Brain Death

Author: Reza Bazeli

• Abstract

Brain Death (Persian: 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 Muḥammad Fāżel Lankarānī and 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 Ḥusayn‑ʿAlī Montazerī, Nāṣer Makārem Shīrāzī, and 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.

Brain Death from a Medical Perspective

Brain death refers to the permanent and irreversible cessation of all vital brain functions, including those responsible for regulating respiratory and cardiac activities. In this condition, the brain sustains severe and extensive damage, resulting in the destruction of major parts of the cerebrum and the brain stem. As blood circulation to the brain is completely halted and oxygen no longer reaches neural tissues, brain cells undergo irreversible death, and the brain loses all functional capacity. Although other organs of the body, such as the heart, lungs, and kidneys, may continue to function temporarily with the assistance of medications and medical devices, they will inevitably cease functioning after a short period.

Given that brain tissues, including the cerebrum and brain stem, are irreversibly destroyed due to prolonged oxygen deprivation and that no possibility of regeneration or transplantation exists, the likelihood of recovery for a brain-dead patient is effectively nonexistent. Such patients will, from a medical standpoint, experience certain and definitive death within a short time. The distinction between brain death and conditions such as coma or the vegetative state lies precisely at this point. Coma represents a severe disturbance of consciousness in which the brain remains alive and spontaneous breathing continues, making recovery possible in some cases. In contrast, in brain death the brain itself is destroyed, the brain stem has ceased functioning, and there is no possibility of return to life or persistence of vegetative life.

Death from the Perspective of Jurists

Many jurists, considering the concept of death to be sufficiently clear in customary and jurisprudential usage, have not devoted separate discussions to its terminological definition and have instead confined themselves to explaining its legal rulings. Nevertheless, a number of jurists have explicitly defined death as the separation and departure of the soul from the body.

From this perspective, the reality of death in jurisprudential thought lies in the separation of the soul from the body. Consequently, the continued vitality of individual cells bears no necessary relation to the life of the human person, just as the death of certain cells does not in itself constitute human death. Among contemporary Shiʿi authorities, Ḥusayn Nūrī Hamadānī maintains that once death is understood as the separation of the soul from the body, the failure of the brain signifies the occurrence of human death. This is because the brain functions as the central organ responsible for directing and governing the body and its organs.

Signs of Death

Since determining the precise moment of death and identifying the separation of the soul from the body is inherently difficult, classical jurisprudential texts have referred to a number of signs as indicators of death. Among these signs are the recession of the temples, loosening and bending of the nose, wrinkling of the facial skin, slackening of the legs, cessation of breathing and pulse, yellowing of the skin, and abdominal swelling.

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. Nevertheless, it is generally observed that the simultaneous presence of these signs ordinarily leads to certainty about death.

Some scholars maintain that the human soul governs and directs the body through the higher centers of the brain, namely the cerebral hemispheres and the brain stem. Accordingly, when these higher brain centers cease functioning, the soul separates from the body, as the capacity required for the soul’s governance of the body is lost with their destruction. Others consider the fundamental cause of the soul’s separation from the body to be the simultaneous cessation of both cardiac and cerebral functions.

Criterion for Detecting Death in a Brain-Dead Patient

Does the designation of “dead” apply to a patient afflicted with brain death? Jurists have offered differing answers to this question. The roots of this disagreement can be traced to divergent views regarding the authority and validity of customary diagnosis in identifying common subjects, as opposed to the role of the jurist’s own judgment in such determinations. While some jurists regard the identification of the subject as a matter entrusted to customary understanding and consider the task of the jurist to be limited to deducing the legal ruling, others maintain that in certain cases the jurist’s assessment may take precedence over customary opinion. On this basis, juristic views concerning the authority for determining death in a brain-dead patient may be classified into two general approaches.

General Custom (ʿUrf ʿĀmm)

According to some contemporary jurists, including Muḥammad Fāżel Lankarānī and Javād Tabrīzī, 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. 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.

Expert Custom (ʿUrf Khāṣṣ)

Other contemporary Shiʿi *marājiʿ al-taqlīd*, such as Nāṣer Makārem Shīrāzī and Ḥusayn Nūrī Hamadānī, 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. 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.

Ḥusayn‑ʿAlī Montazerī likewise regards life and death as customary concepts and considers their determination to rest with qualified experts. In his view, death is realized when it applies in such a manner that all manifestations and effects of life have ceased and no possibility of return remains.

