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Fiqh (Jurisprudential) Analysis of Mahramiyyah (Permissibility) in Medical Examinations: Balancing Medical Necessities and Religious Rulings
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Alimohammad Heidar Sarlak *1    , Seyed Rasool Hosseini Kohestani2 |
1- Ph.D. in Jurisprudence, Assistant Professor of Islamic Studies, Golestan University of Medical Sciences, Gorgan, Iran. , dr.heidarsarlak@goums.ac.ir
2- 4th Level of Seminary, Assistant Professor, Department of Islamic Studies, Faculty of Medicine, Golestan University of Medical Sciences, Gorgan, Iran. |
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Keywords: Jurisprudence [MeSH], Privacy [MeSH], Physical Examination [MeSH], Telemedicine [MeSH]
Article ID: Vol27-29 |
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Extended Abstract
Introduction
In the current era, significant advancements in the field of medical sciences, while enhancing the level of public health, have created novel challenges in the domain of medical ethics and fiqh (Islamic jurisprudence). One of the most important of these challenges is the issue of preserving mahramiyyah (permissibility) during medical examinations, which carries a particular sensitivity, especially within Islamic societies. The conflict between medical necessities and religious rulings pertaining to mahramiyyah is a challenge faced by both Muslim patients and physicians. This issue becomes more complex when access to a mahram (same-sex) physician is unavailable, or in emergency cases that require immediate medical intervention. Therefore, offering solutions to create a balance between these two necessities is considered vital for improving the quality of medical services in Islamic societies. Previous research in this domain has primarily focused on two axes. One group has merely answered scattered fiqh questions in the field of medicine in the form of istiftā'āt (religious inquiries or fatwas), while the other group has concentrated on studying ethical challenges in modern medicine from an Islamic perspective. However, fewer studies have comprehensively examined practical strategies for establishing a balance between medical necessities and religious rulings, considering recent technological advancements. The significance of this research lies in its potential to offer practical solutions for resolving existing conflicts and contribute to the improvement of the quality of medical services in Islamic societies while adhering to religious principles. This study was conducted to analyze the fiqh perspective on mahramiyyah in medical examinations and the balance between medical necessities and religious rulings.
Methods
In this analytical-research study with a comparative approach, the theoretical foundations and research background were first extracted using reliable library sources, fiqh texts, and scholarly medical books and articles. Sources were searched in the following databases: PubMed, Scopus, Web of Science, Scientific Information Database (SID), Magiran, NoorMags, the Computer Research Center of Islamic Sciences (Noor), and the Comprehensive Jurisprudence Database. The keywords used included “Medical Mahramiyyah,” “Medical Fiqh,” “Medical Necessity,” “Non-Same-Sex Examination,” “Patient Privacy,” “Islamic Telemedicine,” and “Medical Religious Rulings” in Persian, English, and Arabic.
Selected sources spanning the period during 1981-2024 were evaluated. The inclusion criteria comprised direct relevance to the topic, peer review, and appropriate content quality. Subsequently, 37 sources were selected and analyzed based on thematic analysis and fiqh deductive reasoning to identify common principles and points of conflict between the fiqh data and medical requirements.
The Concept of Mahramiyyah in Islamic Fiqh
The term “mahramiyyah” is linguistically rooted in the meaning of being harām (forbidden) and prohibited. However, in fiqh terminology, it refers to specific relationships between individuals based on lineage, affinity, or lactation, which legally prohibit marriage with them, while simultaneously entailing fewer restrictions on their attire and gaze toward one another. Consanguineous mahārim (permissible individuals) include an individual's parents (father, mother, and the lineage of grandparents), children and grandchildren, sisters and nieces, brothers and nephews, as well as the individual's and their parents' paternal and maternal uncles and aunts, while affine mahārim are established through marriage or lactation. In medicine, the concept of mahramiyyah relates to issues, such as the permissibility of looking at or touching a patient's body by a non-same-sex physician.
