Abstract
I. Introduction
The Australian government recognizes stem cell research as an essential activity in transforming the nation's medical sector. 1 However, due to ethical controversies surrounding human embryonic stem cell (HESC) research and regulatory hurdles, the stem cell field has been complex in the nation. 2
This article attempts to illuminate the Islamic perspective on HESC and why implementing this approach would be helpful in Australia, especially in extending the 14-day limit which is placed on the use of human embryos in research. 3 While the Islamic faith has long been the subject of numerous debates about its significance in today's scientifically and technologically advanced world, its utilitarian and liberal stance on HESC will prove its contemporaneity. 4
Islam is heavily invested in education as it specifically imposes on all individuals a duty to gain knowledge. In particular, the Islamic scholarly community encourages knowledge and research that can help maximize health and wealth. 5 This is a commonality that the Islamic faith shares with the utilitarian view, which also contends for flexible regulations in HESC that would help provide maximum pleasure and reduce pain for the greatest number of people. 6
Despite the liberal views held by the Islamic scholarly community regarding HESC research, these views were absent in the legislative reviews, including Legislation Review: Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos Act 2002 (Lockhart Review) 7 and Report of the Independent Review of the Prohibition of Human Cloning for Reproduction Act 2002 and Research Involving Human Embryos Act 2002 (Heerey Review). 8 The object of these reviews was to evaluate the regulatory framework, which comprises the Prohibition of Human Cloning Act 2002 (Cth) (PHC Act) 9 and the Research Involving Human Embryos Act 2002 (Cth) (RIHE Act). 10 The government conducted the reviews to facilitate a deep discussion amongst stakeholders, including religious organizations, government agencies, laypeople, and the scientific community. 11
This article recommends the inclusion of the Muslim voice in any following law review on this area, which is long overdue. Since the release of the Heerey report in 2011, there has been no review of the regulation. In this article, we propose that a review ought to be conducted to update the existing regulatory framework on research involving human embryos. The Islamic religious doctrines demonstrate support for flexible regulation on HESC research. Given that Australia is a multicultural as well as a secular liberal state, its laws should reflect the community's diverse views. 12
II. The Promising Medical Benefits of Stem Cells
Though this article is written from a legal perspective, it highlights the importance of HESC research to understand better why we need flexible regulations in Australia. 13
Stem cells have the ability to replace cells that have weakened or have been lost entirely. 14 Therefore, these cells offer the possibility of repairing cellular function and may ease the suffering associated with several medical illnesses. Additionally, cultured stem cells might be utilized for the assessment of disease mechanisms and typical development. It can also be used as a test for screening new medicines and may be a gene therapy tool. 15
Every possible use of stem cells gives the hope of progressive medical advances. However, this hope held by the scientific community must be adequately examined. Until today, no cures have been achieved through HESC, no disease mechanisms have been discovered, and no new medicines have been created. 16 Scientists agree that the hope provided by HESC research will only be realized if there are human embryonic stem cell (HESC) lines made available for research purposes. Currently, the production of new cell lines requires the destruction of preimplantation embryos at the 100–200 cell (blastocyst) stage. The debate centers on these embryos' moral status, including embryos developed through in vitro fertilization (IVF) clinics or created by somatic cell nuclear transfer (SCNT).
A recent invention in the area of HESC research is iBlastoids. Scientists have developed a system to model human blastocyst biology; this would enable the study of early human development and the impacts of gene mutations and toxins during the initial stage of the embryo. 17 It also promises to assist in developing new therapies associated with in vitro fertilization (IVF). 18 The significance of iBlastoids is that they allow the scientific community to study how early-stage human embryos develop and implant in the uterus. The scientific community argues that they may lead to medical treatments for various problems such as infertility, miscarriage, developmental disorders, and genetic diseases. They could also give an understanding of what happens to the embryo in its early stages between the 14th and 28th days after fertilization. 19 Given that these are only lab-made embryos and therefore have no potential of being formed into human beings, the ethics surrounding iBlastoids are yet to be determined. This determination would then help in shaping the regulatory framework on iBlastoids.
III. The Legal Framework for Research Involving Human Embryos in Australia
The regulations, guidelines, and legislation on HESC differ all over the world. Several nations have placed a 14-day limit on research involving human embryos, including, for example, western nations (e.g., UK and USA) and Islamic nations (e.g., Iran).
