The Critique on Inadequate Legislation for Organ Transplant in Pakistan

8/9/2019 The Critique on Inadequate Legislation for Organ Transplant in Pakistan

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Critique on Inadequate Legislation for Organ Transplant in Pakistan

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Executive Summary

The show must go on Keeping this in mind, an attempt to further the cause of the

betterment of life in general, Organ transplantation has been a solution brought about by

medical researchers and practitioners from across the world, however, due to the legal,

ethical, moral and religious implications of this issue, more than a solution it has arisen

questions about its impact, legalization and abuse. There are some cases cited on this issue

that shows us the gravity of the need for proper legislation.

This report is focused on suggestions for framing an act pertinent to the issue of organ

transplant in Pakistan as it does not have one up till now. The Islamic viewpoints of several

Ulemas are taken into account and many of the critical issues with the terminologies are

discussed. Moreover, the legislation followed in different parts of the Islamic Ummah such

as Kuwait, Egypt and Saudi Arabia are studied and compared with laws in other Non-

Islamic jurisdictions such as Singapore and United Kingdom.

Since United Kingdom has had a lead in having laws about this issue, weve tried to

critically analyze the Human Organ Transplant Act and Human Tissue Act with a view to

implementing it in our society. Finally, we conclude this report by compiling our entire

research; and we have based our suggestions for an Organ Transplantation Act in Pakistan.


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Introduction

Laws grind the poor, and rich men rule the law.

-GOLDSMITH, the traveler

The quote is very true about developing countries in particular and the world in general. Theissue discussed in this critique is the one in which poor are already being exploited by therich thus the focus should be to provide benefit to the exploited.

Be you never so high, the law is above you.-THOMASFULLER

This critique rather than criticizing a law that exists aims to analyze and suggest points thatmight lead to legalizing organ transplant in Pakistan. Organ transplant and its implicationsare vast and diverse. Because of the development in medical sciences several issues haveemerged which need to be tested on ethical, moral and religious standards beforeincorporating them into a legal framework. Therefore, this critique addresses the followingissues:

1. Why do we need to legalize Organ Transplant?2. What are the key problems that should be addressed according to Islam while

legalizing this issue?

3. What laws have been passed on this issue in other Islamic and non-Islamicjurisdictions in different parts of the world?

4. Defining key terms according to our religious, moral and ethical systems.5. What changes need to be made in Human Organ Transplant Act 1989 and Human

Tissue Act of Great Britain so that it or some form of it can be implemented inPakistan as soon as possible? (British Laws are taken as a base since we are acommon wealth nation)

6. Decided cases in foreign jurisdictions on the basis of their laws.


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Why should we Legalize this Issue?Given below are few cases which are sufficient to answer this question

Khaled Ali, a 20-year-old student at the Faculty of Education, has been suffering fromrenal failure for two years. His doctors say he must receive a kidney transplant. "I justcan't spend four hours in dialysis three times a week for the rest of my life. It's time-consuming and makes it impossible to live a normal life. I'm young and I need to work,get married and live my life normally," Ali says in despair. (Source: Al-AhramWeekly)

If the above case is not sufficient to clarify consider the following mistreatment of humanity(taken from The Tribune)

1. Chuni Lal, who belongs to Faizabad district of UP, landed in Amritsar in search ofa job some 25 years ago. He began selling tea on the roadside in the Company Bagharea. "I lived in Jagdamba Colony and whatever I earned from making tea, I used ingambling. I used to fill pouches of blood from people and sell them. Raju, the bloodtechnician at Guru Nanak Hospital, would collect these pouches from me. Thosewho sold blood would be paid Rs 230 by Raju, and I would get Rs 50 for eachperson." Chuni Lal even sold his own blood to Raju, whenever he needed money. Hesays he has drawn 500 to 600 pouches of blood from his own body.

As per the police investigation, his tea-stall became an adda for kidney racketeerswho lured unsuspecting young boys or poor people to sell their kidneys. Chuni Lalwas the co-conspirator in such deals. Several people reportedly died during kidneyextraction and he cremated these bodies as unclaimed in Durgiana Temple. As perthe temple records his name comes at least 20 times. However, during policeinterrogation, Chuni Lal confessed that he had performed scores of such cremations.He even used to keep a record in a notebook of all the people who came to sell theirblood to him.

2. The case study of Raju of Moradabad is hair-raising. He was forced to leave hiswidowed mother and young sister back in the village in search of a job. When hearrived at Delhi railway station, he was befriended by one Salim. "He persuaded meto sell one of my kidneys for Rs 50,000. I got carried away, as I badly needed moneyto support my mother and sister. I was brought to Amritsar. Here, in KakkarHospital, one Dr Jayant operated upon me. In the first operation, my kidney couldnot be taken out. So, immediately the second operation was also conducted upon me.

That is why this huge line of stitches on my body. The recipient of my kidney was a policeman, C B Pandey, from Nepal. After the operation, when I regained myconsciousness, I was lying in a hospital with no money and no medicines. He is atpresent in jail.

3. Prosecution on organ selling over the internet:


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A British woman may be the first citizen to face prosecution under the country's HumanOrgan Transplants Act of 1989, which prohibits the sale or solicitation of any organ withinthe country. Last month, to pay off her legal debts, the woman closed a deal over theInternet to sell her kidney for $50,000 to an American.

These cases though happened in a foreign jurisdiction but are still an eye opener. Similarcases are abundant in Pakistan. With organ selling rampant, entire villages have populationsthat have only one kidney (source: SIUT). These cases show us an immediate need tolegislate and implement organ transplant laws in true letter and spirit as soon as possible.


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Parameters of this Critique

Taking into consideration the vastness of this issue we have tried to narrow down the topicby taking only those kinds of transplants that are done through live and dead donors, otherssuch as developing organs from aborted fetuses, developing organs from stem cells andother genetic techniques have not been accounted for. We will not be discussing issuesrelated to blood transfusion as blood is regarded by some as an organ. The basis of thiscritique is, as mentioned above, the Human Organ Transplant Act (referred to as HOTA)1989 and sections 32, 33, 34 of the Human Tissue Act 2004 of Great Britain (attached in theappendix).

Special Legal and Ethical ProblemsLegal Aspects

In most countries, the law on organ transplantation is poorly defined, as legislation has not

yet been created to cope with this advance in surgery. The existing framework relating to physical assault and care of the dead has no provision for organ transplantation. It iscustomary to ask the permission of the relatives, but, because organ removal must take placeimmediately after death, it may be impossible to reach the relatives in time. It has beensuggested that there should be a widespread campaign to encourage persons to provide intheir wills that their organs be used for transplantation. An alternative is to provide by lawthat permission is assumed unless removal has been forbidden by the individual in hislifetime. Such laws have been passed in Denmark, France, Sweden, Austria, and Israel.Compulsory postmortem examination, a far more extensive procedure than organ removalfor grafting, is required in most countries after unexpected death, and this compulsion is nota matter of public concern and debate.

There would seem to be no reason why organ removal for transplantation purposes shouldnot also be acceptable to public opinion, provided there is a mechanism by whichindividuals in their lifetime can refuse this permission. This, of course, requires an efficientregister of those who indicate their refusal; the register would be consulted before anyorgans would be removed. It is important that there be public reassurance thatconsiderations of transplantation would not impair normal resuscitative efforts of thepotential donor.

Ethical Considerations

Defining Death

Transplantation has obviously raised important ethical considerations concerning thediagnosis of death of potential donors, and, particularly, how far resuscitation should becontinued. Every effort must be made to restore the heartbeat to someone who has had asudden cardiac arrest or breathing to someone who cannot breathe. Artificial respiration andmassage of the heart, the standard methods of resuscitation, are continued until it is clear


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that the brain is dead. Most physicians consider that beyond this point, efforts atresuscitation are useless.

