Modern Technology Urgency in the Development of Islamic Law

Salman Maggalatung

Universitas Islam Negeri Syarif Hidayatullah Jakarta, Jl. Ir. H. Juanda 95 Ciputat, Jakarta, Indonesia

Faculty of Shariah and Law Syarif Hidayatullah State Islamic University of Jakarta, Jakarta, Indonesia

Keywords: Islamic law, modern technology.

Abstract: Modern technological advances have led to intersections with Islamic law, including areas of worship, family

law and treatment through organ transplants. Islamic law though some are static but others are dynamic. In

this connection on one side of modern technology has provided ease in the implementation of the pilgrimage,

determination nasab children are swapped, get the child through IVF, healing of patients with heart failure.

But on the other hand, modern technology can not change the provisions of the implementation of worship,

the iddah wife who ditalak live and talak died. Nor can it alter the principle of keeping the offspring in the

utilization of a baby tube with sperm, ovum donor or uterus rental.

1 INTRODUCTION

Islamic law comes from the Qur'an and hadith.

Therefore on the one hand Islamic law is fixed (static)

but on the other hand is flexible (dynamic). The static

law of Islam stems from the qa'i proposition, such as

the number of five-hour prayer rituals, the caning of

young adulterers, the death penalty for the murderers

of fellow believers, and so forth. While Islamic law

that is dynamic is derived from the argument that is

anni, such as mandatory or not to read al-Fatihah

letter, prohibition of bank interest, putting hands or

knees when prostration, the longest pregnancy, and so

forth.

Thus, Islamic law that is static is not changed by

changes in space and time. Unlike the case with

dynamic Islamic law changes with the changes of

space, and time and conditions. Ibn Qayyim al-Jauzi

(without years: 3) argues that Islamic law changes

according to changing times, places, conditions,

intentions and customs.

In line with the above description of modern

technological advancements today it is necessary to

examine in relation to Islamic law, both static and

dynamic. Advances in air transport technology

(aircraft) has facilitated the movement of humans

from one region to another that has different times.

For example, a fasting person, flying from Jakarta at

13.00 WIT to Ambon with Batik Air, arrives in

Ambon at 18:45 EIT (already breaking the fast). And

if he remains in Jakarta, at 18:45 EIT equal to 16.45

WIT (not fasting time). Is the person allowed to break

the fast after being in the area where the sun has been

set? So did prospective female pilgrims. In this

modern era they can use anti-menstrual pill so as not

to be hampered by the arrival of menstruation during

the pilgrimage in the holy land. What is the legal use

of anti-menstrual drugs? It shows that modern

technological progress can be tangent to the

implementation of mahdah worship.

Modern technological advances also come into

contact with family law in Islam. Telecommunication

technologies such as telephones enable marriage

contracts by telephone. As well as medical

technology, such as postpartum pills in relation to the

iddah period, infant tube technology on the one hand

may help couples who fail to have children through

natural conception (La Jamaa, 2017: 49).

Nevertheless the use of IVF infected with maqasid al-

syari'ah (Syatibi, 2003: 10), especially the

maintenance of offspring (hifz al-din). Even modern

technology has enabled the use of a rented uterus. Can

a woman's womb be rented to conceive another

couple's fetus?

Based on some of the above issues, this paper

will analyze the interlocking between Islamic law

with modern technological advances. Moreover,

according to Duski Ibrahim (2008: 233), that in the

view of the first generation, Islamic law has a

dynamic character. It shows a deep awareness of the

existence of Islamic law as a rule that can solve

various problems that occur in society.The issues

942

Maggalatung, S.

Modern Technology Urgency in the Development of Islamic Law.

DOI: 10.5220/0009920609420948

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 942-948

ISBN: 978-989-758-458-9

discussed in this paper are limited to the

implementation of fasting, hajj and family law in

Islam, as well as the use of illegally harvested organs

for transplant purposes.

2 FASTING AND HAJJ

2.1 Fasting

Language fasting means restraint (al-imsak) against

something material and non-material. While in

terminology, fasting is restraint in the daytime of

everything that cancels (eating, drinking and sexual

relationship of husband and wife) with intention

because Allah, starting from dawn to sunset (Abdul

Mujib, 2007: 201).

