Revealing the secrets of the body: Medical tests as legal evidence in personal status disputes in modern Egypt

Medicine and Law

Volumn 22, Issue 1, 2003, Pages 131-154

  Shaham, Ron ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

Author keywords

Egypt; Forensic evidence; Paternity tests; Personal status

Indexed keywords

AGE DETERMINATION; ARTICLE; COURT; DECISION MAKING; DISPUTED PATERNITY; DOMESTIC VIOLENCE; EGYPT; FORENSIC MEDICINE; HUMAN; ILLEGITIMACY; LAW SUIT; MEDICAL EXAMINATION; MENTAL DISEASE; MORALITY; PATERNITY TEST; PERCEPTION; PHYSICAL DISEASE; PREGNANCY TEST; RELIABILITY; RELIGION;

EID: 0038693641     PISSN: 07231393     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (61)

1. D-8 (all references to court decisions are made in abridged form, for example: D-8 stands for Decision no. 8. For the full list of decisions, see Appendix). In D-8, the names of the litigants are not mentioned by the court. The name of the physician was Dr. Qanawati.
2. See, for example, references to the reliance on testimony provided by a midwife, Abu Zahra, Muhammad, Al-Ahwal Al-Shakhsiyya, 3rd Edition (Cairo: Dar al-Fikr al-c Arabi, 1957) pp. 394-395.
3. Kuhnke, LaVerne, Lives at Risk: Public Health in Nineteenth-Century Egypt (Cairo: The American University in Cairo Press, 1990):
4. Sonbol, Amira El Azhary, The Creation of a Medical Profession in Egypt, 1800-1922 (Syracuse: Syracuse University Press, 1991).
5. Fahmy, Khaled, "Law, medicine and society in nineteenth-century Egypt," Egypte Monde Arabe 34 (1998), pp. 35, 37-38, 40-42;
6. idem., "Women, medicine and power in nineteenth-century Egypt." In Remaking Women: Feminism and Modernity in the Middle East, ed. Lila Abu-Lughod (Princeton: Princeton University Press, 1998), pp. 59-61.
7. Muhammad, Al-Sayyid Khalaf, Majmucat al-Mabadi al-Qanuniyya allati Qarraratha Mahkamat al-Naqd, 1st ed. ([Cairo]: Dar al-Tibaca al-Haditha, 1982-1983), pp. 553-554.
8. For a detailed analysis of this reform and its application in the sharica courts, see Shaham, Ron, Family and the Courts in Modern Egypt: A Study Based on Decisions by the Sharica Courts (Leiden: Brill, 1997), pp. 53-67.
9. El-Alami, Dawoud S., The Marriage Contract in Islamic Law (London: Graham and Trotman, 1992), pp. 84-85.
10. D-22; D-40. See also D-21, D-44.
11. Anderson, J.N.D., "Recent developments in Sharica law 3 (the contract of marriage)," The Muslim World 41 (1951), pp. 115-116;
12. Layish, Aharon, Women and Islamic Law in a Non-Muslim State (Jerusalem: Israel Universities Press, 1975), p. 20;
13. White, Elizabeth H., "Legal reform as an indicator of women's status in Muslim nations," in Women in the Muslim World, ed. L. Beck and Nikki Keddie (Cambridge, Mass.: Harvard University Press, 1978), p. 55.
14. On the criminal liability of a physician who intentionally provided false certificates of age, see al-cAjuz, Nahid, Jara'im al-Tazwir al-Mutacalliqa bi'l-Zawaj (Alexandria: Munsha'at al-Macarif, 1998), pp. 417-425.
15. D-3; D-2; D-6.
16. For a detailed discussion of this reform and its application, see Shaham, pp. 114-115, 119, 125-126.
17. D-30. For a similar decision by a Cairo National Court of First Instance from October 19, 1957, see cAbd al-Tawwab, Mucawwad, Mawsucat, al-Ahwal-Shakhsiyya, 3rd ed. (Alexandria: Munsha'at al-Macarif, 1986), p. 582;
18. idem, Al-Dufuc al-Sharciyya fi Dacawa al-Ahwal al-Shakhsiyya (Alexandria: Dar al-Fikr al-Jamici, 1997), p. 410.
19. Ibid. D-28.
20. Hill, E., Zaalouk, M., and Azer, A., "The Divorce Courts of Egypt: Personal Status Litigation and Society in Egypt with Special Reference to Divorce by Court Action (Tatliq)", n.p., n.d., p.59.
21. Al-Jaziri, cAbd al-Rahman, Kitab al-Fiqh cala al-Madhahib al-Arbaca, vol. 4 (Cairo: Dar al-Irshad lil-Tibaca wa'l-Nashr, 1980), pp. 167, 171.
22. See also cAbd al-Tawwab, Al Dufuc, pp. 98, 409-410, 466.
23. D-17; D-19.
24. Ibid. D-18.
25. Cabd al-Tawwab, Mawsucat, p. 587.
26. Cabd al-Tawwab, Al-Dufu', pp. 410-411.
27. Cabd al-Tawwab, Mawsucat, pp. 582-583.
28. Cabd al-Tawwab, Mawsucat, p. 584.
29. Cabd al-Tawwab, Al-Dufuc, pp. 416-417.
30. On decisions to extend the hadana based on medical reports, see D-25. In this case, qadi Ismacil Jab Allah said that although the girl appeared healthy, his impression did not prevail over a medical report, since there were hidden diseases that only a professional physician could discover; D-36- decision of the Court of Sayyida mentioned there; D-23. On contradictory reports or contradictory interpretations of the same report by different courts, see D-33. In this case, the official medical inspector examined the child. According to the Court of Summary Justice, since the medical report affirmed that the child did not need special supervision, he had to be in the custody of his father. The Court of First Instance reversed this decision, arguing that the medical report affirmed that the child suffered from fears and therefore had to stay with his mother; D-24.
31. Ibid. D-36.
