View source for Jurisprudential and Legal Rulings of Brain Death (Book)

{{author
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{{infobox book
| title = Jurisprudential and Legal Rulings of Brain Death
| image = Jurisprudential_and_Legal_Rulings_of_Brain_Death.jpg
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| author = Amrollah Nikoumanesh
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| style = Analytical
| language = Persian
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| number_of_pages = 209
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| publisher = Iran Jam Printing and Publishing Organization
| place_of_publication = Tehran
| publication_date = 2012 (1391 SH)
| edition = First
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* '''Abstract'''

'''Jurisprudential and Legal Rulings of Brain Death''' (احکام فقهی و حقوقی مرگ مغزی) is a book in the field of medical jurisprudence. The author of the book considers the term [[brain death]] to mean the irreversible cessation of brain functions. Opponents of organ harvesting from brain-dead patients state that according to Quranic verses and numerous narrations, organ harvesting is a kind of utilizing a corpse (*Maytah*) as well as the desecration (*Hatk al-Hurmah*) of a believer. They have also stated that by the dictate of reason (*'Aql*), organ harvesting necessitates premature death ([[euthanasia]]), which possesses rational and religious prohibition (*Hurmah*). According to Amrollah Nikoumanesh, proponents of the permissibility of organ harvesting also believe that God has paid special attention to human life and has made even some forbidden acts (*Muharramat*) permissible (*Mubah*) for him to stay alive; therefore, harvesting an organ and transplanting it to others is permissible. In the author's belief, by carefully examining the arguments of both sides, one must admit that the view that a brain-dead patient is alive is closer to the correct view (*Sawab*). Of course, the harvesting of organs from a brain-dead patient has been considered permissible from the perspective of the conflict of duties (*Tazahum*), necessity (*Dharurah*), and preferring the more important (*Tarjih al-Ahamm*).

== Introduction to the Book ==

The present work, titled '''Jurisprudential and Legal Rulings of Brain Death''', is the result of research by Amrollah Nikoumanesh, which was published in Persian by the Iran Jam Printing and Publishing Organization. The book was published for the first time in 2012 (1391 SH), in 209 pages and 1,000 copies. This book seeks to explain the nature of brain death, the relationship of organ transplantation with brain death, and the jurisprudential and legal rulings of this issue.

=== Structure of the Book ===
The author has organized his research into five sections: the initial section is about the relationship between brain death and [[organ transplantation]] (p. 17); the second section is about the nature of brain death (p. 25); the third section deals with the jurisprudential and legal rulings of brain death (p. 67); the fourth section contains religious inquiries (*Istifta'at*) regarding this case (p. 169); and the fifth section is about brain death in the laws of other nations (p. 189).

== Contents of the Book ==
The author first brings up the relationship of [[brain death]] with organ harvesting and transplantation, then provides statistics on brain death. Also, after providing definitions of natural death and brain death, he states that the death of a human being differs from the death of their body organs, and neither necessarily and immediately necessitates the other (p. 44).

It is stated that brain death means the irreversible cessation of all brain functions. The result of medical examinations also shows that 85 percent of brain-dead patients experience complete cardiac arrest after one week, and nearly 100 percent of them do so after two weeks (pp. 45-46).

Brain death occurs in one of these three forms: A) the brain stops functioning, but the heart works naturally and vegetative life is maintained; B) the brain stops functioning, but the heart continues its work with the help of a respiratory device, and at the same time, there is no hope for the return of brain life; C) the brain stops functioning, and the heart shows no activity whatsoever (p. 65).

In the first case, the person is legally (*Shar'an*) considered alive, and rulings such as ownership (*Malikiyyah*) and marriage (*Zawjiyyah*) apply to him; therefore, removing the heart is normally considered the murder of the patient. In the second case as well, severing an organ that causes death or accelerates it is forbidden (*Haram*); of course, in the event that saving a respected life (*Nafs Muhtaramah*) depends on taking that organ, harvesting that organ can be considered permissible from the perspective of the conflict of duties (*Tazahum*) (p. 66).

In the author's opinion, it is necessary to mention the numerous branches and ramifications (*Shuquq wa Furu'*) of the issue before stating the arguments of the proponents and opponents of organ donation and transplantation, such as transplantation from animals to humans, from a living human to a living human, from a human who died naturally to a living human, and from a brain-dead human to a living human (pp. 69-70). Each of the above categories occurs either out of necessity or without necessity. Furthermore, each of the organ donors and recipients may be a Muslim, a non-Muslim, of unknown status (*Majhul al-Hal*), one whose blood is lawful to shed (*Mahdur al-Dam*), or one whose blood is protected (*Ma'sum al-Dam*) (p. 70).

