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Medical Jurisprudence
Third Symposium
on

"The Islamic Vision of Some Medical Practices"
Held from 18-21 April, 1987 A.D.

JUDGEMENT ON SALE OR DONATION
OF HUMAN ORGANS

His Eminence
Prof. Dr. Muhammad Sayed Tantawi
Mufti of Egypt

1. Divine Honour to Man
When we contemplate the Magnificent Qur'anic verses and Prophetic Traditions, we find that they have held the human race in esteem and highly honoured his essence which contains soul and body.

Some Features of such honouring:

A. Allah, highly exalted be He, has shaped man in the goodliest mould and comeliest form, considering this as a great blessing which deserves gratitude. Allah says, in the opening lines of a Qur'anic verse:

BY THE FIG, BY THE OLIVE, BY MOUNT SANAI, BY THE YONDER SECURE CITY, ASSUREDLY WE HAVE CRETED MAN IN THE GOODLIEST MOULD.

Moulding orginally means giving a thing its shape which it should have in terms of adjustment and proportion. Moulding also indicated rendering a thing in the comeliest shape which it should have i.e. By the fig which is one of the best fruits in shape, teste and usefulness, By the olive which meets people's needs for food and light, By the secure city which is the Honourable Makkah and By Mount Sinai which is the mountain on which Allah, Exalted be He, spoke directly unto Moses.

By all this... We have created man in the goodliest mould and comeliest shape. We have, afterwards, bestowed upon him, and upon no one else, pure eloquence, sedate mentality, profound knowledge, strong volition and great ability to achieve desired airms in life.

Therefore, moulding in the utmost comeliness shape in creating man, perfecting his shape and rending better his form manifests a feature of divine providence which cares for man's body and soul.

Similar to those Quranic verses on the creation of man in the goodiest mould, Allah, Highly exalted be He, says in Surat Al-Infitar:

O MAN! WHAT HATH BEGUILED THEE CONCERNING THE LORD, THE BOUNTIFUL, WHO CREATED THEE, THEN MOULDED THEE, THEN PROPORTIONED THEE. IN WHATSOEVER FORM HE LISTED HE CONSTRUCTED THEE. ( S82:V6-8)

The verse means: O man created by the Omnipotent, what deceives you and renders you heedless to obey your Creator, the Mighty, the Majestic, disdaining His commands and prohibitions, though Allah, Exalted be He has created you in the most perfect shape and goodly moulded your parts in a miraculous way to properly perform their functions, proportioned your parts in great harmony with each other and put you in the shape compatible with your structure through His Might and Wisdom.

Creation of man in this comely, well-proportioned and harmonious shape of perfection in form and function is a thing that deserves long contemplation, profound thankfulness and the best of manners. The sequential stages of creating, moulding, proportioning and deciding shape are strikingly apparent evidence of the value of man's shape.

B. Among the features of man's honour in Islam is considering his body absolutely owned by Allah, Exalted be He, since he is the Creator who has moulded and proportioned his parts. It is not permissible for any one whosoever to dispose of human parts of others or even of oneself in a harmful or ruinous way.

Heavenly religions and conventional laws have, therefore, prohibit body harming and self killing are those in which Allah, exalted be He says:

O YE WHO BELIEVE! DEVOUR NOT YOUR SUBSTANCE AMONG YOURSELVES UNLAWFULLY, BUT LET IT BE A TRADING AMONG YOU BY MUTUAL AGREEMENT. AND SLAY NOT YOURSELVES. VERILY ALLAH IS UNTO YOU EVERY MERCIFUL. AND WHOSOEVER DOTH THAT IN TRANSGRESSION, PRESENTLY WE SHALL ROAST HIM IN FIRE, AND WITH ALLAH THAT IS EVERY EASY(1).

(S4:V29-30)

These two verses imply explicit prohibition against man's killing of himself or others as Allah, the Merciful prohibited killing and promised awful doom for those who do this in transgression.

Other Quranic verses also make impermissible that man risks his life without any dire necessity as Allah, says:

AND EXPEND IN THE WAY OF ALLAH, AND CAST NOT YOUFSELVES WITH YOUR HANDS INTO PEFDITION, AND DO WELL, VERILY ALLAH LOVETH THE WELL-DOEPS (2).