Based on the definition of fasting above, it can be

understood that the implementation of fasting takes

place from dawn siddiq to sunset. This shows that the

implementation of fasting in a long period of time.

For Indonesia on average over 10 hours. Fasting is a

mahdah worship, which the procedure of its

implementation has been arranged in the Shari'a, must

be done as exemplified by the Messenger of Allah.

Therefore, the time of fasting and breaking the fast

following the provisions of the Shari'a. Imsak started

since the dawn Siddiq dawn and break the fast after

sunset. This is in accordance with the provisions of

the Quran Surah al-Baqarah: 187

“So now mix them up and follow what Allah has

ordained for you, and Eat drink to the light you are

white from the black thread of dawn. then complete

the fast until (coming) night” (Ministry of Religious

Affairs, 2009: 36)

Thus someone who is a member of the Imsak in

western Indonesia then travels to the eastern part of

Indonesia by plane, will break the fast according to

local time (Eastern Indonesia time), and not western

Indonesia time. The two hour span between western

Indonesia and eastern Indonesia is still normal.

Likewise on the contrary, someone who is in the

eastern region of Indonesia and then travel by plane

to the western part of Indonesia, he must wait for the

sunset there to break the fast.

Looking at the above reviews it can be understood

that modern transportation technology although

cursory seems to change the time of fasting (speeding

and slowing) it, but in fact fast and slow fasting time

people who use air transportation is more due to the

necessity to follow the sun circulation in the

destination area.

Serious problems will arise to Indonesians

traveling to the United States. Imsak time he was in

Jakarta (Indonesia) then the morning flying by plane

to Washington (United States). The time difference

between Jakarta and Washington is 11 hours. On one

side Washington (United States) is a normal earth

zone (Utomo, 2003: 241) so that even though the

fasting time is long, the person will break the fast after

the sun sets in Washington. Conversely, a

Washington Muslim immigration then flies by plane

to Jakarta, even though fasting time becomes faster,

but he can break the fast according to the time in

Jakarta.

In addition, modern medical technology produces

menstrual dehydration. Can a Muslim woman be able

to use a dehydration medication for the purpose of

completing the fasting month of Ramadan? In this

case the cleric has the consensus that women who

experience menstruation is prohibited (haram) to

fasting absolutely. Islamic law requires them to

replace the fast that is not performed during the

menstruation in 11 months outside the month of

Ramadan. Therefore no need to use menstrual

dehydration drugs. Should undergo a Ramadan

fasting naturally. However, if there are women who

consider it important to use a delayed drug to fast

Ramadan a whole month, then it is permissible,

provided that the use of the menstrual delay drug has

no medically negative implications (Utomo, 2003:

243; Qardhawi 1995: 420). Thus the use of menstrual

dehydration drugs should consider the benefits of its

users, especially from the medical side (reproductive

health).

2.2 Hajj

Hajj meaningful deliberate (al-qasd) on something

that is glorified. While terminologically, the pilgrim

is deliberate to go to the Ka'bah (Baitullah) to

implement the conditions (Islamic, baligh, intelligent,

independent, and capable), harmonious (ihram

intention from miqat, wuquf in Arafat, tawaf ifadhah,

sa'i, (ihram in miqat, staying at Muzdalifah, staying at

Mina, throwing jumrah and tawaf wada) at the

appointed time (Shawwal, Dzul Qa'dah and Dzul

Hijjah) (Mujib, 2007: 295).

Tawaf ifadhah which is one of the pilgrims above

must be done in the holy conditions of the great hadas,

such as menstruation. In that connection the women

who are conducting the pilgrimage can not perform

tawaf ifadhah in menstruation. Can he use the

menopause pill ahead of tawaf ifadhah? Although

menstruation is closely related to the prohibition of

the implementation of mahdah worship, especially

prayers and tawaf, but the existence of the menstrual

delay pills into the muamalah (worldly). In this

connection the use of postpartum pills for women

who are performing the pilgrimage is prohibited if

there is a prohibition that prohibits it. Though there is

Modern Technology Urgency in the Development of Islamic Law

943

no clear proposition that prohibits it (Aspandi, 2016:

4).