=== Arguments for the Prohibition of Organ Harvesting from a Brain-Dead Patient ===
Based on the author's findings, to prove the prohibition of organ harvesting from a [[brain death|brain-dead]] patient, one can resort to several reasons, all of which fall under the four headings of the Book (Quran), Sunnah, reason (*'Aql*), and consensus (*Ijma'*) (p. 71).

'''The Book'''

Opponents of organ harvesting from brain-dead patients, relying on "Prohibited to you are dead animals and blood" (Hurrimat 'alaykum al-maytatu wa al-dam) in [[Verse 3 of Surah al-Ma'idah]], have argued that utilizing carrion (*Maytah*) and blood is forbidden, and since harvesting and donating an organ for transplantation is a kind of utilizing a dead organ, it is forbidden according to the content of this verse (p. 71).

In response to this argument, it must be said that when an action is used absolutely in verses and narrations, its object (*Muta'allaq*) is sometimes known through contextual clues (*Qara'in*), and interpreting the verse without considering the contextual clues is not correct. In the verse in question, the intention behind the prohibition of carrion and blood is the prohibition of its illegitimate use, not any use whatsoever (p. 71); therefore, the prohibition mentioned in the verse does not encompass a legitimate use for the object of that action. Undoubtedly, saving a human being by donating an organ from a brain-dead human is legitimate and pleasing to God (p. 72).

They have also argued, based on [[Verse 119 of Surah al-Nisa]]: "Do not consume your wealth among yourselves unjustly" (Akal al-Mal bi al-Batil), that the body parts of the dead are carrion and impure (*Najis*), carrion has no lawful benefit (*Manfa'at-e Halal*), and that which has no lawful benefit has no financial value (*Maliyyah*) and cannot be the subject of a transaction; therefore, buying and selling the body parts of the dead is consuming wealth unjustly and is forbidden (p. 72).

This argument is incomplete; because the evidence for the prohibition of utilizing carrion pertains to eating the meat of carrion, which is not considered a rational benefit (*Manfa'at 'Uqala'i*), but when a rational benefit is conceivable for the organs of a corpse, one cannot declare any kind of utilization of the corpse as forbidden based on this verse. This response gains strength from the arguments of past jurists (p. 72). In addition, the apparent meaning of the argument is that receiving compensation (*'Iwadh*) in exchange for selling or donating an organ is invalid (*Batil*), not the donation and transfer of the organ itself. If the prerequisite of transferring and donating were always to receive compensation, the argument would be complete, but sometimes the transfer and donation of an organ takes place without compensation and out of benevolence. Furthermore, receiving compensation and money can be in exchange for the permission to harvest the organ, not in exchange for selling, transferring, or donating it. Therefore, it seems that the verse in no way indicates the prohibition of the principle of organ harvesting from the body of a brain-dead person, and the opponents' claim is not proven (p. 73).

'''Sunnah'''

According to the author, numerous narrations in this regard have been divided into several categories and relied upon (p. 75).

The first category of narrations indicates the prohibition of benefiting from carrion. The response to this category of narrations is that, according to the well-known opinion (*Mashhur*) of jurists, when an organ is transplanted into the body of a patient, since life flows into it, it becomes pure (*Tahir*); therefore, one cannot issue a ruling prohibiting its utilization due to its being carrion and impure (*Najis*). In addition, according to the opinion of jurists, the exploitation and utilization of carrion and its parts in matters where purity (*Taharah*) is not a condition is permissible, such as preparing the worshipper's garment from the parts of a corpse. Thus, utilizing a corpse is not absolutely forbidden (pp. 75-76).

The second category of narrations indicates the prohibition of desecrating and humiliating a believer. The response is that undoubtedly preserving the sanctity of deceased believers is obligatory (*Wajib*), but this obligation stands as long as preserving the sanctity of the deceased believer does not conflict (*Tazahum*) with a more important issue, such as saving the life of a living believer; otherwise, from the perspective of preferring the more important over the important (*Al-Ahamm wa al-Muhimm*) and repelling the more corrupt with the corrupt (*Daf' al-Afsad bi al-Fasid*), encroaching upon the deceased believer will be permissible and perhaps even obligatory (pp. 77 and 79). Moreover, the intention in harvesting an organ from a deceased Muslim is to keep another believer alive, not desecration (*Hatk al-Hurmah*). The evidence for this matter is cutting open the abdomen of a dead mother to save a living fetus from the womb (p. 79).

