islamic communal responsibilities towards all patients, whether the patient is diagnosed with HIV/AIDS or any other ailment, are very simple. All patients are entitled to the best available care and treatment. All participating scholars in the 8^th seminar of IFA- India unanimously opined that an HIV/AIDS patient should not be made to suffer loneliness and mental harassment. Precaution should be taken in such a manner that the patient does not feel offended.[43] The Noble wife of Prophet Ayub (Alayhi Salaam) remained firm and steadfast in the care of her ailing husband for eighteen years[44] at a time when he was abandoned by his people, until he was miraculously cured by Allah.

1. Hashim Kamali writes,

“The main task facing religious leaders, religious bodies and religious education in this campaign is to try and eliminate negative social attitudes toward AIDS and the people living with HIV. These negative attitudes are extremely debilitating and serious when we learn that PLWHIV (People Living With HIV) are often stigmatized and avoided even by their own family and friends. These people can barely cope with the torment involved in being afflicted with an incurable disease, and still they are confronted by what for many must amount to insurmountable prejudice and stigma. This is contrary to the advice of compassion, understanding, and support that lies at the heart of Islamic teachings.”[45]

All the virtues of visiting the sick (Iyaadah) apply to an HIV/AIDS positive individual, hence visiting him/her would entitle the visitor for blessings and mercy from Allah. Praying for them and providing emotional comfort through solacious words, would be an emulation of the prophetic sunnah.

HIV/AIDS Positive Children

HIV/AIDS positive children are the most innocent victims of this deadly pandemic. In the majority of cases children do not become infected because of their own activities, but it is a result of their parent’s lifestyle. Children mainly become infected from their mother either during pregnancy, at the time of delivery, during the nursing period or blood transfusion. Many HIV/AIDS infected children die before their 15^th birthday[46]. Society should never abandon such children. They should be offered the best treatment and be given the maximum opportunity to spend their childhood as a normal child.

In many cases, HIV/AIDS infected children have lost their parents due to this disease or other causes. In such cases these children would now be considered Yateem / Orphans, hence they would be entitled to all the rights an orphan is granted by Islam. They may also be entitled to zakah hence, the Muslim community would be deserving of all the virtues and blessings associated with the upbringing, compassion and the well-being of orphans.

HIV/AIDS infected children are also entitled to education, just as much as a healthy child. Infected children can go to mainstream schools and Qur’an classes. They can participate in all school and community based activities. This would promote an inclusive society. It is a proven fact that the HIV virus is not transferred by day to day routine activities, eg. sitting next to an HIV/AIDS positive student in class, teaching him/her, playing with an infected student, touching, sharing utensils, eating and drinking together, etc. In general circumstances staff and students in school and at the masjid are not in any threat of contracting the virus. Despite this, precautions should be in place to prevent any transmission. Situations can arise where the blood of an infected child can become exposed. This can happen due to an injury in the playground or being involved in a physical altercation with another student. Staff should be trained so that in such a scenario no person comes into contact with the infected blood.

HIV/AIDS & Marriage

Is a Muslim women justified to seek annulment of her marriage upon receiving confirmation that her husband is HIV/AIDS positive? Will she be entitled to seek dissolution of the marriage if he concealed his HIV/AIDS positive status at the time of marriage?

There are certain defects, if they are present within the husband, the wife would be justified in seeking an annulment of her marriage. Based on these defects the Islamic judge or an Islamic Council would have the authority, after due process, to terminate the marriage upon the wife’s request. Examples of such defects are: insanity and impotency.

Procreation and sexual satisfaction are some of the objectives of marriage. HIV/AIDS is such a defect that it would distance the wife from her husband. Unprotected sex with an infected partner is the primary cause for the spread of this disease. She would avoid sexual pleasure out of fear of contracting the virus. This would be detrimental to her and her husband. It is for this reason that contemporary Islamic scholars have included HIV/AIDS as one of those defects upon which a wife may seek an annulment of her marriage. This would be irrespective of the husband being HIV/AIDS positive at the time of marriage and he chose to conceal his status or he became infected with the virus after marriage. In both situations the wife would be granted an annulment upon her request.