The Importance of Mahramiyyah in Islam Based on Verses and Narrations
The importance of mahramiyyah in Islam can be observed in the verses of the Holy Qur'an and the narrations of the Ahl al-Bayt (Prophet's household). The Holy Qur'an, in Sura An-Nur, Verse 31, explicitly addresses the issue of mahramiyyah and its boundaries. In the book “Tafsir al-Nāmūnah” (“Exemplary Interpretation”), the importance of maintaining this privacy and mahramiyyah within the Islamic society is clarified under this verse, and it is introduced as one of the fundamental principles governing social relations among Muslims.
Literature Review
In recent years, numerous studies have been conducted in the field of medical fiqh and the issue of mahramiyyah. In his book, “Ahkām-e Pezeshki” (“Medical Religious Rulings”), Makarem Shirazi examines fiqh issues related to medicine, including mahramiyyah in medical examinations. Citing the Rule of Necessity, he permits examination by a non-same-sex physician in cases of emergency; however, he emphasizes observing the minimum necessary extent of the examination.
In his book, “Al-Fiqh va Masā'il Tibbīyah” (“Islamic Jurisprudence and Medical Issues”), Mohseni examines the application of principles, such as necessity, no harm, and no undue hardship, in medical issues. He argues that these principles can serve as a basis for resolving conflicts between the preservation of mahramiyyah and medical necessities.
Fazel Lankarani, while referring to the issue of mahramiyyah in medical examinations, addresses new challenges, such as the use of modern technologies in medical imaging and the associated fiqh issues.
Ayatollah Tabrizi, while presenting various fiqh views, provides strategies for maintaining balance between preserving mahramiyyah and fulfilling medical necessities.
Discussion
Fiqh Analysis of Mahramiyyah Boundaries in Medical Examinations
The fundamental principle in Shia fiqh is the prohibition of looking at (except for the circle of the face and the hands up to the wrists) and touching an individual who is not mahram, whether in the context of treatment or otherwise. Therefore, to make an exception for the therapeutic context, one must examine not only the ruling on the permissibility or impermissibility of the patient’s referral to the healthcare provider, be it a doctor or a nurse, but also the ruling on the permissibility of looking and touching on the part of the healthcare provider. In other words, in a situation where a female patient, in non-emergency cases and in the presence of a female physician, consults a male therapist out of a lack of adherence to religious principles, is this healthcare provider, according to religious law, permitted to examine the aforementioned patient or not? Consequently, the ruling on examination by the physician can, in some cases, differ from the ruling on the patient's referral to the physician.
The Ruling on the Examination of a Non-Same-Sex Patient: This section deals with the ruling on examination by a non-same-sex physician in two distinct scenarios: 1) A physician's examination necessitates looking at or touching body parts other than the genitals. Since this type of looking or touching is not normally permissible for the physician, the book “Jawahir al-Kalam” reports two viewpoints regarding the ruling on its permissibility: A) permissibility is conditioned upon the physician being certain that the patient requires treatment; B) permissibility is granted only if the physician is certain that the patient is in a state of necessity for the treatment. 2) The physician's examination necessitates looking at or touching the genitals. In fiqh, the primary ruling is the prohibition of looking at or touching the genitals of another person, regardless of whether that person is of the same or opposite sex. Only a husband and wife are exempted from this primary ruling. The ruling on this type of examination can be analyzed in two situations: A) The patient is an individual whose preservation of life is obligatory, and this obligation depends on an examination that necessitates the physician looking at or touching their genitals. In this case, the permissibility of the examination by the physician is clear; B) contrary to the first situation, the preservation of the patient's life is not dependent on the aforementioned examination. Instead, if the examination and subsequent treatment are not performed, the patient will merely be forced to endure the suffering and hardship of the illness. In this case, for the examination to be permissible, the physician must ascertain the patient's necessity for the exposure of the genitals.
The Ruling on the Patient’s Referral to a Non-Same-Sex Physician: This section addresses referral to a non-same-sex physician in two different scenarios: A) The referral necessitates the physician looking at or touching areas of the patient's body other than the genitals. In this situation, some faqihs do not permit referral to a non-same-sex physician without necessity. Conversely, other faqihs permit it on the condition that the non-same-sex physician is more specialized and skillful; B) the referral necessitates the physician looking at or touching the patient's genitals. Given that most faqihs have considered the patient's referral to be inseparable from the physician's examination, the ruling for this section will be the same as the ruling for the section titled "Physician's Examination Necessitating Looking at or Touching the Genitals."
