Discussion of Transplantation and sale of organs legal papers

"The Islamic Vision of Some Medical Practices"

DISCUSSION

Chairman, Dr. Essam Al-Sherbini

We now tackle the topic of organ transplantation, which has become a practical programme undertaken by Kuwait and many other countries of the Islamic World.

Along with this scientific activity, new Juristic issues arise besides the medical. It is apparent that the organs which could possibly be procured for transplantation to patients are short of the demand. The patient is willing to pay all the money he can afford for a remedy. Hence, arises the question of sale of organs. Is it permissible for man to sell part of his body? Is it also permissible to sell part of a dead man, as transplant organs are procured from the healthy and the dead alike? If a patient in need is permitted to purchase an organ, or pay an idemnity, in any form whatsoever, is it permissible for the sound living person, who is not compelled by a dire necessity, to sell an organ of his body?

It is well known that a former formal legal opinion (Fatwa) was released to the effect of the permissibility that a living man donates an organ of his to save the life of a patient. However, those who released this fatwa did not permit the sale of organs. Jurists talked before about milk and blood, but the case is different because milk and blood are renewable, and the danger entailed in obtaining them from a living person hardly exists, whereas procurement of an organ implies the separation of a living organ through a surgical operation which involves certain risks.

If sale of organs is permitted, is any man entitled to purchase and sell them? and what if a third party is involved to organize the process? What will the case be if this becomes a trade. I believe many of the fellow members did not miss what Kuwaiti Television showed, a short time ago, of a story close to science fiction or criminal imagination, or perhaps from the exploitation on the part of some people who harp on the need of patients and doctors for organs, which was turned into a trade in which people are exploited or assaulted. Should the state interfere to organize this, in the sense that it becomes the responsibility of states to directly purchase and sell organs?

All such questions have been raised, not because they involve science fiction, but because they reflect a living reality; if not in our country nowadays, yet, in surrounding countries, and will come to us...

Our first speaker on this topic is Dr. Mokhtar Al-Mahdi, who will talk about Donation, Sale and Unbequeathed Human Organs... I kindly request the fellow speakers and those who will raise questions and discussion to stick to talking on the subject of the session, which is sale or organs, because we had previously tackled death and what happens after the death of the brain or the heart. We have also previously tackled some other aspects, but we hope now to focus on the question under discussion.

Chairman, Dr. Essam Al-Sherbini

I extend thanks to His Eminence, Dr. Muhammad Sayed Tantawi for delivering a good speech, and also for his good commitment to the element of time. The session will be adjourned at six O'clock, because from 6:00 until 6:30 there is the Maghrib prayer. The next session will be on the same topic after prayers, with ampler time, and a better Chairman... We now open the discussion...

Those who want to speak are kindly requested to send their names...

I believe that the session has covered both medical and Juristic issues, and the two speakers are a doctor and a Jurist. The following session is considered a continuation to this. You are free to ask any questions. The gentlemen participating in this session are kindly requested to confine discussion to the subject, which is the transfer, sale and donation of organs.

Dr. Abdulrazzaq Al-Samera'i

I'll speak about corneal transplant. Cornea is brought to some Arab States from other countries such as Sri Lanka, but more often cornea is imported in a bad condition taken from aged people whose corneal layers, in part, have lost vitality such as the endothelial layer. Some people travel abroad to have a cornea transplant, the matter which costs great sums of money for the individual and the state as well. We perform this operation in Kuwait with perfect success. However, cornea is not domestically available.

Donation or sale of cornea is not made possible through a living person, but soon after death, and the operation usually achieves perfect success. There are no cornea donors after death in this country, or other states. Neither a law nor a legislation exists to allow doctors to obtain cornea from dead persons, or at least from those who do not have relatives here, or to obtain cornea from those who die in road accidents. On the basis of the rule mentioned by his Eminence, Dr. Muhammad Sayed Tantawi that "the most harmful determent is removable by the less harmful one"., which also means reviving and offering life to a patient of cornea opacity who suffers severe poor sight by providing him with a cornea transplant and giving him light again, thus reviving him, we raise the question: "Is there a legislation allowing doctors to obtain cornea from dead persons?" Thank you.

Dr. Haitham Al Khayyat

I have a simple remark on the conclusion of the research presented by Dr. Muhammad Sayed Tantawi. Man's sale of any organ of his body is lawfully impermissible and absolutely rejected unless in the rarest cases which I believe His Eminence meant to say that purchase is permissible in rare forms but sale is originally not. I do not know, have I understood right.

Dr. Muhammad Sayed Tantawi

I mean sale and purchase, I mean both, because in this case of the rarest form which I mentioned, when the life of a man is contingent upon this while there is no relative nor any one else to donate an organ to save his life, in this rare case, it is permissible to purchase from any person to save the life of this man... So, I mean both aspects...

His Eminence Sheikh Ezzuddeen Al Khateeb

I mean to raise an actually explanatory question. When it is said that man is owned by Allah, what does the word "owned" mean? I believe that everything is owned by Allah, who hath the Dominion:

BLEST BE HE WHO HATH REVEALED THE CRITERION UNTO HIS BONDMAN THAT HE MAY BE UNTO THE WORLDS A WARNER. HE WHOSE IS THE DOMINION OF THE HEAVENS AND THE EARTH.

Everything in the universe including man is owned by Allah So, what is the relationship between the fact that man is owned by Allah and the impermissibility of selling any of his organs, this is on the one hand; Does absolute ownership, on the other hand, mean the ownership of sale and purchase, in the sence that since I own a thing, I can exercise authority by sale and purchase. Is this meant in the Qur'anic verses and prophetic traditions? I seek the opinion of his Eminence, the Mufti that it is impermissible to sell organs on the basis of commercial transactions, as Allah has honoured man on the grounds of honouring, but not on the grounds of being owned or not. The question of donation has also been admitted by many muslim scholars. I support his Eminence, the Mufti in this vantagepoint. There is a thought which has occurred now to me, and which can open new horizons for the Jurists of standing attending this session, when the Creator describes the believers, praising them with giving priority over themselves, even in destitution". The Islamic history cities the example of the three men who were fighting in a battle. Each of them was in dire need for a sip of water. The first man preferred his brother to himself and the second preferred the third to himself. When the cup-bearer returned to the first man he found him dead, and also were the second and the third. This example implies that Allah has given man the right to put others first, not on the basis of being the owner.

Chairman, Dr. Essam Al-Sherbini

Thank you, your Eminence the Muftii.

If you allow me to take half a minute, the Prophet, may the blessings and peace of Allah be upon him, commanded man not to leave the place of plague, a matter of perdition, in order to save the entire nation, and also commanded man to fight and die to save the nation. This command should be taken into account. There is a comment by Dr. Yehia Nasser Khawaja outstanding from the last session. I kindly call upon him to give it briefly.

Dr. Yehia Nasser Khawaja

Dr. Muhammad Tantawi has kindly delivered an interesting speech covering all the points which I intended to talk about. But I have some points concerning the procurement of organs from the dead. It is well known in the Hanbalite school that such procurement is impermissible as the prophet says,

"Breaking the bone of the dead is tantamount to breaking the bone of the living",

and that the organs of man are respected, inviolable. As to the purchase of kidneys, the Sheikh has said that it is possible, in case of necessity, to purchase a kidney. The one who sells his kidney should not be harmed, and there is the benefit for the recipient who suffers kidney failure. But the seller may suffer harm, because he undergoes a surgical operation, and the other kidney may not be good for long. So, there is a potential harm. I kindly ask the Sheikh to elaborate on this point.