32. D-32. In this case, qadi Mahmud Mubarak argued that Egyptian custom makes it easy for a person to obtain a medical report that serves his or her interests. This phenomenon is a source of confusion and difficulty for the courts. In the case before him, the qadi rejected the medical opinions of two physicians on the grounds that they had not been nominated by the court, had not appeared and testified before the court under oath, and were not bound by the statutory legislation pertaining to professional experts; D-39; D-26. In this case, medical ceritificates supplied by a Christian physician to the effect that the girl suffered from Bilharzia were rejected by qadi Ahmad Muhammad al-Muwallid on the grounds that the Ministry of Justice ordered the courts to rely exclusively on the opinions of Muslim physicians.
33. D-41; D-20; D-29; D-27; D-34.
34. D-39; D-32; D-25 - decision of the Court of Sayyida mentioned there; D-26; D-31.
35. Ibid. D-37.
36. Ibid. D-4.
37. Ibid. D-9.
38. The majalis hasbiyya, first established in 1873, had the authority to oversee the financial interests of Muslims who lacked full legal competence, such as minors, the insane, and missing persons. See Shaham, p. 12.
39. Compare to Libya, where the term "sleeping embryo" (haml na'im) signifies a prolonged pregnancy, unlimited in time, in which the embryo does not develop. This concept is validated both by customary law and by the Maliki school. The Libyan Court of Appeal, dealing with paternity, recognized a maximum pregnancy period of twelve years (my emphasis), so that a child born many years after the termination of the marriage by divorce or by the death of the husband was considered the husband's legitimate offspring. Layish regards the "sleeping pregnancy" as a device intended to save a woman from distress when she became pregnant out of wedlock. See Layish, Aharon, Divorce in the Libyan Family (New York and London: New York University Press and Magnes, 1991) pp. 112, 161-162;
40. Mayer, Ann E., "Libyan legislation in defense of Arabo-Islamic sexual mores," The American Journal of Comparative Law 28 (1980) p. 291.
41. Ibid. D-5.
42. For a similar decision, see D-1. In this case, which involved "sleeping embryo" as well, it was the Ministry of Justice that asked the court to send a woman to a reliable woman for a pregnancy examination.
43. Lican takes place in cases of unproven charges of adultery against the wife and its result is a dissolution of marriage through a process of mutual imprecation.
44. Shaham, pp. 155-156.
45. El2, s.v. Kiyafa.
46. Al-Jammas, Diya'al-Din, Dirasat Tibbiyya Fiqhiyya Mucasira (Damascus: Markaz Nur al-Sham lil-Kitab, 1993), pp. 156-163. Determination of the blood group in a legal dispute over paternity can serve as decisive evidence for denial of paternity (dalil ithbat);
47. Al-Tuni, Mahmud, cIlm al-Ajram al-Hadith (1960), pp. 386 ff., as cited by al-Banna, Kamal Salih, Al-Siyagh al-Qanuniyya li-Dacawa al-Ahwal al-Shakhsiyya lil-Misriyyin wa'l-Ajanib (Cairo: cAlam al-Kutab, 1984), p. 189.
48. For a detailed discussion, see Shaham, pp. 156-164.
49. D-10; D-11; D-12; D-13; D-14; D-15; D-16. For additional decisions by the Court of Cassation, see Muhammad, pp. 70-79;
50. Cabd al-Tawwab, Mawsucat, pp. 751-763.
51. D-43; D-45.
52. D-38; D-42, respectively.
53. Ibid. D-35.
54. Cabd al-Tawwab, Mucawwad, Dufuc, pp. 477-478
55. Al-Jaziri, pp. 400-402.
56. For similar cases, see D-47. In this case qadi Muhammad cAtiya incorporated the full text of the detailed medical report in his decision. According to the report, there were no signs of an earlier pregnancy on the woman's belly, breasts, or sexual organs; D-7. See also the decision of the al-Mansura Appeal Court (appeal no. 12, 1977) from May 8, 1978, cited in Al-Banna, al-Siyagh, pp. 191-192. In this case, the wife did not bring evidence that she had given birth, and it was established that she was barren. As a result, the court granted her husband's request to deny his paternity.
57. Ibid. D-46.
58. Cabd al-Tawwab, Dufuc, p. 474. In another context, the official medical inspector examined a woman accused by her husband of undergoing an abortion. In the report, the physician wrote that it was impossible to ascertain the occurrence of abortion and that the signs found in the woman were similar to those found on any woman who had delivered a baby. Taking this report into consideration, both the lower court and the Court of Cassation granted a divorce to the woman on the ground of the injury caused to her by her husband's accusations.
59. Cabd al-Tawwab, Dufuc, p. 203.
60. In Ottoman Istanbul and Jerusalem, male medical practitioners treated women and women were hired to treat male patients. See Sheffer, Miri, "Doctors and hospitals in Ottoman society," Zemanim 62 (Spring 1998), p. 46.
61. In a 1910 legal opinion, Rashid Rida said that conducting a postmortem examination is permissible even if this meant that a male doctor examined the body of a dead woman. Fahmy, "Law," p. 18.