AIDS & Termination of Pregnancy

Abortion is not absolutely outlawed in Islam; neither does it take a liberal approach as secular societies. There are certain situations in which the Islamic scholars have given a dispensation for abortion. In all the situations in which abortion has been permitted, the jurists are unanimous that it must be carried out within the first four months or 120 days of conception, because during this period the foetus is lifeless. After the period of 120 days, abortion is not permitted under any circumstance. Islamic scholars agree that after 120 days the soul enters the foetus, hence it is now a living being and abortion would now be tantamount to murder.

If an HIV/AIDS positive woman becomes pregnant and qualified medical doctors opine that the foetus may also contract the virus during pregnancy, at the time of child birth or during the nursing period, then prior to 120 days it would be permissible for the women to terminate her pregnancy.

Is HIV/AIDS a curse and punishment from Allah?

Without a doubt, the common understanding pertaining to HIV/AIDS, that it is a divine punishment for immoral sexual activity; God’s wrath sent down upon the promiscuous in the form of an incurable disease. The famous Prophetic statement as recorded by Ibn Majah is used to support this claim.

“Immorality never appears among a people to such an extent that they commit it openly, but plagues and diseases that were never known among the predecessors will spread among them.”[47]

This may be correct, but only for individuals who have intentionally indulged in unislamic sexual activity with an infected person. To generalize it and include all PLWHIV is gravely unjust. In fact such misperception would do more harm than good. Innocent carriers of the virus would be stigmatized and labeled as sinners, which itself, as explained earlier, is a major sin. The burden of which would also be on those who preach this message. Children that have received the virus from their mothers, persons that have contracted the virus from their infected spouse, individuals who have become infected due to human error, are all examples of innocent victims, who did not indulge in any unislamic activity that led to them contracting the virus. As for individuals who have become infected due to unislamic activity, Allah has kept the doors of repentance open for them. They are entitled to equal level of treatment and care as any other patient. Providing treatment to HIV/AIDS patients is an Islamic duty, any negligence towards it would be accountable on Judgement Day.

1. Hashim Kamali writes,

“…when it comes to medical assistance and treatment, PLWHIV are no different to other unwell people; they are all entitled to equal treatment, compassion, and service, without any reference to the origins and causes of their condition.”[48]

To perceive this kindness and sympathy as tolerance and/or acceptance of the unislamic activities that lead to acquiring the virus is not only unjustified and wrong, but a display of one’s ignorance of the Prophetic sunnah towards the sick.

Preventive Strategies

The HIV virus is most commonly spread by sexual intercourse. It for this reason that in societies where consensual intercourse is the cultural norm, regardless of who or what gender the consenting individual may be, safe sex practices is promoted as the best form of protection, not only from HIV/AIDS, but from other STD’s as well. In such societies, the practice of safe sex and the advantages of using condoms is also part of the local school board’s health education curriculum.

Such a strategy is contrary to Islamic principles and values. Advocating Safe Sex would be considered a promotion of premarital and extra-marital sex, which is forbidden to the highest degree. In an Islamic community, the root causes of unislamic sexual activity would have to be addressed, eg. illicit relationships, high marriage expenses (dowry, etc.) poverty, spousal infidelity, pornography, etc.

Abstinence from premarital and extra-marital sex does not guarantee protection from the HIV virus. A chaste God-conscious married person can also acquire the virus from his/her infected spouse. Cases of Muslim women contracting the virus from their husbands are not unheard of. Mandatory premarital HIV testing for both individuals is one option to ponder over, but this would not stop a spouse from acquiring the virus after marriage. In a case where a spouse were to be infected with HIV/AIDS after marriage, then the only recourse to protect the uninfected spouse would be to either use condoms or terminate the marriage. The uninfected spouse would also have the right to refuse sexual intercourse.

