Brain Death

Author: Reza Bazeli

• Abstract

Brain Death (in persian: مرگ مغزی) is the irreversible cessation of brain activities. This issue is one of the emerging medical matters and from a jurisprudential perspective, it falls under the category of *masāʾil mustaḥdathah* (emerging issues). From a medical standpoint, brain death will lead to certain death in a short period; however, from a jurisprudential viewpoint, there is disagreement among jurists as to whether patients afflicted with brain death are alive or dead. This disagreement arises from the jurists' differences in determining and diagnosing the subject of brain death.

From the perspective of some contemporary *marājiʿ taqlīd* (sources of emulation) such as Muhammad Fazel Lankarani and Jawad Tabrizi, the diagnosis of the common people is valid in determining the subject, and since the common people consider a brain-dead patient alive, from a jurisprudential standpoint, such a person has the ruling of a living person. A group of contemporary jurists such as Ḥusayn-ʿAlī Montazerī, Nāṣer Makārem Shīrāzī, and Ḥusayn Nūrī Hamadānī consider the criterion for determining whether brain-dead patients are alive or dead to be the diagnosis of the specific common (*ʿurf-e khāṣṣ*) (specialist physicians). According to the general rules of deduction, the application of all rulings related to brain death such as organ transplantation, continuation or cessation of treatment, *dīyah* (blood money) for organs, and equipping the deceased is contingent upon diagnosing the subject.

Position of the Issue in Contemporary Jurisprudence

Brain death is considered one of the emerging and controversial issues among contemporary jurists. Given that emerging issues have no precedent in narrative and jurisprudential sources, jurists in these cases refer to laws and general jurisprudential principles to deduce their religious rulings.

From a jurisprudential perspective, the main question regarding brain-dead patients is whether these individuals are considered alive or have the ruling of the deceased. This matter is important in the permissibility or impermissibility of stopping therapeutic procedures and using supportive medical equipment. Also, clarifying the status of a brain-dead patient is very important due to its connection with the issue of organ transplantation; because if such individuals are considered alive, transplanting vital organs of the body such as the heart and liver is not permissible from a religious standpoint. Today, transplanting organs from brain-dead patients, given the activity of other organs of these patients, is highly regarded.

Conceptualization

Brain Death from a Medical Perspective

Brain death is the permanent cessation of brain functions such as controlling and regulating respiratory and cardiac activities. In brain death, severe and serious damage is inflicted on the brain, and parts of the cerebrum and brain stem are destroyed. In this state, blood supply to the brain is stopped, and oxygen does not reach it. Therefore, brain tissues die, and the brain loses all its functions; although other body organs such as the heart, lungs, and kidneys are active with the help of drugs and medical equipment, they will also cease functioning after a short period.

In brain death, given that brain tissues such as the cerebrum and brain stem die due to lack of oxygen, and there is no possibility of regeneration or transplantation, the probability of recovery for a brain-dead patient is very low, and such individuals will suffer certain death after a short period. The difference between brain death and coma (unconsciousness) and vegetative state lies in this point; "coma" is a severe disturbance of consciousness, and there is a possibility of return to life in it; because in coma, the brain is still alive, and the patient breathes naturally; but in brain death, the brain is destroyed, and the probability of return to life is zero. In brain death, unlike the coma state, the brain stem dies, and there is no vegetative life either.

Death from the Perspective of Jurists

Many jurists, due to the clarity of the definition of death, have not addressed its terminological definition and have sufficed with mentioning its rulings. Nevertheless, some jurists have defined death as the separation and exit of the soul from the body. 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. 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.

Signs of Death

Since determining the moment of death and detecting the separation of the soul from the body is difficult, 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. 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; of course, usually with the occurrence of all the mentioned signs, knowledge and certainty of death are obtained.

Some believe that the human soul and spirit manage the body through the higher brain centers (cerebral hemispheres and brain stem). Therefore, whenever the higher brain centers fail, the soul separates from the body; because with the death of the higher brain centers, the necessary capability for the soul's management of the body is eliminated, and the soul departs from the body. Some also consider the fundamental factor in the separation of the soul from the body to be the simultaneous failure of the heart and brain.

Criterion for Detecting Death in a Brain-Dead Patient

Does the title "dead" apply to patients afflicted with brain death? Jurists have presented various views in response to this question. It seems that this disagreement returns to the difference of opinion in the issue of the validity and credibility of the common diagnosis or the jurist's statement in detecting common subjects. Some jurists consider the common diagnosis valid and the jurist's duty to be merely deducing the ruling; but others in some cases consider the jurist's statement superior to the common opinion. The views of jurists regarding the authority for detecting death in a brain patient can be divided into two categories:

General Common (*ʿUrf-e ʿĀmm*)

From the perspective of some contemporary jurists such as Muḥammad Fāżel Lankarānī and Javād Tabrīzī 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. 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 Muḥammad Muḥammadī Qāʾinī believe that if the heart's activity is spontaneous and without device assistance, the patient is considered alive, and otherwise, death is ruled.

Specific Common (*ʿUrf-e Khāṣṣ*)

A number of other *marājiʿ taqlīd* such as Nāṣer Makārem Shīrāzī and Ḥusayn Nūrī Hamadānī 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. 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. Also, Ḥusayn-ʿAlī Montazerī, considers death and life as two common concepts and the criterion for life and death as the detection of experts. He believes that the criterion in a person's death is the application of death in such a way that all manifestations of life and its effects are negated, and there is no probability of return.

Rulings Related to Brain Death

From the perspective of jurists who consider a brain-dead patient alive, none of the rulings of the deceased apply to these patients. 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. 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. Some specific rulings for patients afflicted with brain death are as follows:

Equipping the Deceased

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. Therefore, jurists who do not believe in the death of a brain-dead patient cannot rule on his shrouding and burial.

Organ Transplantation

Regarding the transplantation of organs from brain-dead patients, there is disagreement following whether they are dead or alive. 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. Also, some scholars such as Muḥammad Muʾmin believe that if the heart's activity is through a device not spontaneously, severing organs and transplanting them is permissible. In contrast, some others believe that if using the body organs of brain-dead patients causes accelerating their death, it is not permissible; 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. Muḥammad Muḥammadī Qāʾinī 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.

Continuation or Cessation of Patient Treatment

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. Those who consider a brain-dead patient alive consider treating him obligatory and disconnecting it impermissible. Nāṣer Makārem Shīrāzī, one of the contemporary jurists, explicitly rules on the non-obligation of continuing treatment. Also, from the perspective of 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. 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.

*Dīyah*

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. 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. Some also consider paying *dīyah* as obligatory caution and believe that the amount of *dīyah* should be spent on charities for the deceased. 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.

Marriage

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. Also, from the perspective of Nāṣer Makārem Shīrāzī, until the brain-dead patient reaches complete and certain death, the wife cannot observe the waiting period of death.

Study Resources

Main article: Brain Death (Study Resources)

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* written by Sayyid Muḥsin Mortażavī and the book *Brain Death: Juridical-Legal Processing* written by Ḥamīd Sotūdeh, and *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.