Islamset - Donation, Sale and Unbequeathed Possession of Human Organs

Medical Jurisprudence
Third Symposium
on

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

DONATION, SALE AND UNBEQUEATHED
POSSESSION OF HUMAN ORGANS

Dr. Mokhtar Al-Mahdi
Chairman of Neurosurgery
Ibn Sina Hospital for Specialized Surgeries
Kuwait

Introduction

In the Islamic World the procurement of living human organs from the recently dead but some of whose vital organs are still functioning has not yet been codified. Heart, liver and pancrease, transplants will therefore remain largely inaccessible for Arab patients. The domain of kidney transplant is, however, one of a narrow scope. Kidney procurement, in this case, is made possible through a living donor more often a blood relative with the recipient.

One may, at first glance, raise the following question: Does a kidney donor suffer any harm?. Kidney transplant indisputably implies

some hazards during performance of the surgery and the immediate post-surgery period. Although such risks have remarkably shrunk thanks to the staggering advance in modern science and medicine; yet. They still exist.

Moreover, other risks may later appear, if the remaining kidney suffers damage either through accident or disease. That is why divine wisdom has ordained to create excess renal tissue in the human body, in fact more than is normally needed. But if damage to the remaining kidney is a possibility, the living donor finds himself faced by a hard choice, between sacrificing a kidney and saving the recipient, especially if the latter is a near relative. The decision is positive if the donor appreciated the profound happiness in giving his relative a chance of life, the happiness of physical and spiritual giving.

Sources of Human Organs Outside and Inside the Islamic World

A world survey of Organ transplants demonstrates that the majority come from donors who have recently died, while donations from blood relatives form a small percentage. Advanced modern techniques have helped improve the success rate, raising rates of

success in cases of donors with death of medulla oblongata to approximate rates of success in cases of blood relation living donors, the matter which has urged doctors to reconsider the procurement of human organs from living donors. This is naturally confined to cases of kidney transplant.

The situation is different in the Islamic World. Living donors constitute they great majority in transplant operations. Some countries, like Kuwait, rely at times on imported kidneys. During the First six years of the Transplant Department in Kuwait, 226 kidney transplants were performed: 168 from living donors and 58 from dead donors whose kidneys were imported from the United States. Blood relation living donors represent 99.5% and only 0.5% of the total percentage from friends, which is quite natural as accepting the risk in such cases is more readily undertaken among relatives. Kidneys supplied from abroad used to cost some 5000 Kuwaiti Dinars each, including technique, preservation and transportation. The ultimate aim behind this process is to guarantee the best chances of success in transplant surgeries. However, it seems now that kidney importation has almost or completely ceased.

Does Man Own His Soul Or Body?

It is well known that man is body and soul, and that the soul is in the hands of the Creator only, separation of which from the body is impermissible as this is killing, and Allah has forbidden killing except for a just cause. The impermissibility of committing suicide is

stipulated in conventional laws. Penalty is inflicted upon him who attempts to kill himself on the basis that self-murder constitutes a crime against society. Allah has created the human organs and harnessed them for man's benefit, therefore, held him accountable for his organs and will eventually call him to account for wasting away his health.

Consequently, body organs are merely in the custody of man and at his disposal. If we acknowledge that man has the right to donate an organ of his body to a relative, then we approve his possession of that organ. One is not entitled to grant a thing which he does not own. I believe this is quite correct and complies with the Islamic Sharia since one is entitled to seek indemnity for loss or damage of any organ of his body when suffering an assault as stated in the Lexicon of Hanbal Jurisprudence that loss of a unique human organ in justification for full Blood Money. In case of loosing two similar organs, the penalty is full Blood Money for both organs and half for losing one, (ENTRY:DIYAH "Blood Money"). So long as such Diyah is received by the person harmed who used to benefit from the damaged organ's evidences ownership of such organs.

Organ Sale Between Idealism And Realism

The Transplantation of human organs can be tackled from various angles. Our acknowledgment of man's lawful ownership of his organs raises no objection on our part against donation of any organ of his body to a relative who is on the verge of death. We may even look upon this as a noble sacrifice reflecting spiritual values and generous offering. Though scarcely occurring, some potential risks may conduce to the donor's death, he is looked upon as a man dying for the sake of his kinsfolk.