In many countries, the question of how to diagnose brain deaththat is, irreversibledestruction of the brainhas been debated by neurologists and other medical specialists.

Most of these experts agree that when the brain stem is destroyed there can be no recovery.The brain stem controls the vital function of breathing and the reflexes of the eyes and ears,and it transmits all information between the brain and the rest of the body. Most countrieshave established strict guidelines for how brain-stem death is to be diagnosed and whatcases are to be excludedfor example, patients who have been poisoned, have been givendrugs, or have developed hypothermia. The neurological signs of brain-stem death must beelicited by a trained clinician who is not concerned directly with the transplant operation.These signs are re-verified after an interval, and, if there is the slightest doubt, further re-verifications are made until the criteria are unequivocally met. The guidelines are notseriously disputed, and there has never been a recovery in a case that fulfilled the criteria ofbrain-stem death.


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Issues to be Addressed According to Islam

Due to quantum leaps made by medical science in the field of genetics and surgery severalreligious issues have arisen and organ transplant is one of the oldest ones and have been abone of contention in many Muslim countries for the past two decades. Following are thequestions that need to be addressed:

1. Is it allowed to remove an organ from the body of a living person and transplant itinto the body of a sick person whose life depends on it?

2. Is it permissible to remove an organ from the body of a dead person to be used tosave the life of a living person?

3. Is a person allowed to donate his body or part of it to be used after his death insaving the life of other people?

4. Does Islam recognize the new definition of death that is brain stem death?5. If it does, is it permissible to remove from brain stem dead persons, organs for

transplant while there are signs of body functions like heart beat temperature andbreathing?

These questions have been discussed by religious scholars for many years and acomprehensive article by Mufti Muhammad Ibn Adam, Darul Iftaa, Leicester UK (attachedin the appendix) explains the first three questions in detail.The article discusses this issue on two basis permissibility and prohibition giving relevantcitations from the Holy Quran and the view points of different schools of thought.

y View of Impermissibility or ProhibitionThe proponents of this view justify it on the basis of the following grounds:

i. Allah Almighty has honored human beings and a human body is sacred andmust not be tempered with. Muslim jurists have stated that in case of extremenecessity when no other option is available, even unlawful things becomeavailable but consuming or deriving benefit from human body even undersuch a condition still remains unlawful.

ii. The cutting of and tampering with a human body amounts to mutilation anddeformation of a divinely created body (muthla), which has clearly beenprohibited in Shariah

iii. The human body and parts are not in our ownership in that we may fiddlewith them as we desire

iv. It is unlawful for an individual to inflict harm upon himself or others


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If however the person is helpedby massage of the heart (CPR) or through the use of electric

shock (defibrillation) within four or five minutes the heart may restart.

Based on the above the medical profession concludes that life ceases as a result ofbrainstem death.

The Muslim law council of UK has decided that the death of brain stem cells results in thedeath of a person. Following are the decisions formed by the above mentioned council in thelight of its discussions with doctors and specialists:

If the heart stops beating it can be restarted through massaging (CPR) and electric shockswith in four or five minutes. However, after the death of brain stem it is not possible torevive it (with present technology) and if there is certain movement is left it cannot beconsidered as a sign of life because even after being hanged or beheading person continues

to have a pulse and there are some signs of life.

To conclude this discussion on Islamic permissibility of organ transplant we must look atlaws in other jurisdictions both Islamic and non Islamic which are followed in the nextsection.


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Laws and Fatwas in other Islamic Jurisdictions

Several Muslim countries are ahead of Pakistan as far as legislation of organ transplant lawsis concerned.

Kuwait

Law no. 7 of 1983 is the law that regulates kidney transplant operations in Kuwait. This lawallows the transplant of donated kidneys as long as it does not cause detriment to the life ofthe donor.

In Kuwait, the sale of human organs is allowed in strict legal sense as long as it is done by acontract and follows all the Kuwaiti civil code which governs the contracts of sale. TheKuwaiti civil code does not explicitly state anything about this type of contract. But for thecontract to be lawful, the general rules that govern the contract of sale state that for anycontract to be valid the subject and the reason of contract should be both lawful. The subjectis the organ being sold which is impermissible in under most conditions in Islamic shariawhich is the source of civil legislation in Kuwait. So to conclude, if two persons enter intosuch a contract it is illegal and impermissible.

However, if the sharia permits, in case of dire necessity and such selling of organs in thatspecific case becomes permissible in sharia than this contract follows the same rules as thecontract of sale in accordance with the Kuwaiti civil code.

This dispute was resolved by a fatwa by AD HOC ADMINISTRATION OF THE MINISTRY OFWAQFS AND ISLAMIC AFFAIRS which passed fatwa no. 455/85 on the sale of human organs.This fatwa states that

As for the patient's purchase ofa kidney from another person, the rule is that such act is

impermissible, because Allah has honored man, so it is not permitted to cut some of his

organs and sell them atany price, whatsoever, but if the patient does not finda donor togive him his kidney, and his life is endangered, while he cannot findany other means to cure

his illness, then purchase of organs is permissible, because the patient, then, is driven by adire necessity. Allah, highly, exaltedbe He, says:

WHILEHEHATHSURELYDETAILED UNTO YOU THAT WHICH HEHATHFORBIDDENYOU, UNLESSYEAREDRIVEN THERETO.

That is without prejudice to the conditions already referred to in the case of donation, that

taking the organ does not lead to the death or disability of donor, and that donation shouldbe made with donor's full consent, also that he shouldbe an adultand ofage, andalso that

safety is the greater probability after removal of organ. Whereas the one who donatesmoney to the person, whose life is threatenedby death, and who wants to purchase a kidney

to preserve this person's life who is in need of financial help, the committee holds the view


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that financial donation is permissible, and the one who gives him help shallbe rewarded

and, Allah does not waste away the reward of the beneficent ...Allah is the Omniscient.

(Source: Medical Jurisprudence Third Symposium on "The Islamic Vision of Some MedicalPractices" Held from 18-21 April, 1987 A.D. SALE OF HUMAN ORGANS IN THE

BALANCE OF LEGITIMACY by Mr. Muhammad Yehia Ahmad Abul-Fotouh, LegalAdvisor, Ministry of public Health, Kuwait)

This statement clearly states that sale of organs is impermissible, though donation is not, incase of dire need and no donor being found a contract of sale is allowed which should notharm the donor of the organ in any case and a fair price should be paid for it.

Critique of Kuwaits Law

Several flaws can be found in these arguments:

1. What is the method of determining the dire necessity which makes a contract ofsale legal? As every person needing an organ transplant is in dire need of it.

2. Doesnt this provision make a useful tool for oil rich sheiks to exploit the needy?Exploitation of the poor is done by rich Arabs in countries like Pakistan,Bangladesh, India and Sri Lanka.

3. Who and how will the fair price if the organ be determined?4. Is this law applicable to Kuwaiti nationals who purchase organs from abroad, South

Asia to be specific, as they are the major reasons for organ trafficking?

Egypt

There are no transplant laws in Egypt except a law that legalizes cornea transplant. Twodraft laws were presented to the parliament one by the ministry of health and other by MPMamdouh Fouda and Mansoura University professors A heated debate has marked the twobills since their inception, however. The definition of clinical death is the largest bone ofcontention among religious scholars and medical doctors. The committee, along withseveral religious scholars, is now in the process of studying the draft laws, and will preparea final draft to be publicly discussed by parliament.

Though no law on any other organ transplant (except cornea) exists in Egypt fatwas havebeen given by the grand mufti of Egypt on this issue. Sheikh Hassan Mamun (The GrandMufti of Egypt) sanctioned corneal transplants from cadavers of unidentified persons and

from those who agree to donate after their death (No. 1087, April 14th, 1959; ibid., p.2552).His successor, Sheikh Huraidi extended the fatwa to other organs in 1966 (No. 993; ibid.,vol 6, pp.2278 82).