Menstruation is a natural phenomenon

experienced by women during the fertile period (Ida

Emilie Brantalid, et al., 2104: 600). So the existence

of menstruation for each woman should be allowed to

take place naturally. Thus the use of the menstrual

delay pills should be recommended by obstetricians.

In order not to cause harm to reproduction. Although

permissible, however if he has finished carrying out

tawaf ifadhah, then no longer need to use menstrual

delay pills. Because all the series of hajj pilgrimage

that is prohibited during menstruation is tawaf

ifadhah. The use of postpartum pills for female

pilgrims is merely a dispensation so as not to impede

the implementation of the Hajj. Therefore, if the

obstacle is lost, then back to the law of origin. In this

case the rules of fiqh apply: maa jaaza li'udzrin

bathala bizawaalihi (what is allowed because of

obstacles, it is not allowed anymore with the loss of

the obstacle) (A. Djazuli, 2006: 62).

Thus the existence of the menopause pill is only

suitable for use in the context of difficulty

(masyaqqah) and not exploited under normal

conditions. Moreover menstrual delay pills function

to change the menstrual cycle so that potentially

cause medical side effects to reproductive health of

women who use menstrual pills that.Based on the

above description can be understood, that modern

technology, especially transportation and medical

technology on the one hand can provide kemuanjut in

the implementation of worship. But on the other hand

the existence of modern technology can not change

the law in the implementation of fasting and hajj.

3 FAMILY LAW

3.1 Marriage Agreement through

Phone

There are 5 pillars of marriage, namely (1) the

presence of the bridegroom; (2) the existence of the

bride; (3) the guardian of the bride; (4) two fair

witnesses; and (5) the marriage contract (qabul).

Marriage will be considered valid if it has fulfilled the

five pillars of the marriage is accumulative (whole)

and vice versa marriage is considered invalid if it does

not meet one or part of the marriage pillars.The

marriage contract is based on the principle of

willingly willingness. Because the willingness is

abstract (not visible), then manifested in the form ijab

qabul. So the ijab qabul became one of the pillars of

marriage (Satria Effendi M. Zein, 2004: 2).

The implementation of the marriage contract

(qabul ijab) under certain conditions is facilitated by

using the telephone. It must be done because the

groom or guardian can not be present in the assembly

of the ceremony. In this case the question arises:

whether the ceremony conducted by phone is

legitimate or not?The debate about the validity of the

marriage contract by telephone is closely related to

the unified requirements of the assemblies in the

consent and qabul. Satria Effendi M. Zein (2004, 3)

quotes al-Jaziri, that the mujtahid scholar has agreed

to require united assembly in the consent and qabul.

Consequently, if it does not coincide with the

assembly with the assembly of the qabul, the marriage

contract is considered invalid. By means of united

assembly in the qabul's consent, the two opinions

arise, namely:

1) The united assembly is that the ijab and qabul

must be made within the time span of a marriage

contract, not done in two separate time intervals. Thus

united the assembly is concerned with the necessity

of time continuity between ijab and qabul, rather than

relating to the unity of the place. Therefore, although

implemented in one place but different time, the

continuity of time between ijab and qabul is not

achieved. Conversely though not one place, but most

importantly should not be broken between the consent

and qabul.

2) Unified assembly is required not only to

ensure continuity between ijab and qabul but is

closely linked to the duty of two witnesses who must

be able to see with their eyes that the consent and

qabul are actually spoken by the person making the

contract.

The first opinion has implications on the validity

of the marriage contract by telephone. For despite the

different assemblies but there is continuity between

the bride made by the bride's sisters witnessed by two

formal witnesses in a place with qabul made by the

bridegroom witnessed by non-formal witnesses

elsewhere. Both formal witnesses directly witness

both through sight and hearing guardian of the bride

has expressed a favor. The two formal witnesses have

listened to the guardian of the bride having said a

consent. Likewise, the non-formal witness has

witnessed the same thing the bridegroom has

pronounced qabul. The non-formal witness also

listens to the bride's guardian having said a favor.

