Jurisprudential Foundations of Organ Donation (book)
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| Book Information | |
|---|---|
| Author | Maryam Rezaei |
| Style | Reportorial |
| Language | Persian |
| Pages | 200 |
| Publication Information | |
| Publisher | Bikaran-e Danesh |
- Abstract
Jurisprudential Foundations of Organ Donation is a Persian-language book in the field of medical jurisprudence related to organ donation, authored by Maryam Rezaei. In this book, the author attempts to examine the jurisprudential challenges associated with organ donation. The necessity of this research is justified by reasons such as saving human lives through organ transplantation and the numerous jurisprudential challenges in this area. Rezaei examines various aspects of organ donation, including donation in cases of brain death and donation from a living person. She also addresses the issue of organ donation from a person whose blood may be shed with impunity (*mahdur al-dam*), presenting the arguments of both proponents and opponents. By compiling the critiques raised against organ donation, the author concludes that it can be performed by observing jurisprudential conditions. In some discussions, Rezaei also presents the views and opinions of Sunni scholars to provide a more comprehensive perspective on the jurisprudential dimensions of organ donation.
Introduction and Structure
Organ donation is one of the most significant medical and ethical issues in today's world. Saving human lives through organ transplantation is an undeniable necessity that faces numerous jurisprudential and ethical challenges. The book *Jurisprudential Foundations of Organ Donation* by Maryam Rezaei delves into these challenges and presents the jurisprudential foundations related to organ donation.
The book is organized into three separate chapters. The first chapter covers concepts and general principles, where the author explains key concepts related to organ donation such as donation, ownership, and brain death. In the second chapter, titled "Foundations, Nature, and Juridical-Legal Rulings of Donation," she examines two perspectives: limited and unlimited human dominion over their body parts, as well as the evidence for the permissibility or impermissibility of buying and selling organs, presenting the different opinions of jurists in this regard. In the third chapter, titled "Instances of Donation," the author first examines the religious conditions and rulings of organ transplantation from brain-dead individuals, and then donation from a living person.
Unlimited Human Dominion over Their Body Parts
Unlimited human dominion over one's own body is one of the two influential foundations in the discussion of organ donation, which the author addresses in the second part of the book. The evidence for this view includes verses from the Quran, narrations, the Rule of Dominion (*qa'idat al-taslit*), and the practice of the wise (*'urf al-'uqala'*).
Argument from Quranic Verses
The author states that some Quranic verses allude to and express humanity's unlimited dominion over their own bodies. For example, Quran 33:6, which considers the Prophet's authority over the believers to be stronger than their own authority, proves a person's authority over their own self. Similarly, Quran 5:29 also indicates a person's right to dispose of their own self.
The author, quoting critics of this argument, notes that the aforementioned verses are ambiguous about the extent, quality, and manner of human ownership over their self. What can be derived from these verses is only the general concept of ownership over the self, nothing more. To determine the scope of this ownership, one must refer to other evidence (p. 39).
Argument from Narrations
The author also cites narrations from the chapter of retaliation (*qisas*) which give the victim the right to forgo retaliation against the offender in exchange for a sum of money. One of these hadiths is the reliable narration of Ishaq ibn 'Ammar from Imam al-Sadiq (a), who said: "The Commander of the Faithful (a) ruled concerning injuries to the body that the victim can either seek retaliation or receive blood money for the injury."[1] Additionally, there are narrations indicating that God Almighty has delegated all of a believer's affairs to them, except for matters that lead to their humiliation and abasement.[2]
In critiquing the argument based on these two narrations, the author states that it is true that the first narration does not indicate unlimited human dominion over the self, and the second narration, being concerned with external actions and deeds, is a specific argument for a general claim and is thus questionable (p. 40).
Rule of Dominion and Practice of the Wise
The author also cites the Rule of Dominion ("People have authority over their property and themselves") and the practice of the wise as support for unlimited human dominion, stating that the consensus of the wise indicates that humans have rights over their body parts. However, the author believes that the Rule of Dominion has also been specified and limited (p. 40), just as the practice of the wise does not indicate unlimited human dominion (p. 41).