The second point is that the Gulf area, at the time being, turns to India to purchase kidneys tempting people with dollars. Then, it goes around that he who wants a kidney must pay a thousand or two thousands and even fifty thousand Dollars. The important fact is that there are people who want to support the hungry.

Should this opportunity be seized. Will there not be any harm inflicted upon the others. As to the procurement of kidney from those sentenced to death as long as man is still alive, so the inviolability of his organs still exists, and should not be overlooked for any reason whatsoever. Naturally, I do not believe that the Sheikh agrees on this point that what we procure from even those sentenced to death is not based on benefit, but kidney donation by a father or a son to a father or a mother is not impermissible as viewed by Muslim scholars. The problem, however, lies in the question "Is there any harm, if we open the door of kidney purchase to the person selling his kidney?

Chairman, Dr. Essam Al-Sherbini

Thank you, Dr. Yehia... Now is the turn of Tawfiq...

Dr. Tawfiq Al-Wa'i

I would like to raise a simple question. Dr. Muhammad Sayed Tantawi has actually delivered his word, but left the point of sale to the extremely special cases. There are, however, some priorities, in the sense that we get organs from the dead, if this is not possible, and he said he believed so, we get the organ with a permission, and in case we do not find the dead people, we resort to donors, but in case we do not find donors, we recourse to purchasing. But turning absolutely to purchasing while disregarding the two former questions: I hold the view that we resort to the purchase of organs when donation or procurement from the dead are not possible, or when no donors nor dead people are available. We resort to purchasing in the extremely special cases as kindly elaborated by his Eminence. I do not think purchase, should be permitted as a first step...

Chairman, Dr. Essam Al-Sherbini

Dr. Adel Al Tawheed, is kindly asked to speak to be followed by Dr. Abdullah Basalamah.

Dr. Adel Al Tawheed

I am pleased to listen to the views of the Jurists as regards this practical and scientific issue. Yet, the concept of donation in self-denial is not a practical matter. Who would donate a kidney on the basis of such principle? In fact, the Transplant Department in Kuwait has not reported such a matter that a person goes, of his own accord, while being no blood relative, to register his name and donate a kidney in self-denial. I remember a single case in this regard. There is the patients' Aid Fund to help patients in this respect. This Fund is one of the charity institutions which seek to help people travel abroad for treatment after the Transplant Department in Kuwait has registered growing numbers of patients who need kidney transplant and find no donors. People seek the Patients Aid Fund, in collaboration with the Alms House in an endeavour to be sent to India or other quarters naturally, the Fund was helpless in this question because such cases are intricate, and need many formal legal opinions for final decision. What currently happens is that the waiting list grows day by day, following up renal deficiency and its problems such as headache arthritis shunt thrombosis, renal dialysis and the waste of time for the patient. It is not possible for a kidney failure patient to travel while on dialysis, besides, the expenses outside Kuwait are naturally great. So we have imposed confinement on such a patient inside Kuwait. In fact, we have two school inside Kuwait. The Transplant Department rejects sale of organs. On the other hand, the Haemodialysis Department does not object as long as sale intends to alleviate the anguish of that patient. In fact, we have collected in the Patients Aid Fund all the formal legal opinions in this regard. We have also contacted the Opinion Ad Hoc Administration in the Ministry of Waqfs and Islamic Affairs. The Opinion Ad Hoc Administration in Kuwait permitted the sale of organs. Opinion Number 55, of 1985 A.D. as follows:

As to kidney purchase by a patient from another person this is forbidden, as Allah has honoured man, so it is impermissible to cut or sell any of his organs at any price, whatsoever. In case the patient does not find a kidney donor, and his life is endangered, while no other means is available to cure his disease, then purchase is permissible as he is compelled by a necessity. Allah, highly exalted be He says:

WHILE HE HATH SURELY DETAILED UNTO YOU THAT WHICH HE HATH FORBIDDEN TO YOU, UNLESS YE ARE DRIVEN THERETO.

We have to take into account the conditions in case of donation, that the procurement of any organ does not conduce to death, nor injury of donor, that the procurement is implemented with his complete consent, and that donor should be of full legal age. Naturally, in this Opinion, there is a later addition. Nevertheless, it has been said about rendering help to the recipient that if such help conduces to a forbidden thing, then it is forbidden. It is impermissible to transfer a kidney to a person whom we think will use it in forbidden action. As regards the spread of the concept of sale of kidneys nowadays, the kidney is purchased from abroad, as mentioned in Helsinki Paper, submitted by Saudi doctors in Helsinki Conference in 1986. The Paper demonstrates the dangers and complications ensuing from kidney transplant, and purchase from places lacking accuracy and precision. The paper also indicates some dangers, that 40% of such patients have performed nephrectomy operations again after they had purchased the kidneys from abroad, in addition to the complications in such cases. Here we have an answer by Dr. Youssef Sadik of Sharia College. He says that the sale of any organ is naturally impermissible, because we may give such organ which praises the glory of Allah, highly exalted be He, to an infidel whom originally we have to eradicate and not help giving him life.

I want really to come to a question and raise, God willing, a topic for discussion. First, until we get rid of this critical situation which we are facing having growing numbers of donors, along with people's discomfort with this, there is not, in fact, a single donor of his own accord, which means that we see people call for voluntary donation, yet it takes many years, although it entails no harm for. However, people may call for kidney donation on the basis of good reward, not on the grounds of sale and purchase. This matter means that you give the donor a present, as you give in blood donation, but not on the basis of sale so that we can facilitate this way for people, and donation can be from a Muslim to a Muslim, from a non-Muslim to a Muslim and from a Muslim to a non-Muslim, and that if such donation occurs in Kuwait it should be implemented in a Kuwaiti Centre considering the fact that in such a place we take all the scientific precautions, and that the kidney which cannot be transported to Kuwait should be sent to another Islamic Centre in the Islamic world, but not abroad.

Chairman, Dr. Essam Al-Sherbini

... Thank you Dr. Adel. In fact, there are many questions, and the session will be extended, God willing. Now is the turn of Dr. Abdullah Basalmah. I wish if you answer two points, the first is: "Does he feel as a doctor that he infringes upon the inviolability of the dead when be gets an organ from him to be transferred to a living man?

This question will be directed to the fellow Jurists. The second question is raised by Dr. Yehia Nasser Khawaja as follows: "Is the harm inflicted upon the kidney donor gravely actual or slightly potential?

Dr. Abdullah Basalamah

You shoulder me with the responsibility of giving opinion, and Dr. Hussain Al Jazaeri made it impermissible.

Chairman, Dr. Essam Al-Sherbini

I mean your medical feeling. Do you feel while taking an organ from a dead man that you are infringing upon his inviolability, or that there is respect for that dead man, and respect for an organ which is of benefit after man's death?

Dr. Abdullah Basalamah

Allow me to answer the question of the dangers stated in cases of donation, purchase or transplant of organs by posing another question. Man cannot dispose of things he does not own. Man's body is owned by Allah. The organs of the body are also owned by Allah. However, don't we transplant a part owned by Allah to another part also owned by Allah.

In this context, the matter may look greatly different when we take a kidney from the body of an infidel to the body of a Muslim praising, exalting and praying Allah, we may contribute to the salvation of a man from fire, God willing.

Dr. Muhammad Sayed Tantawi

Allow me to elaborate a point, which I said, that man's body is owned by Allah. I want only to explain that brother Mr. Ezzuddeen, and also our colleague the doctor have both raised a relevant question. I mean that man's body is owned by Allah, and that everything is owned by Allah as correctly said by brother Ezzuddeen Al Khateeb, whereas man, besides being owned by Allah, man is responsible for it.