The third category of narrations indicates the necessity of hastening the preparation of the dead (*Tajhiz al-Mayyit*) and the impermissibility of delaying burial. Assuming that the aforementioned narrations indicate the obligation (*Wujub*) of hastening, rather than its recommended nature (*Istihbab*), the prohibition of delaying the burial of a dead Muslim still conflicts (*Tazahum*) with the obligation of saving the life of another Muslim, and it is certain that saving the life of a Muslim is more important than hastening the burial; therefore, a delay equivalent to the time required to sever the organ will be permissible (pp. 82-84).

'''Reason'''

It has been argued that reason (*'Aql*) rules for the prohibition of organ harvesting from a [[brain death|brain-dead]] patient; because harvesting organs from brain-dead individuals for [[organ transplantation|transplantation]] is considered to entail premature death and mercy killing (euthanasia), and [[euthanasia]] is rationally and religiously forbidden and prohibited (p. 91).

The response is that the subject of discussion falls outside the issue of euthanasia and mercy killing, but even if we consider hastening death as euthanasia, this type of euthanasia is of a passive nature, which incurs no responsibility from a religious and legal standpoint and is not forbidden; because the death of the patient is not attributed to an act or omission by the doctor and medical staff; rather, the brain lesion is the agent and cause of death (pp. 92-94).

'''Consensus'''

It has been narrated from some jurists that jurists have formed a consensus (*Ijma'*) on the prohibition of utilizing and buying and selling a corpse, but some prominent scholars, such as Ayatollah Khoei, while rejecting the claim of consensus, believe that the consensus, even assuming its existence, would not be indicative (*Kashifiyyah*) of the saying of the Infallible (a) (pp. 89 and 91).

=== Arguments for the Permissibility of Organ Harvesting from a Brain-Dead Patient ===

'''The Quran'''

"And whoever saves one, it is as if he had saved mankind entirely" (Wa man ahyaha faka'annama ahya al-nasa jami'a) in [[Verse 32 of Surah al-Ma'idah]] is one of the arguments of the proponents of the permissibility of harvesting an organ from a brain-dead patient. The intention behind saving (*Ihya'*) is rescuing in the custom of rational people (*'Urf-e 'Uqala'*). In some instances of religious rulings, God has made even some forbidden acts permissible (*Mubah*) for human survival, such as the permissibility of eating the meat of carrion in specific conditions. Most jurists have considered the reason for these specific rulings to be the importance of life and the precedence of a living individual over a dead one (pp. 95-96).

Another piece of evidence in this issue is the permissibility of treating diseases whose cure is restricted to committing forbidden acts; of course, this prescription must be carried out according to the opinion of a skilled and trusted doctor. Given the evidence, contextual clues, and the Lawgiver's (*Shari'*) abundant concern for human life, it is certain that if saving a human's life depends on a forbidden act, based on the aforementioned verse and the well-known opinion of jurists, not only is harvesting an organ and transplanting it into a sick person permissible, but it may also be considered obligatory (pp. 96-97).

'''Narrations'''

For the permissibility of organ harvesting or donation, one can rely on a collection of narrations, including the authentic narration (*Sahihah*) in which Ali ibn Yaqtin asked Imam al-Kazim (a): "A woman dies and her child moves in her womb, what should be done?". The Imam stated: "To save the child, the mother's abdomen is cut open" (p. 97).

Considering this narration and narrations with similar themes, and particularly considering the jurists' acting upon that group of narrations, one can conclude that harvesting an organ from the body of a [[brain death|brain-dead]] person is not only permissible but, in the event that the patient's life depends on donating that organ, one might even be able to issue a ruling of its obligation. Of course, Sunni scholars have made the permissibility of harvesting contingent upon the permission of the organ owner during his lifetime (p. 98).

'''Rule of Governance (*Hukumah*)'''

Proponents of the permissibility of organ harvesting, relying on the rule of governance (*Qa'idah al-Hukumah*), state that in [[organ transplantation|organ harvesting]], even if it is forbidden according to the narrations and arguments of the opponents, the evidence of secondary titles (*'Anawin Thanawiyyah*) such as necessity (*Idhtirar*) and the need to save the life of another Muslim will govern (*Hukumah*) over the primary evidence. Therefore, it is as if God has said that the prohibition of organ harvesting is lifted in times of absolute necessity and compulsion (pp. 98-100).

