FIQH ON ORGAN TRANSPLANT

Introduction

Juristic Rulings

Frequently Asked Medical Related Problems

INTRODUCTION

O’ servants of Allah, seek treatment for your ailments, for surely He who has created the disease has also given a cure for it. Those who are knowledgeable will be able to discover this cure. (narrated by Bukhari)

JURISTIC RULINGS

1) Impermissibility

The view is based on the following grounds:

a) The first and foremost is that Allah Almighty has honoured human being. Allah Most High says: “And verily we have honoured the children of Adam” (Surah al-Isra, V.70).

It is a well-established principle of Shariah that all the organs of a human body, whether one is a Muslim or a non-Muslim, are sacred and must not be tampered with. To take benefit from any part of a human being is unlawful (haram).

Allah Almighty made humans the best of creations and created everything for their benefit. Allah Most High says: “It is He, who has created for you all things that are on earth.” (Surah al-Baqarah, 2.29).

Thus, it is permissible for a human to take benefit from every creation of Allah, including animals (under certain conditions), plants and inanimate objects. However, it would be inappropriate to place human beings in the same category of the above creations by giving permission to use parts and derive benefits out of their body that necessitates cutting, chopping and amputating parts of the body. It is therefore unlawful to perform such acts on a human body.

b) The cutting of and tampering with a human body amounts to mutilation and deformation of a divinely created body (muthla), which has clearly been prohibited in Shariah.

Qatada (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) used to encourage giving in charity and prevent Muthla”. (Sahih al-Bukhari, 2/206)

c) The human body and parts are not in our ownership in that we may fiddle with them as we desire. It is a trust (amanah) that has been given to us by Allah Almighty. It is therefore impermissible for one to sell, give or donate any organ of his body. Islam has forbidden suicide for the same reason. There are many texts of the Qur’an and Sunnah that clearly illustrate this. Thus, it will be unlawful for one to give his organs to another.

d) It is unlawful for an individual to inflict harm upon himself or others. The Messenger of Allah (Allah bless him & give him peace) said: “It is unlawful to inflict harm upon your self and others, (la dharar wa la dhirar)”. (Mustadrak of al-Hakim)

The famous principle states: “Harm can not be removed by a similar harm” (meaning, in order to remove harm from another individual, it is impermissible for one to harm himself)”. (Ibn Najaym, al-Ashbah, P. 123).

Therefore, it will be impermissible for a living person to donate a part of his body due to it being harmful for him.

e) The principle of Islamic jurisprudence states: “When the evidences of prohibition conflict with the evidences of permissibility, preference is given to prohibition”. (Ibn Nujaym, al-Ashbah wa al-Naza’ir).

In view of the above and other evidences, according to this group of scholars, it is unlawful to transplant organs, whether it be of a living person or a dead body, and whether there is a need or otherwise. In other words, there is no permissibility whatsoever for the transplantation or donation of organs.

2. Majaaz (permissible). a) The famous principles (qawa’id) of Islamic Jurisprudence based on the teachings of the Qur’an and Sunnah permit the use of unlawful things in cases of extreme need and necessity. In case of Necessity, certain prohibitions are waived, as when the life of a person is threatened the prohibition of eating carrion or drinking wine is suspended. Allah Most High says: “He (Allah) has only forbidden you dead meat, and blood, and the flesh of swine, and that on which any other name has been invoked besides that of Allah. But if one is forced by necessity, without wilful disobedience, nor transgressing due limits, then he is guiltless. For Allah is Most Forgiving and Most Merciful”. (Surah al-Baqarah,2:173)

b) With regards to the aspect of human sanctity, there are two things that need to be taken into consideration.

Firstly, it is true that a human body, whether dead or alive, is honoured and respected, but does the modern procedure violate this sanctity? Islam orders us to honour a human body but does not prescribe any fixed methods for it. What is meant by disgracing a human body may change from one time to another and from one place to another.

It could be said that the current procedure of organ transplantation is not considered dishonouring a human body. The surgery is performed in the most respectable way and it is not considered to be disrespectful. This is the reason why many highly respected people of the community regard donating of organs as a mark of merit, and they are not looked down upon.

Secondly, there are cases where Shariah overlooks the sanctity that is attributed to the body, such as in the case of saving another human.

It is stated in Tuhfat al-Fuqaha: “If a pregnant woman died and the child in her stomach is still alive, her stomach will be cut open in order to take the child out, for in there is saving the live of a human, thus the sanctity of a human body will be overlooked”. (Samarqandi, Tuhfat al-Fuqaha, 4/261 & Badai’i al-Sana’i).

This is also based on the juristic principle: “If one is confronted with two evils, one should choose the lesser of the two” (al-Ashbah wa al-Naza’ir).

c) As for a human not owning his body is concerned, Islam permits a human in certain situations to utilize his body. It is similar to the wealth which Allah Almighty has given a human, and he is permitted to utilize it (in a correct manner) and give it as a gift.

