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Conscientious Objection

By:
Mehrunisha Suleman
Source:
Oxford Islamic Studies Online What is This? Online-only content developed by noted scholars is continuously added to the site, part of our ongoing efforts to expand our coverage of the Islamic world.

Conscientious Objection

Historical Origins and Contemporary Bioethical Considerations

Historically, conscientious objection has been most commonly associated with individuals refusing military service due to personal religious and/or ethical beliefs. Conscientious objection within healthcare appeared more recently, coinciding with the legalization of abortion in the 1960s and 1970s, in countries such as the UK and the USA (Wester, 2015). In the US Senator Frank Church supported the first federal health care conscience clause, in 1973, in response to the legalization of abortion by the Supreme Court in Roe v. Wade (Stahl and Emanuel, 2017). Internationally, conscientious objection may also be cited on the grounds of Article 9 of the European Convention on Human Rights, which provides protection for freedom of thought, conscience, and religion (Campbell, 2011).

In the context of medicine, conscientious objection is defined as a refusal by healthcare professionals to provide a good or service that may fall within their competence and ordinary duties, because doing so would be against their religious and/or ethical beliefs (Wicclair, 2011; Wester 2015). Such conscience-based refusals are often associated with controversies related to sexual health, reproduction, and death. For example, Wicclair summarizes that within sexual health and reproduction, services or goods commonly objected to include abortion, sterilization, contraception, and assisted reproduction. He further explains that: “Examples in the latter category include palliative sedation (the practice of sedating terminally ill patients to unconsciousness until death) and forgoing medically provided nutrition and hydration” (p. ix). Conscientious objection is also being employed in response to contemporaneous interventions including “embryonic stem cell research, genetic testing and counselling, and donation after cardiac death (retrieving organs after life support has been withdrawn from patients who do not satisfy the neurological or whole brain criterion of death)” (p. ix). Although the focus in this article will be on conscientious objection as refusals to provide a good or service, authors like Wicclair have described how healthcare professionals may also make a conscience appeal for intervention. For example, a medical professional may feel obliged to provide a good or service that may otherwise be illegal, for example, doctors providing safe abortions in countries where this may not be legalized.

Recent bioethical debates relating to conscientious objection focus on whether healthcare professionals’ appeals to their conscience ought to be accommodated. Should a healthcare professional be allowed immunity from fulfilling their duty? And if so then in what circumstances or on what basis should such an exemption be allowed? Discussions fall within a spectrum where some authors argue that “When the duty is a true duty, conscientious objection is wrong and immoral” (Savulescu, 2006, p. 294). Others carefully distinguish between military service and healthcare by explaining that “Unlike conscripted soldiers, health care professionals voluntarily choose their roles and thus become obligated to provide, perform, and refer patients for interventions according to the standards of the profession” (Stahl and Emanuel, 2017, p. 1380). This “incompatibility thesis” (Wicclair, 2011) contrasts with those who argue for healthcare professionals’ moral integrity and commitments to their own conscience (Benn, 2007). Such “conscience absolutism” (Wicclair, 2011) dates back to St. Thomas Aquinas in whose theological context conscientiousness was connected with God’s law (Benn, 2007). In the latter framework, one’s conscientiousness was linked with what one believed to be God’s law, such that acting against one’s conscientiousness was therefore acting against God’s law and in turn a sinful act (Benn, 2007). Wicclair, however, argues that neither of the two extremes (the incompatibility thesis and conscience absolutism) are helpful within the healthcare context and rather what we ought to consider is a compromise that can accommodate conscience refusals, within ethical constraints. He explains that within the “compromise approach” “when a health care professional refuses to provide or assist in providing a legal good or service within the scope of her competence for reasons of conscience, the refusal is compatible with the practitioner’s professional obligations only if it does not present an excessive impediment to a patient’s timely and convenient access to the good or service” (p. ix). For example, the British Medical Association’s statement on “Withholding or Withdrawing Life-prolonging Medical Treatment” includes a statement which illustrates the compromise approach: “Where a member of the health care team has a conscientious objection to withholding or withdrawing life-prolonging treatment, he or she should, wherever possible, be permitted to hand over care of the patient to a colleague” (British Medical Association, 2008, p. 21).