There is a difference between two sorts of ownership.

Man's body is owned by Allah, and man's soul is also owned by Allah, in the sense that Allah created man and entrusted him with his body and commanded that he should not use his body except in what is good. Allah made All things: earth, stars, sun, moon etc. under the disposal of man and at his service. Allah in reality is the owner of everything. Whereas man, by virtue of viceroyship, is the owner of things other than "man". There is no contradiction between the two opinions.

Chairman, Essam El-Sherbini

Thank you Dr. Muhammad Sayed Tantawi. Now is the turn of Sheikh Muhammad Al Mokhtar.

Sheikh Muhammad Al-Mokhtar Al Salami

The question of organ transplant is based on either donation or sale. This question is a new one, regarding which we have no opinion by Jurists. Since we lack the discretionary opinions deduced from available texts, we have to follow the same track adopted by our Jurists. Before we come back to the general rules, we say that among the original rules is that the most general fact governs the most particular one, with no substantial harm to be inflicted. Similar rules do not provide Jurisprudence as they were laid down later. They are deduced from Jurisprudence, but their deduction occurs not through full but rather frequent detection.

This is then, a new question. What I have found from the past is an occurrence during and after the era of the Messenger of Allah, may the blessings and peace of Allah be upon him, that a man was hiring a wet nurse to breast-feed his baby. She was assuming two functions at one and the same time, as she was giving the baby her milk and raising him.

In this regard, I say that jurists disagreed upon the question: "Is she paid for only nursing the baby"? and that it is impermissible to sell milk. This opinion has its own inviolability and respect.

The second opinion is that her wage is divided between the price of milk she offers and the charges for nursing and raising the baby.

I believe, then, that the forerunners' will be our approach towards such or similar questions. Regarding the question of Allah's ownership and its meaning, I think the one who talked about this question is Imam Al-Qarafi who mentioned that rights are of three kinds:

A right exclusively for Allah, a right for Allah and for the bondman - the bondman's more -, and a right for Allah and the bondman where the right of Allah is given precedence.

When Imam Al Qarafi wanted to make clear the exclusive right of Allah, he found only one aspect which is to worship Him and not to associate a partner with Him. This aspect was discussed by Ibn Al-Shat. We are not interested in this point, we are not in a class. What is important in my opinion is whether organs, man or life are an exclusive right of Allah and the bondman, and does the bondman have a part in this right? I believe that life is a right of Allah, and not of man:

WHO HATH CREATED DEATH AND LIFE THAT HE MIGHT PROVE TO YOU, AS TO WHICH OF YOU IS EXCELLENT IN WORK.

A short while ago I said that for the question of organ transplant, we come back first to breast-feeding. Breast-feeding generates the question of blood and blood donation or sale. Anyhow, on the basis of what Jurists said as regards breast-feeding, they have recently disagreed concerning the permissibility or impermissibility of blood sale. Muslims of the East and West have currently approved the permissibility of blood sale. This approval comes in response to what the medial reality and progress have imposed, that surgeons cannot perform complicated or simple operations unless when blood is available and unless they feel assured that blood is present in advance, or otherwise, embarking upon a surgical operation will expose the patient's life to death. There is also another question, close to this one, represented in preserving human life by eating from a human body. Is man allowed to eat part of his body. Is man permitted to eat the dead person to keep his own life, as Allah, highly exalted be He says:

BUT WHOSOEVER IS DRIVEN BY NECESSITY, NEITHER ALLUDING NOR TRANSGRESSING...

In this point we find that Jurists also disagreed. The question which took place in Lebanon or rather the Opinion released in this regard, it is political, and its approval is not suitable. However, it is an opinion of Jurists origin. Many Jursits hold the view that it is permissible for man to eat the dead to keep his own life.

The third point which I put forward in this subject is that in the Sharia interests keeping life comes second in rank, whereas safeguarding religion is of paramount importance. Man sells himself to Allah and dies for the sake of spreading religion, and offering freedom to mankind to worship Allah, This point is indisputably accepted. Then comes keeping life in the second place. Keeping life is the basis. We have a certain life and another doubtful one. Man may reach the stage that if he does not benefit from another person's organ, he would certainly die. In this case, we cannot seek benefit on the basis of supposition, but on categorical grounds in the way viewed by the doctors, that is if doctors submit a report that the patient will certainly die if he does not receive an organ either through donation, or purchase. This is the first case. The second is the procurement does not involve what the Prophet said:

"Breaking the bone of the dead is tantamount to breaking the bone of the living"

If the Hadith means to honour the dead after death, and that breaking up of his bones is an insult to him as the prophet forbade Muslims to sit on graves and walk in graveyards. But, in general, if it is to avoid insulting the dead, if this is the reason, I believe that the procurement of bones or parts of man after making sure that he is actually dead, even if blood still automatically runs, is meant to keep life on the basis of what I said about the permissibility of eating part of the dead man to keep the life of another living person.

As far as the legal consequence of purchase and sale is concerned, the basic fact is that sale and purchase are concomitant. However, I pause here to raise the question that the one who pays money is compelled by necessity, whereas the one who receives money is not forced to do so. Hence, we have to decisively say that the ruling on sale is not the same as that purchase. The one who purchases an organ is driven by dire necessity to preserve his life by money. On the other hand, the person who receives money by selling a part of his body, like a kidney or any part, I believe that it is impermissible for him to do so, as this reflects a degradation of human soul and destruction of Islamic fabric. When Allah prohibits usury, we ask ourselves why? I say because usury makes man interior to money, in I the sence that the usurer takes profit whatever the situation is, whereas man's efforts may receive profit or loss. I say that any structure which puts man in secondary rank after money is not approved by Islam because such a matter contradicts the honouring of man. From this point I say, I pause here to emphasize that it is necessary to differentiate in ruling between the one who sells and the one who purchases, as explained by my colleague, Sheikh Muhammad Sayed Tantawi. I pause in a question and kindly ask him to explain to me what is stated on page ( ) consequently, the verifying Jurists agreed that it is impermissible for man to sell an organ of his, as clear on page ( ). They have also agreed on the sale and purchased of man or any of his organs, page ( ). Some Muslim scholars incline to allow a payment of indemnity for a person in case the patient does not undergo an organ transplant. Does the patient stand the situation without such transplant? Is there any great harm inflicted upon him, while no donors of blood relation or others are available? In fact, combining all the texts together... I pause here... may be some words are missing... or may be I misunderstand the point.

Any how, I hope his Eminence will kindly be given the floor to clarify the right opinion. Dr. Al-Samara's has kindly spoken of cornea transplantation. We have clearly talked about the point of keeping life for the living whereas the person who does not find a cornea leads his life. This is another opinion. I hold the view that the question is not relevant. I conclude by a single recommendation that this question is one of gravity. I pray Allah that our efforts will hopefully be met with success. I also pray Allah to guide us in this regard. I request this question be referred to the Academy of Islamic Jurisprudence, for more profound consideration to provide us with more aspects of it and to give an Opinion for the Pan-Islamic World. We kindly call upon Muslim scholars to prepare the Islamic mentality, the mentality of Muslims to accepting the Opinion to be released in this regard.

Chairman, Dr. Essam El-Sherbini

Thank you, your Eminence Sheik Mokhtar. We have few minutes before Maghrib prayers, and on the list, there are four speakers: the first Dr. Ibrahim Al-Sayyad, and then Dr. Hassan Hathout, Dr. Al-Shazli and finally Dr. Al-Ashqar.