Limited Human Dominion over Their Body Parts
The second view, which posits a limited human dominion over one's body, is the rival perspective to unlimited dominion and prevents extensive dispositions in the discussion of organ donation. The evidence for this view includes verses, narrations, the no-harm rule (*qa'idat la darar*), the practice of the wise, and the concept of the body as a trust (*amanah*). The author's own opinion regarding the relationship between a person and their organs is that of limited dominion. According to her, what is more in line with reason and custom is limited dominion (p. 44).
To prove the limitation of human dominion, the author cites the argument from Quran 2:195, which does not permit a person to cause their own destruction (p. 41). The author also refers to narrations that allow a person to dispose of their body only in cases of necessity and need, and cites a narration from Imam al-Rida (a) about accepting the heir apparency to prevent the destruction of the self.[3] She claims that the narration explicitly states that a person generally does not have the right to harm themselves, except in cases of coercion and duress where their life or honor is under serious threat (p. 41).
The author says that the no-harm rule also states that if no harm is inflicted upon a person, disposing of their own body is permissible (p. 42). The wise people of society also permit disposition of the body only in cases where no harm befalls the person. Some jurists believe that the human body is a trust in which one can dispose with the observance of specific conditions (p. 43).
Organ Donation When It Requires Amputation
In the section on the evidence for the impermissibility of organ donation, the reasons based on which organ donation is not permissible are examined. One of the most important reasons for the impermissibility of organ donation is inflicting harm on the body. The author explains that Islamic jurisprudence places great emphasis on preserving health and preventing harm to the body. Also, some jurists believe that organ donation leads to a change in the original creation of man, and this change is contrary to religious principles (p. 45).
After stating the opinions and evidence, the author says that in organ donation, there is no difference between primary and non-primary organs, and what is important is that two points are considered: that the donation does not lead to death or humiliation and degradation (p. 51).
Existing Views on the Buying and Selling of Organs
In a part of the second chapter, the author has examined the different views on the buying and selling of body parts. She herself believes that a person is the owner of their organs, and in exchange for transferring them, and assuming they are non-transferable, upon relinquishing them, they can demand payment (p. 80).
Theory of the Impermissibility of Selling Body Parts
The author, in the first view, refers to the impermissibility of selling body parts. The evidence for this view includes God's true ownership, the prohibition of unjustly consuming wealth (*akl mal bi al-batil*), and the preservation of human dignity.
The author says the first reason of those who hold the view of the impermissibility of selling body parts is that God is the true owner of all things, and man is not permitted to dispose of his own body. This argument is based on verses that introduce everything in the heavens and the earth as belonging to God (p. 73). The second reason is that human body parts are not considered property and therefore cannot be the subject of a transaction. This view believes that such a transaction is "unjustly consuming wealth" (p. 74).
For the third reason, the author refers to the invalidity of selling a carcass (*maytah*). Body parts, after separation from the body, are considered a carcass, and the sale of a carcass is forbidden based on Quranic verses, the consensus of jurists, and narrations (p. 74). The fourth reason is based on the prohibition of buying and selling impure things, stating that parts of the human body are considered impure after separation from the body and are not exempt from this rule (p. 76). The author introduces the fifth reason for this view as human dignity, which causes the Lawgiver not to consider human body parts as property, and therefore, their sale is not religiously permissible (p. 76).
Theory of the Permissibility of Selling Body Parts
In the second view, the author discusses the permissibility of selling body parts, relying on the principle of permissibility (*asalat al-hill*), human ownership, the human right of disposition, and the advisory opinion of the Legal Department of the Judiciary. The author says that based on the rule of "permissibility" and the hadith "Everything in which there is lawful and unlawful is lawful for you," as long as the prohibition of buying and selling something is not proven, its sale is lawful (p. 77). The second reason is that a person is the owner or has dominion over their organs and therefore can sell or donate them (p. 78). The third reason is the appeal to the practice of the wise, who consider a person to have dominion over their body and property, and therefore can sell or donate their body parts (p. 78).
The author cites the fourth reason as an appeal to a specific proof, namely Quran 9:111. Based on this verse, God has purchased from the believers their lives and their property, and this itself shows that man is his own owner and can dispose of it with God's permission (p. 79). The author also cites the advisory opinion of the Legal Department of the Judiciary as support for human ownership over their body and the permissibility of selling body parts (p. 79).