If an individual is drowning or is in the midst of a burning flame, it is totally permissible to go and save him. Similarly, it will be permissible to donate your organ in order to save the life of a fellow human being.

d) Almost all of the scholars give permission for the transfusion and donation of blood in cases of need and necessity (see below), then why is there a difference in the issue of organ transplant. The surgical procedure of transplantation ensures that one does not go thorough unnecessary mutilation of his body. It is similar to surgical treatment that is carried out on a living person for medication purposes.

In view of the above (according to this group of scholars), it will be permissible to transplant and donate organs in order to save another person’s life. However, this is subject to certain terms and conditions

If an honest Muslim doctor is convinced that the person (donor) will eventually die then the organ transplant can be conducted to others that really need it. This is based on 3 dalil:

i. life is better than death, ii. preserving the well-being and general welfare

of the Muslim ummah is decreed by the Syari’ah

iii. restoring one’s normal life is heartily encouraged by the Syari’ah

1. It is permissible for a living person to donate part of the body such as the kidneys to save the life of another, provided that the organ donated would not endanger the donor’s life and that it might help the recipient. The Prophet (S.A.W.) says, “Whoever helps a brother in difficulty, God will help him through his difficulties on the Day of Judgment.”

2. It is permissible to remove the organ of a dead person to be used to save the life of a sick person.

3. It is permissible for a person to donate his body or parts of it to be used after death to treat those who need transplants. So it is permissible for Muslims to carry a donor card.

4. In the absence of a donor card carried by the dead person it is sufficient to obtain the consent of the next of kin.

5. The proper authorities will act in lieu of relations if they are not known.

-hukum is majaaz-convince that cure will take place if operation has been done and there is no other alternative to save the patient.-this must be decided upon Muslim doctors

that are honest and reliable.

Dr. Yusuf Qaradhawi in his book Fattawa Mu’asarah said that “taking the organs from the dead does not deprive the honor and dignity of the dead. The honor is upheld without being interfered. The organ transplant that is being done on the dead is the same as the one being done on the alive person that is with care and dignity without touching upon the honor of the dead. Anyway, the hadith above is about breaking the bones of the dead and transplant does not involve this. The hadith is prohibiting from mutilating the dead body and altering the face as was done by the people of the past during wars.”

The sanctity of the dead body has to be respected and handled properly. It is allowable to perform any

organ transplant. This must be with the condition that the donor is proven to be dead by a specialist in the field. This is because the priority is given to the living.

An article entitled ‘Organ transplant, Islam, Fiqh, Fatwa, Ruling, Shari’ah - A Juristic ruling regarding organ transplant’1 was of a council which consists of scholars from all the major Muslim Schools of Law in Great Britain, together with three distinguished lawyers has considered the issue of organ transplant and resolved that: The medical profession is the proper authority to define the signs of death. Current medical knowledge considers brain death to be a proper definition of death. The Council accepts brain-stem death as constituting the end of life for the purpose of organ transplant. After trustworthy doctors certify that the brain stem has died organs needed to save others’ lives might be taken from the body, and then the life support machine may be switched off. The Council supports organ transplant as a means of alleviating pain or saving life on the basis of the rules of Shari’ah. Muslims may carry donor cards. The next of kin of a dead person, in the absence of a donor card or an expressed wish of the dead person to donate his organs, may give permission to obtain organs from the body to save other people’s lives.

1 Islamic Voice volume 12-08 No:140, August 1998

Principles of Islamic Jurisprudence states that: A person has the legal authority over his own body, as he can hire himself for work which might be difficult or exhausting. He may also volunteer for war which may expose him to death. A person is forbidden from harming himself or others (It is not legitimate in Islam to inflict harm on others or to suffer harm from them - Hadith)2. In case of necessity, certain prohibitions are lessened as when the life of a person is threatened and when confronted with two evils a person is permitted to choose the lesser of the two.

Thus, the general rulings on organ transplant are as follows:

1. It is permissible for a living person to donate part of the body such as the kidneys to save the life of another, provided that the organ donated would not endanger the donor’s life and that it might help the recipient. The Prophet (S.A.W.) says, “Whoever helps a brother in difficulty, God will help him through his difficulties on the Day of Judgement.”3

2. It is permissible to remove the organ of a dead person to be used to save the life of a sick person.

3. It is permissible for a person to donate his body or parts of it to be used after death to treat those who

2 3

need transplants. So it is permissible for Muslims to carry a donor card.

4. In the absence of a donor card carried by the dead person it is sufficient to obtain the consent of the next of kin.

5. The proper authorities will act in lieu of relations if they are not known.

Sheikh Al-Salami mentioned that there is no difference between the body of a Muslim and non-Muslim as narrated by Jabir bin Abdullah r.a.: A funeral possession passed in front of us and the Prophet s.a.w. stood up and we too stood up. We said, “O Allah’s Messnger, this is the funereal possession of a Jew.” He said, “Is it not a human soul?”4

Therefore, it is not permissible to purchase from a living Indian or Sikh a kidney because the principle of purchasing a human part is originally rejected. Purchase and sale of human body are not permissible because the body is owned by Allah.

