Brain Death: Difference between revisions

A number of jurists, including the author of *Javāhir al-Kalām*, emphasize that these signs do not in themselves constitute definitive proof of death. Rather, the true criterion for death is the attainment of knowledge and certainty regarding its occurrence, not merely the appearance of such signs.<ref>Najafī, *Javāhir al-Kalām*, vol. 4, p. 25; Muḥsinī, *al-Fiqh wa Masāʾil al-Ṭibbīyah*, vol. 2, p. 196.</ref> Nevertheless, it is generally observed that the simultaneous presence of these signs ordinarily leads to certainty about death.<ref>Sotūdeh, *Brain Death; Juridical-Legal Processing*, p. 41.</ref>

According to some contemporary jurists, including [[Muhammad Fazel Lankarani|Muḥammad Fāżel Lankarānī]]<ref>Khodādādī, *Rulings for Physicians and Patients*, pp. 149–150.</ref> and [[Jawad Tabrizi|Javād Tabrīzī]]<ref>Khūʾī and Tabrīzī, 1390 SH, p. 279.</ref>, customary understanding is authoritative in identifying subjects. Muḥammad Fāżel Lankarānī holds that since general social custom (*ʿurf ʿāmm*) regards a brain-dead patient as alive, such individuals are subject to the legal rulings applicable to living persons.<ref>Khodādādī, *Rulings for Physicians and Patients*, pp. 149–150.</ref> [[Muhammad Mumin|Muḥammad Muʾmin]] similarly maintains that although the identification of the brain’s vital signs lies within the expertise of specialist physicians, the determination of the concepts of life and death is a customary matter. Accordingly, such determination should be referred to a jurist who is familiar with common linguistic and social usage. Muḥammad Muʾmin and [[Mohammad Mohammadi Ghaeni]] further argue that if cardiac activity occurs spontaneously and without mechanical assistance, the patient is to be considered alive; otherwise, death is to be established.<ref>Muʾmin, “Organ Transplantation”, p. 45; Qāʾinī, *al-Mabsūṭ Masāʾil Ṭibbīyah*, vol. 1, pp. 135–136, 139.</ref>

Other contemporary Shiʿi *marājiʿ al-taqlīd*, such as [[Naser Makarem Shirazi|Nāṣer Makārem Shīrāzī]]<ref>Makārem Shīrāzī, *Encyclopedia of Comparative Jurisprudence*, vol. 1, p. 44.</ref> and [[Husayn Nuri Hamadani|Ḥusayn Nūrī Hamadānī]]<ref>Nūrī Hamadānī, *A Thousand and One Jurisprudential Issues*, vol. 1, pp. 253–254.</ref>, entrust the determination of the details of brain death to specialist physicians. Ḥusayn Nūrī Hamadānī considers brain death to constitute the complete death of the person, even if other bodily organs continue to function for a period of time.<ref>Nūrī Hamadānī, *A Thousand and One Jurisprudential Issues*, vol. 1, pp. 253–254.</ref> Nāṣer Makārem Shīrāzī, relying on medical assessments that liken a brain-dead patient to one whose brain has been destroyed or whose head has been severed from the body, maintains that such a patient cannot be regarded as alive. Nevertheless, out of juristic caution in the context of issuing a *fatwa*, he refrains from categorically declaring a brain-dead patient to be dead and therefore adopts a differentiated approach in rulings related to life and death.<ref>ʿAlīān Nezhādī, *Medical Rulings*, pp. 113–114.</ref>

From the perspective of jurists who consider a brain-dead patient alive, none of the rulings of the deceased apply to these patients.<ref>Qāʾinī, *al-Mabsūṭ Masāʾil Ṭibbīyah*, vol. 2, p. 714.</ref> Jurists who leave the detection of whether brain-dead patients are alive or dead to the common of experts and specialists believe that if the title of dead applies to a brain-dead patient from the experts' view, such a person has the rulings of the deceased, and otherwise, the rulings of the living apply to him.<ref>Montazerī, *Medical Rulings*, pp. 76, 120–121.</ref> Nāṣer Makārem Shīrāzī, one of the contemporary marājiʿ taqlīd, with the statement of detail in this regard, believes that some rulings of the deceased such as the dropping of agency, the right to buy and sell, marriage and divorce, and also some rulings of the living person such as that his property is not divided among heirs and his wife does not observe the waiting period of death, apply to such a person. The specific rulings of the deceased such as the ritual washing of touching the deceased, the obligation of equipping, the obligation of prayer for the deceased, and burial of the deceased also do not apply to brain-dead patients until the heart stops and the body becomes cold.<ref>ʿAlīān Nezhādī, *Medical Rulings*, pp. 113–115.</ref> Some specific rulings for patients afflicted with brain death are as follows:

Most jurists believe that until a person's death is certain, his ritual washing, prayer, burial, and shrouding are not permissible, and in doubtful cases, one must wait until certainty of death is obtained.<ref>Qāsemī, *Encyclopedia of Medical Jurisprudence*, vol. 3, p. 346.</ref> Therefore, jurists who do not believe in the death of a brain-dead patient cannot rule on his shrouding and burial.