=== The Role of the Patient's Consent ===

The author believes that Imami jurists have considered the patient's consent an essential, necessary, and vital condition for the legitimacy of treatment; of course, they have excepted conditions and, in other words, instances of medical emergencies from it. For this reason, it must be said that according to the well-known fatwa of jurists, not only in the presence of a will and the consent of the organ owner, but even in the absence of his will, if saving a Muslim's life is restricted to harvesting and transplantation, the act of organ harvesting will be permissible. However, this permission is for the utilization of the organ, not for its sale (pp. 113-123).

=== Blood Money or Compensation for the Severed Organ ===

The attachment of blood money (*Diyah*) or compensation for a severed organ is among the peripheral issues in the discussion of organ harvesting from a [[brain death|brain-dead]] person and its transplantation to an individual in need, which is addressed in this research. Some jurists believe that if the organ owner has willed the harvesting of the organ, the blood money will be waived. Another group of jurists absolutely believe in the establishment of the blood money (pp. 135-136). The evidence of those who maintain the establishment of the blood money is the narration of Ishaq ibn 'Ammar, who says he said to Imam al-Sadiq (a): "What happens if someone severs the head of a dead person?". The Imam replied: "Blood money is established upon him". 

Relying on narrations and the well-known opinion of jurists, the blood money of a dead Muslim is one-tenth of the blood money of a living Muslim. This blood money does not reach the heir; because the blood money after the death of the organ owner belongs to the organ owner himself, and since he himself cannot be the owner of the blood money, it is spent on his debts, or since it has no owner, it belongs to the religious ruler (*Hakim al-Shar'*) to be spent on charitable affairs (pp. 138-142).

=== Harvesting and Transplanting the Organ of a Disbeliever ===

The opinion of jurists regarding [[organ transplantation|organ harvesting]] from the body of a non-Muslim is of two types. Those who believe in its impermissibility state that the impurity (*Najasah*) of a non-Muslim is an obstacle to the permissibility of harvesting their organ. In response, it is said that the impure organ becomes pure after being transplanted into the body of a pure (*Tahir*) person, consequent to the recipient's purity (pp. 149-151). Those who believe in its permissibility maintain that the body and organs of a disbeliever (people of the covenant or *Ahl al-Dhimmah*) entail blood money, and their blood money, according to the well-known opinion of jurists, is half the blood money of Muslims. According to the rule, the blood money for the organs of a dead Dhimmi disbeliever is also one-tenth of the blood money for the organs of a living Dhimmi disbeliever (p. 153).

Regarding a person of doubtful Islamic faith (*Mashkuk al-Islam*), since in most cases they are judged to be Muslim, many jurists believe that a doubtful corpse found in Islamic lands is appended to Muslims (p. 152).

=== Crime against a Brain-Dead Patient ===

According to the author, although the issue of brain death is among the newly emergent (*Mustahdathah*) medical topics and has recently entered the realm of jurisprudence, some of its components resemble the components of the classical issue of "unstable life" (*Hayat Ghayr Mustaqarrah*); therefore, a connection can be established between these two topics (p. 155).

Three distinct states are conceived for the life of every human being: stable life (*Hayat Mustaqarrah*), unstable life, which is life verging on death, and definitive death. The indicators and signs of brain death and unstable life are similar to each other, such as the absence of perception, consciousness, speech, and voluntary movements; therefore, it can be said that brain death is a clear instance of unstable life (pp. 155-161).

By closely examining the arguments and the critiques made, one must exercise precaution and say that apparently, the right is with those who believe a brain-dead patient is alive. The ruling of a group of jurists on the permissibility of harvesting organs from a brain-dead patient is out of the overlapping of duties (*Tazahum*), necessity, repelling the more corrupt with the corrupt (*Daf' al-Afsad bi al-Fasid*), and preferring the more important over the important (*Tarjih al-Ahamm 'ala al-Muhimm*), not a belief in the definitive death of the brain-dead patient. Accordingly, it is not unlikely to state that the ruling of a crime against a brain-dead patient is the same as the ruling of a crime against a living person (pp. 166-167).



[[Category:Amrollah Nikoumanesh Books]]
[[Category:Bibliography Articles]]
[[Category:Brain Death Books]]
[[Category:Medical Jurisprudence Books]]
[[fa:احکام فقهی و حقوقی مرگ‌ مغزی (کتاب)]]