Dr. Abdulazeem J. Abozaid
With HBKU’s international conference on genetic fingerprinting on the horizon, the College of Islamic Studies’ Dr. Abdulazeem J. Abo Zaid traces the evolution of related technologies, their use in different parts of the world, and more.
Preserving lineage is one of the five primary Shariah objectives alongside religion, life, intellect, and wealth. This is because loss of lineage has serious implications, including dissolving family bonds and psychologically harming affected children.
To preserve lineage, Islam recognizes different means for its start such as the marriage contract, which specifically relates children to their biological father. This is in addition to the father acknowledging, in the case of an undocumented or unannounced marriage and testimony by others, that a particular child belongs to a family without this being protested. In comparison with proving lineage, jurists hold that there is no way for the husband to deny the child except by li’an, which involves repeated solemn oaths through which the husband negates a child being his and after which the marriage would be dissolved.
This limitation of ways to deny paternity ensures the Shariah keenness on preserving lineage. In fact, the child’s proper affiliation to his parents is a Shariah objective that achieves family solidarity and societal cohesion. However, the question is whether the Shariah can admit new means that may prove or deny lineage in a way that could substitute li’an and avoid dissolvement of marriage that would normally follow li’an.
To this end, recent technological developments have introduced advanced and reliable means that could play a vital and decisive role. Known medically as genetic fingerprinting, supporting technologies make it easy to trace the genetic lineage of individuals, up to and including the exact time of birth. Contemporary jurists have studied the possibility of adopting this technology as a means of evidence admissible in a court of law.
The adoption of such technologies may nevertheless have serious implications if used unconditionally, such as allowing authorities to take DNA fingerprinting at birth for possible future use. These DNA tests may produce surprises that destroy families completely. Besides, availing such tests easily to fathers, especially overly jealous fathers, may lead to many social and ethical challenges. This is especially so given that DNA tests could be prone to mistakes and manipulation by labs and those who perform them, as seen in many court cases.
Accordingly, wide and unconditional use of DNA or genetic fingerprinting could challenge the values of society and the honor of individuals in unethical ways, which contradicts the objectives of Islamic law to preserve honor while protecting society and lineage. Moreover, sociologists have warned that genetic fingerprinting has the potential to threaten societal structures. These include marriage as the founding contract for the rest of social relations. A similar argument is made concerning paternal bonds, often regarded as the original nucleus between various segments of society and guarantor of the continuation of the cohesive social fabric of traditions, moral, and value affiliation.
Unconditional reliance on DNA fingerprinting may also lead to confusion in various legal matters. From a jurisprudential perspective, lineage is the basis for various rulings including inheritance of money, guardianship, validity or invalidity of wills, bearing blood money, custody, and others. Concerns also cover rulings originally related to spouses, such as the obligation to pay daily maintenance, the prohibition of marriage due to blood relationship, and more. These amply demonstrate the importance of careful consideration as to when to adopt the use of genetic fingerprinting and under what conditions.
Public prosecutors and lawyers were among the first to make use of genetic fingerprinting in both criminal investigations and family matters, especially in Western countries. For example, the amended Article Number 35 of Italian law states that the husband may provide evidence of the incompatibility of biological characteristics or blood type between him and his child. France and Spain have also adopted similar legislation. Conversely, most Arab countries, where family laws are derived from Islamic law, do not recognize genetic fingerprinting as evidence for denying paternity. One notable exception is Algeria, which permits the use of genetic fingerprinting for proving and denying paternity.
To tackle these issues and more, Hamad Bin Khalifa University’s (HBKU) College of Islamic Studies (CIS) is organizing a conference exploring the issue of proving and denying lineage from a jurisprudential, societal, and legal perspective. Taking place October 2 and 3, The Role of Genetic Fingerprinting in Contemporary Society 2024: The Study of Negating or Confirming Parentage from Jurisprudential, Societal, and Legal Perspectives will discuss the legitimacy of genetically fingerprinting newborns immediately after birth and before registering parentage. Participants will also consider the legality of using genetic fingerprinting to prove or deny parentage in cases where a valid marriage contract exists, and other issues.
Dr. Abdulazeem J. Abo Zaid is Professor of Islamic Finance at Hamad Bin Khalifa University’s College of Islamic Studies.
Dr. Abdulazeem J. Abozaid is Professor of Islamic Finance at Hamad Bin Khalifa University’s College of Islamic Studies.