Rulings Related to Brain Death

According to jurists who regard a brain-dead patient as legally alive, none of the rulings specific to the deceased apply to such individuals. Those jurists who entrust the determination of life or death in cases of brain death to expert custom maintain that if, in the judgment of specialists, the designation of death applies to a brain-dead patient, the rulings of the deceased are to be observed; otherwise, the rulings applicable to living persons remain in force. Nāṣer Makārem Shīrāzī, one of the contemporary Shiʿi *marājiʿ al-taqlīd*, adopts a differentiated approach in this regard. He holds that certain rulings of the deceased, such as the termination of agency and the cessation of the capacity to engage in transactions, marriage, and divorce, apply to a brain-dead patient. At the same time, some rulings of living persons remain applicable, including the non-division of the patient’s property among heirs and the non-obligation of the wife to observe the waiting period (*ʿiddah*) of death. By contrast, rulings exclusive to the deceased, such as the obligation of ritual washing upon touching the dead, the duties of funeral preparation, the funeral prayer, and burial, do not apply until cardiac activity has ceased and the body has become cold. On this basis, a number of specific rulings concerning brain-dead patients may be outlined.

Equipping the Deceased

The majority of jurists maintain that as long as death has not been established with certainty, the performance of ritual washing, funeral prayer, shrouding, and burial is impermissible. In cases of doubt, one must wait until certainty of death is attained. Accordingly, jurists who do not consider a brain-dead patient to be definitively dead cannot rule in favor of shrouding and burial.

Organ Transplantation

Disagreement regarding organ transplantation from brain-dead patients follows directly from differing assessments of whether such patients are alive or dead. Nāṣer Makārem Shīrāzī holds that, given the medical determination of death in brain-dead patients, the removal of organs for the purpose of saving the lives of Muslims is permissible. Some scholars, such as Muḥammad Muʾmin, maintain that if cardiac activity is sustained solely by mechanical devices rather than occurring spontaneously, the removal and transplantation of organs is permissible. In contrast, other jurists argue that if the use of a brain-dead patient’s organs accelerates the patient’s death, such action is impermissible. However, if it does not hasten death and is carried out with the patient’s prior consent, or if saving the life of a respected person depends upon organ transplantation, it is deemed unobjectionable. Mohammad Mohammadi Ghaeni bases the permissibility of organ transplantation from a brain-dead patient on the rule of necessity and further adds that if the patient belongs to a religion that permits organ transplantation in such cases, permissibility may also be established through the rule of obligation.

Continuation or Cessation of Patient Treatment

With respect to continuing medical treatment and disconnecting life-support devices, such as respiratory equipment, two principal views have been advanced. Many jurists regard the killing of a brain-dead patient as impermissible, whereas others consider the disconnection of life-support devices to be not prohibited in itself. Jurists who consider a brain-dead patient to be alive deem continued treatment obligatory and disconnection impermissible. Nāṣer Makārem Shīrāzī explicitly rules that the continuation of treatment is not obligatory. From the perspective of Ḥusayn‑ʿAlī Montazerī, if there exists a possibility of recovery, discontinuing treatment and disconnecting supportive devices is impermissible. However, if a more urgent case exists and the device in question is uniquely required for that case, priority must be given to the more important obligation. This ruling is grounded in the jurisprudential principle of resolving conflicts between competing duties by giving precedence to the more significant one.

Dīyah

If a brain-dead patient is considered legally alive, killing such a person is impermissible and entails full *dīyah* (blood money). In the event of the patient’s killing, the *dīyah* is due to the heirs. Some jurists hold that if the patient has consented to his own killing, the right to retaliation and *dīyah* is thereby waived. Others reject this view, arguing that a human being possesses no authority over his own destruction and that consent does not negate the right to retaliation. A number of jurists regard the payment of *dīyah* as an obligatory precaution and maintain that the amount should be expended on charitable purposes on behalf of the deceased. Some also hold that in cases involving the severing of an organ, precaution requires the payment of *dīyah*, which is the responsibility of the person who performed the act.

Marriage

Rulings pertaining to marriage, such as the obligation of maintenance, depend on whether the marital bond is considered to persist after brain death. According to some jurists, the legal status of marriage remains intact in cases of brain death; however, because the costs of medical treatment in such cases exceed customary limits, they are not regarded as part of obligatory maintenance and are therefore not binding upon the spouse. Nāṣer Makārem Shīrāzī further maintains that until a brain-dead patient reaches complete and certain death, the wife is not permitted to observe the waiting period (*ʿiddah*) of 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: Legal-Jurisprudential 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.