Islam acknowledges the fact that Allah SWT is the owner of all things. Thus in the issue that the permission of the dead person's relatives are needed also differs. Some Islamic states such as Saudi Arabia require the permission of the relatives even though the deceased has approved in his lifetime. Other fatwa 4 related by Bukhari

state that permission from the relatives is not needed since lives are very much needed to be saved “Whosoever kills any person without another soul being involved or for causing corruption in the earth, it shall be as if he had killed all mankind and whosoever saves the life of one it shall be as if he had saved the life of all mankind.”5

Most of the jurists have only allowed the donation of the organs. They do not allow the sale of human organs. This is so since the sale of human organs violates the dignity and honor of the human being, thus which would be prohibited (haram). The Juristic rule says that what is permitted for sale is also permitted for a gift, but not vice versa. There are so many things which can be donated, but not sold. For instance, in the case of objects of unknown ownership, it is permissible to grant them, but not sell. Offering organs is not gifting, but donation. Donation has a broader sense than gifting as it involves gifting, almsgiving, charity, and self-denial. Islam highly recommends charity and altruism. The Islamic Shariah facilitates donation as it consolidates links and enhances ties among people, whereas sale is based upon bargain and cleverness.

Animal to human transplant

5 5:32

This can be done solely for the purpose of saving a life. The Islamic Fiqh Academy of the World Muslim League, Makkah, Saudi Arabia6, resolved that the Shariah sanctions the retrieval of animal organs from halal (pure and wholesome) animals which have been slaughtered according to Islamic rites for transplantation into humans.

The Majlis al-‘Ulama’ of Port Elizabeth, South Africa, stated that: it is permissible to transplant animal organs into humans to save a life or to improve the quality of life. This permissibility is based on the following conditions:

a) the organs must be only that of halal animals, i.e. such animals the consumption of which is halal for Muslims

b)the halal animals from which organs are acquired must be Islamically slaughtered, i.e. dhabh must be effected.

Pig to human transplant

“Assuredly Allah did not provide a cure for you in what He has prohibited for you.”7

The Hadith of the Prophet SAW:

6 8th working session on 19 to 28 January 19857 Related by Bukhari

“ Allah created the disease and also the cure and for every disease He has provided a cure. So treat yourself with medicines, but do not treat yourself with prohibited things.”8

Majlis al-‘Ulama’ of Port Elizabeth state that since pig and all its parts are considered to be grossly impure (najasat al-ghalizah), thus it is forbidden to derive any benefit from them even be it on medical grounds or whatever.

Some scholars rules that it is permissible to as stated in the Qur’an “He hath only forbidden you dead meat, and blood, and the flesh of swine, and that on which any other name hath been invoked besides that of Allah. But if one is forced b necessity, without willful disobedience, nor transgressing due limits, then he is guiltless. For Allah is Oft-forgiving Most Merciful.”9 on the ground that it is a necessity (darurah) such as resolution held by the Islamic Fiqh academy of the world Muslim League, Makkah, Saudi Arabia.

Islamic Fiqh of India also allows taking organs from animals whose meat is forbidden to consume or those that are slaughtered but not through Islamic rites. However, it must be upon the presence of two conditions. Firstly, there is no alternative procedure available and secondly, life of the recipient is in

8 Sunan Abi da’ud, kitab al-Jana’iz, hadith no. 3207, vol 2, pp.212-2139 2:173

jeopardy or his organ is in danger of being irreversibly damaged.

Islamic principle of necessity renders the forbidden permissible when there is non-availability of any other pure substitute.

Sale of Organs

As far as this topic is concerned, Muslim scholars concur that such sale would be deemed batil based on the following:

i. a person cannot trade in something that is not his

ii. A hadith which states that:“Amongst those who would be held accountable on the last day is one who sold a freeman and ate up the proceeds”10

The body of a person, living or dead- belongs to

Allah SWT alone. It follows, that therefore, no one, and not even one’s progeny, has a right to sell, donate or dispose of another person’s body (organs included) except in the manner prescribed by Islam, that is, by proper burying of the deceased.

iii. such a practise would lead to abuse in the sense that it could result in the poor man’s

10 Ibn Majah, Abu ‘Abd Allah Muhammad bin Yazid. Sunan Ibn Majah. Beirut. Dar al-Ihya’ al-Kutub al-‘Arabiyyah, n.d. “Kitab al-Ruhun. Hadith no 4, vol 2, p. 816

organs being sold in the market like any other commodity.

Non Muslims Organs

The permissibility for Muslims to receive the organs of a non-muslims is based on the following consideration:

i. no organs are available from Muslimsii. a Muslim’s life would be in danger should the

transplantation not be carried out.

In order to circumvent the problem of Muslims becoming the recipient of non-Muslim organs, some of the contemporary Muslim jurists are of the opinion that a Muslim’s gesture in donating any of his organs to be fard al kifayah11

Summary:

One may follow any of the above two viewpoints, as they are both from great scholars of Islam. If one acts on the view of permissibility, then it would be advisable, as a precautionary measure, to seek 11 Fatwa issued to Islamic Medical Association of South Africa by Dar al-‘Ifta’, Riyadh, Saudi Arabia, p. 15.

forgiveness from Allah (istighfar) and donate something in charity.

And Allah knows best