Posted: 5 Jamad uth-Thani 1437, 14
In the name of Allah, Most Compassionate, Most Merciful, The issue of organ transplantation has been a matter of great debate amongst the great contemporary scholars from around the globe. It has been discussed in various fiqh seminars, and many short and detailed works have be compiled on the subject.
The majority of the Indo/Pak scholars are of the view that organ transplant is not permissible, while many Arab scholars and some scholars of the Indian subcontinent give its permission under certain conditions, (details of these conditions will be mentioned further along). No one has given a general unconditional permission for the transplantation of organs.
It must be remarked here that this issue is contemporary and obviously it is impossible for us to find express rulings concerning it in the classical works. As such, the views of the contemporary scholars are based upon the general and broad guidelines of Shariah. It is obvious that this will result in difference of opinion, thus no one opinion should be condemned, as the intention of all the scholars is to please Allah, and live a life that is in accordance with Shariah.
1) The view of impermissibility
As mentioned earlier, the majority of the Indo/Pak scholars hold the view that organ transplantation cannot be deemed permissible due to the harms and ill effects of it overcoming the potential benefits
Their view is based on the following grounds:
a) The first and foremost is that Allah Almighty has honored the human.
Allah Most High says:
"And verily we have honored the children of Adam." (Surah al-Isra, V.70)
As such, it is a well-established principle of Shariah that all the organs of a human body, whether one is a Muslim or a non-Muslim, are sacred and must not be tampered with. To take benefit from any part of a human is unlawful (haram).
Allah Almighty made humans the best of creations and created everything for their benefit. Allah Most High Says:
"It is He, who has created for you all things that are on earth." (Surah al-Baqarah, 2.29)
Thus, it is permissible for a human to benefit from every creation of Allah which includes animals (under certain conditions), plants, and inanimate things. As such, it would be unreasonable to place humans in the same category of the above things by giving permission to use parts and derive benefit out of their body that necessitates cutting, chopping and amputating parts of the body. This is certainly unreasonable and unlawful on a human body.
A very famous Hadith prevents the usage of human parts. Sayyida Asma bint Abi Bakr (Allah be pleased with her) narrates that the Messenger of Allah (Allah bless him & give him peace) said: "Allah's curse is on a woman who wears false hair (of humans) or arranges it for others." (Sahih Muslim, no. 2122)
Imam al-Nawawi (Allah have mercy on him) writes in the explanation of this Hadith:
"If human hair is used, then it is unlawful by consensus, whether it's the hair of a man or woman, because of the general narrations that prohibit this. And also, it is unlawful to take benefit from the hair and all other organs of a human body due to its sanctity. The hair of a human, along with all its body-parts must be buried." (Commentary of Sahih Muslim by Nawawi, p. 1600)
The Jurists (fuqaha) have stated that in the case of extreme necessity and when there is no alternative available, even unlawful things, such as pork and alcohol, become permissible. However, even in such a situation, consuming or deriving benefit from a human body still remains unlawful.
It is stated in al-Fatawa al-Hindiyya:
"If a person feared death due to hunger and another person said to him: "Cut off my hand and consume it" or he said: "Cut a part of me and eat it", it will be unlawful for him to do so. Similarly, it is impermissible for a desperate person to cut part of his own self and eat it." (al-Fatawa al-Hindiyya, 5/310)
Allama Ibn Abidin (Allah have mercy on him) explains:
"...Because the flesh of a human remains unlawful even in forceful and compelling situations." (Radd al-Muhtar, 5/215)
Imam Ibn Nujaym (Allah have mercy on him) states:
"It is impermissible for the one who is dying out of hunger to consume the food of another person who is also dying out of hunger; neither will it be permissible to consume any part of the other person's body." (al-Ashbah wa al-Naza'ir, p. 124)
The Fuqaha have also stated that if one was compelled by force to kill another human, it will not be permissible, even if his own life was in danger. (See: al-Kasani, Bada'i al-Sana'i, 7/177 & Ibn Qudama, al-Mugni, 9/331)
Imam al-Marghinani (Allah have mercy on him) states regarding the sanctity of a human:
"It is unlawful to sell the hair of a human, as it is (unlawful) to derive benefit out of it, for a human is honored and sacred, and it is not permissible to disgrace any part of a human's body." (al-Hidaya 4.39)
A human body is sacred even after his/her death. The Messenger of Allah (Allah bless him & give him peace) said:
"Breaking the bone of a dead person is similar (in sin) to breaking the bone of a living person." (Sunan Abu Dawud, Sunan Ibn Majah & Musnad Ahmad)
The great Hanafi jurist and Hadith Imam, Abu Ja'far al-Tahawi (Allah have mercy on him) writes in the explanation of this Hadith:
"This Hadith shows that the bone of a dead person has the same sanctity and honor as the bone of living person." (Mushkil al-Athar)
In another Hadith it is stated:
"Harming a believer after his death is similar to harming him in his life." (Musannaf of Ibn Abi Shayba)
Also, the books of classical scholars are full with examples indicating the impermissibility of deriving benefit out of a human body due to it being honored.
