Islam set - Sale of Human Organs in the Balance of Legitimacy

Medical Jurisprudence
Third Symposium
on

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

SALE OF HUMAN ORGANS IN
THE BALANCE OF LEGITIMACY

Mr. Muhammad Yehia Ahmad Abul-Fotouh
Legal Advisor, Ministry of public Health
Kuwait

General:

Transplantation surgery has so much advanced as to revive hopes in many patient in the procurement of human organs which they need to preserve their lives.

That the patient gets a needed human organ from a living donor, or after his death, is an incident that gives rise to a legal as well as a sharia transaction between patient and giver, the characterization of which must be defined.

Law No. 7 of 1983, on kidney transplant operations, has allowed donation of kidney by a living person, and stipulated some conditions so as not to cause detriment to the life and health of donor. The same law also allows bequeathing kidneys, and specified the necessary conditions. The Islamic sharia also allows donating or bequeathing any of the organs in man's body for saving the life of a patient. Donation and bequest are not sufficient sources for procurement of human organ transplants, not due to incompatibility between the bodies of the donor or testator and the patient, but because people refrain to donate or bequeath organs because of social, ideological and cultural reasons.

In view of the insufficiency of donation and bequest, some of them specially the well-to-do, offer money to attract healthy people, persuade them to give organs of their bodies for material recompense. Such action is, in point of fact an act of sale.

Many people have been preoccupied with the question of selling human organs. Considering the patient's desire and hope in life and the giver's need for money, people have held different views as regards the legitimacy or illegitimacy, the permissibility or impermissibility in this respect.

It has been deemed appropriate to write on sale of human organs with a view to knowing the attitude of law and Islamic Sharia so that people are not contused.

In this research, we shall briefly tackle:

—Reasons behind resorting to purchase of human organs.

—Some social concept as regards sale of organs.

—Effects entailed by sale of human organs.

—Sale of organs between prohibition and permissibility.

—Is it legally permissible to sell human organs.

— Islamic Sharia and Sale of human organs.

First: Reasons Behind Resorting to Sale and Purchase Of Human Organs:

The pressing reason for purchase of a human organ is the dire need of patient for that organ to preserve his life. Donors and testators who give their organs within the limits permitted by law and the Islamic Sharia are quite few, the fact which constitutes another cause for resorting to purchase. Being a well-to-do person and availability of financial potentials also lead to purchasing, in addition to the dire need of healthy people for money and their expectations to be wealthy and, so, love of money is an encouraging factor to sell a human organ.

All such reasons are originally ascribed to the social concepts prevailing in our society, the firm belief by some that this action does not contradict law or Islamic Sharia, and to their belief that they do this for the sake of a lawful interest, the interest of seller and purchaser.

Second: Some Social Concepts As Regards Sale Of Human Organs:

In view of the newness and significance of the issue of selling human organs, it engaged the attention of those in the fields of medicine, religion and law.

The paucity of rulings in this field made those interested resort to independent reasoning and try to reach to discretionary opinions in the light of their vantage point to life and its philosophy, or in the light of the benefits obtained or harms incurred because of sale of organs. It may be said that the patient's need for an organ from the body of another person is, in all cases, a dire necessity to save his life. There is nothing that lawfully or legally prevents patient to purchase such organ at the sum of money agreed upon between him and the other party.

Some scholars hold the view that there is no categorical evidence prohibiting sale of an organ from man's body. Opinions in this regard are merely individual. They are challenged by other counter opinions which adopt arguments and give proofs that make sale and purchase of organs impermissible.

Others see that the permissibility of sale of human organ rests upon to fact that the lawful blood money is the material recompense for man's body or life, that is man's body is at a valuation of the lawful blood money. By analogy, the price of the human organ is estimated in the light of the lawfully specified wergild. This opinion is counterpoised by the fact that the lawful blood money is not the price of a body, but a penalty imposed on the culprit who commits transgression upon the body or the life of another man. Some others also believe that there is no need for sale or purchase of human organs, but that the patient can offer the giver a sum of money in the form of a present as a way of showing gratitude. Other people fear exaggeration in the given present that its value may be higher than the price estimated at sale, thus the reason for prohibiting sale is established.