(S2:V195)

Casting of man's self into perdition or any other means conducive thereto includes self-murder and also all ways leading to loss and awful doom, such as cowardice and persistence in the perpetration of abominable deeds.

Holy prophetic traditions which forbid suicide are numerous as related by Al-Bukhari, Muslim and others. Narrator Abu Huraira, said, the Messenger of Allah, said:

"Whoever purposely throws himself from a mountain and kills himself will be in the (Hell) Fire falling down into it and abiding therein perpetually for ever: and whoever drinks poison and kills himself with it, he will be carrying his poison in his hand and drinking it in the (Hell) Fire wherein he will abide eternally for ever; and whoever kills himself with an iron weapon, will be carrying the weapon in his hand and stabbing his abdomen with it in the (Hell) Fire wherein he will abide eternally forever".

In Sahih Al-Bukhari, on the authority of Abu-Huraira, the Messenger of Allah, said:

"He who commits suicide by throttling shall keep on throttling himself in the Hell Fire (forever) and he who commits suicide by stabbing himself shall keep on stabbing himself in the (Hell) Fire".

In his Sahih, Ibn Habban also related, on the authority of Jaber Ibn Samurra:

"a man was suffering from a troublesome lesion. He took a knife and slew himself. The Prophet refrained from penforming the death prayer over him".

2. Conclusions Derived From These Texts.

From these texts we come to the conclusion that the Sharia of Islam greatly honoured man and commanded to safeguard him against ruin or harm. It prohibited killing or harming man except for a legitimate cause, and explicitly and evidently demonstrated that it is not permissible for man to dispose of his body in a way conducive to ruin, damage or harm. Though each man exercises his will as regards his body, yet his will is restricted by divine limits defined by Allah, and within the purview of the verse:

AND CAST NOT YOURSELVES WITH YOUR HANDS INTO PERDITION.

And the verse,

AND SLAY NOT YOURSELVES, VERILY ALLAH IS UNTO YOU EVERY MERCIFUL.

Consequently, "verifiers" have unanimously agreed that man is not permitted to sell any organ of his body whatsoever for many reason. Most important of which are:

First:
Man's body and organs are not subject to sale or purchase, not a commodity for commercial exchange.

Man's body is an edifice built by Allah, honoured and elevated above sale and purchase. Allah has categorically prohibited trading in human organs, the sale of a free man or an organ of his body is lawfully invalid because of his "honour and by virtue of the Qur'anic text.

AND ASSUREDLY WE HAVE HONOURED THE CHILDREN OF ADAM (4)

The text of the honourable Hadith related by Imam Al-Bukhari, on the authority of Abu-Huraira, that the Prophet said,:

"Allah says, I will be an opponent to three persons on the Day of Judgment: One whom makes a covenant in My name, but he proves treacherous, and one who sells a free person (as a slave) and eats the price, and one who employs a labourer and gets the full work done by him, but does not pay him his wages".

Jurists have unanimously agreed upon the invalidity of sale and/or purchase of human body or any organ of it whatsoever.

Second:
Man's body is not owned by him, but by his Creator. Man is only a guardian of his body. He is commanded to do what may benefit this trust and by no means harm it.

If man trespasses such limits and acts in a way conflicting with the well being of his body, he then becomes a breacher of confidence, violating the trust given to him by Allah. Man's disposition of his body is "prohibited and considered null and void due to the fact that he improperly disposes of that which he doesn't own, thus evidencing lack of religion, foolishness of mind and absurdity.

Third:
It is not admitted to say that among the lawful rules is the principle that "necessity knows no law" and consequently that man may dispose of his body when there is a necessity.

In answer to this, we say that disposition at necessity is only made within the divine limits permitted by Allah. He says:

BUT WHOSOEVER IS DRIVEN BY NECESSITY NEITHER ALUSTING NOR TRANSGRESSING, FOR HIM IS NO SIN,

that is any one who is driven by dire necessity to eat forbidden food, such as dead animals or pigs, with no lust for it or access to other food, and seeking not such forbidden food in a selfish attitude towards another who is in need, and also while trespassing no limits to only satisfy his anger and sustain his life, then it is no sin for him to eat such forbidden foods:

VERILY, ALLAH IS FORGIVING, MERCIFUL.