Sheikh Khatir, then Grand Mufti of Egypt, issued a fatwa allowing harvesting of skin fromunidentified corpses in 1973 (ibid., vol. 7, 2505 7).


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Grand Mufti Jad al-Haq sanctioned donation of organs from the living provided no harm isdone and provided the gift is made freely in good faith, for the sake of God and care ofmankind. He also sanctioned taking organs from cadavers provided there is a legal testamentor consent of the relatives. In case of unidentified corpses, an order from the Magistrateshould be obtained prior to harvesting organs (No. 1323, December 5, 1979; ibid., vol.10,

pp. 3702 15).

(Source: Islamic voice, monthly, Vol. 12-07 No: 139)

Saudi Arabia

Saudi Arabia has legalized the organ transplants and the first ever uterus transplant wasperformed in the kingdom successfully.

Surgeons in Saudi Arabia have performed the first human uterus transplant, an operation

that many doctors had considered too technically challenging foranyone to attemptand one

that some stillbelieve is not ethically justifiable.

Complications forced surgeons to remove the organ 99 days after the transplant. Butdoctors characterized the operation as essentially successful

(Source: By RickWeissWashington Post StaffWriter Thursday, March 7, 2002)

Saudi ulemas have long approved organ transplant through fatwas given on differentoccasions. The Saudi Grand Ulema Fatwa No. 99, 1982 addressed the subject of auto grafts(a tissue or organ that is transplanted from one part to another of the same body) which wereunanimously sanctioned. It also sanctioned, by majority, donation of organs both by the

living and by the dead by legal testament or consent of relatives (Majallat al-Majma, 1987,vol.1, p.37).

The subject of brain death was not addressed in any of these fatwas but discussed for thefirst time in the Second International Conference of Islamic Jurists held in Jeddah, in 1985. No decree was passed then, until further studies and consultations had been done. In theThird International Conference of Islamic Jurists held in Amman in 1986, the historicalResolution No.5 was passed by majority, which equated brain death to cardiac andrespiratory death (Jeddah Fiqh Academy, 11988, p.34). This 1986 decree paved the way forextension of organ transplant projects previously limited to living donors. Campaigns fororgan donations from brain dead persons were launched both in Saudi Arabia and Kuwait.

The Islamic League conference of Jurists, (Makkah, December 1987) decree No.2, 10thSession, did not equate cardiac death with brain death. In fact it did not recognise braindeath as death. However, it sanctioned all the previous fatwas on organ transplantation. Thisdecree has received little attention in the media, and the authorities in Saudi Arabia seem toignore it. Cardiac and kidney transplants from brain dead individuals continue without anyhindrance from the jurists.


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The most detailed fatwa on organ transplantation was that of the Fourth InternationalConference of Islamic jurists held in Jeddah, February 1988 (Resolution No.1). It endorsedall previous fatwas on organ transplantation, clearly rejecting any trading or trafficking inorgans and stressed the principle of altruism.ibid, pp.558).

(Source: Islamic voice, monthly, Vol. 12-07 No: 139)


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Laws and Fatwas in Non Muslim Jurisdictions

Almost all non Muslim countries have passed laws to legalize organ transplant keeping inview the disastrous affects of not legalizing the issue and rampant practice of human organtrafficking which is still going on in many countries including Pakistan.

Singapore

Singapore has legalized organ transplant and made it compulsory for all non Muslimsthough it has given several leverages to Muslims of Singapore. The fatwa committee ofSingapore has given its verdict on the issue. According to the fatwa issued by the FatwaCommittee of the Islamic Religious Council of Singapore (MUIS), kidney donation andtransplantation are allowed by sharia, on the basis of emergency (saving of lives). The fatwais known by Muslims around the world because it has been issued by many fatwainstitutions in the Islamic countries such as Lujnah Fatwa Al-Azhar, Darul Ifta' (Egypt),

Darul Ifta' (Saudi Arabia), Fatwa Committees of States (Malaysia) and Fatwa Committeesof other Muslim countries. However, all the ulema agree that the kidney transplantprocedure has to be properly administered and must not go against the tenets of Islam.

The Singaporean HOTA 1987 is in accordance with the above mentioned fatwa and focuseson simplifying the issue for Muslims. A law has been proposed for the Muslims whichallows the kidneys of Muslim Singaporeans and Permanent Residents between the ages of21 and 60 to be removed upon death caused by accidents, unless they have opted out of thelaw (in writing) during their lifetime. The kidneys are removed for the purpose oftransplantation to save the lives of kidney failure patients. However, the consent of the twowaris must be obtained prior to the removal of the kidneys.

(Source: MKAC - Muslim Kidney Action Committee)

United Kingdom

In United Kingdom two laws govern this issue

1. Human Organ Transplant Act 19892. Human Tissue Act 2004y Human Organ Transplant Act 1989

The Human Organ Transplant Act of 1989 is a miniature act considering the intensity,urgency and whole wide range of issues that are to be addressed under the act. Among theseven sections outlined in the act, just five of them talks about the matters concerning theissue itself while the rest are more of judicial requirements i.e. the jurisdiction and the title.It is surprising that the legislators overlooked pretty serious matters of grave intensity whiledrafting the Act.


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The Act basically prohibits commercial dealings in human organs intended for transplantingand it restricts the transplanting of such organs between persons who are not geneticallyrelated; and other related supplementary matters.

At first we should analyze what is the simplistic jest of the various sections in the act.

The first sections essentially talks about the prohibition of commercial dealings in humanorgans. The Act further puts restrictions on the source of organs i.e. restriction ontransplants between persons not genetically related. While the third section concerns aboutinformation to be recorded regarding the transplant operations; it is followed by the sectionabout offence by the corporate bodies and finally by prosecution. The last two concerns forNorthern Ireland and the title and the name of the Act respectively.

The first section affectively forbade the trade of human organs for money. A trulyhumanitarian need should not be put on the test of money. It opens the rays of hope for thedestitute to which the treatment should be same regardless of the monetary value of theirlives. A lord and a commoner are put in the same shoes concerning the organ transplant

according to the spirit of the section 1. It also address to the obvious cost of transplant suchas removing, transporting and preserving the organ. Moreover, there are also effectiverestrictions on advertisement for buying or selling of organs. Even contacting others so as toinduce someone in order to intimate him by money to sell his organ is also prohibited.

However, the loophole which probably would defy all the above prohibitions andrestrictions of exchange of money for organs comes in the subsection 3(b), which states any expenses or loss of earnings incurred by a person so far as reasonably and directlyattributable to his supplying an organ from his body, is allowed. This would negate thewhole purpose of restrictions on getting money for the supply of organ. The person who issupplying the organ as an article of trade would present his case that he is justifying

receiving money as a compensation for giving the organ.

Another serious flaw of this section is that it puts the whole burden on the person in need ofthe organ, as mentioned in the various subsections and clauses of the section1. It is not awitty assumption that a person may give advertisement for the availability of an organ.In the section it is also prohibited for an unincorporated body or a corporation to enter in thebusiness of organ transplant. This clause is very vague. One should try to understand that anintermediary is required in the case of donation of an organ whose need may not be in thesame vicinity as of the donor. Does the clause prohibit only the businesses which do such anact for money or does the clause also prohibits the non profit organizations in facilitating theprocedure of organ transplant?

Though the law itself admits the practice of indulging in the trade of organs and profiting onthe humanitarian needs as an offence of great magnitude but the penalty offered to such profiteers does not match their heinous crimes. A penalty of imprisonment up to threemonths or a fine does not match the agony of the patients who suffer either from forceddonation of organs and unavailability of organs due of insufficient funds.