Whereas in the second opinion, the marriage contract

by telephone is not legal. For both witnesses can not

see directly the bridegroom pronounces qabul.

Looking at the two opinions above, that the

current technological advancement of the phone has

actually been able to eliminate doubts about the

ICRI 2018 - International Conference Recent Innovation

944

authenticity of the voice of the bridegroom when

pronouncing qabul. Moreover, the presence of mobile

phones that have android 3T application capable of

displaying live images of the groom in the mobile

phone screen.

3.2 Iddah Periode

Etymologically iddah comes from the verb 'adda-

ya'uddu, which means counting or something that is

counted, ie menstrual or holy days in women. While

in term, iddah is a time to wait for the sanctity of a

wife divorced or abandoned by her husband, who

before it is exhausted, she is forbidden to be married

to another man (Chuzaimah T. Yanggo and A. Hafizh

Anshary AZ, 1999: 149) .The determination of the

iddah period for a wife who is distracted by her

husband is based on the menstrual and sacred cycle.

Is the existence of a menstrual delay pills can be used

to change the legal provisions of the iddah period?

Observing the function of the menstrual delay

pills, and the legal position of iddah mentioned above

can be argued that the menstrual delay pills are not

used to determine the short length of the iddah wife's

wife who is distracted by her husband. Likewise,

although there is now medical technology (USG) is

able to detect early conditions of wombs that were

wiped out or died by her husband was not pregnant,

but the provisions of the iddah still apply. For the

purpose of iddah to know the condition of the womb

of a wife who was diverted or left by the husband, is

only one of the wisdom of iddah in Islamic law.

Though there are many other wisdom behind the

provisions of iddah period, for example the existence

of a husband and wife opportunity to reconcile

(Huzaimah Tahido Yanggo, 2005: 175-176),

especially for the dickak live, and other wisdom that

is still a secret from God.

Thus although the provisions of iddah in Islamic

law have a human dimension (rational-ta'aqquli), but

more dominantly the charge of the divine dimension

(ta'abbudi). So the provisions of the iddah period can

not be changed with the use of modern medical

technology. The provisions of the iddah period in the

Islamic Shari'ah should be obeyed as part of the faith

in God.

Modern medical technologies such as DNA

testing, however, can be used to solve problems with

the child's nasol (Muh Tamimi, 2014: 95), for

example in the case of a child who is confused during

hospital delivery or other causes. Without DNA

testing, they may be treated and raised by people who

are not their biological parents. It has serious

implications both in education, marriage, inheritance.

The rich children are nurtured, brought up by poor

parents who will get inadequate education. If she is a

girl, after marriage will be given a guardian by a

person who is not her genetic father, as well as in

inheritance. Conversely, children are less able to be

maintained by the rich so they can get an adequate

education. If she is a girl, then when married will be

given a guardian by someone who is not his biological

father. Inheritance surely he gets a great inheritance.

3.3 Baby Tubing

The presence of children in the household becomes

the dream of each married couple. Even the failure of

getting a child through a natural pregnancy can be a

source of conflict between husband and wife. Not

even a little that ended in divorce. Such problems in

the modern world have been overcome with infant

tube technology. But in this connection needs to be

examined from Islamic law.

Baby tube in the medical world is known as

artificial insemination. Artificial means “artificial,”

while insemination is derived from Latin, inseminatus

which means "income or delivery." According to

dictionary meaning, artificial insemination means

"artificial conception" (M. Ali Hasan, 2000: 70).

While in term, artificial insemination is an attempt of

conception in the uterus (uterus) to get offspring

without going through the process of natural

conception. Artificial insemination in humans is done

by taking male sperm and injected into the woman's

vagina or uterus, whether the woman is the wife of

the sperm owner or not (donor) (Abdul Azis Dahlan,

2003: 727). Thus the baby tube is a reproduction that

uses an artificial uterus that allows the occurrence of

conception outside the uterus, especially the baby

tube through the process of Fertilazation in Vitro

(FIV), by taking sperm husband and ovum wife, and

processed in vitro (tube). After conception, the

embryo is transferred into the womb of his own wife

(Abdul Azis Dahlan, 2003: 729-730).

