Brain Death: Legal-Jurisprudential Processing (book)
Author: Mohammad Kazem Haqqani Fazl
abstract
Brain Death: Legal-Jurisprudential Processing (in persian: مرگ مغزی: پردازش فقهی-حقوقی) is a book in the field of contemporary jurisprudence written by Hamid Sotoudeh, which was published by the Jurisprudence Center of Aemmeye Athar (PBUT). This book is one of the first and few works that consider the phenomenon of brain death and its jurisprudential and legal consequences in Persian language. The author considers brain death to be the same as death, but he believes that rules such as shroud and burial, which are imposed on the death of a corpse, do not apply here, but such a person is condemned to confinement, invalidation of power of attorney, guardianship, and the like. The most important result of accepting the death of a brain death patient is the permission to remove his organs for transplantation, which the author considers permissible based on the taste of Sharia.
Brief Overview
The book Brain Death, Jurisprudential Processing written by Hamid Sotoudeh is one of the many works published by the Jurisprudence Center of A’emmeye Athar (PBUT). This book focuses on the phenomenon of brain death and examines its jurisprudential and legal effects. Following the preface, the book is divided into three parts, a foreword and two appendices at the end. The author has explained his main claims in the second and third parts. Considering the publication of the book in 2012, it can be considered as one of the first books written on the brain death.
The structure of the book
The preface of the brain death book has been completed with a report on the background of the research, the importance of the topic and the goals of the research. The first part also explained the concepts and generalities of the research such as the definition of soul, brain, right, duty, and brain death. In the first chapter, which has four discourses, the author has defined the concepts of right, ruling, obligation, soul and brain, and he has dedicated one discourse to the analysis and report of the truth of death, the truth of life, and the signs and measures of being alive, and in the final discourse The conceptualization of cerebral palsy has been the focus of discussion. The title of the second part of the book is "Comparative study of brain death (medical, jurisprudential and legal)". In this section, the author has discussed the topic of brain death from three perspectives. In the first topic, which looks at the subject from the perspective of medical knowledge, no new point that has an impact on jurisprudence has been mentioned. In the legal study section, the laws of ten countries, including four Muslim countries plus Iran, have been examined. The third part of the book examines the juridical and legal consequences of brain death. This section has two general topics and 9 speeches. And he has paid more attention to the reasons for the permissibility and impermissibility of removing the organs of a brain-dead person, the rulings of a brain-dead person, and its juridical and legal consequences, such as burial and confiscation of property and the like. In the attached discussion section at the end of the book, the first author has included a not-so-long discussion about the validity of Sharia's taste as the first appendix, and in the second appendix, he has collected questions from eight Taqlid authorities about the connection of organs.
General research and fundamental concepts
According to the author, death is a natural and biological phenomenon and it means the definitive and irreversible cessation of cardiovascular, respiratory and sensory-motor activities (39). According to him, there are body death in jurisprudence books and those that are revealed gradually after death and are not effective in the discussion of brain death. (p. 40). The author cites the opinion of Sahib Jawaher, who does not consider these signs to be certain and sacred, and states that they should be medical signs that determine life and death (p. 41). Moreover, he explains the phenomenon of death from the point of view of Medical science (p. 41-43). According to the definition presented in the book, brain death is nothing but irreversible damage to the cortex and brain stem (p. 53), in which case the brain no longer has any function. and certain death has occurred (p. 54). In the first speech of the second topic, the author has tried to define the scope of research by explaining the difference between brain death and prolonged coma, coma, and apparent death. In the second speech, he stated the boundaries of brain death with unstable life, fetal life, and dying state. In the same speech, he also explained the relationship between brain death and euthanasia. According to the author's belief, since brain death means certain death, therefore not treating him is not subject to the sentence of mercy killing (p. 61).
The ratio of death to brain death
In the second topic of the second part of the book, which is about the jurisprudential examination of brain death, the author reports the view of Shiite jurists on brain death in two speeches. According to this report, a group of Shiite jurists consider a brain-dead person to be alive and based on this, they comment on the permissibility or impermissibility of removing medical equipment and stopping treatment procedures. This group considers the standard of death to be the judgment of people's custom, which according to this custom, such a person is still alive. On the other hand, another group believes that although the patient's death is not yet complete, such a person is no longer considered alive. The criterion of these jurists in the diagnosis of death is the judgment of medical experts who do not consider only the heartbeat to be alive (p. 80). In the fourth speech of this topic, the author evaluates these two opinions and concludes that a person should be considered alive before the brain starts trying, and taking possession of his body is forbidden. But after this stage, it is permissible to remove his organs in some cases. However, until his body cools completely, the Sharia rules of the dead, such as bathing and shrouding, do not become obligatory (p. 85-80).