Now is the turn of Dr. Al-Sayyad.

Dr. Ibrahim Al-Sayyad

If man's body is owned by Allah as we agree, than sale and purchase have some reservations. As Sheikh Al-Salami mentioned, there is no difference between the body of a Muslim and non-Muslim. When the Messenger of Allah, stood up in honour of a dead man's funeral procession, they said it was the coffin of a jew, he said:

"Isn't it a living being (soul)".

Therefore, I cannot deem it permissible to purchase from a living Indian or Sikh a kidney hundred or thousand dollars, because the principle of purchasing a human part is originally rejected.

It is exactly like the case of usury. Second comes the exaggeration in dealing with the corpses of the dead. Breaking the bones of the dead is exactly tantamount to breaking the bone of the living. There was a case of dead person in the area of the Messenger of Allah, may the blessings and peace of Allah be upon him, whose body was clearly showing what we call scientific stiffening, when all of the muscles of the dead stiffened after death, and his hands stretched aside. The people wanted to break them up to facilitate burial. The Messenger of Allah, may the blessings and peace of Allah be upon him, did not support the idea and ordered them to leave the hands stretched aside until they disintegrate and bend afterwards, that is what is actually stated in the Hadith, which I want to convey to those responsible of Sharia Opinion in four Arab Countries.

But now there are three options, the first is purchase, from a seller. Purchase and sale of human body are not permissible because the body is owned by Allah. There, we exclude the first option. The second option is donation which is not void of harm whether little or great. Then remains the third option which is the procurement of organs from the dead. You have tackled this point and delivered relevant opinions in great diffidence and extreme caution, to seek the permission of the dead person's relatives, though you have approved that the owner of the body is only Allah. How could you approve that the one who owns the body and the soul is Allah, highly exalted be He, and then you argue, afterwards, that it is necessary to seek the permission of the deceased's relatives. Some Islamic states approve the procurement of organs from the dead for the benefit of the living without seeking the permission of relatives. On the other hand, other states, including Kuwait, stipulate the condition of seeking permission. Why should we put the condition that the dead's relatives should approve the procurement of organs after his death. We want you to give a brave Opinion that the life of a living man is dearer than keeping the cropse of the dead, to procure its organs seeking no permission from relatives, without any decision of a will, to give such organs to those whose lives are in dire need to be saved:

AND WHOSOEVER BRINGETH LIFE TO ONE IT SHALL BE AS THOUGH HE HAD BROUGHT LIFE TO ALL MANKIND.

Chairman

Thank you Dr. Ibrahim. I agree that high voices do not change the opinions of Jurists... Yes, Dr. Hathout.

Sheikh Muhammad Mokhtar Al-Salami

Dr. Al-Sayyad has tried to corner us, but I do not believe that he can do so. In fact, we have never said before nor released any Opinion that it is possible to seek in advance the permission of the deceased's relatives...

Dr. Hassan Hathout

The need for an organ to save a life is similar to inanition. Saving the life of a needy man is bringing life to a soul and whosoever brings life to one it shall be as though he had brought life to all mankind. Let us set aside the concept of inanition through mutual responsibility, toleration and mercifulness among people. If man does not guarantee donation, he should seek sale, because the impermissibility of sale is greatly lesser than that of killing a soul. If we need to purchase an organ, this kind of treatment will be only available to the rich. The rich people will push the poor in purchasing organs which are little in number and below the demand. There will than be a sort of injuctice, like going to a country where there is a housing crisis. The rich will afford purchasing a house, whereas the poor cannot. We now proceed to the field of medicine. It is adviseable to nationalize this type of services to be directed through the government, so as not to have free markets in this respect. As regards what has been said about the taking of a kidney from a Christian to a Muslim, and from a Muslim to a Christian, in fact I quite disagree. There is a sort of common mercifulness among all mankind, with no discrimination in that which is good. The so called infidels taught us the Transplantation of kidney. It is they who also taught us how to perform operations. The chief of kidney transplantation is Christian. I would like to see common mercifulness on the basis of reciprocity: they give and we give; if they take what they need from us, and we take what we need from them, that is they way of life. I do not like such misconceptions that this Muslim can get but this Christian is cheap. I say this because the souls to Allah are all souls, I believe that in Allah's sight they are all equal.

Chairman

Thank you Dr. Hassan. Now is the turn of Dr. Al-Shazli.

Dr. Hassan Al-Shazli

In fact, I had some remarks which were explained by brother, Dr. Mokhtar Al-Mahdi as regards the process of replacement in par of the human self. Man's parts are considered to be owned by him, and that taking the bloodmoney is also considered to be the price of that organ. We may make clear this point by saying that the mandatory punishment against cutting an organ is first retaliation and not bloodmoney. We proceed from retaliation to bloodmoney if retaliation is hard to implement. Bloodmoney is considered also as a punishment but not a price, even if we agree that punishment is mandatory along with this. In this context, then, we are discussing punishments, and not prices for such errors. Therefore, I think we must reconsider anything built on this. This is the first point.

The second point is, in fact, the point of Allah's ownership of all things in the universe. This point was elaborated by his Eminence, Dr. Tantawi, that all things in the universe are owned by Allah. Nevertheless, Allah, highly exalted and glorified be He made all things other than man at man's disposal, and made man live on all things other than man. Therefore, all things other than man can possibly be a commodity and estate. In defining "property" for which sacrifice, withholding and giving are involved, they said it is a thing other than man created for the interests of man. So, they have restricted its first position that all such things are created for the interests of man, provided that they are not of man, provided that they are not of man: because all such things are considered "estate", things to which man inclines, feels permissible and takes as possession and in return of which he may take something. Hence, we can understand the difference between Allah's ownership and man's ownership. There is no contradiction as man is owned by Allah and is still not subject to sacrifice, withholding, offering and disposal, as has been explained by our colleagues.

The third point... if we agree that man is owned by Allah and is not owned by man "himself". Man is not owned by himself. We have, then, to approve this rule, even with the case of donation, because donation is only effected in things owned by man.

Donation means giving what you possess. If you do no possess something, then donating it is null and void. What goes in the question of donation also applies in the case of purchase.

The fourth point... some people have mentioned that donation may occur in the way of giving precedence to someone over oneself by giving to others what one personally needs. In our opinion, altruism applies only to permissible things, but no self-denial applies to the impermissible. Man does not prefer others to himself in an impermissible thing, but in what is permissible.

Therefore, the question of self-denial is also closed. Then comes the prohibition of evasive legal devices.

We have seen with our own eyes that our young people in need of money have secretly and away from their families presented themselves as blood donors and registered their names and blood group undergoing all necessary analyses until a purchaser comes.

Moreover, we read in the papers that some states purchases children to use them for organ transplant. I agree with brother Al Salami in what he says. We should start solving this issue here so that we may not be trapped in an evil the consequence of which cannot be curbed.

Chairman of the Session

Thank you Dr. Al-Shazli..Prof. Dr. Al Ashqar wished to postpone his turn to the next session. Therefore, I thank you all. Let's go now to prayers, May Allah have mercy upon you.

Chairman Sheikh Abdulmonem Al Zain Al Nahhas

We resume now. Dr. Fawzi Faidullah is kindly requested to take the floor.

The Research by Dr. Fawzi Faidullah

(Research Section, page No. 306).

Chairman Sheikh Abdulmonem Al-Zain Al Nahhas

Thank you Dr. Fawzi... Now is the time for Dr. Muhammad Naem Yasseen. The Research by Dr. Muhammad Naem Yasseen. (Research Section, page No. 321).