Third: Effects Entailed By Sale Of Human Organs:

Positive laws have not permitted but prohibited sale of human organs. The Islamic Sharia does not approve it, but renders it impermissible. Among the problems ensuing from sale of organs, and which we look upon as the reason for impermissibility are the encouragement to sell organs of the human body for the sake of money, opening the door for outbids as regards prices, thus leading to exploitation of man by his fellow human being. Such matter also encourages sale for making wealth, if a man sells more than one organ in his body at great sums of money: in addition to the fact that such behaviour will under value man and depreciate the sublime standing and prestige bestowed upon him by Allah, Highly Exalted & Glorified Be He, Who has honoured him and placed him above all creatures.

Fourth: Sale Of Human Organs Between Prohibition And Permissibility:

The fundamental rule concerning sale of human organs is prohibition, because the civil code stipulates for the validity of a contract of sale that the subject of contract is lawful, which means that the human organ should be among the things included within the circle of dealings. It is legally stipulated also that the reason for contract should be lawful, not in contradiction with the provisions of Islamic Sharia, being a source of the civil code in Kuwait.

Nevertheless, such prohibition may have exceptions in certain cases in which sale of human organs is permissible. Such cases are called the cases of dire necessity. The principle of necessity is adopted both in positive laws and Islamic Sharia. "Necessity knows no law, and is estimated accordingly". Yet, in such case, a criterion determining necessity should be established for each case separately in the light of the mentioned juristic rule.

Necessity should be determined whether for patient or the sound person who gives his organ.

Conditions and controls should be made for such cases, in which sale of human organs is permissible, so that the door may not be wide open and sale of human organs becomes permitted without limits.

Fifth: Law & Sale of Human Organs:

1. The question raised: Is it legal to sell human organs? To answer this question, we have to refer to the rules and provisions of the civil code as a contract of sale is one regulated by law. The Kuwaiti Civil Code does not explicitly stipulate the prohibition of selling human organs. However, in conformity with the general rules which govern the contract of sale, being a commutative contract, the Kuwaiti Civil Code stipulates, for the validity of such contract, that the subject and reason of contract are both lawful, and contraction is made for a lawful purpose. The subject of contract is the human organ, sale of which is unlawful because dealing in it is originally impermissible. Also the reason behind the unlawfulness of the contract of sale of human organs is that the seller receives a price against selling a human organ in his body, a matter contradicting the provisions of the Islamic Sharia which is one of the sources for civil legislation in Kuwait. If two persons enter into a contract to sell a human organ, then such contract is, in this case, illegal; and the penalty ensuing is the absolute invalidity of the contract, which means that the contract is non-existent, whereas the effects contract is non-existent, whereas the effects entailed by such invalidity are represented in returning to the same position, as it was before, prior to the conclusion of the contract, in the sense that the seller is under the obligation to return the sum of money he received from the purchaser, and the purchaser is obliged to return the human organ he received from the seller. It is impossible for the purchaser to execute the obligation, then he is committed to pay a fair compensation.

2. Islamic Sharia may permit sale of a human organ in cases of dire necessity, in which both subject and the reason of contract are lawful, and the contract becomes valid, and produces entire effects binding to both parties.

3. Law No. 7 of 1983 on the operations of transplanting kidneys, allows donation and bequest of human organs from a dead body, on condition that the relatives of the dead, and provides for the necessary conditions. It also procuring human organs present at time of death, approve. This law does not discuss sale of organs neither showing permissibility, nor prohibition.

Some comparative laws regulating transfer and grafting of human organs have adopted a clear-cut and explicit course as regards sale of organs, and explicitly prohibited selling human organs and receiving any material return against sale, imposing due penalty of imprisonment and amercement on the violator.

Among such laws are the Jordanian, Iraqi and the Sudanese Laws. The Kuwaiti draft law on the transplantation of organs has also adopted same.

There are some other comparative laws which made it obligatory for the doctor who performs transplantation to refuse executing the operation, if he knows that the transplant organ was sold, otherwise, he will be subject to punishment, a matter also adopted by the Kuwaiti draft law on the transplantation of organs.

The Kuwaiti penal code has not included any text rendering impermissible selling of human organs. Consequently, no punishment is imposed against the one who sells or purchases a human organ for transplantation.