Theory of Exchangeability Based on the Right of Disposition
The author explains the third view in the discussion of selling body parts as follows: body parts, due to their desirability and utility, can acquire asset value after being severed and be considered "trade by mutual consent" (*tijaratun 'an taradin*). This view does not consider body parts to be property but permits receiving compensation in exchange for transferring them (p. 80).
Views of Jurists on Organ Removal
The discussion of the permissibility and impermissibility of organ removal is a topic that the author raises after discussing the permissibility of its sale. In this section, the views and reasons of jurists regarding organ removal are reported.
Opponents' Arguments
According to the author's report, opponents of the permissibility of removal have cited reasons such as the prohibition of benefiting from a corpse, consensus, narrations, desecration of sanctity, prohibition of mutilation (*muthlah*), the impermissibility of delaying the burial of the deceased, and the prohibition of euthanasia. This is because these organs are a carcass and dead (p. 82), and the consensus of jurists is on the prohibition of removing an organ from the dead (p. 83). The author says there are also numerous narrations that emphasize the prohibition of removing an organ from the dead (p. 84). Some also believe that this act leads to the desecration of the deceased's sanctity (p. 86). The author points out that mutilating the body of the deceased (cutting the body into pieces) is forbidden in Islamic jurisprudence (p. 89), just as delaying the burial of the deceased for organ removal is not permissible, and timely burial of the deceased is one of the religious obligations. Euthanasia (mercy killing) is forbidden in Islamic jurisprudence, and removing an organ from the dead is considered somewhat similar to this act (p. 90).
Proponents' Arguments
Proponents of organ removal have cited reasons such as necessity (*idtirar*), the permission of the religious ruler, prior consent, and the consent of the guardians. The author says that some jurists believe that in emergency situations where saving another person's life is at stake, removing an organ from the dead is permissible (p. 97). Also, with the permission of the religious ruler, the organs of a dead person's body can be removed (p. 100). The author continues that if the person had given consent for organ donation before their death, this act is permissible (p. 101). Also, with the consent of the deceased's guardians, removing an organ from the dead is permissible (p. 103).
The author then discusses invalid reasons for organ donation, including reviving a soul and the rule of conflict (*qa'idat al-tazahum*), and critiques them (p. 105). At the end of the chapter, she examines the rulings related to donation, such as removing an organ from non-believers who are brain-dead, and the blood money for the separation of body parts and how it should be used (p. 109).
Organ Transplant from the Brain-Dead
A portion of the book *Jurisprudential Foundations of Organ Donation*, with the aim of analyzing organ transplantation from the brain-dead, examines the issue of life and death and their related signs. First, the signs of life and death are examined to provide a clear conceptual framework for the rest of the discussion. Then, the issue of brain death is addressed, which is one of the complex topics in the medical and jurisprudential fields.
The author explains the criteria for determining death and emphasizes that although religious rulings are determined based on concepts and custom, this rule is correct only when the general custom has the competence to ascertain the subject. In the matter of determining death, due to scientific and medical complexities, this competence is delegated to experts and specialists (p. 128). The author then proceeds to examine the arguments of the opponents and proponents of organ removal from the deceased, which are the same arguments presented in previous chapters (p. 136).
Organ Donation from a Living Person to a Living Person
Organ donation from one living person to another is also a type of organ donation. This type of donation is divided based on two criteria: one is based on whether the organ donor is *mahdur al-dam* (one whose blood may be shed with impunity) or not (p. 165), and the other depends on the extent of harm inflicted upon the donor. In the second case, donation is divided into four categories: (a) donation of an organ that could lead to the donor's death, (b) donation of an organ that causes significant harm or disability to the donor, (c) donation of an organ that causes minor harm, and (d) donation of an organ or tissue that causes neither death nor harm (p. 165).