Chairman Sheikh Abdulmonem Al Zain Al-Nahhas

Thank you Dr. Naem Yasseen. We have a third research, but counselor Yehia Abulfetouh is not present. We can seize the opportunity and open the discussion started in the first. We start with Dr. Muhammad Al Ashqar...

Dr. Muhammad Al Ashqar

The Opinion that each organ has a price, is very dangerous. This symposium will make those who released this grave opinion reconsider what they said. Man is of a higher standing. Reward does not mean a price. This price means something different other than the reward. This fact is well known in Islamic Jurisprudence in so many aspects. Indemnity of an organ is not a price for it, or otherwise the indemnity of blood-money will be the indemnity of the whole soul to be received by the inheritors. This means that the inheritors received the price of their heritable. It even means that the payment of bloodmoney supposedly implies that the one who pays indemnity is entitled to take.. dispose of or sell the corpse as he wishes. The matter which we will review now is the sale of a human organ and the involved evils which we listened to in the speech of Dr. Mokhtar Al-Mahdi that the US has banned such sale, and many European states have passed a resolution banning sale due to its extremely grave evils which they could not curb to the extent that they are very strict with donors to make sure that no secret sale is concluded. I hold the view that the concept that man is owned by Allah does not mean it is merely a question of formality. It is indisputable that man is owned by Allah and not by himself. This means also that he is absolutely not entitled to take the price of his self, and this is what I meant when I say that man is owned by Allah and not himself. I do not own my hand, nor my head, nor my leg. I am not the one who created them. From where did I take them? and from where did I obtain them. Allah has placed them under my administration. The legal guardian does not own the one over whom he exercises guardianship. If I have a little child I do not own him nor can dispose of him as I am not his creator, nor provider.

As far as donation is concerned, the dear fellows have, in fact, established a link between donation and a gift, and since gift implies ownership and sale also implies ownership, then the one who permits gift should also permit sale, and the one who prohibits gift should also prohibit sale as both belong to the same category. This opinion is really sound, and the established link is right. I agree with such fellows. However, does man's donation of any of his organs imply, in fact, ownership? I cannot say that it is the ownership of the organ which man donates. I raise the question, and do not know whether the remaining dear Jurists would agree with me on it as permissible. I have a right in an organ to safeguard it against aggression by anyone.

But if I lift up my authority over this organ for donation after death or in life, and canceled my competence regarding this organ, in this case I do not gift nor sell. There is not, in fact, a donation that means a gift, but donation is to forfeit the right for the hand, the eye or the heart after death. I do not know... this may destroy the link. In fact, I hold the view that when we compare between the question of donation and that of sale, we say that donation is, in other words, somethings other than the gift. If we say that donation is gift, then ambiguity arises.

There is no doubt that the one who is permitted to give an organ as a present is also permitted to sell it. The objective aspect is perhaps obvious to me, as I do not present a thing I own to be a gift. In fact, it is not a real gift but a sort of permissibility and waiver of the authority over this specific organ...

Tackling the question of sale, sale, in fact, comes at the bottom of the list of matters from which we can derive the desired interests. There are many matters, and I have tried in this session to classify them in terms of priorities, so that official health organization and authorities consider such priorities, and cover this aspect. I have made such priorities so that no one is permitted to exceed any of them unless after verification that we can exceed a certain matter and move to the next only after we know that we have covered the first.

Now I briefly mention these matters as follows: First, artificial organs and animal organs. If these are sufficient we should not go further to the next. Second, donors after death; someone said, take an organ of my body after death. Third, accident victims who do not donate. I have called for this in the symposium on human life. I said accident victims... the killing is because of accident whether the killer is another person or the victim himself who makes a car accident, or does any other thing which causes killing or death. When the doctor takes from the victim an organ upon which life is not contingent, and after the doctor loses all hope of his life as elaborated by the research in the previous symposium, the killer shall not be the culprit who killed the victim before, and in whom part of life still remains, as it is said when using intensive care devices. In this case, if we take an organ from him we do not kill him. The one who killed him is another person. This does not apply to the case of the person who dies a natural death. If we take an organ from him before dying then we are the ones who killed him. This point has been previously elaborated. I have called for benefiting from those whom we are hundred percent sure that they will unavoidably die such as those who have broken skulls, or those who lower waist is cut, or something like that, the matter which means that there is no categorical hope that they will come back to life. Perhaps Dr. Al Sayyad has cornered us in this point.

The fourth matter is donors during life against no return. The fifth: donors in life against return. The sixth: the purchase of organs of a dead man, but I do not say "sale". The seventh; which is the bottom of the list, and which I discard, out of my understanding of old Islamic Jurisprudence and many contemporary Jurists in our present time, purchase from a living seller. I differentiate between sale and purchase. I permit purchase, but not sale, the difference between both has been previously elaborated. It should not be said that purchase necessitates sale, and sale necessitates purchase. There is a lot that is written on these two things. But to leave to the seller the option to sell his organs in which a bargain occurs between him and the buyer and he who will pay more, and the sale becomes an auction. This should be totally rejected. If such a thing becomes necessary, let's follow suit as in the case of blood banks; a governmental agency takes over the whole thing. It fixes a standard price on the analogy of wergilds and wergilds are defined and canot be raised nor reduced, so that the whole thing would not be subject to bargain, and to feel assured concerning the other aspects which present no transgression upon anyone.

Chairman, Sheikh Abdulmonem Al-Zain Al-Nahhas

Thank you, Dr. Muhammad Al-Ashqar. Now it is the turn of Dr. Omar.

Dr. Omar Sulaiman Al Ashqar

I agree with our colleagues who call for the impermissibility of sale of human organs. I hold the view that if an Opinion is given this matter will be one of great evil to Muslims from those who are in power, those who have prejudices and the well-to-do, they will procure the organs of the poor and needy with or without their consent. His Excellency, the Minister of Health informed me during the break, before this session that an Indian maharaja took with him four Indians to Britain to take organs from them, as I believe, without their consent. If we approve this matter, evil will be involved. What prevents a man of power or wealth from making another person sign a paper that he sold him an organ while, in fact, he did not, and was not willing to do so, how could we control such matters in the future. This is a matter of evil, a serious one. We see now how people relinquish the values, morals and virtuous criteria, specially in such times. As already mentioned regarding the experiences of other nations, this is the United States, and this is Britain; they have both begun to reconsider the matter. We start from the point they have ended, after such nations had suffered the consequences. We undergo the wrong experience once again. This is not an alternative, even as a gift, even Britain has begun to be strict in the case of gift. In fact, we need to review the question of gift, because it is possible that people of evil may find a good opportunity in this. Why do we differentiate between a kidney and a hand? If medicine can transplant a hand of a man who lost it, then we have a man selling his hand or leg, and harm occurs. The same applies to the case of kidney. Harm exists if man sells any organ. If need arises, as we may see and witness, and as Dr. Al-Sayyad said in his good talk that there is a dire necessity for this and hundreds and thousands of people need organ transplant, we need to enact a law, whether a law permitting the sale of human organs, or a law permitting the procurement of organs from the dead. If Jurists and doctors are to choose between this matter which is of great evil and the procurement of dead persons, which would they prefer, even if this law is enacted by force and compulsion. Yet, I say that if doctors, information men and Muslim preachers actively make clear to people the benefits of donating their organs or their relatives after death, what if this spreads and tens and thousands of people present themselves for this? still, the quantities we have are still not sufficient, as we have not yet released the relevant formal legal opinion. If an Opinion is given on the permissibility of making use of the organs of the dead, and that man will be rewarded for saving another one in dire need for an organ, I believe that with greater reason we can say we may open the door, or that it is permissible to sell organs. I have a little comment on the research of Dr. Muhammad Naem, as regards the list. Sale is allowed provided that it does not conflict with moral dignity, in the sense that the purpose of sale is not profit nor trade, but from whom, from the seller who seeks neither profit nor trade if this is not the intention, how many people will need to sell an organ, the kidney, for instance? This does not solve the problem. One or two among a thousand or even one in the million. There are very few people who are compelled to sell their organs because they face a dire necessity; they do not need profit. The research does not solve the problem, therefore, the problem still exists with these conditions specified by the researcher, and the problem will remain...