In Australia, under the Prohibition of Human Cloning Act 2002 (Cth) (PHC Act) and the Research Involving Human Embryos Act 2002 (Cth) (as amended in 2006) (RIHE Act), it is unlawful for scientists to allow the development of a human embryo outside the body of a woman for more than 14 days. Under this legislation, human embryo research is permitted only under certain conditions. 20 HESC research may involve only embryos that are excess assisted reproductive techniques (ART) embryos or SCNT. Under section 7 of the RIHE Act, it is illegal to use an embryo that is not a spare ART embryo for a purpose other than one relating to the assisted reproductive treatment of a woman. Therefore, embryonic stem cells cannot be derived from non-excess ART embryos. 21
Further, any use of excess ART embryos cannot be conducted without a license granted under the RIHE Act unless a statutory exemption applies, in which case a license is not required. 22 The Embryo Research Licensing Committee of the National Health and Medical Research Council (NHMRC Licensing Committee) grants licenses to conduct research involving excess ART embryos if the study complies with the requirements and processes set out in sections 20–24 of the RIHE Act.
IV. Lack of Islamic Voice in the Legislative Reviews
For the law to keep pace with technological advancements, the Australian government convened two review committees: the Lockhart Review in 2006 and the Heerey Review in 2011. The committees adopted several methods to ensure that all stakeholder perspectives were considered when revising the regulation. Interestingly, the Muslim voice was absent in both the reviews as Muslim organizations did not make any submissions.
The Lockhart Legislation Review Committee (Lockhart committee), chaired by the late Hon. John Lockhart AO QC, was appointed in June 2005 and reported on December 19, 2005. The review committee ensured that they satisfied the statutory requirements by undertaking numerous approaches to encourage the Australian community to discuss the legislation. The main stakeholders considered in the review included scientific researchers, scientific practitioners of ART services, consumers, and relevant government agencies.
23
The committee agreed that using several methods of written submissions and other stakeholder meetings would offer a chance to gather views of the broader Australian community on scientific developments. These methods included a review website, written submissions, face-to-face meetings with key stakeholders, public hearings, and some private meetings at stakeholders' request and facilitated discussions. The committee made 54 recommendations altogether in the Lockhart report and summarized its reasoning for the recommendations as follows:
Australian society is made up of diverse “communities” with different perspectives, interests, and values. Furthermore, an individual may be the member of multiple communities, each with divergent perspectives, or “standards,” and these standards vary between and within communities … Because of these divergent values and interests represented within Australian society, the committee has accepted that some disagreement will remain, whether or not any changes are made to the two Acts.
24
The Lockhart committee explained that “certain moral values” 25 are shared in common by all communities, including the commitment to social justice and equity and vulnerable people's care. There is evident broad community support for medical advancements and research in order to recognize, prevent, and cure medical disorders. Further, there is also a general acceptance that processes involving HESC research may entail the destruction of embryos. Therefore, when determining whether specific scientific research should be made unlawful, it is important to consider the moral status and the value that some communities link to the human embryo. This needs to be weighed against the importance that other communities and individuals give to curing illnesses.
Adherents of the Islamic faith were not represented during the Lockhart Review despite Islam being the second-largest faith in Australia after Christianity. 26 While most of these different avenues for consultations were open to the public and everyone could participate, there is scant evidence of any contributions from Islamic organizations or personalities. For example, the committee received 1,035 submissions from various individuals and organizations, including private individuals, representatives of organizations, and government agencies and parliamentarians. However, no single submission was recorded from any Muslim organizations or persons, highlighting the lack of Muslim voice in the Lockhart Review. 27
The Lockhart committee further consulted with stakeholders via public hearings. The hearings provided the committee with a chance to speak with invited stakeholders on a one-to-one basis. 28 The public was notified about the hearings through the Legislation Review website. In addition, members of the public were encouraged to be present at these hearings as observers. However, in some of these hearings, the stakeholders had requested a private meeting with the committee, which was not open for the public to attend.