In addition, such rule is further restricted by others, such as: "Harm is not elminiated by another harm", which means that it is not permissible to eliminate a harm by causing another harm similar or greater in degree. That is why it was said: it is not permitted for a hungry man, for instance, to take the food of another hungry one like him by stealing or any similar act.

No financial support is imposed on a poor man for his relative of a similar condition of poverty. It is indisputable that sale of a human organs constitutes severe harm to the human body which may be graver than the case when man suffers poverty, distress or need, because such need may well directly motivate him to lawful means for earning a living, whereas man's loss of a human organ is scarcely compensated.

Among such rules are also the following: "The more harmful detriment is removable by the less harmful one", "when facing two evils choose the less harmful, "Endure private harm to avert public harm", "when comparing between two ill deeds consider which is the greater in harm and do the other", "warding off evils precedes in importance bringing benefits", "What is prohibited to take is also prohibited to offer", "what is impermissible to do is also impermissible to ask for" etc., in addition to other relevant juristic rules.

3. Ruling on Donation of Human Organs

One may raise a question: "Since the sale of a human organ is lawfully invalid and prohibited does the case apply to donation or offering of a human organ to another person in need?

Some scholars do not differentiate between the two cases. They hold the view that both cases are impermissible on the basis that donation of a thing is made through its owner, but the real owner of man's body is Allah' whereas man is only a guardian of his body:

AND CAST NOT YOURSELVES WITH YOUR HANDS INTO PERDITION.

Among the Ulama who declared this opinion is Sheikh Muhammad Metwali Al-Shaarawi who said that donation of a thing is a branch of possession in the sense that you donate that which you wholly or partly own, but you do not donate a thing you do not own, and hence, donation becomes lawfully invalid.

Man does not possess himself, whole or part nor his body as it is owned by Allah, the Creator. None can disclaim this fact.

Hence, the punishment for suicide is perpetuity in fire because man in such case kills and ruins a soul's "building" which he does not possess, not to mention deliberately turning to a thing owned by Allah and disposing of it in a way He prohibited. Accordingly, man, who does not possess his self, wholly or partly cannot donate his organs.

Other jurists hold the view that donation of a human organ by a man to another is permissible within certain conditions, most important of which is the following:

A reliable Muslim doctor should state that transfer of a human organ from someone to another may not entail serious detriment to the doctor, and that life of the recipient and recovery from an incurable disease are both contingent upon such transfer. We say it is a precondition that no serious detriment may result from that transfer because any organ in the human body is created by Allah, to serve a specific purpose, and such transfer may cause the loss of benefit which varies in degree from one organ to another.

His Eminence the Grand Imam, Sheikh Gad Al-Haq Ali Gad Al-Haq, Sheikh El-Azhar says: "if an experienced Muslim doctor, or even non-muslim as Imam Malik maintains, authoritatively asserts that cutting the body of a living man with his permission to take an organ, all of it or just part of it, for transference to another body of a living man for treatment purposes will not originally entail serious harm to the donor, as harm should not be eliminated by another harm, and will be of benefit to the recipient, then such transfer is permissible in Sharia, on condition that transfer is not effected by way of sale or against material recompense, because sale of a free man or part of him is invalid in Sharia. His Eminence further adds that "we have deemed donation permissible under the given conditions because the donor exercises a sort of legal administration over his self within the limits of the two munificent verses:

AND SLAY NOT YOURSELVES,AND CAST NOT YOURSELVES WITH YOUR HANDS INTO PERDITION (7).

We feel inclined to holding this opinion, but within the strictest limits and in direct necessity, in implementation of some juristic rules which say choose the less harmful and the more harmful detriment is removable by the less harmful one, and because of the fact that man scarcely donates part of his body unless in the most dire necessity, and that donation scarcely occurs unless for a recipient so dear to the donator. Some scholars are even inclined to the permissibility of paying material recompense in case the non-transfer of an organ to patient entails ruin or serious harm to him and in case no donor of blood-relation is available.

