AIDS is feared and dreaded in modern times as the plague used to be in medieval times. Controlling its spread is of foremost concern to health organizations. It remains incurable and has afflicted some 22 million people. It spreads quickly and is deadly. As a result, some special fiqh regulations apply to a person suffering from it and it is important for many Muslims to know these regulations, especially someone who is infected.
HIV spreads in three ways:
- Sexual contact.
- Blood contact, either through blood transfusion or sharing needles.
- Mother passing it to the fetus.
The infected person has certain rights and duties. The society must treat the person with compassion and kindness. It is not uncommon for someone in a Muslim country to contact the virus due to blood transfusions. It is also possible that a Muslim contacts it from a spouse who was carrying the virus from before getting married. In such cases, the infected person is free of any blame. Also, if someone contacted HIV from illegal sexual contact, then it is quite possible he or she may have repented and the disease becomes an expiation for his or her sins. In brief, the society must treat the person with compassion and alleviate the person’s pain and suffering. The person must not be accused of wrongdoing and sin and be looked down upon.
The afflicted person should also submit themselves to God’s decision and hasten to repent from their sins. He should prepare for the inevitable meeting with the Lord of Glory. The person should not under any circumstance succumb and take their life. If they do so, their life to come will be worse than this life. The person will go from the suffering of this life to the punishment of the afterlife.
Even though there is no known cure for this disease as yet, a person should not loose hope. They should keep using prayers, incantations, and medicines. They may be relieved of some pain and suffering. The disease may become a cause of their return to God and entry into His Paradise whose expanse is as wide as the heavens and the earth.
As is well known, the primary cause of contacting the HIV virus is through sexual contact. Therefore, it is not allowed for a HIV positive person to marry someone healthy:
- Its permissible to require testing for HIV virus before marriage. A government may require test results to be submitted as part of ratifying the marriage contract as a protective measure.
- A spouse is not allowed to accept the marriage proposal from someone infected. The legal guardian (wali) can prevent her from such a marriage.
- The legal guardian (wali) of a Muslim woman (the father if he is Muslim; in case of converts it will be an Imam or someone he appoints from the Muslim community) may put the condition that the man be not infected with HIV virus. Also, it’s a man’s right to lay a condition that the woman be free of the virus. This is especially relevant in cases of divorce or previous sexual partners.
It is permissible for an HIV infected person to marry another HIV infected person with the condition they take all measures to prevent pregnancy to prevent passing on the disease to the fetus and they consult reliable doctors on the matter. An infected person has normal sexual desires and not allowing them to get married can lead to prohibited deeds and further spread the disease.
An infected person must inform the prospective spouse or else they are liable to punishment up to qisas (if the courts have jurisdiction over them).
Either spouse has the right to seek separation from an infected partner. They may agree not to dissolve their marriage despite one of the spouses being infected with one condition: they will avoid direct sexual intercourse or use proven protection correctly.
Likewise, they are allowed to have sexual contact with the exception of direct intercourse given they take all necessary precautions. It is proven that the semen carries the virus. A wife may not allow the husband to have intercourse with her and the husband can not force her to.
The healthy father has the greater right to child custody, but an infected mother can also have custody, even though there is a small possibility of passing the virus through breast milk. Therefore, she is not allowed to breastfeed the child herself. Services of another woman may be taken, etc. In case of absolute necessity, she may breastfeed. Also, if the baby is infected than the infected mother may breastfeed.
An infected person must be financially supported by relatives, or the government, or the Muslims who know about them.
Spreading the virus in any way, either through infected blood, sexual contact, etc by targeting a specific individual is considered predetermined, intended murder.
If someone spreads the virus without intending anyone in particular, it is considered a grave sin and liable to the severest punishment.
If someone passes the virus by mistake, the person must pay the diya and atone for unintended murder. Such a person can not inherit from the one they infected.
If a woman is found to be infected with AIDS before forty days of her pregnancy have passed, she is allowed to abort the fetus.
Abortion is also allowed before four months have passed if it ascertained that she has passed the virus onto the fetus.
After four months have passed, i.e. after the soul has been breathed into the fetus, abortion is forbidden because the chances of passing the virus are reduced to a mere 10% and can be further reduces if a C-section is performed. Therefore, the right of the fetus can not be trampled in such a case.
Also, a fetus can not be aborted to save the life of an infected mother, because her death is certain even if the fetus is aborted, whereas the fetus has a greater chance to live. Therefore, the least of the two harms is to be chosen.
Accusing an infected person of adultery is considered libel in Islamic Law.
Beyond the usual common sense steps to avoid contacting the disease, one should also avoid the public razors used in Hajj by barbers for shaving, instead a disposable one must be used.
(Based on a Master’s Thesis in Comparative Fiqh by Yusuf bin Abd al-`Aziz al-`Aqeel)