A Comparative Assessment of Necessity in Fiqh and Medicine
Up to this point, it has been established that the most crucial basis for the legitimacy and permissibility of a non-same-sex patient’s examination is the existence of necessity. To gain a comparative understanding of this concept in both fiqh and medicine, we will examine it under the following headings.
The Concept of Necessity: The concept of necessity in fiqh refers to a state of severe peril or hardship where there is a credible fear of damage or harm to one's life, a limb or organ, dignity, intellect, or property and its appurtenances. Under such circumstances, committing a prohibited act, neglecting a mandatory duty, or delaying its performance beyond its appointed time, is, in most cases, rendered permissible or obligatory in order to avert the imminent harm. In medicine, the term refers to a condition where there is a serious and immediate threat to the patient's health or life, necessitating urgent medical intervention.
Therefore, in both domains, the concept of necessity is linked to exceptional and perilous circumstances that mandate immediate, and occasionally extraordinary, action to preserve the individual’s life or health.
The Scope of Necessity: Once necessity is established, it defines a specific scope and boundary for the physician's examination, the transgression of which is prohibited and illegitimate. In fiqh, relying on the principle of "Al-darūrāt tuqaddaru bi-qadarihā" (Necessities are measured by their extent), the examination is permissible only to the extent required to address the necessity and must not exceed that limit. Furthermore, based on the principle of "Mā jāza li-'udhrin batala bi-zawālihi" (What is permissible due to an excuse becomes void upon the removal of the excuse), the legitimacy of the examination also ceases once the emergency conditions are alleviated. In medicine, also, the patient’s privacy must be protected as much as possible, and examinations should be limited to what is absolutely necessary. Furthermore, regarding time constraints, emergency procedures are permissible only until the patient's condition is stabilized. After stabilization, the continuation of treatment must proceed according to normal procedures and with the full observance of the patient’s rights.
Reference for Necessity Determination: In fiqh, necessity determination is, in most cases, the responsibility of the mukallaf (the adult, sane Muslim individual). This is because the individual possesses the best knowledge of their own circumstances and condition. However, in cases where necessity determination is complex or ambiguous, it is made by referral to an expert or specialist, such as a committed and qualified physician in the field of treatment. Naturally, in matters related to governance, necessity determination and the associated decision-making rest with the legal authorities.
Legal and Ethical Implications of Necessity: In fiqh, according to the principle of "Al-Idtirār lā yubtilu haqq al-ghayr" (Necessity does not nullify the rights of others), although certain religious rulings may change or be temporarily set aside in emergencies, this should not lead to the violation of the rights of others. In other words, an individual under necessity can take actions to preserve their life or health, but these actions must not result in the trampling of others' rights. This principle is applied in various contexts, including medicine. For example, in the case of emergency medical examinations, the financial rights and interests of the physician and the healthcare system should not be violated. In medicine, similarly, while actions taken in emergencies are generally protected by law, physicians must still adhere to the standards of care. Therefore, if they fail to meet these standards, they remain liable toward the patient or the healthcare system.
Mahramiyyah in Telemedicine and Remote Examinations
Telemedicine refers to the delivery of healthcare services and medical care through information and communication technologies (ICTs) when a physical distance exists between the service provider and the patient. This method encompasses the use of various technologies, such as videoconferencing, image transmission, patient portals, and mobile applications, to provide remote medical services, diagnosis, consultation, education, and treatment monitoring.
In line with compliance with religious rulings concerning the permissible boundaries of looking and touching during medical examinations, some faqihs, by citing the rational principle of "irtikāb al-aqall al-qabīhayn" (committing the lesser of two evils), obligate the mukallaf to perform the action with the lesser degree of repugnance when confronted with a conflict between two reprehensible acts. Therefore, in examinations where touching with a glove, or looking through a mirror, a display screen, or similar methods suffices, the ruling of prohibition against direct touch or direct looking remains in effect. Accordingly, the use of telemedicine in the healthcare systems of Islamic societies gains numerous advantages and capabilities, some of which are listed below.