Does the compromise approach enable healthcare professionals to fully absolve themselves of what they would personally consider immoral? Would it thus be a suitable ethical parameter to require healthcare professionals to refer the care of a patient to a colleague, where they are still able to exercise their right to conscientious objection while also ensuring that a patient’s care is not impeded? Or does the referral of the patient in the example above constitute participation in the withholding or withdrawing of life-prolonging treatment such that the involvement of the healthcare professional means that they are not able to fully avail themselves of the ability to object? Participation in such contexts can take two forms, formal (intended) cooperation or material cooperation (Finnis, 1999). The former is the carrying out of the immoral act, for example, the withholding or withdrawing of life-prolonging treatment, and the latter may be an act that is required by the healthcare professional’s terms of employment, for example, ensuring access to the service. As the two are distinctly different acts they can be morally delineated.

For Islamic bioethics, conscientious objection occupies the liminal space between Muslim practitioners’ religious obligations and their professional duties. As such it is catalyzing a growing debate within the contemporaneous Islamic bioethics discourse, spanning from global health ethics, reproduction, end of life care, and medical training and education. A summary of some of these discussions are presented below.

Conscientious Objection within Islamic Bioethics Discourse

For Muslims, Islam provides a moral road map for their personal, social, and professional spheres. Muslims receiving and providing healthcare thus navigate carefully whether their practice within their professional sphere is in keeping with the Sharīʿah. The ethico-legal framework delineated by Islam’s normative sources juxtaposes with global health priorities, secular healthcare systems, and patient preferences. Such factors may require Muslims to navigate between multiple moral spheres and necessitate the application of conscientious objection if there is a dissonance between these different moral spheres. A further complexity may arise when moral convictions between Muslims may differ depending on the level at which moral decision-making is taking place—individual, collective, or scholarly. The following four subjects are a lens through which conscientious objection within Islamic bioethics will be analyzed.

Global health ethics—HIV/AIDS

Starting in the 1990s Muslim religious scholars, physicians, and scientists collaborated in order to formulate some responses to the ethical questions raised by HIV/AIDS. The first report of this exercise in collective ethico-legal reasoning, by religious experts and scientists, has been made by Ghaly (2013). The religio-ethical tension that became pertinent related to the global health need for curtailing the spread of disease coming up against control measures that are deemed illegal in Islam, for example, needle exchange programs for intravenous drug users and the distribution of condoms among marginalized communities such as sex workers and men who have sex with men (MSMs). Ghaly explains that before such collaborative efforts, there was a schism between scholars of the text and those of the context. For example, one Muslim scholar described the HIV/AIDS epidemic as “A disease that Allah (God) has sent upon the infidel countries which made what God has forbidden lawful and declared their rebellion against Allah by [committing] the unlawful sexual practices, viz., adultery and homosexuality. That is why Allah sent upon them this little force whose name is the ‘AIDS virus,’ namely acquired immune deficiency” (p. 681). Muslim healthcare practitioners also conscientiously objected to participating in activities that they considered morally reprehensible, despite knowing these interventions were evidence-based (Kamarulzaman, 2013).

However, Muslim countries that had previously considered themselves protected from HIV/AIDS due to religious and cultural norms realized they were facing a rapidly rising threat (Hasnain, 2005). The common response from policy makers in Muslim countries regarding HIV prevention had been a focus on abstention from illicit drugs and sexual practices. One of the key features of the discussions around HIV/AIDS (Ghaly, 2013) were the human rights issues and where scientists and physicians questioned the consistency of the “not our problem” approach, thus engaging Islamic scholars to address the religio-ethical tensions raised by HIV/AIDS. Increased awareness of the devastating effects of HIV/AIDS as well as there being no inevitable relationship between having AIDS and having committed illicit sexual and recreational practices, challenged the common stereotypes and taboos within the religious scholarly discourse. Such discussions also challenged the scope of Muslim healthcare practitioners employing conscientious objection within the purview of the HIV/AIDS.

