-What is the ruling for organ transplants in Islamic law?
Man in Islam
Allah Almighty created man, honored him, favored him over the rest of creation and made him His vicegerent on earth. Allah Almighty says,
We have honored the sons of Adam; provided them with transposrt on land and sea; given them for sustenance things good and pure; and conferred on them special favours, above a great part of our Creation. [Al-'Israa`: 70]
Islam seeks to preserve human life and protect it from partial or total harm. For this reason, Islamic law commands man to undertake all measures to protect his body, life and health, commanding him to shun prohibitions and anything that incurs corruption and harm. Moreover, Islamic law urges man to seek medical treatment through all possible means.
Textual evidence from the Qur`an
Allah Almighty says,
And make not your own hands contribute to your destruction. [Al-Baqarah: 195]
Nor kill (or destroy) yourselves: for verily Allah has been to you Most Merciful! [An-Nisaa`: 29]
Usama ibn Shuraik narrated, "A Bedouin came to the Messenger of Allah and said, 'O Messenger of Allah! Should we seek treatment for illnesses?' The Messenger said, 'Yes. Seek treatment because Allah did not make a disease without making a cure for it; some know of it and others do not' " [Recorded by Ahmed].
Organ transplantation in Islam
Organ transplantation, whether from a living donor or from one whose death has been established, is among the means of treatment which have proved its efficacy in saving lives by the will of Allah. According to Islamic law, organ transplantation from a living donor or a cadaver is permissible under the following conditions:
•It must not involve tampering with human life which Allah has honored. The human body may not be the subject of commercial transactions.
•It must be for the purpose of cooperating in righteousness, piety and alleviating pain.
•It is permissible in the absence of alternative means of treatment to save a patient's life. Qualified physicians must determine that organ transplantation achieves a certain benefit, will not harm the donor's health, and will maintain his functional integrity.
•It must not involve organ trafficking.
•It must not involve any compensation — financial or otherwise — to the donor if he is alive or to his heirs if he is dead.
In light of the above, organ transplantation is categorized under the virtue of saving lives. Allah Almighty says,
If anyone slew a person-unless it be for murder or spreading mischief in the land, it would be as if he slew the whole people. [Al-Ma`idah: 32]
It is also considered among the virtues of sacrifice and altruism that Allah urges Muslims to maintain. He says,
But give them preference over themselves, even though poverty was their (own lot). [Al-Hashr, 9]
The interest of a living person takes precedence over that of a deceased
Just as it is permissible to transplant an organ from a living person to another to save him from certain harm at present or in the future, it is permissible to transplant an organ from a deceased person with the same objective or to achieve a necessary benefit. This is because a deceased is similar to a living person in terms of the honor awarded to him by Allah and the protection against any violation against his body. Allah says, "We have honored the sons of Adam" and the Prophet said, "Breaking the bones of a dead person is tantamount to breaking the bones of a living person." This honor is not violated by merely taking one of his organs after his death to save another's life or to restore his vision. The interests of a living person take precedence over that of a deceased since a living person observes the laws of Allah and His religion to continue his mission on earth as Allah's vicegerent by worshipping Him and observing His laws and religion.
Evidence from fiqh [Jurisprudence]
It is established in fiqh that when the lives of an expectant mother and her fetus are in danger, the mother's life takes precedence. This is because the life of the mother is certain while it is not certain whether the fetus will be alive upon delivery; therefore, certainty takes precedence over uncertainty. Based on this, it is with greater reason to give precedence to a living person over one whose death has been established.
The reward for post-mortem transplants
Post-mortem transplants do not violate the sanctity of the dead; rather, they earn the deceased a great reward because it is considered an ongoing charity for which he is rewarded throughout the period the recipient benefits from the transplanted organ. This is especially so because, like live transplants, post-mortem transplants are performed through surgery which preserves the honor of the human body and does not involve any form of abuse.
Human organs are not subject to commercial transactions and must not involve any financial remuneration to the donor, if he is alive, or to the his heirs if he is dead. Live organ donations and post-mortem donations are subject to the following legal criteria:
Conditions and criteria for live organ transplants
1.An overwhelming necessity: Organ transplants from living donors are permissible when a patient suffers progressive health deterioration and qualified physicians determine that transplanting a healthy organ is the only means of saving him from certain harm. The transplanted organ must only come from a first or second degree relative. If this is not possible, then it is permissible to transplant an organ from a third or fourth degree relative. The donor must consent to the transplant, be an adult, sane and make the decision of his own free will.