Dr. Tawfiq Al Wa'i

In fact, Dr. Al Ashqar has saved me the effort and elaborated many things I intended to review. However, Dr. Naem and the other colleagues, by allowing sale of organs and thus violating the sanctity of the human body they all wanted to forcefully insert the aspect of dire necessity to warrant such purchase and this new slave trade. But I say, what is that dire necessity? If accident, victims are great in number, what obstacle is there now that jurists have allowed the procurement of organs from them. I want statistical report demonstrating the number of victims per year and another showing donors and then the dead. Jurists have partially permitted this in dire necessity. What is that dire necessity? Moreover , what is the necessity which arises and makes us permit purchase and sale of organs, with no controls, and feel enthusiastic like Dr. Al Sayyad, though I have heard that the United States did not feel a pressing need for that? Even, non-Muslims, who do not believe in the inviolability of man, have not so far shown any enthusiasm. Even when we know that this natter is evil and that Jurists have absolutely prohibited it, and as the dear colleagues have talked about some related matters, there is no absolute necessity. What necessity could be there after the permissibility of procuring organs from victims. As I said before, I want statistics issued by the United States. In addition, we have so many victims, and, moreover , we have the dead people. What is the dire necessity after all this? I do not want to say that we wish to come to the conclusion as his Eminence Sheikh Al-Ashqar and Sheikh Omar kindly said. We say we do not finalize things on the same lines as the West did. We have our Sharia; we do not begin nor end. Moreover, we do not twist the texts. How dare we?! We do not permit a thing without a dire need. We should not presume there is a necessity, while there is not in fact.

Dr. Abdulsattar Abu Ghudda

I am committed to add two new points. The first one is strongly highlighted by our colleague Dr. Muhammad Naem that anyone who prohibits sale and permits donation falls in contradiction, showing evidence by the fact that sale implies exchange and ownership, while donation also implies ownership. However, the only difference between both is that it is ownership without indemnity. The answer to this point is that there is a great disparity between sale and donation. The Juristic rule says that what is permitted for sale is also permitted for a gift, but not vice versa. There are so many things which can be donated, but not sold. For instance, in the case of objects of unknown ownership, it is permissible to grant them, but not sell. These case applies to the sale of the Qur'an; Dr. Fawzi Faidullah has pointed out that some Jurists prohibit its sale as it involves commonness, whereas giving the Book as a gift is permissible. Also, what happens in offering organs is not gifting, but donation.

Donation implies broader sense than gifting as it involves gifting, almsgiving, charity, and self-denial. In many texts, Islam highly recommends charity, altruism and offering suffice it to quote what the Companions of the Messenger of Allah said on many an occasion.

They were willing to sacrifice themselves for the sake of the Messenger of Allah; I sacrifice my soul for yours, my hand for yours. Such offering and self-sacrifice as a voluntary act and out of altruism are permissible matters as they imply doing that which is reputable, and the door is wide open for that. The Islamic Sharia facilitates donation as it consolidates links and enhances ties among people, whereas sale is based upon bargain, cleverness and reciprocity. Man's body and limbs are not subject to reciprocity. This is a point I would like to highlight, as it has been strongly emphasized to the extent that they believe we fall in contradiction. There will be no contradiction in this, God willing.

Dr. Fawzi Faidullah

I would like to comment on the difference between sale and donation. I add to Dr. Abdulsattar Abu Ghudda that sale and gift or donation are extremely different. That's why sale of organs is prohibited, whereas gift is permissible as they both share the element of property and ownership, that is true, but the difference is that sale involves commonness, humiliation and indifference as proved by the existence of reciprocity, whereas donation or gift implies esteem and honouring since gift is offered for no return. That is why Jurists have differentiated between sale and gift in terms of "guarantee", in the sense that if what is sold is ruined, then price is a guarantee, but in case the gift is ruined while with the person to whom it is given then there will be no guarantee. However, the Hanafites stipulate such guarantee in only one case, when the donor demands to have the gift back and a decree is issued by the ruler to the effect that it should be returned, and the one having the gift refuses to give it back until it is ruined; in this case a guarantee, i.e. "indemnity" should be given. The rule in "gift" is that there will be no guarantee, whereas sale is of greater weight and foremost of joint and several contracts.

In such a way, Jurists decided that everything implying "indemnity" involves "guarantee", and that anything that involves no "indemnity" is not implying a guarantee. The best way for cutting and transplanting organs is donation and gift as they both show altruism, revival of other souls and a way to please Allah.

Chairman, Sheikh Abdulmonem Al Zain Al Nahhas

Thank you Dr. Fawzi.

Dr. Abdullah Muhammad

I would like to make some comments. As regards sale of organs. I say that if we follow up the formal legal opinions released in this respect, not in sale, but in the benefit derived from the organs, we may find that the first opinion released was made on the analogy based on a word mentioned in a book of the Shafiites on the subject of ablution that one rules out the possibility that the subject is originally the core of the question on which donation or sale of an organ was based, in the sense that if a man's hand is joined by the bone to a woman's hand, is his ablution nullified if he touches this joined part. That is the point. The second branch is, suppose man's bones are joined by those of a pig, what is the Islamic ruling for him, can he offer prayer or not. This is the point in question. The original question of analogy or the first question judged by analogy with regard to this is an Opinion given by Al-Azhar. The question tackles the procurement of cornea from a dead man, by way of analogy the Ulama and those responsible for giving formal opinion then cautions in deciding when can such procurement be permissible, and when not? They confined the whole matter to those sentenced to death. Now their eminence the Sheikhs are expatiating on this question and talking on sale and gift, the permissible and the impermissible this is the first point.

We come now to the second point. Imam Al Ghazali, in his book "Al Ihiaa", on the subject of "Al Hesbah" as regards the command of doing that which is reputable and prohibiting that which is disreputable, presents a hypothetic question: if we find a man cutting an organ of his body, we should stop him, even by killing him, because if one cuts off an organ of his, this is disreputable. Yet warding off the disreputable may reach the extent of killing, exactly like fighting against the aggressive attacker. Then comes the third question. Jurists have permitted a single case of sale, which is the sale effected by the "free".

As regards the subject to which his Eminence the Mufti of Tunisia, Sheikh Al Salami referred, concerning the infidel who regards permissible the blood of Muslims, they say that if Muslims want to make use of him by sale, then his purchase is permissible. The last question tackles equity in punishment in Islamic Sharia.

When someone gouges out the eye of another. Through retaliation in Islamic Sharia we gouge out the eye of the offender. Can we benefit from the eye of that man in transplant for another person? or if we cut the hand of a thief, or the hand of a criminal who attacked another, can we benefit from such hand, or not? In fact I have an inclination towards the idea put forward by Dr. Hassan Hathout that there should be a state administrative body to benefit from such cases.