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The section 2 holds guilty of an offence if a person removes the organ from living personand transplants to another if the persons are not genetically related. The subsection 2 defineswho would constitute genetically related people. This provision helps to curtail illegal business in the human organs. Moreover, it is medically preferred if the donor is a closerelative since it carries a greater chance of a successful transplant.

The subsection 3 overrides the prohibition of usage of organs of unrelated persons, by thediscretion of superior authority of Secretary of State. The secretary of State would alsoreimburse the money to meet the cost of the authority. In addition there is a proviso forformulating regulations concerning payment in exchange of organ and the waiver of therestriction on organs from relatives.

The section though instructs the usage of organs that the relatives of the person in need provide, but the exception where the rule could be overruled as mentioned in the aboveparagraph is very convoluted. The role of the authority is not mentioned anywhere in thissubsection save where the Secretary of State reimburses it for the costs incurred. But the

where does the costs incur? Similarly, the role of the Secretary of State is very confusingand uncomprehending. Over that the subsection 7 gives the power of forming regulationsconcerning the exceptions to the rules in the section 2, is also baffling. One could notunderstand why the respected lawmakers did not provide regulations and rules at the time ofdrafting the Act. This not only provides excuse for the offenders but it also show theweakness of the Act.

The person in this section is guilty if he removes organs from one person and/ or transplantsit to another person who is not related genetically. The question arises here who would bethat person?Would he be the doctor and surgeon; and if they then will it end there or wouldit encompass all those who supported in the operation such as nurses and support staff.

Similarly, what if an organ is removed from a dead person, will there be any punishment?According to the section 3 it would not constitute as an offence.

The section 3 provides regulation for information about the transplants. The Secretary ofState may through regulation require reporting all matters concerning the organ transplants.The regulation would come into force after the prior approval from the parliament. Thesection also provides penalties and imprisonment for negligence in reporting or misleadinginformation.

Again it is amusing that there is a section in the meager Act which provides power to theSecretary of State to form regulations. But what a power that he has to get it approved from

the parliament.

The section 4 is about the offences by body corporate Interestingly it would be consideredas an offence on the behalf of the concerned management of the corporation if somethingconstitutes as an offence under this Act. Does it make sense except making the Act verbose!The section 1 had already taken account the offence on the account of corporations.Moreover the punishments for the offence is also not specified which makes the section 4more of a piece of information in itself rather than a law.


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Section 5 provides the authority by which someone tried under the Act would be trialed. Itshows that there is hesitance on part of the judiciary to put the on trial under this act, whichwould result in delaying justice.

The parliament should reconsider the Act and make amendments and insert additionalsections which are concerning more of a current issues and problems. The original Act notonly shows lack of motivation but also unawareness on the issues and problems related tothe Human Organ transplantation. If proper and thorough legislation is not drafted andenforced, which not only addresses the issues and problems whether ethical, social, moral orreligious, and have provisions for future breakthroughs, the gross irregularities in this sectorand unethical and immoral practices would continue unabated.

y Human Tissue Act 2004Only three of the relevant sections from the Human Tissue Act (HTA) are taken relating to

Organ Transplant. Starting with section 32 which talks the prohibition of commercialdealings in human materials for transplantation, this is a very general section practically prohibiting any sale or attempts to sell, any purchase or attempts to purchase humanmaterial by any person. Sub-section 2 even prohibits publishing advertisements with suchoffers by anyone. However, strange is sub-section 3, which negates all the emphasis build-up by allowing a person designated by the authority to engage in all the prohibitions in theprevious two sub-sections. This goes to show the bias within the law, which probably can beused as per the whims of the rich and powerful people and would suppress the poor underthe earlier sub-sections.

The remaining sub-sections deal with penalties imposed and instances where payment of

money or moneys worth would not be considered a reward under this section. Also, thesection ends with various definitions, which are in fact needed to understand the section inthe proper light.

Section 33 deals with restrictions on transplants involving a live donor. This sectionprohibits the dealing in human organs of living persons. Here again, however, the Secretaryof State is given enormous powers to allow the transplantations in certain exceptions. Thispower might be misused favoring some privileged on the expense of the deserving.

Section 34 talks about the information about transplant operations. There are various sub-sections dealing with the true declaration of the statements regarding the person donating an

organ under section 33. Of crucial importance is sub-section 3 where emphasis is onkeeping records of all such materials donated and the persons involved.

Critically speaking, these sections touch on the issue of organ transplantation albeit they donot constitute a comprehensive legislation covering different aspects of this issue.


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y In negation to HTA, in Pakistan, living donor transplant should be allowed, forinstance, a person should be allowed to donate one of the kidneys while he staysalive with only one kidney. Also, as per the HOTA, organ transplant should berestricted to genetically related people. This would in turn help with countering theissue of organ trafficking.

y As in Singapore, the system of donor cards can also be introduced in Pakistan wherea person by virtue of having registered has a donor card, which would lead to getting precedence over other individuals in case he needs an organ. The two issues withthis system would be whether the organs of the persons be allowed to be taken outand stored in organ banks and if so, whether these organs can be used fortransplantation in other people, after already imposing the restriction on genetically-related organ donation.

y Cloning is a field where developments have been quite fast-paced and organdevelopment from embryos is now no more a myth but a reality. In the future,

Pakistan would also be facing critical decision-making points regarding this newdevelopments acceptability. Thus, the legislation should have a provision, at leaststating the timeframe for making the appropriate laws as the prospect would demandin the future.

y One more issue getting common is cyber donations and dealings over the internet.The most important role of the legislation here is the need to outline the jurisdictionsapplied and possibly chalk out various provisions in collaboration with othercountries, otherwise it would be difficult to impose laws and making of such lawswould serve no purpose.

Conclusion

To conclude, law on organ transplant must be passed and implemented as soon as possibleand it should cover the issue in its entirety. However, formation is only half job done, to prevent rampant practices of trafficking and abuses the law needs to be implemented inletter and spirit. The parliament should keep on debating on the issue and modifications bemade as soon as a new discovery is made in this regard.

The execution of the laws is more important than the making of them.THOMASJEFFERSON


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Appendix


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TTaabbllee ooffCCoonntteennttss

SSNNoo.. TTOOPPIICC PPAAGGEE

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1. Human Organ Transplant Act 1989 1

2. Human Tissue Act 2004 (Sections 32, 33,

34)

6

3. Is organ donation permissible?

Answered by Mufti Muhammad ibn Adam,

Darul Iftaa (Leicester, UK)

11

4. Organ Transplant

By: Dr. Zaki Badawi

20


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Human Organ Transplants Act 1989

An Act to prohibit commercial dealings in human organs intended for transplanting; torestrict the transplanting of such organs between persons who are not genetically related;and for supplementary purposes connected with those matters.

[27th July 1989]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent ofthe Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, andby the authority of the same, as follows:

Section 1.(1) A person is guilty of an offence if in Great Britain he(a) makes or receives any payment for the supply of, or for an offer to supply, an

organ which has been or is to be removed from a dead or living person and isintended to be transplanted into another person whether in Great Britain orelsewhere;(b) seeks to find a person willing to supply for payment such an organ as is

mentioned in paragraph (a) above or offers to supply such an organ for payment;(c) initiates or negotiates any arrangement involving the making of any payment for

the supply of, or for an offer to supply, such an organ; or(d) takes part in the management or control of a body of persons corporate or

unincorporate whose activities consist of or include the initiation or negotiation ofsuch arrangements.