The law of utilizing infant tube technology for

married couples who fail to have children is examined

from sources of sperm and ovum and the owner of the

uterus. Clearly, the tube baby may be in Islamic law

if the sperm comes from the husband, the ovum

(ovum) of the wife, and the fertilized embryo in a tube

baby is transferred into the womb of his own wife. In

this case, only its fertilization technique is different

from natural conception (pregnancy). However the

seeds (sperm and ovum) are from husband and wife

and embryos are developed in the womb of the wife

and owner of the ovum itself.The permissibility of

such a tube baby is based on the consideration that the

Modern Technology Urgency in the Development of Islamic Law

945

child is a descendant of the offspring and is the

primary purpose of marriage. So that the baby tube is

a very important requirement (dread) couples who

failed to get a child through a natural pregnancy. The

rule of Islamic law affirms:

        

“Hajat (a very important requirement) is treated

as in an emergency situation whereas an

emergency is forced to do things that are

forbidden” (Masjfuk Zuhdi, 1997: 21-22).

The existence of the source of seed (sperm and

ovum) and Rahim is very urgent because it is closely

related to the maintenance of the offspring that

became one of the elements in maqasid al-syari'ah.

Therefore, if one source of seed or the owner of

Rahim does not meet one of the three conditions

above, then the baby tube is haram law. The use of a

rental uterus in a tube baby is legal haram despite the

source of the seeds from a legal husband and wife.

Likewise vice versa haram also if using sperm or

ovum donor, although the embryo produced in the

baby tube was developed in the womb of the wife. It

is based on the hadith of the Holy Prophet:

            

      ) )

“'It is not lawful for a man to believe in Allah and

the last day to sprinkle his water (sperm) into the

plant (womb of the wife) of others” (Abu Dawud

from Ruwaifa 'bin Sabit) (Abu Daud: 1990: 478)

This Hadith not only implies sperm sprinkling

into the womb of a woman through sexual

intercourse, but also contains the understanding of

entering the donor sperm through the process of the

baby tube, which is the mixing of sperm and ovum

outside the womb, which is not bound by a legal

marriage. Whereas the biological relationship

between husband and wife, in addition to enjoying the

blessings of God in channeling sexual desire, also

aims to obtain a legitimate offspring in the sight of

Allah. Therefore the sperm of a husband can only be

channeled into the womb of his own wife.

The prohibition of the use of sperm or ovum of a

donor or a rented uterus is also based on the rule of

Islamic law: dar'u al-mafasidi muqaddamun 'ala jalbi

al-masalihi,' rejecting mafsadah precedence rather

than achieving maslahat '(A. Djazuli, 2006: 11). In

this case the benefit of the baby tube by using the

donor is to help the couple get the child, which is

difficult to obtain through natural pregnancy.

However, mafsadah (danger) of the tube baby with

the donor is far greater than the benefits, among

others: (1) Mixing nasab, whereas Islam greatly

maintains the sanctity of honor and purity nasab,

because it relates to tranquility and inheritance; (2)

contrary to sunnatullah; (3) the same as for adultery,

for the mixing of male sperm and female ovum

without a legal marriage; (4) the child born in the IVF

can be a source of conflict within the household; (5)

children born through IVF who are mixed with

nasabnya are veiled and donor secret, more ugly than

adopted children are generally known origin/nasab

(Setiawan Budi Utomo, 2003: 190-191).

Children produced through infant tube

technology that use sperm or ovum donors are similar

to children produced through adultery, especially

from the aspect of legality of sperm or ovum. Thus

the difficulty of getting a child through a natural

pregnancy can not legalize the use of sperm or a donor

ovum in a baby tube. So is the use of the rental uterus.

Children born through such tube babies are

categorized as adulterous children, having only a civil

relationship with the mother who gave birth to them.