Dr. Muhammad Sayid Tantawi

In fact, I agree with the dear fellows who presented these detailed researches. I do not see any contradiction in all our views. As a matter of fact, each of us searches for the truth, the outcome of research, as they say. The proper means to attain truth is the sincere cooperation of science with religion. Hearts should be open, doors should be closed. I do not agree with brother Dr. Tawfiq Al-Wa'i, who wants to close the doors, and says that there is no dire necessity. On the contrary, if there is not need for it today, it may arise tomorrow. Closing doors may conduce to adverse results. When you close the doors before people, they may resort to other things most detrimental. However, we have to cooperate and stand together; the Jurist in his field of specialization and the doctor also in his special domain. They both develop ideas and then search for the most convenient, the most useful, and the least harmful. All questions involve benefit and harm, but we all want to make benefit greater than harm.

In fact, we are all agreed. However, the controversial point is of secondary importance. Perhaps, I have an inclination towards the opinion that there is a difference between trading in human organs through sale and purchase, and donation of organs. Trading in organs leads to great harm and awful corruption, if we open that door. As brother Dr. Hassan Al Shazli says; a youth may present himself, without the knowledge of his parents, to sell a part of his organs for the sake of a vicious deed, like drinking wine, or taking drugs. The opening of such door involves serious danger. On the other hand, as far as the question of donation is concerned, I believe that such case is a rare one, that a man donates an organ in his body, unless in the direst need. I do not donate part of my organs except only to the dear ones. My body is not so insignificant that I give it away irresponsibly. Perhaps I do not donate any of my organs unless when I find my brother, son or dearest friend in direst need for donation, then I place trust in Allah and donate my organ within the conditions we and the other colleagues mentioned, that donation is made possible only when a reliable doctor expresses the opinion that it entails no appreciable harm to the donor. I say harm because each organ has a specific function. Yet, such benefits vary in degree.

In a nutshell, I believe that such researches are of great necessity as need will arise for gifting organs. Such necessity is well considered by lose who can judge it best, the people of the admonition as referred to in the Quranic verse:

SO ASK YE THE PEOPLE OF THE ADMONITION IF YE KNOW NOT.

The people of the Admonition in this context are the reliable doctors, when they also argue with the Jurists.

Thank you very much...

Dr. Muhammad Naem Yaseen

My first remark is on those who differentiate between the seller and the purchaser in terms of necessity. I believe that most speakers have allowed purchaser to buy organs at necessity, but not the seller. I do not know, as if they put in mind that the sellers are not Muslim and that necessity does not apply to them. If the seller is a Muslim and the buyer is also a Muslim, then why we do not apply the principle of necessity to both of them. What my brother Dr. Omar Al Ashqar said is true that the necessity of the seller may be lesser. Allow me to cite an example, where should the mother go? the mother whom Jurists permitted cutting off her abdomen to take out the baby, suppose that the baby suffers complete renal failure and needs a kidney, whereas the mother's kidneys do not fit? she does not have any other choice except obtaining money by selling her own kidney. You may ask me where she should go in this case? I have said that there is a "complex" for necessities under the supervision of a specialized formal institution, in the sense that it must be ascertained that the man suffers actual necessity. I have not talked nor expatiated on the words of my dear brothers. Yet, I have applied the principle of necessity to the seller as well as to the buyer. I have added the seller to the buyer in terms of necessity as if there were a separation between both, and as if the dear brothers wonder how there could be purchase without sale. How could you allow this. It is you who have permitted purchase. How could you permit the buyer to purchase organs? How could the buyer purchase organs? He should look upon the seller from this angle. Another point is that we have heard that the United States has pinpointed the dangers involved in such matter; whereas we have not until now reached such conclusions. Allah be praised! We want to disagree with the United States this time. Isn't it possible that we may disagree with them tomorrow. I'll agree with America on my subject. You will criticise me because I'll agree with the United States. The question is not that we do not follow them. The Americans have their own circumstances and beliefs. Their methods and techniques are totally different from ours. Their norms and conventions are not the same as ours. It is not permitted to make of this criteria for tomorrow. I have another remark on the techniques adopted by some of the dear brothers as if we are not in a scientific symposium. When we say, for instance, that a fellow has dared and said something or that we have found a brother who dares, we are not, as a matter of fact, in a prohibited place. I believe that if there are immunities for members of parliament, they should also be granted more and more in scientific symposia. We are not like those we heard of in middle ages who do not listen to words of knowledge unless after permission. In fact, this manner should not be adopted in scientific discussion. If someone does or does not dare to say something, we are only in a scientific symposium, and the scientific symposium should be open to all.

It remains to say that the least to be said of donation is that it is a permissible thing to derive benefit from the organ of the donor. Reviewing what all Jurists have said, I found that they all stipulated two conditions for sale to be proper and permissible; the first is that benefit is derived from sale. In fact, our ancient Jurists never imagined the donation of kidney as a matter of benefit, apart from the Sharia. This is one aspect; everything involves benefit and harm as the example of wine which we cited. As I say, everything which implies benefit and harm, then it is really of use. This is the first condition. The second is that sale should bring about lawful benefits. I have read all the description, and books of the various schools, and found that they all look upon these two conditions, as sufficient to settle the dispute in this regard, to the extent that it is said sale is permissible. You say that donation is permitted. You have permitted deriving benefit from it. Naturally, you agree with me that deriving benefit from a kidney is a real fact. Do we need more than saving a patient from definite perdition? real benefiting exists. When I permit donation, I permit deriving benefit from it. In this way the two conditions are fulfilled, in all Juristic schools, that's if I want to twist the texts of the Hadith for Jurists and bring me the Book "Fath Al Bari" to influence you I refer to the part here, but I did not refer to the point that there was in the past ages of our predecessors and of the "followers", those who said it is permissible for man to sell "himself". Some of them said that it is permissible that man sells himself, but this is an abandoned opinion. I felt shy to include this in my research because I do not agree with them nor shall I ever support it; however, it is written in "Fath Al Bari". The reference to this book is also made. The same reference is also made in the research. Some of them say this, but if I want to search for this, I would have twisted the texts. And there are some other texts that do not need twisting.

Dr. Ibrahim Al Sayyad

Allow me to proceed from the rich region of the Arab Gulf to Egypt, the Sudan, India and Pakistan. I want to seek your formal legal opinion, dear scholars as regards the opinion of Islam towards the utilization of human resources of the Islamic Umma i.e. Pan-nation. Let us apply the philosophy of Islam in the utilization of such resources. The Prophet, may the blessings and peace of Allah be upon him said that

"every construction is of bad consequences to owner cave, the property, save the property - that is the inescapable".

Islam does not approve building a mosque at a cost of ten million, while the remaining parts of the Islamic world have no mosques. Islam does not accept that a man lives in a palace, where one dare not walk on the luxurious carpets, while Muslims in the remaining parts walk barefooted and naked. I would like to talk about the governments and health ministries in poor states which want to expand this programs of transplantation of kidneys. Heart operations cost thousands, while saving a child who suffers from diarrhea and malnutrition costs piasters or millemes. I speak the logic of right. Is there any lawful medical interest in saving a life on the verge of perdition with a certain budget, by which I can keep some young people at the prime of life, who could be productive? Isn't it fair to surrender to death when its due time comes instead of resisting it, challenging the nature of Allah and the nature of the Divine Creation and trying as much as possible to make the sterile able to have children, while Allah ordains for him to be childless? Then, he finds himself involved and goes abroad and his wife becomes pregnant through the sperms of another man, because he persists on challenging the Divine Creation. I want this to be the logic of the poor Islamic states. There are some priorities in health services. The question is not to imitate the United States and transplant kidneys and hearts because they do so. There are some priorities and needs, some of which occupy the foremost position. Please include all these matters on the list because the approach to Islam is not to be greedy while you are obliged to economise seeing that you are poor.