Organ Removal from a Person Whose Blood May Be Shed with Impunity (*Mahdur al-Dam*)
The author states that some Sunni scholars have approached the issue using analogy (*qiyas*). According to them, if a person is in a state of necessity, they can eat the flesh of a *mahdur al-dam* person. Here too, if a living Muslim is in a state of necessity, they can use the organs of a *mahdur al-dam* person. Therefore, they consider the removal of an organ from a *mahdur al-dam* person (such as a combatant infidel, a Muslim apostate, or one who has committed adultery while married or sodomy) to be permissible (pp. 167-168). Their argument is based on the idea that human dignity is lost when a capital offense is committed, and Islamic law mandates the killing of a *mahdur al-dam*. They also refer to rules such as bearing a lesser harm to prevent a greater harm.
The author presents the Shia response as follows: analogy is not recognized as a valid source of law among Shias (p. 170). Even if we were to accept analogy, removing an organ from a *mahdur al-dam* person is not permissible, because some Sunni jurists (like the Malikis) also do not permit eating the flesh of a *mahdur al-dam*. Al-Shafi'i explicitly issued a fatwa against transplanting an organ severed as a result of a *qisas* punishment back onto the offender. Therefore, it is not permissible to transgress what Sharia has stipulated as punishment for *mahdur al-dam* individuals and to authorize the removal of an organ that leads to death or disability without their consent (p. 171).
Organ Removal from a Person Whose Blood Is Protected (*Mahqun al-Dam*)
According to the author's report, the removal of vital organs from a *mahqun al-dam* person (a person whose killing is not religiously obligatory) is also not permissible, because the evidence for the obligation to preserve life and the prohibition of harming oneself prevents it (p. 172), due to the rule of *la darar wa la dirar*. However, the removal of non-vital organs (such as the amniotic sac, placenta, and postpartum remains) is permissible if it does not lead to the death or disability of the donor (p. 173). Some jurists believe that even in the case of vital organs, such as removing one kidney from a healthy person, the evidence against harming oneself can be set aside for the sake of saving the essential life of another Muslim patient, because this action brings about a necessary and greater benefit for the other Muslim (p. 178).
A group of Sunni scholars at a meeting of the Islamic Fiqh Academy concluded that organ transplantation for a person in a state of necessity is permissible only under specific conditions (p. 181):
- The transplant should not cause serious harm or disruption to the normal life of the donor.
- The donor must make this decision freely and without coercion.
- The transplant must be necessary to save the life or improve the function of one of the patient's vital organs.
- The probability of success in both the removal and transplantation operations must be high.
Organ Donation for Replacing a Defective Organ or for Cosmetic Purposes
The last topic of the book is the removal of an organ from a healthy individual and its transplantation into a patient solely to replace a defective organ (like a severed finger) or for cosmetic purposes. In this issue, the patient's life is not in danger, and there is no more important interest that could counter the evidence for the prohibition of harming oneself (p. 180). In this discussion, there are also three opinions.
Proponents of Organ Removal
Some Sunni scholars argue for the permissibility of organ removal in a non-essential operation, stating that a person has the right to decide about their own body and donate an organ even if there is no necessity. This is because a person has the right of disposition over their own organs, and whatever a person has the right to dispose of, they can also sacrifice, forgoing their bodily rights to help another, provided that this sacrifice does not lead to their death or serious injury (p. 180). Another reason the author points to is that it is permissible to dispose of the rights of people and rights in which the rights of people are dominant (p. 180).
Opponents of Organ Removal
Opponents of organ removal in a non-essential operation, including Muhammad Metwali El-Shaarawy, argue that all parts of the human body are the property of God, and humans are not allowed to dispose of them in these cases. In their view, organ removal is forbidden both during life and after death. The author mentions Sheikh Shaarawy's fatwa on the permissibility of blood transfusion as a refutation of this argument (p. 182).
Some opponents also believe that organ transplantation, even from an animal, is a form of changing God's creation and is forbidden. They refer to verses of the Quran in which changing God's creation by man is considered a reprehensible act resulting from satanic whispers (p. 184).
See Also
Footnotes
references
- Al-Hurr al-'Amili, Muhammad ibn al-Hasan. *Wasa'il al-Shi'a*. Tehran: Islamiyyah, 1372 SH.
- Al-Saduq, Muhammad ibn 'Ali. *'Uyun Akhbar al-Rida*. Beirut: Mu'assasat al-A'lami li-l-Matbu'at, 1404 AH.