Yet, if giving an organ is conditional on a financial return, and even though we do approve man's ownership of his organs, we are against the principle of his right to dispose of what he owns.

We may try to declare such person legally incompetent, and even incriminate his action. Perhaps this is associated in our minds with the recurrence of slave trade and the repugnant motion that human life can be valued money-wise, that it has a price affordable by the rich and, may be impossible for the poor.

Some western communities have decisively settled this issue and have actually codified it. In the United States, for instance offering of human organs has been prohibited if coupled with material benefit or benefit in kind. It has been contended, in this regard, that trading in human organs is originally and immoral principle and that permissibility of such trading is conducive to the emergence of markets for such needed commodities, the appearance of wholesalers and middlemen, in addition to newspaper advertisements for persons willing to sell or purchase human organs. This actually started in an Indian city, and in South America there were advertisements for the sale of kidneys or eyes from living people for a sum of money. Consequently, in 1984, the United States enacted a law providing for a punishment of five-year-imprisonment and/or fifteen thousand US dollars fine for whoever is involved in such acts of sale.

Other countries also started to apply stemness, but on smaller scales by insisting, for instance, on making sure, by all means, of the blood relation between the living donor and the recipient, and that sufficient proof of such relation has been furnished, including testimony of witnesses. In England, it is preferable not to take kidneys from donors without blood relation except in dire necessity and when a kidney of a dead donor or of living relative is not available. In such cases, assurance should be made that there is no extortion nor exploitation, and that the amount of money received by the donor do not exceed the expenses needed to compensate him for the stoppage of earning his living during and after the surgery when he stays at hospital unable to work.

It is worthwhile to comment on the background of such laws in such countries and their compatibility or non-compatibility with the Islamic world as regards the issue of transplantation, rather than automatically following... Here some facts emerge:

First:
The source of recently dead donors due to brain injury provides large numbers of human organs needed for transplants in western countries. Although, such sources cover much of the requirements in West Europe and the United States they don't cover all. Then follow the donors of blood relation. In such a case, there is no dire need for sale and purchase. The patient has only to wait for his turn to have surgery, whether for a short or a long time. On the other hand, the patient in the Islamic world has hardly any chances other than purchase, if affordable, when he finds no proper donor of blood relation, especially after the procurement of organs from recently dead persons outside the Islamic world has almost ceased.

Second:
We have to admit that the motive of a blood relation to accept the risk for the sake of a son or a brother, does not pertain in donors of no blood relation, except in negligible cases.

Third:
It seems that one of the major motives behind prohibiting material benefit in the west, and may be behind stopping supply of kidneys by the United States to outside countries, like Kuwait, in addition to what has been formerly stated, is what some newspapers published that transplant surgeries have been conducted at growing numbers not only nowadays in governmental and university hospitals, but also in private hospitals in the United States and West Europe. Some US private hospitals declared to foreign patients that "successful transplant surgeries through recently dead donors can be conducted in the shortest time possible if they can afford the large fees, which made rich foreign patients able to outbid the American citizen, who is bypassed and has to wait for his turn to come. In West Europe, private hospitals conduct transplant surgeries for foreign patients who could afford the charges after short periods of waiting, no more than tow weeks".

Such information was published in the United States in the Transplant Journal in 1986. The Journal added that in the US in 1984 there were 20,000 American citizens who underwent dialysis awaiting their turn for transplant surgery. In the same year around 600 kidneys were sent outside the country. The authorities in transplant associations feared that donors may refrain from donation after death if such situation prevails. Hence, the former law was enacted. Officials have also stopped sending kidneys outside the country until the needs of American patients are first satisfied.

In such a way, the transplantation Department in Kuwait is threatened to lose an important source of kidney procurement, being the sole source providing kidneys of dead donors. In 1983 the Kuwaiti Transplantation Department obtained from this source 29 kidneys out of a total 70 transplanted kidneys in that year, (41%). Consequently, the number of Kuwaiti patients on the waiting list for surgery has reached 200. Some of them naturally die before their turn comes.

Is Purchase of Human Organs Acceptable?

