DNA is the deoxyribonucleic acid that carries the genetic information in the cell and which is capable of self-replication and synthesis of RNA or ribonucleic acid. It is responsible for determining individual hereditary characteristics.
In its 16th session, the Islamic Fiqh Academy issued its resolution, which stated that it is not lawful for a husband to depend upon DNA analysis to deny his paternity to a child born to his wife in wedlock. InShari`ah, the only way a man can deny his paternity to a child born to his wife is through li`an (oath of condemnation ) with its legal conditions. Likewise, DNA cannot be depended upon as a means of confirming the paternity of children whose lineage has already been legally defined (if they were born in legal wedlock).
However, there is nothing wrong with depending on DNA analysis in establishing paternity in cases of litigation regarding a child of an unknown lineage, whether litigation is due to the absence of evidence; or to there being equal evidence on both litigating sides; or to a man having intercourse with the child’s mother by mistake (i.e., having intercourse with her thinking that she is his wife while she in fact is not).
DNA can also be depended upon in establishing the paternity of children in cases where there is a mix-up with newborn babies in hospitals, childcare centers, and other places. This applies also to test-tube baby mix-ups and to cases where children get lost because of accidents, disasters, or wars and their families can no longer be found. DNA also helps in establishing the identity of unidentified corpses as well as war prisoners and missing people.
The resolution of the Islamic Fiqh Academy is as follows:
Praise be to Allah alone, and peace and blessings be upon the Seal of the Prophets.
In its 15th session, the council of the Islamic Fiqh Academy approved of the definition given to DNA to the effect that DNA refers to the genetic structure that determines the individual hereditary characteristics of each person.
The council has also scrutinized the scientific researches and studies referred to it concerning DNA, according to which DNA testing is proved to be a reliable investigative tool in forensics and it can be taken from any (human) cell in blood, saliva, sperm, urine, etc.
The council has also assigned a committee to conduct a detailed field study of DNA and read the report prepared thereby on the subject. It has also examined the research referred to it on the subject by scholars, doctors, and experts and listened to the discussions held thereupon.
According to these studies, DNA is proved to be definite in establishing or disaffirming the paternity of children and in identifying corpses or the wounded in accidents. Thus it is a far more reliable method in proving and identifying lineage of certain relatives than the physiognomic resemblance between them.
It is also proved that if there occur any mistake relevant to DNA testing, this has nothing to do with the DNA itself being revealing of the hereditary characteristics of the concerned person, but will be due to wrong use or contamination factors and the like.
Based on the above, the council of the Islamic Fiqh Academy, in its 16th session, which was held in Makkah, Ramadan 21-26, AH 1422 (October 5-10, 2002), decided the following:
1. There is nothing wrong in Shari`ah concerning depending upon DNA analysis in police investigations and considering it an effective instrument against perpetrators of crimes that do not involve prescribed hudud (punishments) or retaliation of death, as the scholars state that hudud are to be fended off for the least occurrence of doubt. This establishes justice and security in the community, as it helps in punishing the perpetrators of crimes and clarifying the innocence of the accused, which is an important objective of Shari`ah.
2. Secrecy and safeguards should be guaranteed in using DNA in establishing lineage. In fact, religious texts (of the Qur’an and Sunnah) and rulings of Shari`ah are to be given priority over DNA as evidence in this respect.
3.It is unlawful inShari`ahto depend on DNA analysis as evidence in denying a person’s paternity of a child born to his wife, nor is it lawful to give it priority over theli`an.
4. It is not lawful to use DNA analysis to confirm the paternity of children whose lineage has already been legally defined. The concerned authorities are to prevent the occurrence of such an event, and moreover, impose deterring sanctions in this regard in order to protect people’s reputations and to safeguard their lineage.
5. It is lawful to count on DNA analysis in establishing paternity in the following cases:
a. Two men litigating concerning the paternity of a child of an unknown lineage, whether litigation is due to the absence of evidence, or to there being equal evidence on both litigating sides, or to both men having sexual intercourse with the mother of the child by mistake.
b. Mix-up of newborn babies in hospitals and childcare centers as well as mix-up of test tube babies.
c. Cases when children get lost because of accidents, disasters, or wars and their families can no longer be found. DNA also helps in establishing the identity of unidentified corpses as well as war prisoners and the missing.
6. It is not lawful to sell human genomes of an ethnic group or individual, as it may lead to their harm. It is not also lawful to give genomes as a gift to any organization or individual.
7. The academy recommends the following:
a. That countries prevent the making of DNA examinations except by judicial ruling and that the examinations be performed in laboratories affiliated to the concerned bodies. Countries must also prevent the private sector from performing DNA tests because it usually seeks profit, and this may lead to great risks.
b. A committee made up of specialized scholars, doctors, and administrators should be formed in each country to carry out DNA testing. The task of the committee is to supervise and endorse the results of DNA tests.
The concerned authorities should take the required procedures and mechanisms for preventing deceit and contamination that DNA samples may be exposed to in the concerned laboratories in order to guarantee accuracy in the results. In addition, the number of genes used in examinations is to be in proportion to that which is already needed for the required tests according to the specialists in that field in order to avoid suspicion [about transgressing in using extra genes].