Further, the committee also facilitated discussion forums with invited participants during the committee's consultation visits to Sydney, Melbourne, and Brisbane. The discussion forums allowed the committee to hear the perspectives of a greater number of stakeholders than which could be accommodated at one-to-one hearings. It also facilitated debates between participants with opposing views. The participants for the discussion forums were chosen on the same basis as for the public hearings. Further, a facilitator led the discussions at the meetings, primarily centered on the RIHE and PHC Acts and the committee's terms of reference.
The Lockhart report observed that “the overwhelming response to the reviews from ART providers and researchers was that the legislation had impeded research to improve ART technologies that were active before the legislation was passed.” 29 Given the breadth of the Lockhart report, it is not possible to consider all of the issues explored in the report in this article. However, the following examples are some of the most concerning areas in the report identified as hindering HESC research.
It was noted in the report that requirements of the RIHE Act for declaring embryos to be excess ART embryos as well as the consent process for research under section 8 of the RIHE Act had prevented the immediate (fresh) availability of ART embryos from being utilized for HESC research purposes, essentially making the law counter-productive. The report further argued that “The 14-day cooling-off period required after embryo donors consent for a specific research project but before the embryo is used limits the use of fresh embryos.” 30
The Lockhart report recommended that the NHMRC Australian Health Ethics committee reassess its guidelines regarding the consent process to ease this problem. Embryos that are not suitable for implantation for any reason are allowed to die and are not available for HESC research purposes under sections 7 and 24(8) of the RIHE Act even though such embryos could be potentially utilized as a source of fresh embryos for training, research, and quality assurance purposes. 31 Thus, it was recommended in the report that embryos that are not suitable for implantation should be made available for research. 32 It was further suggested that objective guidelines are to be introduced that would assist in determining when an embryo is unsuitable for implantation. 33
The committee heard several concerns from stakeholders regarding the ability of the RIHE and PHC Acts to respond to research needs in a technologically advanced world. Thus, the committee proposed under Recommendation 53 that both Acts should be subject to further review under section 47A of the RIHE Act either six years after royal assent to the current Acts or three years after royal assent to any amended legislation.
In the following law review (Heerey Review), the committee allowed the public to make submissions through the Legislation Review website. 34 The committee received only 264 submissions, which was less than the 1,035 submissions received during the 2005 review. In total, 170 submissions received were from private individuals, with 158 submitters requesting that the submission be unavailable for public viewing. Of the total number of submissions received, 188 submissions were from the general community or non-scientific organizations. The other six were submitted by international organizations, individual scientists, or scientific organizations. All the submissions maintained their disapproval of human cloning for reproduction. However, the committee also observed that “112 (submissions) specifically commented that they did not support human cloning. In contrast, 188 (submissions) stated that they did not support the use of human embryos for research.” 35
When analyzing written submissions, the committee chose individuals and organizations and invited them to meet face-to-face with the review committee. Those invited held diverse perspectives and came from different backgrounds, including ethical, scientific, and religious fields. Twenty-one various Christian organizations provided submissions and one multifaith and one Jewish organization contributed their submissions. However, while submissions were open to the general public, no submissions were provided by any Islamic organizations, personalities, or other individuals. This shows the lack of contributions the Muslim community has had to this contentious issue. 36 Given that Islam is one of the largest religions in Australia, it is noteworthy that the Muslim voice was absent from this conversation altogether.
V. Overdue Legislative Review
An increasing number of bioethicists and scientists argue that the 14-day limit regarding HESC research must be changed. A “cautious, stepwise approach” 37 is required, which would consider the views of various stakeholders, including the ethical dilemmas posed by religious groups, the scientific aspirations attached to HESC research, the consent process involving the affected groups, as well as enhanced public dialogue amongst the broader community. 38
The legal status of iBlastoids is currently undetermined. The Australian researchers' article in Nature said that “the developmental potential of iBlastoids as a model for primitive streak formation and gastrulation remains to be determined.” 39 If iBlastoids are considered the same as human embryos, the 14-day limit will also apply in that case. But the scientific community contends that iBlastoids are “unfertilized cellular lab models” 40 of human embryos that could not physically become a human-being. Therefore, iBlastoids should not be regarded the same as human embryos. This essentially gives the scientific community the hope that they may use iBlastoids for research purposes without any legal obstacles.
Since the release of the Heerey report in 2011, there has been no review on the regulation. A legal review is overdue, and it should be conducted to not only review but to also provide recommendations on the revision of the current regulatory regime on research involving human embryos.