4. Difference Between Sale And Other Acts Of Donation:

A contract of sale is one of commutation. Among its characteristics is to receive a price against selling a certain thing. A contract of sale differs from other contracts of donation, such as donation, bequeathing and gratuities, in the sense that in such contracts a person offers a thing against which he does not receive something in return. The reason behind the impermissibility of selling human organs is that the person receives a material recompense against selling such organs. However, in case a person does not take a price, then his act is one of donation, which is lawfully permitted, as the reason and the purpose are here lawful, since they extend help to a patient to save his life against no return, and that is why positive laws, including the Kuwaiti Law, make donation and bequeathing of human organs, permissible though originally prohibiting sale.

If a person offers another a human organ against no material return, and the recipient wants to show gratitude to the giver by offering him a present, is this act considered sale or donation? In order to know this, we have to look for two matters; the first is the value of the pesent. We should valuate it in relation to the benefit derived from the human organ. If the two values are equal, or the value of the pesent is greater, then such act is called a sale, as the present is nothing but disguised act for sale.

The second matter is that we have to probe the intentions of the contracting parties. If the act is done in good faith for donation, then the contract implies a donation, irrespective of the value of the pesent.

Sixth: Islamic Sharia & Sale of Human Organs:

We have not found in the books of Jurisprudence a clear-cut opinion on the sale of human organs, in terms there are some discretionary views held by those who have interest in such a question. Some of question. Some of them support the impermissibility of selling human organs on the basis that man's body is owned only by Allah, and that man is not permitted to dispose of his body, in conformity with the known Juristic rule: "He who does not have can not give".

Some believed that disposal of body organs through sale is possible, by way of analogy with sale of woman's milk and of blood. Others reject this view as such analogy implies great difference, because woman's milk and blood do not decrease nor impede the bodily functions as, by nature, they are renewed in the body and the sold quantity can be replenished. We have to notice that if the quantity of sold blood goes beyond the limits which inflicts harm upon the body, then sale becomes impermissible, as harm is established.

The opinion of the Ad Hoc Administration of the Ministry of Waqfs and Islamic Affairs categorically resolved the dispute, and passed the fatwa No. 455/85 on sale of human organs.

It reads: (As for the patient's purchase of a kidney from another person, the rule is that such act is impermissible, because Allah has honoured man, so it is not permitted to cut some of his organs and sell them at any price, whatsoever, but if the patient does not find a donor to give him his kidney, and his life is endangered, while he cannot find any other means to cure his illness, then purchase of organs is permissible, because the patient, then, is driven by a dire necessity. Allah, highly, exalted be He, says:

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

That is without prejudice to the conditions already referred to in the case of donation, that taking the organ does not lead to the death or disability of donor, and that donation should be made with donor's full consent, also that he should be an adult and of age, and also that safety is the greater probability after removal of organ. Whereas the one who donates money to the person, whose life is threatened by death, and who wants to purchase a kidney to preserve this person's life who is in need of financial help, the committee holds the view that financial donation is permissible, and the one who gives him help shall be rewarded and, Allah does not waste away the reward of the beneficent ...Allah is the Omniscient.

Reviewing this opinion it is evident that the rule in the Islamic Sharia is impermissibility of selling or purchasing human organs, on the basis of the provisions of the Munificient Qur'an which provides for honouring man, and urges people not to impair such honouring. In conformity with the objective of realizing the interests of people, preserving their lives and protecting them against perdition, the Islamic Sharia has allowed sale of human organs only in case of necessity, and has stipulated some conditions to determine the criterion of necessity, since necessity is estimated according to the pressure it exercises. The following conditions are derived from this juristic opinion for the permissibility of sale or purchase:

1. If patient does not find a donor to give him the needed organ.

2. If there is a danger imperiling life of patient.

3. If patient does not find any other means to cure the illness.

This lawful opinion has gone further, to the extent of allowing any one to donate money for the patient whose life is threatened by death, and who is in need of purchasing a human organ to preserve his life, if the patient is in need of financial help to purchase the needed organ.

Conclusion

This research has briefly tackled some of social, legal and religious aspects as regards sale of human organs, and the extent of legitimacy. In this research, we come to the conclusion that the rule is illegitimacy of sale, on the grounds of prohibition by Islamic Sharia. The exception to this rule is permissibility of sale, only in cases of dire necessity. Such necessity has been determined, in the first place, by patient's need for the human organ to save his life, and being compelled to purchase it. Consequently, a contract of sale is also legally permissible in dire necessity, provided that the conditions, set forth in the mentioned lawful Opinion in this research, should be fulfilled due to the fact that the Islamic Sharia is a source of the Kuwaiti Civil Code.