Despite what has been written above, God-consciousness and adherence to Islamic values and morals would be the best and most ideal preventive strategy. This would also be the only explanation as to why “the prevalence of HIV infection in Islamic countries is strikingly low compared to other countries.”[49]

Malik Badri writes,

“This belief (in the power and mercy of Almighty Allah) is deeply rooted in Muslim hearts and minds, whether they are saints or criminals, and it is for this reason that Muslims generally have the lowest percentages of HIV infections.”[50]

IFA Resolution

The Resolution adopted by the Islamic Fiqh Academy (India) in its 8^th Seminar held at the Aligarh Muslim University, Aligarh (UP) from Oct. 22 – 24, 1995.

The Eighth Islamic Fiqh Seminar of the Islamic Fiqh Academy (India) was held at the Aligarh Muslim University Campus, Aligarh (Uttar Pardesh). The seminar was hosted by the Department of Sunni Theology, Aligarh Muslim University. Many scholars, jurists and representatives of reputed seminaries from India representing all schools of thought as well as a number of academicians from the AMU participated. Sheikh Wahba Zuhaili, a renowned Muslim jurist of Syria, was the chief guest. The resolution adopted by the seminar is as follows:

1. If a person, not disclosing that he is suffering from AIDS, contracts a marriage, the wife shall have the right to have the marriage dissolved. She will have the same right in the case of her husband contacting AIDS subsequent to marriage provided that the disease assumes serious proportions.
2. If a women suffering from AIDS gets pregnant and a qualified doctor opines that in all likelihood the child in the womb will also develop AIDS, in that case, prior to the life coming into the foetus, the period for which the Muslim jurists have determined as 120 days, permission for abortion may be granted.
3. If an AIDS patient is completely in the grip of the disease, and is rendered incapable of performing normal functions of life, such a person will be treated as the one on the death-bed.
4. It is the moral responsibility of an AIDS patient to inform his family and others related to him/her about the ailment, and also take all necessary precautionary measures.
5. If an AIDS patient insists upon his doctor to keep his/her HIV/AIDS status a secret, and if the doctor is of the opinion that by so doing there is a likelihood of injury to the members of patient’s household, to patient’s relatives and to the society at large, then it will be incumbent upon the doctor to disclose the information to the relatives of the patient and to the concerned agency of the government.
6. In respect of the persons suffering from AIDS or other infectious disease, it is the duty of their families, relatives, and the society as a whole, not to leave them isolated and uncared for. Taking all necessary precautions, good care of the patients should be taken and due cooperation should be offered in their treatment.
7. It is improper to keep the AIDS-infected children deprived of education. Observing due precautions, proper arrangements for their education should be made.
8. Restrictions on movement in and out of plague-affected areas are desirable except in cases of extreme necessity.
9. It is haraam (forbidden) and a major sin for an AIDS patient to knowingly transmit the disease to any other person. Such a person, will be liable for penalization keeping in view the nature of the act and for the harmful affect it has on an individual or on the society as a whole.

 

[1] Kunz Al-Ummal, Hadith #3650.

[2] Sahih Bukhari, The Book of Medicine, Hadith #5678; Sunan Tirmidhi #2038.

[3] http://www.who.int/mediacentre/factsheets/fs360/en/.

[4]Majma al-Zawaaid Hadith #3736; Al-Targhib wa Al-Tarhib 4:283.

[5] Tirmidhi Hadith #2399; Al-Targhib wa Al-Tarhib 4:286.

[6] Al Adab al-Mufrad Hadith #493.

[7] Al Adab al-Mufrad Hadith #497.

[8] Majma al-Zawaaid Hadith #3741; Al-Targhib wa Al-Tarhib, by Al-Mundhiri 4:283.

[9] Sunan Ibn Majah, Hadith #4019.

[10] Bukhari, The Book of Patients, Chapter – To Visit an Unconscious Person, Hadith #5651; Chapter-Placing the Hand on the Patient, Hadith #5659.

[11] Bukhari, The Book of Patients, Chapter – To Visit Sick Children, Hadith #5655.

[12] Bukhari, The Book of Patients, Chapter – The Visiting of Sick Men by Women, Hadith #5654; Al-Targhib wa Al-Tarhib, by Al-Mundhiri   4:293,298; Sunan Abu Dawud Hadith #3092.