Regarding the transplantation of organs from brain-dead patients, there is disagreement following whether they are dead or alive. [[Naser Makarem Shirazi|Nāṣer Makārem Shīrāzī]], one of the contemporary marājiʿ taqlīd, believes that given the medical death of a brain-dead patient, removing organs from brain-dead patients to save Muslims' lives is unobjectionable.<ref>ʿAlīān Nezhādī, *Medical Rulings*, pp. 114–115.</ref> Also, some scholars such as [[Muhammad Mumin|Muḥammad Muʾmin]] believe that if the heart's activity is through a device not spontaneously, severing organs and transplanting them is permissible.<ref>Muʾmin, “Organ Transplantation”, p. 44; Qāʾinī, *al-Mabsūṭ Masāʾil Ṭibbīyah*, vol. 1, p. 140.</ref> In contrast, some others believe that if using the body organs of brain-dead patients causes accelerating their death, it is not permissible;<ref>Khāmeneʾī, *Ajwibat al-Istiftāʾāt*, p. 287; Khodādādī, *Rulings for Physicians and Patients*, p. 151.</ref> but if it is not so and is done with his prior permission or saving the life of a respected person (Muslim) depends on organ transplantation, it is unobjectionable.<ref>Khāmeneʾī, *Ajwibat al-Istiftāʾāt*, p. 287.</ref>

[[Mohammad Mohammadi Ghaeni]] considers the permissibility of transplanting an organ from a brain patient based on the rule of necessity and adds that if a brain-dead patient follows a religion that considers organ transplantation from a brain-dead patient permissible, one can consider his organ transplantation permissible using the rule of obligation.<ref>Qāʾinī, *al-Mabsūṭ Masāʾil Ṭibbīyah*, vol. 1, pp. 140–142.</ref>

Regarding continuing treatment and disconnecting medical assisting devices such as respiratory devices, there are two opinions: many jurists consider killing a brain-dead patient impermissible;‌ in contrast, some consider disconnecting the device not forbidden.<ref>Qāsemī, *Encyclopedia of Medical Jurisprudence*, vol. 3, pp. 334–335.</ref> Those who consider a brain-dead patient alive consider treating him obligatory and disconnecting it impermissible.<ref>Khodādādī, *Rulings for Physicians and Patients*, p. 150.</ref> [[Naser Makarem Shirazi|Nāṣer Makārem Shīrāzī]], one of the contemporary jurists, explicitly rules on the non-obligation of continuing treatment.<ref>ʿAlīān Nezhādī, *Medical Rulings*, pp. 114, 117.</ref> Also, from the perspective of [[Husayn Ali Montazeri|Ḥusayn-ʿAlī Montazerī]], if there is a probability of patient recovery, discontinuing treatment and disconnecting assisting devices is not permissible; but if there is a more important case and the device is unique to this device, one must attend to the more important case.<ref>Montazerī, *Medical Rulings*, p. 121.</ref> The basis of this ruling is the conflict of more important and important in performing religious duty and the priority of the more important matter.

If a person afflicted with brain death is considered alive, killing him is not permissible, and he has full dīyah. In case of killing the patient, his dīyah belongs to the heirs.<ref>Khodādādī, *Rulings for Physicians and Patients*, p. 150.</ref> Some jurists believe that if the patient has permitted his own killing, in this case, the right to retaliation and dīyah is dropped. In contrast, some believe that permission to kill does not drop the right to retaliation; because a human has no right and authority over his own destruction.<ref>Qāsemī, *Encyclopedia of Medical Jurisprudence*, vol. 3, pp. 336–339.</ref> Some also consider paying dīyah as obligatory caution and believe that the amount of dīyah should be spent on charities for the deceased.<ref>Montazerī, *Medical Rulings*, p. 120.</ref>

Some also believe that regarding dīyah for severing an organ, caution is in paying dīyah, and paying it is the responsibility of the one who severs the organ.<ref>ʿAlīān Nezhādī, *Medical Rulings*, p. 115.</ref>

Rulings consequent upon marriage such as the obligation to pay maintenance depend on whether marriage exists after brain death or not. From the perspective of some jurists, in brain-dead patients, the ruling of marriage remains; but since the treatment costs of such patients exceed the usual limit, it is not considered part of obligatory maintenance, and paying it is not obligatory on the spouse.<ref>Qāsemī, *Encyclopedia of Medical Jurisprudence*, vol. 3, p. 349.</ref> Also, from the perspective of [[Naser Makarem Shirazi|Nāṣer Makārem Shīrāzī]], until the brain-dead patient reaches complete and certain death, the wife cannot observe the waiting period of death.<ref>ʿAlīān Nezhādī, *Medical Rulings*, pp. 113–114.</ref>

Numerous works in Persian and Arabic languages and in the form of books, articles, and theses have examined brain death jurisprudentially. Among these works, one can mention the book Brain Death from the Perspective of Jurisprudence and Law; Muḥammad Raḥmatī in this book, after conceptualizing death and life in jurisprudential sources and medical texts, mentions the reasons of supporters and opponents of the vitality of a brain-dead patient and examines the permissibility of organ transplantation from a brain-dead patient. He also, in collaboration with ʿAlī Akbar Farahzādī, has authored an article titled “Study of Brain Death from the Perspective of Jurisprudence and Criminal Law” and after conceptual explanation and argumentative examination of the issue, in the position of conclusion, has stated that the criterion for human life is the connection of soul and body, and since this connection is through the brain, a brain-dead patient has the ruling of a dead human. The book [[Organ Transplantation and Brain Death in the Mirror of Jurisprudence (book)|Organ Transplantation and Brain Death in the Mirror of Jurisprudence]] written by Sayyid Muḥsin Mortażavī and the book [[Brain Death: Legal-Jurisprudential Processing (book)|Brain Death: Legal-Jurisprudential Processing]] written by Ḥamīd Sotūdeh, and [[Mawt al-Dimagh fi al-Fiqh al-Islami (book)|Mawt al-Dimāgh fī al-Fiqh al-Islāmī]] written by Masʿūd Ṣabrī which has been published in Egypt are other published works in this field.