Preserving Privacy and Modesty: In some instances, telemedicine can better safeguard patient privacy. For example, Muslim women can consult a physician from home in a secure environment without the necessity of a physical presence in the clinic or office.
Facilitating Access to Medical Service from Same-Sex Physicians: Telemedicine allows patients to more easily access same-sex physicians, aligned with Islamic principles regarding relationships between men and women.
Reducing Unnecessary Proximity: The utilization of telemedicine reduces unnecessary physical contact between the physician and the patient. This alignment can be consistent with Islamic principles related to the preservation of modesty and the avoidance of unlawful proximity.
Possible Service Provision in Emergencies: In emergencies or crises, telemedicine allows Muslim patients to receive consultations from their trusted physicians even when a physical presence is not feasible.
Expanding Access to Medical Services: Telemedicine enables Islamic charity organizations to help patients in remote or underserved areas to access consultations with same-sex physicians. This initiative aligns with the Islamic principle of aiding the needy and maintaining public health, while simultaneously preserving the dignity of patients.
While telemedicine offers numerous benefits, its implementation in Islamic societies necessitates careful consideration of ethical, cultural, and fiqh issues. Physicians and policymakers in Islamic countries must seek solutions that enable devout Muslims, both physicians and patients, to benefit from the significant advantages of telemedicine while remaining committed to the cultural framework of Islamic societies.
Conclusion
The results of this study, utilizing a combined approach of fiqh analysis and principles of medical ethics, demonstrated the possibility of aligning medical necessities with religious rulings concerning the domain of mahramiyyah.
Based on the findings, the following three-stage framework is presented as the proposed model of the research. The implementation of this model can remarkably enhance the quality of medical services and patient satisfaction while adhering to religious considerations in Muslim societies.
A) Diagnosis of necessity: Determining medical necessity based on clinical evidence and fiqh assessment, while observing the rule"Al-darūrāt tuqaddaru bi-qadarihā" (Necessities are measured by their extent).
B) Selecting the least harmful method: Maximizing the use of a same-sex physician, non-contact instruments, and technologies, such as telemedicine, to minimize instances of unnecessary looking and touching.
C) Preservation and documentation of mahramiyya: Ensuring the presence of an accompanying person or mahram if necessary, documenting the religious justification for the procedure in the patient's file, and observing visual and bodily mahramiyya throughout the entire process.
Ethical Statement
All research processes were conducted in full compliance with the principles of academic integrity, proper citation of sources, and protection of intellectual property rights, in accordance with the “Code of Ethics in Medical Sciences and Humanities Research.”
Conflicts of Interest
No conflict of interest.
Acknowledgments
The authors would like to thank all professors, researchers, and colleagues who contributed to the enrichment of this study's content by offering scholarly perspectives in the fields of Islamic fiqh and medical sciences. Gratitude is also extended to the libraries and databases that provided access to the scientific and fiqh sources necessary for this research.
Authors' Contributions
Alimohammad Heidar Sarlak (Ph.D): Project administration and design, Project execution, Data collection, Data analysis, Interpretation of the results, Drafting of the initial manuscript, Approval of the final manuscript.
Seyed Rasool Hosseini Kohestani: Project administration and design, Project execution, Data collection, Data analysis, Interpretation of the results, Drafting of the initial manuscript, Approval of the final manuscript.
Key Message: It is possible to harmonize medical necessities with religious rulings in the domain of mahramiyyah. Furthermore, the diagnosis of necessity, the selection of the least harmful method, and the preservation and documentation of mahramiyyah are recommended.
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Heidar Sarlak A, Hosseini Kohestani S R. Fiqh (Jurisprudential) Analysis of Mahramiyyah (Permissibility) in Medical Examinations: Balancing Medical Necessities and Religious Rulings. J Gorgan Univ Med Sci 2025; 27 (3) :75-86 URL: http://goums.ac.ir/journal/article-1-4531-en.html
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