(2)Without prejudice to paragraph (b) of subsection (1) above, a person is guilty of anoffence if he causes to be published or distributed, or knowingly publishes or distributes, inGreat Britain an advertisement

(a) inviting persons to supply for payment any such organs as are mentioned inparagraph (a) of that subsection or offering to supply any such organs for payment;or(b) indicating that the advertiser is willing to initiate or negotiate any such

arrangement as is mentioned in paragraph (c) of that subsection.(3) In this section "payment" means payment in money or money's worth but does not

include any payment for defraying or reimbursing(a) the cost of removing, transporting or preserving the organ to be supplied; or(b) any expenses or loss of earnings incurred by a person so far as reasonably and

directly attributable to his supplying an organ from his body.(4) In this section "advertisement" includes any form of advertising whether to the public

generally, to any section of the public or individually to selected persons.

(5) A person guilty of an offence under subsection (1) above is liable on summaryconviction to imprisonment for a term not exceeding three months or a fine not exceedinglevel 5 on the standard scale or both; and a person guilty of an offence under subsection (2)above is liable on summary conviction to a fine not exceeding level 5 on that scale.


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Section 2.(1) Subject to subsection (3) below, a person is guilty of an offence if in GreatBritain he

(a) removes from a living person an organ intended to be transplanted into anotherperson; or

(b) transplants an organ removed from a living person into another person,

unless the person into whom the organ is to be or, as the case may be, is transplanted isgenetically related to the person from whom the organ is removed.

(2) For the purposes of this section a person is genetically related to(a) his natural parents and children;(b) his brothers and sisters of the whole or half blood;(c) the brothers and sisters of the whole or half blood of either of his natural parents;

and(d) the natural children of his brothers and sisters of the whole or half blood or of

the brothers and sisters of the whole or half blood of either of his natural parents;but persons shall not in any particular case be treated as related in any of those ways unless

the fact of the relationship has been established by such means as are specified byregulations made by the Secretary of State.

(3) The Secretary of State may by regulations provide that the prohibition in subsection(1) above shall not apply in cases where

(a) such authority as is specified in or constituted by the regulations is satisfied(i) that no payment has been or is to be made in contravention of section 1

above; and(ii) that such other conditions as are specified in the regulations are satisfied;

and(b) such other requirements as may be specified in the regulations are complied

with.(4) The expenses of any such authority shall be defrayed by the Secretary of State out ofmoney provided by Parliament.

(5) A person guilty of an offence under this section is liable on summary conviction toimprisonment for a term not exceeding three months or a fine not exceeding level 5 on thestandard scale or both.

(6) The power to make regulations under this section shall be exercisable by statutoryinstrument.

(7) Regulations under subsection (2) above shall be subject to annulment in pursuance ofa resolution of either House of Parliament; and no regulations shall be made undersubsection (3) above unless a draft of them has been laid before and approved by aresolution of each House of Parliament.

Section 3.(1) The Secretary of State may make regulations requiring such persons as arespecified in the regulations to supply to such authority as is so specified such information asmay be so specified with respect to transplants that have been or are proposed to be carried


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out in Great Britain using organs removed from dead or living persons.

(2) Any such authority shall keep a record of information supplied to it in pursuance ofthe regulations made under this section.

(3) Any person who without reasonable excuse fails to comply with those regulations isguilty of an offence and liable on summary conviction to a fine not exceeding level 3 on thestandard scale; and any person who, in purported compliance with those regulations,knowingly or recklessly supplies information which is false or misleading in a materialrespect is guilty of an offence and liable on summary conviction to a fine not exceedinglevel 5 on the standard scale.

(4) The power to make regulations under this section shall be exercisable by statutoryinstrument subject to annulment in pursuance of a resolution of either House of Parliament.

Section 4.(1)Where an offence under this Act committed by a body corporate is proved

to have been committed with the consent or connivance of, or to be attributable to anyneglect on the part of, any director, manager, secretary or other similar officer of the bodycorporate or any person who was purporting to act in any such capacity, he as well as thebody corporate is guilty of the offence and is liable to be proceeded against and punishedaccordingly.

(2)Where the affairs of a body corporate are managed by its members, subsection (1)above shall apply to the acts and defaults of a member in connection with his functions ofmanagement as if he were a director of the body corporate.

Section 5. No proceedings for an offence under section 1 or 2 above shall be instituted inEngland andWales except by or with the consent of the Director of Public Prosecutions.

Section 6. An Order in Council under paragraph 1(1)(b) of Schedule 1 to the [1974 c. 28.]Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) whichcontains a statement that it is made only for purposes corresponding to the purposes of thisAct

(a) shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmativeresolution of both Houses of Parliament); but(b) shall be subject to annulment in pursuance of a resolution of either House of

Parliament.

Section 7.(1) This Act may be cited as the Human Organ Transplants Act 1989.

(2) In this Act "organ" means any part of a human body consisting of a structuredarrangement of tissues which, if wholly removed, cannot be replicated by the body.

(3) Section 1 above shall not come into force until the day after that on which this Act ispassed and section 2(1) above shall not come into force until such day as the Secretary ofState may appoint by an order made by statutory instrument.


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(4) Except for section 6 this Act does not extend to Northern Ireland.


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Human Tissue Act 2004 (relevant sections)

Section

32Prohibition of commercial dealings in human material for

transplantation

(1) A person commits an offence if he-

(a) gives or receives a reward for the supply of, or for an offer tosupply, any controlled material;

(b) seeks to find a person willing to supply any controlled material forreward;

(c) offers to supply any controlled material for reward;

(d) initiates or negotiates any arrangement involving the giving of areward for the supply of, or for an offer to supply, any controlled

material;(e) takes part in the management or control of a body of personscorporate or unincorporate whose activities consist of or include theinitiation or negotiation of such arrangements.

(2)Without prejudice to subsection (1)(b) and (c), a person commits anoffence if he causes to be published or distributed, or knowingly publishes ordistributes, an advertisement-

(a) inviting persons to supply, or offering to supply, any controlledmaterial for reward, or

(b) indicating that the advertiser is willing to initiate or negotiate anysuch arrangement as is mentioned in subsection (1)(d).

(3) A person who engages in an activity to which subsection (1) or (2)applies does not commit an offence under that subsection if he is designatedby the Authority as a person who may lawfully engage in the activity.

(4) A person guilty of an offence under subsection (1) shall be liable-

(a) on summary conviction-

(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum, or

(iii) to both;

(b) on conviction on indictment-

(i) to imprisonment for a term not exceeding 3 years, or

(ii) to a fine, or


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(iii) to both.

(5) A person guilty of an offence under subsection (2) shall be liable onsummary conviction-

(a) to imprisonment for a term not exceeding 51 weeks, or(b) to a fine not exceeding level 5 on the standard scale, or

(c) to both.

(6) For the purposes of subsections (1) and (2), payment in money ormoney's worth to the holder of a licence shall be treated as not being a rewardwhere-

(a) it is in consideration for transporting, removing, preparing,preserving or storing controlled material, and

(b) its receipt by the holder of the licence is not expressly prohibitedby the terms of the licence.

(7) References in subsections (1) and (2) to reward, in relation to the supplyof any controlled material, do not include payment in money or money'sworth for defraying or reimbursing-

(a) any expenses incurred in, or in connection with, transporting,removing, preparing, preserving or storing the material,

(b) any liability incurred in respect of-

(i) expenses incurred by a third party in, or in connection with,

any of the activities mentioned in paragraph (a), or(ii) a payment in relation to which subsection (6) has effect, or

(c) any expenses or loss of earnings incurred by the person fromwhose body the material comes so far as reasonably and directlyattributable to his supplying the material from his body.

(8) For the purposes of this section, controlled material is any materialwhich-

(a) consists of or includes human cells,

(b) is, or is intended to be removed, from a human body,

(c) is intended to be used for the purpose of transplantation, and

(d) is not of a kind excepted under subsection (9).

(9) The following kinds of material are excepted-

(a) gametes,

(b) embryos, and


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(c) material which is the subject of property because of an applicationof human skill.