In addition, infant tube technology should not be

abused through fetal gene selection. Obviously, it can

not be used to select the desired fetus and abort the

unwanted fetus, either from consideration of

intelligence, skin color, or physical properties

(physical disability). Because the life of the fetus

must obtain legal protection (S. Aksoy, 2005:

400).Based on the above description it can be argued

that tubular infant prohibition using sperm or ovum

donor and rental womb is closely related to the

existence of the born child, so that he does not

experience problems either legally; marriage, and

inheritance and social status in society. Thus for

infertile couples according to doctor's diagnosis,

should not use sperm or ovum donor. They better

adopt other people's children..

4 PIG ORGAN TRANSPLANT

FOR HUMANS

Organ transplants are generally done to replace the

body organs that do not work anymore, such as

kidney, heart, in addition to corneal transplantation.

One type of transplant is hetero transplantation,

which is human recipient, while the donor is animal.

For example, a pig's heart valve is transplanted into

the human heart (Abu Yasid, 2005: 220).Utilization

of pig heart valves (donors) for humans (recipients)

poses a problem because pigs are one of the types of

animals forbidden in QS. Al-Maidah: 3

“Forbidden to you (eat) carcasses, blood, pork,

(meat) of animals slaughtered not on (name)

ICRI 2018 - International Conference Recent Innovation

946

Allah” (Ministry of Religious Affairs of the

Republic of Indonesia, 2009: 142)

The prohibition of pigs in this verse is general,

whether the meat is to be eaten or other parts of the

pig's body for other purposes. For example sea

urchins for making quaskue, accessories. Pork ensim

for cake making, and so on. Even in medical

technology allows the utilization of pig heart valves

to be transplanted into the human heart.

Starting from the above description can be stated,

that basically the hog heart valve is transplanted into

the human heart. However, if a human heart valve has

been attempted, and not found, it may be used in the

condition of the pig heart valve (donor) for humans

(recipient) (Abu Yasid, 2005: 224). This skill is based

on the consideration that a person's heart failure

(recipient) function is very threatening to the safety

of his life. Thus the recipient has been in hazard

(emergency) condition. Whereas the emergency

conditions allow things that are prohibited in the

Islamic Shari'ah (al-dlaruratu tubihu al-mahzhurat)

(A. Djazuli, 2006: 72).

In that connection the pig's heart valve is God's

right so that his servants may be used in times of

emergency. Unlike the case if utilizing human heart

valves that are not allowed to be transplanted to the

recipient. In the latter case even if the heart valve is

from a human being, it is haram transplanted to the

recipient because there is no permission from the

donor.Thus, advances in modern medical technology,

especially organ transplant technology can be utilized

for the benefit of human life while maintaining the

provisions of Islamic law in the field of medicine. In

this connection it is necessary to consider the impact

of pig heart valve transplant. For a heart transplant

certainly has serious side effects on the recipient

(Kerry J. Stewart, et al, 2003: 2105-2106). In order

for the recipient is not in danger after the transplant

of the pig's heart valve.

5 CONCLUSIONS

Based on the discussions described earlier, it can be

concluded that modern technological advances can be

tangent to various aspects of Islamic law, including

worship (fasting, pilgrimage), family law (iddah,

baby tube) and organ transplants. Advances in

transportation technology while facilitating the

transfer of someone from one region / country to

another region/country in a fast time, but time of

breaking fast still follow the time in the

region/country of destination. Menstrual dehydration

drugs need not be used to complete the fasting of

Ramadan. But it can be used for women who will

perform the pilgrimage, on the recommendation of

obstetricians. So also modern medical technology

such as ultrasound can not change the period of iddah

in Islamic law.

Islamic law allows married couples who fail to get a

child through a natural pregnancy to use infant tube

technology with the sperm requirement of the

husband, the ovum of the wife and embryo transferred

into the womb of his own wife. Conversely, it is

unlawful to use a donor sperm, or ovum donor or

uterus rental. While recipients who have heart failure

(an emergency condition) and do not get a human

heart valve, are allowed to use pig heart valves. Thus

modern medical technology has facilitated the

implementation of women's pilgrimage, can

overcome doubts about child nasab (through DNA

ice), can overcome the difficulty of getting children

through natural pregnancy (through infant tube

technology) and save the lives of people with heart

failure (through transplantation)

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