THE USE OF DNA fingerprinting, or genetic print, in criminal investigations is a novel legal usage (nâzilah) about which Muslim scholar-jurists (fuqahâ’) are divided in their opinion. The fuqahâ’ differ as to the kinds of cases in which a genetic print may stand as reliable evidence.
In Western countries, DNA use in adjudicating legal disputes is common, including many European courts of law that have approved its admissibility. Muslim countries, as in other matters, have now begun following suit, employing the genetic print to establish guilt. For this reason, it is now very important for Muslim legal experts and judges to familiarize themselves with DNA finger printing on a technical level and then to establish to what extent it might be considered authoritative in determining, for example, paternity—or in crime investigation as a basis for deciding culpability and administering the ^udûd-punishments.
Advances in the medical sciences, particularly in forensics, have given us the capability of exploring and deciphering the contents of a human cell and visualizing the genetic prints of chromosomes. Identical twins apart, no two persons ever carry identical genetic prints (though the actual finger prints of identical twins differ, since finger prints are formed by the interaction of genes and the developmental environment of the uterus). The genetic print is extracted from one’s basic biological material, obtained from blood, semen, hair root, bone, saliva, urine, amniotic fluid surrounding fetuses, the cell of a fertilized ovum, and body cells. A sample size equal to a pinhead suffices for establishing a genetic print.
The Fiqh Academy of the Muslim World League, headquartered in Makkah, has adopted the following definition of the genetic print: “The genetic print is the distinct genetic structure that points to, and is unique to, the identity of each human being.” (See the decisions of the Fiqh Academy of the Muslim World League).
Genetic prints are found in the nucleus inside each of the human body cells. The human body comprises trillions of cells, each one containing a nucleus that controls and determines the cell’s life and function. Each nucleus contains the genetic material—from the characteristics common to human beings as a whole, to those shared among related ethnicities, to the characteristics peculiar to the individual.
The material root of the genetic print is found in the form of amino acids (DNA) known as chromosomes or nucleic acid. Half of a human being’s chromosomes come from the father, and half from the mother. (In addition, there are chromosomes engendered by a process known as neo-mutation, but this does not concern us here). Genetic qualities transfer from the genes that are found in the chromosomes (there are 100,000 genes in each single chromosome). Hence, if two chromosomes are randomly investigated, a vast number of genetic qualities could be determined, which raises the accuracy rate of the degree of genetic correspondence, or non-correspondence, to 99.9 percent, the reason being, as stated, that no two humans (save identical twins) ever share all of their genetic qualities at this percentage.
Usages of Genetic Print
It is by the will and grace of Allah that humans are able to detect the principles governing genetics, to arrange and classify their elements, both universal and particular, and to know how to benefit from these principles. Allah says: And they do not comprehend any of His knowledge except what He wills (Sûrat Al-Baqarah, 2:254).
The following are the areas in which DNA genetic printing may be utilized [in agreement with the current opinion of most fuqahâ’]:
- Paternity: (a) Sorting out inadvertently misidentified newborns in hospitals; (b) determining the identity of a missing child; (c) deciding actual paternity of a child attributed to someone when another comes forward with clear proof of a paternity claim, or (d) the rare case of a woman impregnated by two men (through concurrent fertilization of two different ova), as in cases of gang rape.
- Identity: (a) Establishing the identities of prisoners of war—or others, like abducted children—who have been gone for an excessively protracted period of time; (b) identifying corpses deformed beyond recognition; (c) verifying the identity of claimants of blood affiliation with a certain ethnic group or person (such as the descendants of the American founding father Thomas Jefferson through his slave-concubine).
- Culpability: Establishing criminal guilt from the DNA traces left by criminals (i.e., a body cell, semen, saliva, hair, cigarette butt, blood) as in the cases of rape, fornication, murder, theft, child kidnapping, etc.
One famous case wherein DNA fingerprinting technology was employed to establish guilt is that of the American President Bill Clinton, in his scandalous involvement in an extramarital sexual relationship with then White House intern Monica Lewinsky. The president’s denial of the affair was refuted when evidence showed the existence of the president’s genetic print in the seminal smear found on Lewinsky’s dress.
Another relevant incident occurred in Saudi Arabia, cited by members of the Fiqh Academy of the Muslim World League during their fiqhî discussion about the use of DNA fingerprinting to establish guilt. The story is as follows. A woman claimed her father had impregnated her. The accused father, 60 at the time, was known as a kind, caring father, so many thought the woman was framing her father to deflect the charge away from the real culprit. In the interest of the fetus’ health, the judge delayed the use of DNA fingerprinting until after the woman delivered her child.
When the baby was born, the DNA analysis showed the baby had no possible biological relation to the father. Strangely, however, DNA analysis also established that the baby did not relate biologically to the woman (its putative mother). Investigators suspected foul play. For if the refutation of the father’s paternity of the baby could be natural, the negation of any biological affiliation between the woman and her own child was not!