(10)Where the body of a deceased person is intended to be used to providematerial which-

(a) consists of or includes human cells, and

(b) is not of a kind excepted under subsection (9),

for use for the purpose of transplantation, the body shall be treated ascontrolled material for the purposes of this section.

(11) In this section-

"advertisement" includes any form of advertising whether to thepublic generally, to any section of the public or individually to

selected persons;"reward" means any description of financial or other materialadvantage.

Section

33

Restriction on transplants involving a live donor

(1) Subject to subsections (3) and (5), a person commits an offenceif-

(a) he removes any transplantable material from the body of a livingperson intending that the material be used for the purpose oftransplantation, and

(b) when he removes the material, he knows, or might reasonably beexpected to know, that the person from whose body he removes thematerial is alive.

(2) Subject to subsections (3) and (5), a person commits an offenceif-

(a) he uses for the purpose of transplantation any transplantablematerial which has come from the body of a living person, and

(b) when he does so, he knows, or might reasonably be expected toknow, that the transplantable material has come from the body of aliving person.

(3) The Secretary of State may by regulations provide thatsubsection (1) or (2) shall not apply in a case where-

(a) the Authority is satisfied-


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(i) that no reward has been or is to be given in contravention of section32, and

(ii) that such other conditions as are specified in the regulations aresatisfied, and

(b) such other requirements as are specified in the regulations arecomplied with.

(4) Regulations under subsection (3) shall include provision fordecisions of the Authority in relation to matters which fall to bedecided by it under the regulations to be subject, in suchcircumstances as the regulations may provide, to reconsideration inaccordance with such procedure as the regulations may provide.

(5)Where under subsection (3) an exception from subsection (1) or(2) is in force, a person does not commit an offence under thatsubsection if he reasonably believes that the exception applies.

(6) A person guilty of an offence under this section is liable onsummary conviction-

(a) to imprisonment for a term not exceeding 51 weeks, or

(b) to a fine not exceeding level 5 on the standard scale, or

(c) to both.

(7) In this section-

"reward" has the same meaning as in section 32;

"transplantable material" means material of a description specified byregulations made by the Secretary of State.

Section

34

Information about transplant operations

(1) The Secretary of State may make regulations requiring suchpersons as may be specified in the regulations to supply to suchauthority as may be so specified such information as may be sospecified with respect to transplants that have been or are proposed tobe carried out using transplantable material removed from a human

body.

(2) Any such authority shall keep a record of information suppliedto it in pursuance of regulations under this section.

(3) A person commits an offence if-


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(a) he fails without reasonable excuse to comply with regulationsunder this section, or

(b) in purported compliance with such regulations, he knowingly orrecklessly supplies information which is false or misleading in a

material respect.(4) A person guilty of an offence under subsection (3)(a) is liable onsummary conviction to a fine not exceeding level 3 on the standardscale.

(5) A person guilty of an offence under subsection (3)(b) is liable onsummary conviction to a fine not exceeding level 5 on the standardscale.

(6) In this section, "transplantable material" has the same meaningas in section 33.


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Is Organ Donation Permissible?Answered byMufti Muhammad ibn Adam, Darul Iftaa

(Leicester,UK)

In the name of Allah, Most Compassionate, Most Merciful,

The issue of organ transplant has been a matter of great debate and dispute among the greatcontemporary scholars from around the globe. It has been discussed in various fiqhseminars, and many short and detailed works have be compiled on the subject.

The majority of the Indo/Pak scholars are of the view that organ transplant is notpermissible, while, the Arab scholars and some scholars of the Indian subcontinent give itspermission under certain conditions, (details of these conditions will be mentioned furtheralong). No body has given a general unconditional permission for the transplantation oforgans.

It must be remarked here that this issue is contemporary and obviously it is impossible forus to find express rulings concerning it in the classical works. As such, the views of thecontemporary scholars are based upon the general and broad guidelines of Shariah. It isobvious that this will result in difference of opinion, thus no one opinion should becondemned, as the intention of all the scholars is to please Allah, and live a life that is inaccordance with Shariah.

1) The view of impermissibility

As mentioned earlier, the majority of the Indo/Pak scholars hold the view that organ

transplantation can not be deemed permissible due to the harms and ill effects of itovercoming the potential benefits

There view is based on the following grounds:

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

As such, 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. Totake benefit from any part of a human 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 whichincludes animals (under certain conditions), plants and inanimate things. As such, it wouldbe unreasonable to place humans in the same category of the above things by giving


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permission to use parts and derive benefit out of their body that necessitates cutting,chopping and amputating parts of the body. This is certainly unreasonable and unlawful on ahuman body.

A very famous Hadith prevents the usage of human parts. Sayyida Asma bint Abi Bakr

(Allah be pleased with her) narrates that the Messenger of Allah (Allah bless him & givehim peace) said: Allahs curse is on a woman who wears false hair (of humans) or arrangesit for others. (Sahih Muslim, no. 2122).

Imam Nawawi (Allah have mercy on him) writes in the explanation of this Hadith: Ifhuman hair is used, then it is unlawful by consensus, whether its the hair of a man orwoman, because of the general narrations that prohibit this. And also, it is unlawful to takebenefit from the hair and all other organs of a human body due to its sanctity. The hair of ahuman along with all his body parts must be buried. (Commentary of Sahih Muslim byNawawi, p. 1600).

The Jurists (fuqaha) have stated that in the case of extreme necessity and when there is noalternative available, even unlawful things, such as pork and alcohol, become permissible.However, even in such a situation, consuming or deriving benefit from a human body stillremains unlawful.

It is stated in al-Fatawa al-Hindiyya: If a person feared death due to hunger and anotherperson said to him: Cut my hand and consume it or he said: Cut a part of me and eat it,it will be unlawful for him to do so. Similarly, it is impermissible for a desperate person tocut part of his own self and eat it. (al-Fatawa al-Hindiyya, 5/310).

Allama Ibn Abidin (Allah have mercy on him) explains: Because the flesh of a human

remains unlawful even in forceful situations. (Radd al-Muhtar, 5/215)

Imam Ibn Nujaym (Allah have mercy on him) states: It is impermissible for the one who isdying out of hunger to consume the food of another person who is also dying out of hunger;neither will be permissible to consume any part of the other persons body. (al-Ashbah waal-Nazair, p. 124).

The Fuqaha have also stated that if one was compelled by force to kill another human, it willnot be permissible, even if his own life was in danger. (See: al-Kasani, Badai al-Sanai,7/177 & Ibn Qudama, al-Mugni, 9/331).

Imam al-Marghinani (Allah have mercy on him) states regarding the sanctity of a human: Itis unlawful to sell the hair of a human, as it is (unlawful) to take benefit out of it, for ahuman is honoured and sacred, and it is not permissible to disgrace any part of a humansbody. (al-Hidaya 4.39)

A human body is sacred even after his/her death. The Messenger of Allah (Allah bless him& give him peace) said: Breaking the bone of a dead person is similar (in sin) to breakingthe bone of a living person. (Sunan Abu Dawud, Sunan Ibn Majah & Musnad Ahmad).


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The great Hanafi jurist and Hadith Imam, Abu Jafar al-Tahawi (Allah have mercy on him)writes in the explanation of this Hadith: The Hadith shows that the bone of a dead personhas the same sanctity and honour as the bone of living person. (Mushkil al-Athar).

In another Hadith it is stated: Harming a believer after his death is similar to harming him

in his life. (Musannaf of Ibn Abi Shayba).

Also, the books of classical scholars are full with examples indicating the impermissibilityof deriving benefit out of a human body due to it being honoured.

In conclusion, the human body, dead or alive has great significance. It is honoured andsacred, and because of the sanctity that is attached to it, it will be unlawful to tamper with it,cut parts of it or dishonour it in any way.

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)

In another Hadith, the Messenger of Allah (Allah bless him & give him peace) said:Abstain from Muthla. (Sahih Muslim, 2/82).