In countries where HIV/AIDS has been rapidly rising, such as Uganda (Farrell, 2003), Senegal (Lagarde, Pison, and Enel, 1998), and Indonesia (Centers for Disease Control, 2014), Muslim scholars have taken a more flexible stance and justified the use of condoms and clean needles as a short-term means of ensuring the sanctity of life. The latter is mentioned in a Qurʾānic verse (5:32), suggesting that a state of emergency overrides the discouragement of condom use (Hasnain, 2005). This example highlights the complex ethico-legal deliberations that scholars are required to undertake to ensure that the Islamic normative framework is upheld while responding to global health challenges. It also illustrates the types of ethical constraints that may be employed within the Islamic bioethics discourse when negotiating the scope of conscientious refusals by Muslim healthcare professionals.

Muslim responses to the HIV/AIDS pandemic illustrates that careful religio-cultural adaptation is required to circumvent conscientious objection in cases where there is a pressing health need. Muslim communities rely on their faith leaders for guidance on what is Islamically considered as moral and/or legal practice. The Ugandan study highlights the importance of engaging, educating, and training religious leaders about emerging global health challenges to enable them to arrive at an informed scholarly opinion that can then be disseminated and accepted by their community. There are, however, limitations to this mechanism in delineating the scope of conscientious objection. Although scholarly engagement may result in the issuing of a fatwā that supports a particular intervention, for example, a needle exchange program, that fatwā is not binding such that an individual practitioner may still invoke his/her own religious moral convictions as a reason for objecting to participate in such an intervention. This raises questions about the normative role of such scholarly engagement and the ability of fatāwā to employ ethical constraints on Muslim practitioners who may conscientiously refuse based on their own individual moral commitments.

Personal moral convictions and the ability to conscientiously object raises the issue of how Islam’s institutional forms and the biomedical ethics infrastructure in such contexts can prevent or address a “diffusion of responsibility” or “bystander effect” (Darley and Latane, 1968). This is where individuals may not intervene in an emergency, for example, by researching and managing the spread of HIV/AIDS, as there is an assumption that others will intervene on their behalf. It also raises questions about the role of individual moral decision making and how that interfaces with the normative weight of scholarly deliberations and the issuing of fatāwā. Although the latter may theoretically be viewed as a tool for providing practical solutions for Muslim healthcare practitioners, where scholars offer edicts rooted in the Islamic tradition, studies have shown that Muslim healthcare professionals and researchers may still rely on their own personal moral deliberations, which may be a combination of personal religious, professional, societal, and/or cultural moral priorities (Suleman, 2017). Further research and deliberations within the Islamic bioethics discourse are necessary for clarification of the role of and limits to individual moral reasoning and conscientious refusal of interventions that have support from within global health ethics and scholarly Islamic ethico-legal reasoning, as is seen in the case of the HIV/AIDS pandemic.

Genetics, stem cell research, and reproductive health

There are key services and interventions within the discourse relating to genetics and reproductive health that become subject to conscientious refusal on Islamic ethico-legal grounds. Moral commitments to preserving life, in Islam, are expressed by Muslims as a conscientious refusal to participate in termination of pregnancy. There are, however, differences of opinion about the Islamic ethico-legal limits on abortion which relate to disagreements about the moral status of the embryo and developing fetus. Such deliberations center on moral and theological considerations of when life begins and within the Islamic bioethics discourse this is particularly negotiated around Islamic textual readings and interpretations of ensoulment (Ghaly, 2012, 2014).

Such discussions also become pertinent when considering novel technologies and interventions, including embryonic stem cell research and recent scientific breakthroughs in extending the length of time that embryos can be kept in culture (Suleman, 2017). For example, the Islamic Organisation for Medical Sciences (IOMS) convened a meeting of eighty Islamic scholars in 1985 to discuss Islamic perspectives on the question: “When does life begin?” Ghaly’s summary of these proceedings highlights that there was marked variation among Islamic scholars on when life begins and in turn what interventions can or cannot be employed during pregnancy. The main positions considered that (i) human life begins at conception; (ii) human life begins when the embryo settles in the wall of the uterus, and (iii) human life begins when the soul gets breathed into the embryo, which at the earliest occurs at 40 days, and the latest at 120 days. The latter was given the most support and the final recommendation from IOMS states that “life has three grades: it starts by conception, then gains dignity (ihtiram) by implantation, and finally acquires sanctity (hurma) just after the breathing of the soul” (Ghaly, 2012, p. 208). The IOMS statement again outlines the wide scope of Islamic ethico-legal reasoning and the potential for employing individual moral conscientiousness to refuse intervention at any stage of pregnancy.