Although we dislike the notion that human body becomes a salable commodity on the market for those who could afford the price I may imagine none of us in dire need of a kidney for himself or for a family member encountering a dilemma to purchase this kidney, at any price whatsoever, rather than accepting death in observance of the prohibition of trade in human organs and would not purchase it. In this case, he will be motivated by the principle: "Necessity knows no law". It goes without saying that there is no single case of transplant unless for dire necessity. Would such principle be the exception or the general rule for those compelled to purchase kidneys?

On the other hand, if a person wishes to waive a part of his body to a patient with no blood relation against material recompense, wouldn't this probably incarnate a spiritual valve of a different aspect? This material recompense may, for instance, go for the treatment of a son verging upon death while father cannot afford the charges of treatment. This is a more example which may serve for analogy.

A lot has been said about blood donation and trade in human blood. Blood is a human fabric, though differing in nature from human organs as being a replenishable fabric. Does the whole issue tackle abundance or scarcity inside the human body, or is it the principle of sale and trade of components of the human body upon which life rests? This dispute has been settled by the establishment of body banks to collect blood from donors who offer blood as a gift seeking the reward of the Hereafter, and from others who seek material recompense as determined by officials - after taking measures to avoid harm of both donor and recipient, and to avert the repugnant notion of trade in human body. In such a way, matters have been settled and controversy abated.

Opinion For Debate

It is indisputable that freeing donation of human organs from commercial exploitation or profiteering is a unanimous demand. We have to exert our utmost efforts to prevent such extortion. Prevention may not go through prohibiting or incriminating the waiver of human parts if coupled with financial benefit as prohibition may imply sacrifice of liver which could be rescued. Prevention should, however, provide the alternative means which may not compel us to resort to such available channel.

Such alternative means are the procurement of human organs through donation after brain death of unpaired organs or of kidneys after natural death with stop of heart beating, on condition that obtainment of kidney is made in the shortest time possible. In the last case, difficulties may arise since the approval of relatives is a precondition. The major difficulty is psychological. Physicians contract relatives of patient who has just died to talk with them on the removal of his kidneys for transplantation trying to seek approval immediately, at the time when relatives suffer the first shock hardly believing that their patient is actually dead. The majority of relatives disapprove. Information authorities should shoulder their responsibilities in this regard by creating proper awareness in such situations. On the other hand, religious authorities must assume more important tasks by calling for donation after death in accordance with procedures agreed upon such as registration in a transplant association, a medical society or joint committees to procure human organs after death in due time according to t he will of the dead and without referring to relatives so as to avoid difficulties and painful situations. I hold the opinion that calling for donation will be willingly accepted among Muslims as donation brings life to human soul: "and whosoever bringeth life to one it shall be as though he had brought life to all mankind". A dead donor may save two persons and not only one. That would be a "running charity" which benefits the deceased even after death and renders his reward uninterrupted, and may extend to cover cases of human organ donation which breathe life into a living man whose offering of life to himself as well as others never ceases?

Until we attain adequate sufficiency of the former means, we have to regulate the possibilities of kidney waiver against material recompense, on condition that no publicity in this respect is made. In collaboration with the medical societies and in the presence of Health Ministry representatives. The Transplant Association should law down the rules it deems appropriate, provided that it has to interview those submitting offers in this regard and discuss each case in terms of motives, circumstances and requirements so that the ultimate decision of approval or disapproval of the other may properly be taken. As far as the material recompense is concerned, the Islamic Sharia has actually determined it as previously mentioned to be halt the blood money or wergild equaling 5000 Kuwaiti Dinars. By mere coincidence, it is the very sum of money paid by the Health Ministry to procure a kidney from abroad.

In our previous contention, we have raised a set of questions and proposed solutions to many of them. I hold the opinion that such solutions serve as a necessary introduction to answer one of the two questions raised in the symposium on those sentenced to death: "Is it permissible to take a human organ from one sentenced to death and without necessitating a will to save the life of a patient?

On the strength of the opinions and questions proposed in these papers, we view that imposing punishment on man deserving death sentence may not extend to his money or human organs unless otherwise stated in his will or following the approval of relatives. This case, anyhow, does not form a valuable source as it has been demonstrated that the average of those receiving death sentence in Kuwait in the last three years does not exceed a case and a half per annum.