This is also supported by the verse of the Quran, where Allah Allah Almighty mentions thewords of Shaytan, when he said: I will mislead them and I will order them to slit the ears of

cattle, and to deface the (fair) nature created by Allah (4: 119).

To deface the fair nature created by Allah, both physically and spiritually, is what Shaytanlikes and orders to practise.

As far as the permissibility of blood transfusion in cases of need is concerned (See below,for the ruling on blood transfusion and donation, which was posted earlier), it does notnecessitate the cutting of human parts or any surgical procedures on the body, rather it isdrawn and transfused by means of injection, thus it is akin to human milk that is extractedwithout any surgical procedures.

c) The human body and parts are not in our ownership in that we may fiddle withthem as we desire. It is a trust (amanah) that has been given to us by Allah Almighty. Assuch, it will be impermissible for one to sell, give or donate any organs of his body. Islamhas forbidden suicide for the same reason. There are many texts of the Quran and Sunnahthat clearly determine this. Thus, it will be unlawful for one to give his organs to another.


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d) It is unlawful for an individual to inflict harm upon himself or others. TheMessenger of Allah (Allah bless him & give him peace) said: It is unlawful to inflict harmupon 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 part of his body due to itbeing 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-Nazair).

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 aneed or otherwise. In other words, there is no permissibility whatsoever for thetransplantation or donation of organs.

2) The view of permissibility

According to almost all of the major Arab scholars and also some contemporary Indo/Pakscholars, the transplantation and donation of human-organs would be permissible subject tocertain conditions (which will be mentioned later). This view is based on the followinggrounds:

a) The famous principles (qawaid) of Islamic Jurisprudence based on the teachings of

the Quran and Sunnah permit the use of unlawful things in cases of extreme need andnecessity. In case of Necessity, certain prohibitions are waived, as when the life of a personis threatened the prohibition of eating carrion or drinking wine is suspended. Allah MostHigh 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 isforced by necessity, without wilful disobedience, nor transgressing due limits, then he isguiltless. For Allah is Most Forgiving and Most Merciful. (Surah al-Baqarah, v. 173).

The Quran also permits the utterance of disbelief (kufr) in order to save your life. Allah

Most High says: Anyone who, after accepting faith in Allah, utters unbelief, except undercompulsion whilst his heart remaining firm in faith (Surah al-Nahl, V. 106).

The principle of Fiqh, based on the above Quranic guidelines, states: Necessity makesprohibition lawful (See: Ibn Nujaym, al-Ashbah wa al-Nazair, P. 85 ).

According to Imam Shafii (Allah have mercy on him), it is permissible for a person dyingout of hunger to consume the meat of another human. (See: Ibn Qudama, al-Mugni, 9/335).


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Therefore, in cases of need and necessity, impure, unlawful and Haram things becomepermissible.When a persons life is in danger and he is in dire need for transplantation, he isin such a situation, thus the transplantation of organs will be permissible.

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, butdoes the modern procedure violate this sanctity? Islam ordered us to honour a human bodybut did not prescribe any fixed methods for it. Disgracing a human body may change fromone time to another and from one place to another.

Thus, it could be said that the current procedure of organ transplantation is not considereddishonouring a human body. The surgery is performed in the most respectable way and it isnot considered to be disrespectful. This is the reason why many highly respected people ofthe 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 isstill alive, her stomach will be cut open in order to take the child out, for in there is savingthe live of a human, thus the sanctity of a human body will be overlooked. (Samarqandi,Tuhfat al-Fuqaha, 4/261 & Badaii al-Sanai).

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-Nazair).

c) As for a human not owning his body is concerned, Islam permits a human in certainsituations to utilize his body. It is similar to the wealth which Allah Almighty has given ahuman, 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 togo and save him. Similarly, it will be permissible to donate your organ in order to save thelife 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 oforgan transplant. The surgical procedure of transplantation ensures that one does not gothorough unnecessary mutilation of his body. It is similar to surgical treatment that is carriedout on a living person for medication purposes.

In view of the above (according to this group of scholars), it will be permissible totransplant and donate organs in order to save another persons life. However, this is subjectto certain terms and conditions.


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The international Islamic fiqh academy (Majma al-Fiqh al-Islami) which consists of anumber of major scholars from around the globe researched this issue in February 1988, andafter extensive research, issued the following verdicts:

Note, that the resolutions of the Islamic fiqh academy have been published in Arabic and

translated in a number of languages. Below is the original Arabic text and its translation inEnglish:

18-23 1408 6-11 1988

" "

. .

. :

:

: .

: .

: .


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: .

:

.

: . .

: . .

.

: . .

Shariah Rulings

1) It is permitted to transplant or graft an organ from one place of a persons body toanother, so long as one is careful to ascertain that the benefits of this operation outweigh anyharm that may result from it, and on the condition that this is done to replace something thathas been lost, or to restore its appearance or regular function, or to correct some fault ordisfigurement which is causing physical or psychological distress.

2) It is permitted to transplant an organ from one persons body to another, if it is anorgan that can regenerate itself, such as skin and blood, provided that the donor is matureand fully understands what he is doing, and that all the other relevant shariah conditions aremet.

3) It is permitted to use part of an organ that has been removed from the body because ofillness to benefit another person, such as using the cornea of an eye removed because ofillness.

4) It is unlawful (haram) to transplant or use an organ on which life depends, such astaking a heart from a living person to transplant into another person.


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5) It is unlawful (haram) to take an organ from a living person when doing so couldimpair an essential and vital function in his body, even though his life itself may not beunder threat, such as removing the corneas of both eyes. However, removing organs whichwill lead to only partial impairment is a matter which is still under scholarly discussion, as ismentioned in resolution 8.

6) It is permitted to transplant an organ from a dead person to a living person when hislife depends on receiving that organ, or when vital functions of his body are otherwiseimpaired, on the condition that permission is given either by the person before his death orby his heirs, or by the leader of the Muslims in cases where the dead persons identity isunknown or he has no heirs.

7) Care should be taken to ensure that in all of the above situations where transplantationis permitted, no buying or selling of organs is involved. It is not permitted to trade in humanorgans under any circumstance. However, the question of whether the beneficiary mayspend money to obtain an organ he needs, or to show his appreciation, is a matter which is

still under the research of the scholars.

8) Anything other than the scenarios described above is still subject to scholarly debate,and requires further detailed research in the light of medical research and shariah rulings.And Allah knows best. (See: Qararat wa tawsiyat majma al-fiqh al-Islami, P. 59-60).

The Islamic Fiqh academy of India also discussed this issue, and one of their members

who is recognised as a renowned scholar Shaykh Ubaid Allah al-Asadi (Allah preserve

him) compiled a very extensive article. The following are summarized points of some of

the conditions mentioned in his article (that have not been mentioned in the above

resolutions):

1) There should be no other reasonable alternative availible in the view of experiencedmedical experts

2) All efforts should be made to avoid transplanting of a non-Muslims organ into aMuslim and vice versa. If this is not possible, only then the organ of a non-Muslim may beused.

3) Only the organs of a dead person should be used. However, if that is not possible, thenonly will it be permissible to use the organ of a living person.

In conclusion, the above are the two viewpoints of the contemporary scholars with regardsto organ transplant and donation. The stance of some scholars, however, is that they abstainfrom issuing any verdict altogether on this issue.

My respected teacher, Shaykh Mufti Taqi Usmani is one of those who are reluctant to voicetheir opinion. In a writing of his which I have (and I have also heard this from him verbally),he states:


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"Indeed the Believers would be hardly pressed, and indeed every believer who is to

suffer even from a sting or pain, Allah would as a reward, erase one of his sins andincrease his rewards a degree."(Related by Ahmad, Ibn Sa'd, al-Bayhaq & al-Hakim)

The opinion among mostFuqaha (jurists) is that seeking medical treatment is either

recommended (Mandub) or obligatory. There are many Ahadith which encourage theMuslims to seek medical treatment. Therefore it is up to the patient to decide whether or notif he or she wants to undergo organ transplant.