Dr. Hassan Hathout

I do not disagree with Ibrahim Al Sayyad, but I have some reservations. I differ with him in opinion. I wish the authority which prepared for the symposium to be aware of a point through which the dialogue could be much easier if completed. Some years ago, we discussed the question of abortion. We showed a film about the embryo inside the womb along with its movement and pulsation before the conventional time of the spirit to be blown or the angele's visit, thus facilitating the job for our dear Jurists to form a more profound and direct view towards the new data. I wish that our dispute begins with a film on a patient suffering from renal failure, a young man in the prime of youth, whose condition daily worsens, and whose medical tests indicate increasing uremia, renal failure, until the colour of his face pales, and we say that he is departing from life gradually and verges upon death step by step, and then someone says to a Jurist that this young man is your son who is clinically approaching death and that there is a possibility to save his life if we could supply him with a human kidney, the Jurist would say: "let me consider what is permissible and what is not". We say there is in the balance a life of a man at stake. Then, he says it is not impossible, except through donation. After that blood is taken from him, his mother and brothers, but it becomes evident that they are not medically fit to donate a kidney. Then, he says "Therefore, what about a dead man, take the kidney from him". Next, it is said that there is no dead man whose relatives agree, or his kidney fits for transplantation. Then, it is said that we have in the records a man who came to donate, but upon a condition and he can offer and can also hold back being a free man and you have no power on him. The owner of the proper kidney is present, but he wants a thousand dinars I would like to know the opinion of the Jurists as regards what should be done if the patients are their sons, and when the owner of the proper kidney wants a thousand dinars...thanks.

Dr. Mokhtar Al-Mahdi

We actually differ with the United States as regards sale and purchase because we are compelled, but they are not, as they apply the principle of acknowledging the death of medulla oblongata, consequently, they have abundant numbers not only of double organs such as kidneys but also of single ones such as liver, heart and pancreas. If we could reach an agreement in this regard, I believe that this would, to a great extent, move away this necessity, which we do not like, and to which we should not give in.. thanks.

Chairman, Sheikh Abdulmonem Al Zain Al Nahhas

The question raised by brother Hassan. His Eminence Dr. Muhammad Sayed Tantawi can kindly comment on the example cited.

Dr. Muhammad Sayed Tantawi

By Allah, as a matter of fact. Sometimes, in the scientific questions, Mr. Chairman, hasty answers are not accurate, but I suggest on paper as I did not actually hear him, as I was talking to some dear brothers while he was delivering his words. He is kindly requested to write down the question. All of us together, brother Muhammad Naem and His Eminence brother Al-Khateeb... as brothers we can meticulously answer his question. If the reply is not a hundred percent correct, it will be at least 90%.

Sheikh Ezzuddeen Al-Khateeb

I would like to have a comment I keep pondering about from Oman, that is: the Muftis of Arab and Islamic Worlds confront pressures and complain of intellectual terrorism. People of wealth want the Muftis to pass formal legal opinions to render usury permissible in both the Arab and Islamic worlds. In case a Mufti releases no opinion in this regard, then he is reactionary, hindering the development of life. Doctors present questions seeking formal legal opinion of Muftis in the way they deem right, and they want answers quickly without giving a chance for deep consideration. The Mufti has a balance, the one of the permissible and the impermissible. His balance is not that of the doctors'. The doctor is a man specialized in human flesh, which is contained inside the body of a Mufti who deals with religion, law and doctrine. Therefore, a Mufti should, before expressing opinion, include the Divine Ordinance in the subject... the rules of Sharia... Dr. Muhammad Naem Yaseen expressed his view after deeply considering the matter. I believe he did no, and sat up long nights to come to a decision in an issue in which he may be wrong or right while exercising independent reasoning. The Mufti may be wrong or right. However, he does not yield to the opinions of people, except only to what Allah has ordained as he believes. and in accordance with the convincing evidence. But if you ask us to release hasty opinions, then Allah, His Messenger, the Believers will not be pleased with this.

Dr. Omar Al Ashqar, the last speaker

This interesting presentation by Dr. Hassan through his elevated literary style... if I imagine it in the heart of a patient in such tragic condition as he portrayed to us as being my son at the death bed, and then he says : "look...his heart is getting weaker and weaker.. we need another heart for him.. If we find another one, he will be cured..what should I do? If a man is found who wants to give life to his children after poverty. This man has 15 children, and he is destitute of money.. you are a rich man possessing hundred thousands and millions... if you give him 50 thousand Dinars, he may give his heart away to you. This example could take place, and could also be said in a tragic story while the wealthy man can waste away tens and hundreds of thousands to bring new life to his son. This is one question.

The second question is that we have not yet drowned. We have the alternative and it has been presented. I have asked the dear brothers here, and they have answered me by saying that the number of cases which need kidney transplantation is 200. If the two hundred are consumed, we need, as his Highness, the Minister of Health, said, 50 cases, as an annual average. If there is a law rendering permissible the transplantation of a kidney of a dead man, through out Kuwait as a country of 2 million people... if there is a law permitting this, I believe that in a single year or two we shall finish the whole cases we have from 200 to 250 cases. Afterwards, covering the fifty cases will be easy, and we shall not need this hypothesis... why should we, while it is possible, so long as medicine keeps progressing and can perform artificial renal dialysis which can prolong the life of man one day or two, one month or two until we have a dead man whose kidney fits for the patient. Thank you.

Dr. Hassan Hathout

It seems that I have not been successful in presenting the picture I had in mind. Even doctors know that it is not permissible to animate a life by killing another one. However, the picture I have presented was about animating a life through a kidney that one who has two can offer, while he can lead a properly sound life with a single kidney. If it has not been self-denial, it would have been a self-denial in no destitution as the man dispenses with only one kidney of his two. I hope I have now corrected the picture to Dr. Omar Al Ashqar.

Dr. Tawfiq Al-Wa'i

In fact, I believe that the question of Dr. Hassan is answered, as it brings a solution to the subject. He said: "We have not found this... we have not found this.., until he reached the conclusion that he found nothing available but the sale. He concluded saying he had not found, in this question, except sale. This matter means that such necessity has become inevitable. Jurists of Waqfs have permitted, in the given opinion, the one driven by a dire necessity to purchase organs and the wrongdoer is the seller. The whole thing is solved. There is nothing that involves a problem. In fact, I did not mean in my word anything concerning Dr. Naem, I meant Dr. Ibrahim Al Sayyad, his enthusiasm and between me and Dr. Ibrahim there is intimate friendship, that's why I mentioned his name.

Chairman, Sheikh Abdulmonem Al Zain Al Nahhas

I believe that, at the end of the discussion, the four opinions are now crystallized. They will be sent to the Recommendations Committee. The first opinion believes that the necessity exists, and that the door should not be closed, but within the conditions and restrictions proposed and discussed in the notes which believe that necessity exists, and that donation scarcely occurs.

The second opinion argues that donation, besides road accidents and cadavers are all sufficient to provide the numbers which could be utilized in the transplantation of kidneys or others, a necessity to permit sale.

The third opinion approves the permissibility of the sale and purchase of organs, so long as the permissibility of sale will consequently lead to that of purchase.

The fourth opinion argues that the question needs further study, and that it should be referred to the Islamic opinion Ad Hoc Administration as His Eminence Sheikh Al Salami, the Mufti of Tunisia mentioned in his first opinion expressed in the first meeting. It seems that the four opinions in which the question has crystallized should be referred to the Recommendations Committee to give the last word.