Protection of progeny and paternity are key principles in Islam (Banu az-Zubair, 2007) and such beliefs are balanced alongside the Prophet’s example of allowing his Companions to practice temporary means of contraception (Serour, 2015), which is contemporaneously employed to allow family planning and the use of pills and intrauterine devices. Permanent sterilization may be considered if conception is likely to severely harm the mother (Islamic Fiqh Academy, 1988). Such interventions, however, are deemed morally acceptable only within the context of marriage. Muslim practitioners may, therefore, conscientiously object to the prescribing and dispensing of contraceptives in the case of emergency contraception as well as for use outside the institution of marriage and/or in the case of sex workers and MSMs. As the latter cases are considered outside the ethico-legal limits prescribed by Islam, practitioners may conscientiously refuse to offer services that they deem to be facilitating such practices. It is, however, important to consider in such cases what the duty of a Muslim healthcare professional is and what the role may be for their conscience. Is providing the healthcare good (such as the morning after pill), an impartial service of primary importance, or is it to ensure that one is not complicit in, what one believes to be, an immoral act? Here the question for Islamic bioethics is similar to that for other religiously and/ethically centered deliberations that do not align with the prevailing secular healthcare discourse. Such deliberations were summarized above. Although Muslim practitioners may conscientiously refuse to provide emergency contraception, studies show that the latter intervention is not explicitly prohibited and that there are varying legal opinions, depending on the clinical context, ranging from permissibility and impermissibility (Srikanthan and Reid, 2008). In the case of Muslim practitioners and Islamic bioethics, therefore, more research is needed in order to ascertain what may be considered formal and material cooperation in cases where contraception is required outside of marriage.

There are a vast number of articles in English and other languages such as Arabic and Urdu, focusing on genetics, including the role for screening and possibilities of genetic intervention. This may be a result of the growing interest in the incidence of genetic diseases in the Middle East, due to the prevalence of consanguineous marriages within Arab Muslim populations (El-Hazmi, 2004). In terms of its scriptural sources, Islam supports health promotion, disease prevention, and treatment. However, these sources do not provide specific guidance for questions that emerge from genetic technologies. There is therefore a growing discourse within Islamic bioethics about the scope of genetic intervention including population screening for genetic diseases as a means of reducing disease prevalence. Some argue that as there is an Islamic emphasis for seeking cures for all diseases, the benefit that may be accrued through genetic research, screening and intervention ought to be considered (Fadel, 2010). Others, however, consider the moral complexity that may arise as a result of premarital and/or perinatal screening and the “devaluation” of what is deemed an abnormal fetus (Sachedina, 2009, p. 82) as well as how recent advancements may cause us to morally reassess what is meant by family, parenting, and whether parental love ought to be conditional or unconditional (Sachedina, 2009, p. 104). Such authors call for caution and further scrutiny of such interventions and even conscientious objection toward measures that undermine the unconditional status and protection that ought to be afforded to vulnerable subjects such as the weak and infirm (Sachedina, 2009). These discussions further highlight the need for research in delineating the role of conscientious objection within Islamic bioethics.

End of life care

Medical practitioners may conscientiously object to the withholding and withdrawal of treatment, nutrition, and hydration for patients at the end of life. There is a variation in views and understandings throughout Islamic scholarship and among lay Muslims regarding the extent to which care should be provided to a terminally ill patient. This may therefore manifest in variations in Muslim practitioners’ use of conscientious objection around end of life care decisions. In particular, there is disagreement about whether it is morally acceptable to withhold parenteral feeding and/or intravenous fluids from a dying person, whose condition has been clinically deemed irreversible. Or whether such action can be taken in accordance with the patient and/or family’s wishes. The Islamic Organisation of Medical Sciences, an international body of Islamic and biomedical scholarly experts recommended that it is “futile to diligently keep on the vegetative state of the patient by heroic means of animation” (IOMS, 1981). However, the Islamic Medical Association of North America (IMANA) advises that “No attempt should be made to withhold nutrition and hydration. In such cases, if and when the feeding tube has been withdrawn, it may not be reinserted” (IMANA, 2005). In Iran Shia jurists have arrived at an alternate conclusion; patients are able to accept or reject interventions at the end of life including parenteral nutrition and intravenous fluids (Alsolamy, 2014).