Investigators consulted the hospital’s register of babies born on the same day as that of the woman’s child and found that 30 babies were born that day. The babies’ families were contacted, DNA tests conducted, and the sought-after baby was identified and found genetically related to both the female plaintiff and the accused father. It was also found that the baby whom the claimant woman thought was hers was in fact a foundling brought to the hospital the same day of her delivery and surreptitiously given to her in place of her biological baby in an evil bid to cover the crime and the truth of the baby’s paternity.
Traditional Modes of Paternity Determination in Islamic Law (Sharî‘ah)
The fuqahâ’ are in agreement that paternity is legally dismissed if it contradicts tangible, material reality, as when a woman ascribes paternity of her baby to a “child-husband” too young to father a child, or when a woman gives birth to a “full-term” child before six months of her contracted marriage have lapsed. According to Islamic Law, paternity is established in one of the following ways.
- Al-Firâsh. The Arabic term Al–firâsh (lit. bed) is a euphemistic expression used to refer to sexual intercourse between a man and a woman. Since it is almost impossible to ascertain the occurrence of coitus between couples, the majority of fuqahâ’ consider the high probability (ghalabat al-·ann) of sexual intercourse, say, between a man and woman who have contracted marriage but not formally or publically actually wed and begun living together. Thus the ±anafî fuqahâ’ consider the marriage contract a legally valid way to establish paternity. However, some later fuqahâ’, including Ibn Taymiyyah and Ibn Al-Qayyim, hold that for paternity to be upheld the occurrence of coitus between couples must be definitely established (as opposed to reliance on high probability). But the opinion of the majority of fuqahâ’ preponderates, for it is based on an authentic ^adîth: “Al-waladu li’l-firâsh (a baby belongs to the bed (meaning the established paternity of a husband with his wife) where it was [likely] conceived,” in addition to the fact that most of the Sharî¢ah rules are predicated on high probability, reiterating that ascertaining the actual occurrence of coitus is generally unfeasible.
- Al-Istil^âq (lit. adding). This Arabic term denotes a man’s acknowledgment that he is a child’s father (even as to adult children). The fuqahâ’ laid down a number of conditions to govern the process of al-istil^âq, chief among them is that the al-istil^âq claim must be reasonable and congruent with the nature of things. So, if a 20-year-old claims to be father of a 15-year-old, his claim is rejected, because such an assertion contradicts reason and nature.
- Al-Bayyinah (lit. clear evidence). The fuqahâ’ are unanimous that paternity can be established by the testification of upright witnesses. Moreover, the fuqahâ’ posit that if a large number of people who are closely familiar with the persons involved say that they know that so and so is the son of so and so, their testimony is given legal consideration.
- Al-Qiyâfah (lit. tracking). Technically this term refers to the studied ability of some (particularly the ancient Arabs) to discern genealogical affinity by examining, observing, and comparing bodily features. The ±anafî fuqahâ’ maintain that, owing to its conjectural nature, al–qiyâfah is not a legally acceptable means of determining the genealogy of a person. The majority of the fuqahâ’, however, uphold it based on the ^adîth narrated by ¢A’ishah j who said that on one occasion the Prophet œ entered upon her with his face sparking with delight and said: “Muja··ir Al-Mudlijî [an Arab expert in al–qiyâfah] has just observed the feet of Zayd ibn ±ârithah and Usâmah ibn Zayd and remarked: ‘These feet are a father-and-son’s feet’” (Bukhari). They hold that the Prophet’s œ elation is indicative of his approval of al–qiyâfah, because he would never approve or be pleased by something he knew to be false.
- Al-Qur¢ah (lit. lottery). This mode of establishing genealogical relationships, by controlled selection, is adopted by the followers of the <ahirî madhhab. It was primarily used (by scholars of the Mâlikî and ±anbalî schools) to decide dispute over the paternity of a child by multiple claimants as a way of assigning paternity. The majority of the fuqahâ’, however, did not uphold this mode. But thanks to the technological advance in the field of blood analysis and DNA fingerprinting, al-qur¢ah is no longer accepted.
Genetic Print as a Legal Device Establishing Genealogy
Contemporary fuqahâ’ maintain that, as a whole, genetic fingerprinting is a legally valid way to establish genealogical affinities. This general accord of the fuqahâ’, however, doesn’t entail their agreement on the details. In their fatwa regarding the use of DNA fingerprinting in establishing genealogical relationships, researchers at the Fiqh Academy of the Muslim World League accepted genetic print evidence only in the case of paternity and identity uses, as cited above in Points 1 and 2 under Usages of Genetic Print. They do not appear to endorse determining culpability with regard to crimes that entail ^udûd-punishments by means of DNA testing.