2.A benefit to the recipient: Medically, the procedure must involve a perceived and certain benefit to the recipient and prevent certain harm which may occur if the damaged organ is not replaced. Moreover, there must be no other alternative to saving the patient from certain harm or death save through an organ transplant.
3.The donor's health: The transplant must not accrue in certain partial or total harm to the donor, prevent him from practicing his work or compromise his economic and moral integrity. This is because, in Islamic law, the interest of the recipient does not take precedence over the donor's and because of the legal axioms which state: 'Harm is not removed by harm' and 'Do not harm nor reciprocate harm'. [In the absence of any harm to the donor], the preponderant interest of the recipient is to be taken into consideration. There is no objection to performing an organ transplant in the following situations:
o Legally and conventionally, minor harm does not preclude permissibility if the donor is informed of it beforehand and if he is able to bear the procedure physically, psychologically and materially based on the opinion of qualified physicians.
4.The procedure must be free of any compensation, financial or otherwise, whether direct or through a go-between.
5. A specialized medical committee comprising of not less than three trustworthy physicians, who do not stand to gain from the procedure, must issue a written document of the above stipulations and give it to both parties before the transplant.
6.The transplanted organ must not in any way lead to lineage confusion.
Conditions and criteria for post-mortem transplants
1.The donor's death must be ascertained in accordance with the Islamic legal definition of death i.e. complete loss of function of all body organs such that life cannot be restored. This requires a written and signed certificate from 3 experienced trustworthy physicians who are authorized to determine death thereby permitting burial. Clinical death, known as brain-stem death or brain death is of no consequence because in Islamic law it is not considered death since some of the body organs remain alive. Medical specialists have differed over whether or not clinical death is considered real and absolute death. Since certainty cannot be removed by doubt, if it is not possible — through medical technology — to transplant an organ from a person whose death has been ascertained and this is only possible from one who is brain dead, then this procedure is prohibited and is tantamount to killing a soul without right which Allah has prohibited.
2. An overwhelming necessity: Organ transplants are permissible when a patient suffers from progressive health deterioration and if it is medically determined that there is no other alternative but to transplant a healthy organ from either a living or deceased donor to achieve a necessary benefit to the recipient.
3. The deceased donor must have made an express wish during his lifetime and when he was in his full mental capacity, to donate a certain organ without any undue material or moral coercion. He must know that he will be donating a certain organ of his body to another person after his death. Moreover, the procedure must not violate human dignity i.e. the donor's wish must not involve donating a number of organs such that it leaves his body empty since this contradicts the words of Allah,
And We have honored the sons of Adam. [Al-Israa`: 70]
4. It is prohibited under any circumstances to transplant any organ, such as the reproductive organs or others, from a deceased donor that will lead to lineage confusion. This prohibition also applies to live organ donations.
5. The procedure must be undertaken in state recognized specialized medical institutions that are licensed to perform organ transplants. They must not involve any financial remuneration. Guidelines must be set down to regulate equal opportunities for the rich and poor alike. Precedence is based on medical necessity alone, upon which saving a person from certain harm, death or incapacitation is dependent.
6. Previous Grand Muftis of Egypt who have approved organ transplantation based on the above regulations include:
•His Excellency the late Sheikh Hassan Ma`mun. His fatwa on this issue was published in Islamic Fatawa, vol. 7, p. 2552 by Dar al-Ifta al-Misiriyyah in 1959.
•His Excellency the late Sheikh Ahmed Haridi. His fatwa on this issue was published in Islamic Fatawa, vol. 6, p 2278 by Dar al-Ifta al-Misiriyyah in 1966.
•His Excellency the late Sheikh Gad al-Haq Ali Gad al-Haq. His fatwa was issued in Islamic Fatawa, vol. 10, p. 3702 by Dar al-Ifta al-Misiriyyah in 1979.
•His Excellency the late Sheikh Mohammed Sayed Tantawi. His fatwa was published in his book Fatawa Shar'iyya, p. 43 (1989) and in Islamic Fatawa, vol. 21, p. 7950.
• Dr. Nasr Fareed Wasil.
•Dr. Ahmed al-Tayeb.
•The Fatwa Committee of al-Azhar issued a fatwa on this issue in 1981.
• Other fatawa on this topic and which are too numerous to cite here, have been issued by great scholars and Fiqh assemblies in some Islamic countries.
•Finally, the Islamic Research Assembly maintained the same opinion in its 8th session, round (33) held on 17th Dhul Hijja 1417A.H./ April 24 1997.
Allah Almighty knows best.