VI. Islamic Religio-Ethical Standpoints on Embryonic Stem Cell Research
This section of the article explores the spiritual beliefs of Islam in this highly contentious area. The most controversial aspect of HESC is determining the moral status of the human embryo. The ethical dilemma posed for consideration is: what will be destroyed when the stem cells are harvested: a plain cell mass or an early embryo? 41 If it is an early embryo, should it be given the same legal protections as a human being? 42 What if, anything, can be inferred that because an early embryo has not acquired a sense of personhood, it should not be given the same status as a human being? Also, should there be a moral distinction between an embryo created by sperm and egg and an embryo made by SCNT procedure? 43
The solutions for the questions raised must be determined “because born human life is considered to have the highest moral status” 44 and must be protected. This protection roots in values attached to the sacredness of human dignity and human rights. Intentionally murdering a born human being is regarded as a homicide. Therefore, if embryos are given equal moral status to a born human being, then the rational legal ramification would be that the destruction of an early embryo equates to murder. 45
Central to this article is what the Islamic perspective offers to the HESC research ethics debate and why this perspective is essential for the scientific community, laypeople, and the Australian government. 46 While some Muslim countries have also adopted the 14-day limit on research involving human embryos, Islamic doctrines are liberal regarding HESC research. 47 For centuries, Muslim scholars have examined issues of ensoulment. In the past 40 years, this issue has been addressed in the context of HESC research. 48 The Quran, which in the Islamic faith Allah (God) revealed to the Prophet Mohammad, contains the central Islamic teachings for Muslim adherents. 49 The Hadith is the second most important source of Islamic teachings as it includes the sayings of the Prophet Muhammad. 50
Similar to the other Judeo-Christian traditions, Islam recognizes the concept of ensoulment and personhood status. 51 Ensoulment means when a human embryo is ensouled and as a result, moral status and rights are accorded to them as a legal individual. In addition, Islam emphasizes the concept of dualism. This means that the body and soul exist together and join to become a whole person. 52
In the Hadith, some verses infer that the beginning of human life starts at the moment of ensoulment. This is considered on the 120th day after conception, equivalent to 134 days after the last menstrual period. When the soul joins the body, it will have sensitivity and determination like any other human life.
53
This understanding is evident in the Hadith, which provides that “Each one of you is put together in his mother's womb in forty days, then he becomes a hanging clot in a similar time, then he becomes a mass of flesh in a similar time.”
54
In recent times, modern religious scholars have contended that the Quran and Hadith are not consistent regarding the period of ensoulment. It is implied in the Quran that ensoulment happens at 40 days. The Quran provides:
We created man from the finest extract of clay. Then we placed him as a drop of semen in a firm lodging. Then we fashioned the drop into a clot. Then we fashioned the clot into a lump of flesh. Then from the lump of flesh we fashioned bones, then covered bones with flesh. Then we formed him into a new creation.
55
The verses have been understood to show seven stages of fetal development. The most crucial stage is the seventh stage in verse, “Then We formed him into a new creation,” 56 which indicates the beginning of ruh (soul) approximately in the seventh week. Other Hadiths comply with this view of the Quran that ensoulment occurs on the 40th day following conception. 57 For example, the Hadith narrated by Huthaifah Ibn Usaid provides, “The drop of semen settles for forty nights in the womb, then … An angel is assigned to the womb when Allah wishes to create something in it after some and forty nights.” 58 This is understood to be the point in the Hadith where the embryo is ensouled after 40 days.