Juridical and legal consequences of brain death
In the first topic of the third part, the author has shown in the first step that by relying on verses, traditions and several rulings of Muslim jurisprudence, it can be proven that humans have control over their souls and bodies. How far is the scope of this mastery? The answer to this question clarifies whether a person can allow the removal of his own organ or not. Accepting the arguments of Ayatollah Seyyed Abul Qasim Khoie, the author explains that man's control over his own self is limited to those cases that have been proven to be permissible. Therefore, relying on the rule of self-control, it is not possible to prove the permissibility of transplanted organs. (p. 117-118)
Reasons for organ removal from a brain dead patient
In this section, a discussion is devoted to topics that can be applied to the organ transplant and from which the permission of linking can be concluded. The author discusses topics such as urgency, sovereign permission, the effect of a person's previous permission, and the permission of a person's parents independently. In reverse, he calls the reference to self-revival and the principle of contiguity as proof (pp. 126-127). because the necessity of self-revival does not lead to the solution of its means, and in order to rely on it, one must first prove the permissibility of cutting off organs in the state of brain death (p. 127). As in the assumption of conflict, there is no reason that saving one's life necessarily precedes saving another's life, and rather it can be claimed that the sanctity of killing precedes the obligation to save life, besides, the validity of this argument depends on the validity of the inherent rule, which itself is the subject of discussion (p. 129).
Reasons for banning organ removal from brain dead patients
The third speech from the third part refers to the jurisprudential titles that are applied to the prohibition of transplant which include the sanctity of mutilating the dead, the sanctity of crimes against the dead, and the obligation to bury the body and body parts of the dead. The author considers all three reasons ineffective. Because the sanctity of mutilating the dead, the sanctity of crimes against the dead is specific to cases that lead to the desecration of the dead. Furthermore, the third reason is not devotion and is specific to the place where the delay in burial has no other justification (pp. 134-130). In the fourth speech, the author considers it permissible to use the brain-dead infidels' organs (p. 135). He believes that the payment of dowry for the amputated organs of the brain-dead person is necessary and should be spent on charity (p. 137). Of course, nothing is the responsibility of the doctor (135). The first principle considers a person suffering from brain death as dead or alive? Assuming that he is dead is the first principle of blasphemy (p. 139).
The second topic of the third part is about the rulings and rights of the brain dead. According to the basis of the author, who considers a person suffering from brain death to be dead, and on the other hand, he also notes that the other parts of the person still have vegetative life (p. 142), he concludes that rules such as the necessity of equipping and burial, transferring property to heirs, settling debts, will not be followed. As the wife's alimony is still paid from her property. However, trying to save the life of such a person is not obligatory, and spending money in this context may be considered a waste. (p. 143) According to the author's analysis in the second speech, even if they are not considered dead, people with brain death will be compared to insane people and will be excluded and they do not have guardianship, executorship and wardship either. (p. 145-146).
The position of Sharia's taste in the discussion of brain death
In discussing the argument in favor of the permission to remove an organ from the body of a brain-dead patient and to resolve the conflict between two rulings and the preference of saving a patient in need of a transplant in front of the sanctity of amputating a brain-dead patient's organ, the author is forced to cling to the taste of Sharia (p. 119). He had quoted and confirmed the words of Ayatollah Mohammad Mo’men Qomi, that by relying on the taste of Sharia, man has proven his control over his own body (p. 113).
Since the concept of Sharia's taste is not very clear, the author explains this concept in the appendix of the book and concludes by quoting phrases from Sheikh Jafar Kashif Al-Ghita (1228): "Sharia's taste is a new understanding in discovering the will of the legislators and the criteria of rulings. Through the collection of evidences that confirm each other, one can reach their common and key aspect” and discover them because these rulings are often signed. (p. 157)Another important point in the author’s words is that, from his perspective, it is possible to uncover some of the underlying rationales behind the rulings related to transactions in the broader sense. This is because such rulings are, for the most part, of an adoptive (imḍāʾī) nature. The author considers the validity of the taste of the Sharia as a result of the validity of customary certainty because in his opinion, the taste of the Sharia is nothing but a customary understanding resulting from the accumulation of suspicion. Without keeping in mind the ruling of reason, and without carefully and reflecting on the book, Sunnah and the statements of the jurists, and without knowing the different areas of the subject and distinguishing the rulings of prohibition and devotion, it is not possible to achieve the taste of Sharia (p. 161).