[13] Bukhari, The Book of Patients, Chapter – To Visit a Polytheist, Hadith #5657.

[14] Bukhari, The Book of Patients, Chapter – To Visit a Bedouin, Hadith #5656.

[15] Sahih Bukhari, The Book of Patients, Chapter – To Visit a Patient Riding, Walking or Sitting with Another Person on a Donkey, Hadith #5664.

[16] Sunan Tirmidhi #2008                                                                              .

[17] Sunan Tirmidhi #969.

[18] Al-Adhkar, by Al-Nawawi pp.157-161.

[19] Al-Adhkar, by Al-Nawawi p.158.

[20] Sahih Bukhari, The Book of Medicine, Chapter – al-Ruqya of the Noble Prophet (Sallallahu Alayhi wa Sallam), Hadith #5743.

[21] Sahih Bukhari, The Book of Patients, Chapter – What should be said to a Patient and what should he answer, Hadith #5662.

[22] Al-Adhkar, by Al-Nawawi p.160.

[23] Abu Dawud Hadith #3106; Tirmidhi Hadith #2083.

[24] Sahih Bukhari, The Book of Medicine, Hadith #5678; Sunan Tirmidhi #2038.

[25] Sahih Bukhari, The Book of Medicine, Chapter – al-Ladud, Hadith #5712.

[26] Al-Sunan al-Kubra Hadith# 6593.

[27] Sahih Bukhari, The Book of Medicine, Chapter – al-Ruqya with the Quran & Mu’awwidhat, Hadith #5735 – #5737.

[28] Sahih Bukhari, The Book of Medicine, Chapter – al-Ladud, Hadith #5712; Chapter – al-Ruqya with the Quran & Mu’awwidhat, Hadith #5735.

[29] Sunan Ibn Majah, Hadith #1441.

[30] The information is this part is courtesy of http://www.who.int/mediacentre/factsheets/fs360/en/index.html.

[31] Antiretroviral drugs are used in the treatment and prevention of HIV infection. They fight HIV by stopping or interfering with the reproduction of the virus in the body, reducing the amount of virus in the body: http://www.who.int/features/qa/71/en/index.html.

[32] An Arabic-English Lexicon: Derived from the Best and the Most Copious Eastern Sources By Edward William Lane.

[33] In some jurisdictions nondisclosure of a HIV status to a sexual partner could constitute a criminal offence. Readers are required to consult their legal authority in their respected jurisdiction.

[34] Epidemiology of the human immunodeficiency virus in Saudi Arabia (Madani, et al. 2004).

[35] www.arabnews.com/print/442322 (Al-Qahtani 2013).

[36] See Clara Koh’s article, Gender Justice, Islam, And AIDS wherein she refers to, Barnett and Whiteside, 2002, 185 (Esack and Chiddy 2009).

[37] Surah Al-Ahzaab (The Coalition Forces).

[38] Surah Al-Hujaraat (The Chambers).

[39] Surah Al-Humazah (The Backbiter).

[40] Majma al-Zawaaid, Hadith #5736.

[41] Bukhari, The Book of Adab, Chapter of Calling Bad Names & Cursing, Hadith #6045.

[42] Bukhari, The Book of Adab, Hadith #6066; Sunan Tirmidhi #1988; Muslim Hadith #2563.

[43] Islamic Shariah Guidance on AIDS pp.27-28, India, IFA Publications.

[44] Tafisr Ibn Kathir 4:43

[45] A Shari’ah Perspective on AIDS (Esack and Chiddy 2009).

[46] Islamic Shariah Guidance on AIDS pp.36-37, India, IFA Publications.

[47] Sunan Ibn Majah, Hadith #4019.

[48] A Shari’ah Perspective on AIDS (Esack and Chiddy 2009).

[49] Epidemiology of the human immunodeficiency virus in Saudi Arabia (Madani, et al. 2004).

[50] The AIDS Crisis: An Islamic Perspective (Esack and Chiddy 2009).