While there is ambiguity about whether ensoulment takes place on the 40th day or 120th day after conception, the Islamic understanding is liberal compared to other Judeo-Christian religious traditions. 59 For example, Catholics interpret ensoulment to occur during conception. Consequently, it can be asserted that HESC research that requires the deliberate destruction of the human embryo on the fifth day following fertilization is not prohibited under Islamic law principles. 60
In Islam, it is reasoned that abortion is not regarded as murder since the embryo is not yet a person early in the pregnancy because ensoulment is considered to happen later. 61 Shariah differentiates potential life from actual life, holding that real life should be protected more than a potential life. This also means that stem cells from aborted fetuses can be utilized for research purposes if the abortion occurs prior to (depending upon the specific interpretation) 40 days or 120 days of pregnancy. 62 This reasoning is supported by the Islamic Jurisprudent Council of Makkah Al Mukaramah and the Islamic World League. The council held a ruling which allowed abortion on two grounds. Firstly, the fetus must be deformed with an incurable disease. 63 The later ground elaborated that the fetus must be less than 120 days calculated from the moment of conception. Accordingly, such a liberal interpretation would benefit the scientific community as it would increase the availability of embryos for HESC research. 64
Islam is heavily invested in the attainment of knowledge that can assist humanity. Thus, any scientific research like HESC research is considered an act of faith to please Allah's commands, 65 especially if the study has the potential to improve the well-being of humans. 66 However, this does not detract from the position that Islam offers dignity to human life at all stages, even if the dignity afforded potential life is not equal to that of a complete human being. For example, a well-known scholar, Abu Hamid al-Ghazali, stated that “the embryo should be respected from the moment of fertilization.” 67 Thus, despite ensoulment occurring much later after conception, a human embryo is still honored. Starting from conception, the embryo in its first stages is a remarkable creature being formed so as to be prepared to receive a soul from Allah. 68
Islam does not have a central authority to declare an official ruling on the moral status of human embryos and issues relating to HESC research. In Islam, there are legal opinions, also known as fatwas, which are delivered by a mufti (scholar). 69 This allows for muftis (scholars) to respond to legal and ethical issues by inferring evidence from the Hadith and Quran. 70 However, fatwas cannot be legally imposed, and they can be modified in response to technological advancements over time. For example, the most current fatwa in Malaysia permits excess IVF embryos for HESC research while prohibiting the deliberate creation of human embryos for research purposes, whether created using IVF techniques or SCNT technology. 71 This position is also maintained by three Islamic Fiqh (Jurisprudence) Councils. However, the councils have allowed the use of excess IVF embryos for HESC research in limited circumstances. 72
Suppose a medical practitioner recommends that creating spare embryos is essential for a successful IVF procedure. In that case, the doctors should develop the minimum number of required embryos to avoid unnecessary wastage of embryos. Consequently, the spare embryos can be utilized in HESC research given that they are yet to receive a soul and are not complete human beings. 73 Additionally, the adoption of human embryos and surrogate parenting contravenes Islamic law. This is because of the significance attached to establishing a child's true parentage and inheritance rights. As such, this allows for excess embryos to be used for research purposes. Furthermore, this is because, according to Islamic law, the embryos can only be used by the couple who created them and cannot be used by anyone wishing to adopt the embryo or become a surrogate parent. 74
As discussed, the concept of ensoulment is accepted in Islam. However, it is uncertain whether ensoulment happens on the 40th day or the 120th day following conception. Despite the differing interpretations, both views are liberal and progressive. 75 Nevertheless, the early human embryo is honored from conception as it is an entity that is being developed into a complete human being. Since the concept of ensoulment in Islam is understood to be liberal, there is a sense of optimism that religious scholars might in the future reconsider HESC research and enable the use of cloned embryos created by SCNT for HESC research. 76
The literature on the Islamic ethics of iBlastoids is not yet determined. This is to be expected given the contemporaneity of the topic, as iBlastoids represent a new area in HESC research. This article draws on the Islamic ethics/law on iBlastoids using the same arguments forwarded by the Islamic scholarly community on the topic of HESC research.
77
The Islamic understanding of HESC research is very liberal compared to other Judeo-Christian faiths as Islam is immensely supportive of scientific advancements that could prove beneficial for humanity and cure human diseases.
78
Therefore, extending on this understanding, this article argues that iBlastoids would not present ethical dilemmas in the Islamic faith as:
There is no actual embryo being used because iBlastoids are just lab-modelled embryos that mimic the functions of an embryo. Thus, it cannot develop into a real human being.
79
Even if iBlastoids were actual embryos, they would not be prohibited under Islamic law. This would still satisfy either the 40- or 120-day ensoulment rule as established in the fatwas explained earlier.
80
The first line of reasoning above, however, raises issues regarding the sanctity of life as life is precious and must be protected. 81 The question arises, should humans be permitted to replicate a human embryo even though it would never be formed into an actual human being? The Islamic faith adopts a utilitarian approach to encourage scientific developments, particularly when the benefits outweigh the disadvantages in a particular situation. 82 That iBlastoids are lab-made embryos that will never transition into a living human being and may be used to find cures for many diseases increases the possibility for the Muslim world to allow for flexible regulations regarding iBlastoids.
