Brain Death: Difference between revisions

'''Brain Death''' (Persian: [https://ency.feqhemoaser.com/fa/view/%D9%85%D8%B1%DA%AF_%D9%85%D8%BA%D8%B2%DB%8C مرگ مغزی]) refers to the irreversible cessation of all vital brain functions. It is regarded as one of the emerging medical issues (*masāʾil mustaḥdathah*) in contemporary Islamic jurisprudence, as it lacks a direct precedent in classical jurisprudential sources. Although from a medical perspective brain death inevitably leads to biological death within a short period, jurists differ over whether a brain-dead patient should be considered legally alive or dead. This disagreement primarily stems from divergent approaches to identifying and determining the subject (*taḥqīq al-mawḍūʿ*) of brain death.

According to some contemporary Shiʿi *marājiʿ al-taqlīd*, such as [[Muhammad Fazel Lankarani|Muḥammad Fāżel Lankarānī]] and [[Jawad Tabrizi|Javād Tabrīzī]], the criterion for determining the status of a brain-dead patient is the judgment of general custom (*ʿurf ʿāmm*). Since common social understanding typically regards such patients as alive, they are considered legally living persons. In contrast, other jurists, including [[Husayn Ali Montazeri|Ḥusayn‑ʿAlī Montazerī]], [[Naser Makarem Shirazi|Nāṣer Makārem Shīrāzī]], and [[Husayn Nuri Hamadani|Ḥusayn Nūrī Hamadānī]], assign authority to expert custom (*ʿurf khāṣṣ*), namely specialist physicians, in determining whether a brain-dead patient is alive or dead.

Based on general principles of jurisprudential deduction, the applicability of legal rulings related to brain death—such as organ transplantation, continuation or cessation of medical treatment, liability for *dīyah* (blood money), and the performance of funeral rites—depends entirely on how the subject of brain death is identified.

Many jurists, due to the clarity of the definition of death, have not addressed its terminological definition and have sufficed with mentioning its rulings.<ref>Āqābābāʾī, *Organ Transplantation from Deceased and Brain-Dead Patients*, p. 21.</ref> Nevertheless, some jurists have defined death as the separation and exit of the soul from the body.<ref>See: Khūʾī, *al-Mawsūʿah al-Imām al-Khūʾī*, vol. 2, p. 464; Meshkīnī, *Muṣṭalaḥāt al-Fiqh*, p. 552; Nūrī Hamadānī, *A Thousand and One Jurisprudential Issues*, vol. 1, p. 253; Muḥsinī, *al-Fiqh wa Masāʾil al-Ṭibbīyah*, vol. 1, p. 129; Khodādādī, pp. 148–149.</ref> In general, it can be said that the reality of death according to jurists is the separation of the soul from the body, and the vitality of cells has no relation to the vitality of the human; just as the death of cells does not cause the death of the human.<ref>Āqābābāʾī, *Organ Transplantation from Deceased and Brain-Dead Patients*, p. 22.</ref> [[Husayn Nuri Hamadani|Ḥusayn Nūrī Hamadānī]], one of the Shia *marājiʿ taqlīd*, after considering death as the separation of the soul from the body, states that with the failure of the brain, human death occurs; because the main thing is the brain, which commands the body and its organs.<ref>Nūrī Hamadānī, *A Thousand and One Jurisprudential Issues*, vol. 1, p. 253.</ref>

Since determining the moment of death and detecting the separation of the soul from the body is difficult,<ref>Āqābābāʾī, *Organ Transplantation from Deceased and Brain-Dead Patients*, p. 23; Sotūdeh, *Brain Death; Juridical-Legal Processing*, pp. 38–40.</ref> signs for death are mentioned in jurisprudential texts, some of which are: recession of the temples, loosening and bending of the nose, wrinkling of the facial skin, loosening of the legs, cessation of breathing and pulse, yellowing of the body skin color, and abdominal swelling.<ref>See: Najafī, *Javāhir al-Kalām*, vol. 4, pp. 24–25; Muḥsinī, *al-Fiqh wa Masāʾil al-Ṭibbīyah*, vol. 2, p. 196.</ref> Some jurists such as the author of *Javāhir al-Kalām* believe that these signs are not definitive signs of death, and the criterion for death is knowledge and certainty of it, not the occurrence of these signs;<ref>Najafī, *Javāhir al-Kalām*, vol. 4, p. 25; Muḥsinī, *al-Fiqh wa Masāʾil al-Ṭibbīyah*, vol. 2, p. 196.</ref> of course, usually with the occurrence of all the mentioned signs, knowledge and certainty of death are obtained.<ref>Sotūdeh, *Brain Death; Juridical-Legal Processing*, p. 41.</ref>

From the perspective of some contemporary jurists such as [[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> the common diagnosis regarding subjects is valid. According to Muḥammad Fāżel Lankarānī, since the common people (*ʿurf-e ʿāmm*) consider a brain-dead patient alive, these patients have the rulings of a living person.<ref>Khodādādī, *Rulings for Physicians and Patients*, pp. 149–150.</ref> [[Muhammad Mumin|Muḥammad Muʾmin]] also believes that although detecting vital signs of the brain is the responsibility of a specialist physician, determining the concept of life and death is a common issue, and to detect it, one must refer to a jurist aware of the common language. Also, Muḥammad Muʾmin and [[Mohammad Mohammadi Ghaeni]] believe that if the heart's activity is spontaneous and without device assistance, the patient is considered alive, and otherwise, death is ruled.<ref>Muʾmin, “Organ Transplantation”, p. 45; Qāʾinī, *al-Mabsūṭ Masāʾil Ṭibbīyah*, vol. 1, pp. 135–136, 139.</ref>

=== Specific Common (*ʿUrf-e Khāṣṣ*) ===

A number of other *marājiʿ 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> have left the detection of details of the brain death issue to specialist physicians. Ḥusayn Nūrī Hamadānī considers brain death as the complete death of the person; even if other organs continue their activity for a while.<ref>Nūrī Hamadānī, *A Thousand and One Jurisprudential Issues*, vol. 1, pp. 253–254.</ref> Nāṣer Makārem Shīrāzī, considering the statements of physicians—who consider a brain-dead patient like someone whose brain is disintegrated or whose head is separated from the body—believes that a patient afflicted with brain death is not considered alive; however, in the position of *fatwa* (religious edict), he exercises caution and does not count a brain-dead patient as dead. Therefore, in the rulings related to life and death of such a person, he advocates detail.<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:

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>

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>

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.