Muslim clinicians may also conscientiously refuse to participate in the withdrawal of life-sustaining treatment and/or organ retrieval for harvesting in contexts where they disagree with brain death diagnosis as an acceptable definition of death. Defining death is of critical importance within the Islamic tradition as it has implications on when life-sustaining treatment can be withdrawn, whether organs can be harvested for donation as well as when to begin the rites of burial and the execution of the deceased’s will. Traditionally, death was defined as the cessation of cardiac output and respiratory activity. Advancements in medical technology in sustaining and prolonging life have led to controversies over the legally accepted definition of death. Medical experts have developed a concurrent definition—brain stem death—when there is no evidence of brain stem function, which would mean life would cease if life support were to be removed. Within the Islamic ethical framework there is the principle of urf (custom), which enables reliance on the current opinion of medical professionals, as there is no clear evidence from the Qurʾān or ḥadīth detailing the definition of death (FIMA, 2006; IFA 1985–1989). Despite such views, however, there are minority opinions that challenge brain stem death and practitioners who may align with these minority opinions may well seek to exercise their right to conscientiously object to interventions that rely on brain stem death diagnoses.

Medical training and education

Recent studies have been conducted to explore attitudes toward conscientious objection among medical students in the UK and the US (Strickland, 2012; Card, 2012). The UK study has shown that the demand for the right to conscientiously object is found to be greater in Muslim medical students when compared with other groups, that they were more likely to cite religious over nonreligious objections, and that of the eleven medical practices that were analyzed, Muslim students raised the highest proportion of objections (Strickland, 2012). The interventions related to abortion, birth control, alcohol, recreational drugs, and physical interaction with the opposite sex. Research in the US also found that Muslim medical students are likely to raise the conscience clause when they are expected to touch members of the opposite sex when performing physical examinations as part of their clinical training (Card, 2012). The latter has raised concerns within the bioethics sphere with some authors challenging the underlying moral reasoning for such conscientious objection. McLean (2013), for example, highlights that such conscience refusal is not seen universally among Muslim trainees and that although gender segregation is encouraged in Islam, the context of healthcare is considered an exception. Within the Islamic bioethics literature, some have offered a framework for cross-gender healthcare delivery, where preference may be given to (i) a Muslim healthcare professional of the same sex, then (ii) a non-Muslim of the same sex followed by (iii) a Muslim of the opposite gender, and finally (iv) a non-Muslim of the opposite gender (Padela and del Pozo, 2011). There are however ethical questions that arise from such a recommendation, including, how such a hierarchy of care, based on religion, may be received by the healthcare community. How would such stratification impact morale, team working, and also the care that is offered by a healthcare professional deemed to be in the latter categories? Morally can a Muslim practitioner avail himself or herself of the conscience clause by referring on a patient of the opposite sex?

Conclusion

Conscientious objection has been debated within bioethics since its inception as a right. Personal moral and/or religious commitments expressed by healthcare professionals are one of the many moral sources that are relied on when decisions are made within the clinical sphere. Although Wicclair’s compromise approach is a morally pragmatic way of accommodating conscience refusals, within ethical constraints, how this can be achieved within Islamic bioethics is understudied and requires further research and articulation. The variations in Islamic scriptural interpretations as well as the non-uniform application of scholarly edicts raise concerns about moral relativism within the practice of Muslim healthcare professionals. Further study of Muslim practitioner’s views and their underlying moral reasoning for conscientious objections is necessary in order to ensure that their right to conscience refusals is respected while ensuring that they are able to fully discharge their duty of care.

[See also CONSCIENCE.]

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