They hold the view that such case is a dire necessity in which the impermissible is made permissible.

Such a rare case does not, however, provide basis for juristic rules, but is subject to estimation of competent people, the experienced doctors. Included under this rule, the prohibition of sale of human organs, is the impermissibility of sale of blood, being invalid Sharia-wise.

Whereas donation of blood is permissible as they say "it is a product but not an organ of man's self since it changes and renews itself and man can compensate for quantities lost.

4. Ruling On Transferring An Organ Of A Deceased Man To Another Living One

In answer to this question we may say that the Sharia of Islam has honoured the body of man, living or dead, and has prohibited its abuse, disfigurement or assault of any kind whatsoever.

Among features of such honouring is the command to wash, shroud and to offer funeral prayers and burial rituals.

It was quite instructive of the Prophet, not to leave any corpse, whether of a muslim or none muslim, on the ground when a battle comes to an end.

In Badr Battle, the Prophet ordered to buny the dead polytheists as well as the Muslim martyrs. He says in the honourable Hadith:

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

which means that penalty against the abuse of a dead body equals that against the abuse of a living one.

That is why some scholars contend that donating any of the human organs whether in life or death is impermissible since man cannot dispose of his body neither in life nor in death, nor can his inheritors nor others, because the only one who could dispose of the body and soul of man is the Creator.

His Eminence Sheikh Al-Shaarawi argues "as far as the permissibility of donabng human organs in case of death is concerned, we may say that if donation is prohibited for a man in his life, the very case, with greater reason, also applies in his death, because since man does not own his body in life, his inheritors do not, with greater reason, own his body aher death. (8)

Another group of scholars say: It is permissible to transfer a human organ of a deceased man to the body of another living one, on condition that such transfer conduces to a necessary benefit to the recipient for which there is no alternative, and that the case be decided by the competent reliable doctor It is a necessany procedure to seek permission from the inheritors. In case there are not inheritors, permission should be taken from the Public Prosecution. Nevertheless, such permission is not binding to competent people, namely reliable doctors if they believe that the life of a living man is contingent upon the transfer of a human organ of a deceased person, on the basis of the famous juristic rule which says he most harmful detriment is removable by the less harmful one".

The more harmful detriment is represented here in keeping a living man exposed to a severe illness and expected perdition, whereas the less harmful detriment stands for the procurement of a human organ of a deceased person to treat another living one. This opinion also rests upon what is maintained by the majority of jurists that it is permissible to cut the abdomen of a mother approaching death or parting with life to bring out a living baby or to maintain hopes of life for it, and that it is also permissible o cut the abdomen of a person aher death to bring out some money he had swallowed before death.

If we permit such transfer from a living person within necessities and restnchons as aforementioned, along with the presence of harm inflicted upon the living donor, then we should permit, with greater reason the other mentioned cases relevant to the dead donor where no harm is inflicted upon him due to the transfer.

5. Conclusions

1. The Sharia of Islam honours the body of man, living or dead, and prohibits abuse against it or any organ thereof.

2. Man's sale of any of his organs is lawfully invalid and prohibited. Such sale is only permissible in the rarest cases decided by reliable doctors when they deem a patient's life contingent upon that sale.

3. Man's donation of any of his organs is permissible by all jurists, but under the conditions and necessities already specified.

4. Procurement of an organ of a dead body to save the life of a living one or to cure him from an incurable disease is also permitted within the afore-mentioned limits.

Annotations

1. Surat Al-Nisa': verses 29 - 30.

2. Surat Al-Baqara: verse 195.

3. Quoted from the Book "Al-Targheeb Wal Traheeb" by Al-Mundheri' vol. 3, p. 300. Eight Hadiths are mentioned in this chapter but we have cited only three.

4. Surat Al-lsra': verse 70.

5. "Al-Targheeb'' by Al Mundheri, vol. 3, p. 33.

6. See "Al-Liwaa Al Islami", sixth year, issue No. 266, on 26.1.1987, Cairo.

7. See "Al-Fatawi Al-lslamia", issued by the Egyptian Mufti Administration, vol. 10, p. 3702.

8. Journal "Al-Liwaa Al-lslami" issue No. 266.