The later argument mentioned above also aligns with Islamic ethics as the Islamic scholarly community does not prohibit embryos in research. As discussed, there is consensus that ensoulment does not happen at the time of conception. 83 This may also ease the uncertainty around the issue of iBlastoids as it indicates the liberal and relaxed views of the Islamic faith in researching new advancements for the betterment of humanity. Thus, if Muslim scholars do not oppose the idea of HESC research, which uses real embryos before the 40/120 day ensoulment period, they should also be open to using lab-made embryos that do not develop into actual human beings. 84
VII. Recommendation: A Need for Law Review
A fresh review of the existing legal framework on HESC is needed, including the voices of the various faiths. In the next legal review, the main religious groups could be invited to make public submissions and attend the hearings. This article uses the utilitarian and liberal theoretical frameworks to show how utilitarian and liberal the Islamic religion is regarding HESC research. The Islamic faith encourages advancements in the scientific world which would, in turn, maximize wealth and health to individuals within the society. It is essential to draw a link between Islamic jurisprudence and utilitarianism because Islamic teachings comply with the idea that maximizing personal freedom in the long term also maximizes utility. In jurisprudence, utilitarianism adherents believe that law must be made to conform to its most socially useful purpose. 85
Although utilitarianists differ in the meaning of the word useful, they all agree that a law's utility must be reduced to its ability to increase happiness, wealth, or justice. Jeremy Bentham, the originator of the utilitarianist movement, criticized the law for being written in complicated terms. 86 Therefore, he contended that the law must be cut down to what he thought were its most basic aspects—pain and pleasure. This is very similar to the Islamic perspective on HESC research, as the Islamic scholarly community places immense value on providing benefits to the community through scientific advancements and easing pain. 87
Further, Australia takes pride in being a democratic state founded on principles of liberalism which allows individuals to have the freedom of thought, expression, and religion. Given that Australia is a multicultural and multireligious liberal state, it should consider all religious views, including the Islamic perspective, in drafting HESC regulations. 88 In its broad sense, the fundamental principle of liberalism should also recognize the Islamic philosophy in the law, given that Islam is the second-largest religion in Australia.
Thus, the interest of all individuals within the society must be protected. For example, a scientist who believes in the fetus not being a complete human being after the 14-day limit should be allowed to experiment and discover cures that would benefit society. Further, a Muslim's view that ensoulment takes place at a later stage should also be reflected in the law. Under the same line of analysis, a devout Christian scientist who believes that ensoulment happens at the time of conception should not be coerced into experimenting with HESC research. The law should mirror the Australian community's diverse views. 89
It can also be determined that the Muslim scholarly world is liberal in extending the 14 days. 90 This is because of the religion's liberal understanding of the ensoulment period. This will assist in giving minority religious groups representation, such as Islam, which has very effective rules regarding stem cell research. Therefore, the increased involvement of Muslims in the drafting of HESC research can profoundly benefit the scientific world and the Muslim community in Australia's liberal democracy.
The following legislative review process can ensure engagement and inclusion of diverse community groups by inviting community and faith-based leaders to public hearings and discussion forums. In the previous reviews, participants were selected based on their submissions. However, in the next law review process, leaders from different communities should be invited to contribute to discussion forums and public hearings regardless of whether they have submitted or not.
The increased expression of Muslims and other diverse communities in the drafting of HESC research benefits the scientific world. Moreover, it ensures that Australia's regulatory framework complements the multicultural composition of Australian society.
VII. Conclusion
The lack of Islamic and other faiths' voices in the Lockhart and the Heerey Reviews calls for their inclusion in the next, overdue legislative review. Islam's liberal and utilitarianist approach to HESC can prove essential in drafting flexible regulations, especially in extending the 14-day limit, which has created obstacles to progress in the scientific community. Furthermore, Islamic views of HESC prove that the religion is concerned about maximizing pleasure and advancements for humans. It promotes stem cell research as long as such activity aspires to improve human health. Given that Australia is a liberal secular state, Australian laws should reflect all the community's diverse views, including the Islamic perspective.