In regards to the prohibition of violating and mutilating the dead, it has been narrated that aman was digging a grave and he stumbled on some bones, the Prophet of Allah (s.A.w.)said:

"Breaking the bones of the dead is like breaking the bones of the living."

(Related by Ahmad, Abu Dawud & Ibn Majah)

It is a general rule in Fiqh in which it is prohibited to violate, harm or mutilate the deadbody whether it is a Muslim or non-Muslim cadaver, as an act of revenge, showingdisrespect or doing so without any good reason. There are exceptions to this general ruleespecially in the light when there is a Necessity (Darurah).

"The Fuqaha of the Maliki and the Hanbal schools state that it is impermissible to dissect adead pregnant lady in order to retrieve the baby, as it is difficult to determine whether thebaby is alive. Because of this uncertainty, it should not be a cause to violate the sanctity ofthe dead. On the other hand, the Fuqaha of Shafi'i allows this dissection to be carried out.Besides, to dissect a dead body in order to remove valuable goods is allowed according to

Jumhur(majority of scholars or the three Madhdhabs as opposed to just one) except theHanbal school."

(Ad-Durr al-Mukhtar 3/246)

Nowadays, it is possible for medical authorities to determine whether the baby is alive ornot when such cases arise. The uncertainty that some Fuqaha had, is thus removed.

In Fiqh al-Islam wa Adillatuh (7/3), the author concludes:

"Based on the rulings which allows dissection on dead bodies in specific cases, therefore

any dissection or operation done on the dead body due to a significant necessity isallowable. For example, dissection for the knowledge of medicine and dissection in order tofind the cause of death to convict criminals by which there are no other avenues to come tothe truth (al-Haq). These are based on the Shari'ah principle of establishing justice ('Adil) inany ruling given by the court, in order to avoid injustice (Dhalim) from happening to theinnocent or to ensure the guilty not to escape from the punishment as a result of his crimes.


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Even though such dissections are allowed, it should be done within necessary limits withoutoverdoing it. Besides, the sanctity of the dead body has to be respected and handledproperly. After the investigation, bits and pieces should be gathered, the body should beclosed by suturing it up and finally shrouding the body.

It is also allowable to perform any organ transplant such as the human heart or the eye. Thismust 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. The success of recovering vision for ahuman is a wonderful gift and is demanded by the Shara'."

In al-Ifta', The Permanent Committee for Legal Rulings (Fatawa) in Saudi Arabia concludethe following regarding dissection on dead bodies:

1. Dissection to discover if there is a criminal act causing the death is sanctioned.2. Dissection to see if there is a contagious disease and to then conclude how to stop its

spread is sanctioned.

3. Dissection for educational and training purposes is accepted.The following is another legal ruling about organ transplant.

Wabillah al-Tawfiq.

M. Afifi al-Akiti,

Belfast, 18 March 1996.

The 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 organtransplant and resolved that:

The medical profession is the proper authority to define the signs of death.Current medical knowledge considers brain stem death to be a proper definition of death.The Council accepts brain stem death as constituting the end of life for the purpose oforgan transplant.The Council supports organ transplant as a means of alleviating pain or saving life on thebasis 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 thebody to save other people's lives.Organ donation must be given freely without reward. Trading in organs is prohibited.

M A Zaki Badawi

Chairman.


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Organ Transplant Ruling:

List of the Ulama' and Scholars who participated during the consultation and then approvedthe statement on Organ Transplant:

1. Dr M A Zaki Badawi Principal, The Muslim College, London Chairman, TheMuslim Law (Shari'ah) Council UK.

2. Dr Jamal Sulayman, Professor of Shari'ah, The Muslim College, London.3. Dr A A Hamid, Professor of Hadith, The Muslim College, London.4. Dr Fazel Milani, Professor at The International College of Islamic Sciences London.5. Dr S M A Shahristani, Principal, The International College of Islamic Sciences

London.6. Moulana Abdul Hadi Umri, General Secretary, Jamia-te-Ahl-e-Hadith (UK).7. Moulana Qamaruzzaman Azami, Chief Imam, North Manchester Central Mosque &

General Secretary, TheWorld Islamic Mission.8. Mufti Mohammed Yunus President, TheWorld Islamic Mission & Imam,Woking

Mosque.9. Mufti Mohammed Muniruzzaman, Imam, Munir-ul-Islam Mosque, Rochdale.10.Dr Abdul Halim, Senior Imam, The Islamic Cultural Centre and London Central

Mosque, Regent's Park London.11.Mufti Alauddin, Head Imam, Brick Lane Central Mosque, London.12.Moulana Hafiz M Khalid, Head Imam, Sparkbrook Islamic Centre, Birmingham.13.Moulana Mumtaz Ahmed, Imam of Bradford.14.A A Bashiri Esq. Barrister-at-Law.15.R Abdullah Esq. Barrister-at-Law.16.Dr Safia Safwat, Barrister-at-Law.17.Moulana M Shahid Raza, Director, Islamic Centre Leicester & Secretary, The

Muslim Law (Shari'ah) Council UK.18.Mr S G Syedain, General Secretary, Imams & Mosques Council UK.19.Dr. Manazir Ahsan, Director of the Islamic Foundation

Islam holds that Man consists of two essential elements, one material which is the body, theother spiritual which is the soul. Life exists in the human body as long as the soul is joinedto it, and it ceases when the soul departs from the body.

"Who made all things good, which He created, and He began the creation of man from

clay then He made his seed from a draught of despised fluid. Then He fashioned him

and breathed into him of His Spirit, and He appointed for you hearing and sight and

hearts. Yet small thanks do you give for it!" (32:7-9)

Thus the cessation of life means the departure of the soul from the body:

"Allah recalls souls at the time of their death, and those who have not died, during

their sleep. He holds on to anyone whom death has been decided for, and sends theothers back for a specific period."(39:42)


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The soul is a mysterious thing and nobody has been able to discover its nature. Its presencein the body results in life which is observed by the movement and the other conventionalsigns of life. The departure of the soul from the body results in death, which is associatedwith certain physical signs arrived at as a result of medical observations and knowledge.

The signs of death which the ancient medical doctors have listed are: lack of consciousness,loss of body temperature, cessation of pulse and breathing, glazing of the eyes, parting ofthe lips, sagging of the nose, and slackening in the muscles of the hands and feet. The heartused to be considered as the centre of life in the body. When it stopped completely it wasassumed that death occurred. But if it regained its functions through first aid practices life isassumed to have returned.

The last five decades have witnessed a big leap in medical science bringing great benefitsand skills which were unthinkable before. It is now possible to transplant organs from onebody into another, which would help the recipient to continue to live.

The significance of the heart has also changed as it is no longer considered the mostimportant organ with regard to life and death. Medical opinion now considers the brain to bethe central and crucial part which controls the entire body and its functions.

When it is damaged partially or totally the body will suffer either partial or totaldeterioration. As a consequence of the present development in medical knowledge and skillsa number of questions have arisen. These are:

Is it allowed to remove an organ like the kidney from the body of a living person andtransplant it into the body of a sick person whose life depends on it?Is it permissible to remove an organ from the body of a dead person to be used to save

the life of a living person?Is a person allowed to donate his body or part of it to be used after his death in saving thelife of other people?Does Islam recognise the new definition of death that is brain stem death?If it does is it permissible to remove from brain stem dead persons organs for transplantwhile there are signs of body functions like heart beat temperature and breathing?

Before answering these questions it is important to note the follo

The Critique on Inadequate Legislation for Organ Transplant in Pakistan

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