The final statement of the findings of the symposium on genetics and genetic engineering organized by the Islamic Organization for Medical Sciences (IOMS), says that DNA affirms this usage:
From a scientific standpoint, genetic fingerprinting is almost always accurate in verifying biological paternity or determining identities. It is our opinion that genetic fingerprinting constitutes a potent qarînah (circumstantial or indirect evidence) which most of the fuqahâ’ consider in adjudicating cases that do not involve ^udûd-punishments. (Refer to page 46 of the summary of the symposium findings at the IOMS’s website)
Suggested New Horizons
In my opinion genetic fingerprinting can be an independent bayyinah (clear evidence) or a strong qarînah (circumstantial or indirect evidence) which ought to be considered in Islamic Courts of Law for three reasons:
- Bayyinah, as used in the Quran and the Sunnah, is not exclusively limited to admission (iqrâr) and testimony (shahâdah). Rather, anything that helps reveal the truth is a bayyinah. Allah states in the Quran, citing Mûsa’s challenge to Pharaoh in his court:
“Indeed, I have come to you with a clear [miraculous] proof from your Lord….” [Pharaoh said:] “If, indeed, you have come with a sign, then bring it forth, if you are of the truthful.” So [Moses] threw his staff to the ground and, behold, it was a manifest snake. And he drew forth his hand [from the bosom of his garment] and, behold, it was [radiant] white [without blemish] to all the onlookers. (Sûrat Al-A¢râf, 7:105-108)
Says Imam Ibn Al-Qayyim:
Bayyinah signifies everything that helps reveal the truth. Anyone who claims that bayyinah is limited to testimonies and admissions is unfamiliar with the significance of the term. In fact, in the Quran, bayyinah is always used to denote clear demonstration or authority. And when the Prophet œ said in the hadîth: “The burden of the bayyinah (proof) falls on the claimant,” he meant the claimant should produce a sign (that is to say, any legally considered sign) to prove his assertion. In fact, sometimes, some kinds of bayyinah—such as circumstantial evidence of the truthfulness of the claimant—are even more potent than the testimonies of witnesses. Moreover, testimony and admission can sometimes be false or biased. Hence, the Sharî¢ah does not dismiss indirect, circumstantial evidences. Any researcher in the Sharî¢ah will come across legal injunctions grounded on bayyinât (sing. bayyinah)and amârât (sing. amârah). (A¢lâm Al-Muwaqiyyîn, 10:34)
In another ayah, Allah states:
Then a witness from her own family testified: If his shirt is rent from the front, then she has spoken the truth, and he is of the liars. But if his shirt is rent from behind, then she has lied and he is of the truthful. Thus when [the husband of the wife claiming attempted assault by Prophet Joseph] saw that his shirt was rent from behind, he said [to his wife]: This is, indeed, of your womanly cunning! Indeed, your cunning is great (Sûrat Yûsuf, 12:26-28).
Now, as this ayah indicates, the location of the tear on prophet Yusuf’s shirt was taken as evidence of his innocence. (See Ibn Farhûn’s, Tabsirat Al-±ukkâm, 2:95 and Al-Tarâbulsi’s, Mu¢în Al-±ukkâm, p.166)
- After the Muslims’ capture of the fortress town of Khaybar:
The Prophet œ interrogated the uncle of ±uyayy ibn Akh~ab (Khaybar’s chief) saying: “What became of the wealth of ±uyayy?” ±uyayy’s uncle answered: “It was spent in war preparations.” The Prophet œ replied: “But ±uyayy’s fortune was too vast to be squandered in such a short period of time.” But when the Companion Al-Zubayr ibn Al-¢Awwâm pressured and intimidated the man, he collapsed and showed them where the money was hidden” (Abû Dâwûd).
So, as this ^adîth shows, the Prophet œ used a rational qarînah—a vast wealth cannot possibly be squandered in a short period of time—to infer the man was not telling the truth, which is a further proof that qarînah may serve as basis for legal judgments.”
Such is also my position, but most contemporary fuqahâ’ maintain that a genetic print is an independent bayyinah and a legally valid way of resolving disputes limited to paternity or ascertaining identity, as to deformed human corpses. Still, the seven basic conditions that these fuqahâ’ set—regarding the admissibility of DNA testing—as legal evidence to establish a genetic print are further important Sharî¢ah considerations, with which I will close:
- Sample analysis must be conducted only per request of rightful authorities.
- It is preferable that the labs conducting analysis are governmental.
- It must be established that the lab technicians or employees who conduct and record the DNA fingerprinting are upright, trustworthy, and have no interest or relation to the case in question.
- At least two analyses are to be conducted at two different labs that fulfill the stated criteria.
- There must be full documentation of each phase of the DNA analysis process.
- Sample analyses must be conducted by variant modes. Moreover, a superabundant quantity of amino, or nucleic, acid must be obtained. Both these criteria are meant to ensure accuracy of results.
- The DNA sample analysis must be conducted by an upright Muslim because his report will serve as a testimony and, as the Sharî¢ah stipulates, a non-Muslim’s testimony in a case involving a Muslim is acceptable only in cases of wa|îyyah (will and testament) during travel and the like.
*Citation by the Fiqh Academy of the Muslim World League