In conclusion, the human body, dead or alive has great significance. It is honored and sacred, and because of the sanctity that is attached to it, it will be unlawful to tamper with it, cut parts of it or dishonor it in any way.
b) The cutting of and tampering with a human body amounts to mutilation and deformation of a divinely created body (muthla), which has clearly been prohibited in Shariah.
Qatada (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) used to encourage giving in charity and prevent Muthla." (Sahih al-Bukhari, 2/206)
In another Hadith, the Messenger of Allah (Allah bless him & give him peace) said: "Abstain from Muthla." (Sahih Muslim, 2/82)
This is also supported by the verse of the Qur'an, where Allah Almighty mentions the words of Shaytan, when he said:
"I will mislead them and I will order them to slit the ears of cattle, and to deface the (fair) nature created by Allah." (4: 119)
To deface the fair nature created by Allah, both physically and spiritually, is what Shaytan likes and orders to practice.
As far as the permissibility of blood transfusion in cases of need is concerned (See on this website, for the ruling on blood transfusion and donation), it does not necessitate the cutting of human parts or any surgical procedures on the body, rather it is drawn and transfused by means of injection, thus it is akin to human milk that is extracted without any surgical procedures.
c) The human body and parts are not in our ownership in that we may fiddle with them as we desire. It is a trust (amanah) that has been given to us by Allah Almighty. As such, it will be impermissible for one to sell, give or donate any organs of his body. Islam has forbidden suicide for the same reason. There are many texts of the Qur'an and Sunnah that clearly determine this. Thus, it will be unlawful for one to give his organs to another.
d) It is unlawful for an individual to inflict harm upon himself or others. The Messenger of Allah (Allah bless him & give him peace) said: "It is unlawful to inflict harm upon yourself and others, (la dharar wa la dhirar)." (Mustadrak of al-Hakim)
The famous principle states:
"Harm cannot be removed by a similar harm." (meaning, in order to remove harm from another individual, it is impermissible for one to harm himself)." (Ibn Najaym, al-Ashbah, P. 123)
Therefore, it will be impermissible for a living person to donate part of his body due to it being harmful for him.
e) The principle of Islamic jurisprudence states: "When the evidences of prohibition conflict with the evidences of permissibility, preference is given to prohibition." (Ibn Nujaym, al-Ashbah wa al-Naza'ir)
In view of the above and other evidences, according to this group of scholars, it is unlawful to transplant organs, whether it be of a living person or a dead body, and whether there is a need or otherwise. In other words, there is no permissibility whatsoever for the transplantation or donation of organs.
2) The view of permissibility
According to almost all of the major Arab scholars and also some contemporary Indo/Pak scholars, the transplantation and donation of human-organs is permissible subject to certain conditions (which will be mentioned later). This view is based on the following grounds:
a) The famous principles (qawa'id) of Islamic Jurisprudence based on the teachings of the Qur'an and Sunnah permit the use of unlawful things in cases of extreme need and necessity. In case of necessity, certain prohibitions are waived, as when the life of a person is threatened the prohibition of eating carrion or drinking wine is suspended. Allah Most High says:
"He (Allah) has only forbidden you dead meat, and blood, and the flesh of swine, and that on which any other name has been invoked besides that of Allah. But if one is forced by necessity, without willful disobedience, nor transgressing due limits, then he is guiltless. For Allah is Most Forgiving and Most Merciful." (Surah al-Baqarah, v. 173)
The Qur'an also permits the utterance of disbelief (kufr) in order to save your life. Allah Most High says:
"Anyone who, after accepting faith in Allah, utters unbelief, except under compulsion whilst his heart remaining firm in faith..." (Surah al-Nahl, V. 106)
The principle of Fiqh, based on the above Qur'anic guidelines, states:
"Necessity makes prohibition lawful." (See: Ibn Nujaym, al-Ashbah wa al-Naza'ir, P. 85 )
According to Imam Shafi'i (Allah have mercy on him), it is permissible for a person dying out of hunger to consume the meat of another human. (See: Ibn Qudama, al-Mugni, 9/335)
Therefore, in cases of need and necessity, impure, unlawful and Haram things become permissible. When a person's life is in danger and he is in dire need for transplantation, he is in such a situation, thus the transplantation of organs will be permissible.
b) With regards to the aspect of human sanctity, there are two things that need to be taken into consideration.
Firstly, it is true that a human body, whether dead or alive, is honored and respected, but does the modern procedure violate this sanctity? Islam ordered us to honor a human body but did not prescribe any fixed methods for it. Disgracing a human body may change from one time to another and from one place to another.
Thus, it could be said that the current procedure of organ transplantation is not considered dishonoring a human body. The surgery is performed in the most respectable way and it is not considered to be disrespectful. This is the reason why many highly respected people of the community regard donating of organs as a mark of merit, and they are not looked down upon.
Secondly, there are cases where Shariah overlooks the sanctity that is attributed to the body, such as in the case of saving another human.
It is stated in Tuhfat al-Fuqaha:
"If a pregnant woman died and the child in her stomach is still alive, her stomach will be cut open in order to take the child out, for in there is saving the live of a human, thus the sanctity of a human body will be overlooked." (Samarqandi, Tuhfat al-Fuqaha, 4/261 & Badai'i al-Sana'i)
This is also based on the juristic principle:
"If one is confronted with two evils, one should choose the lesser of the two." (al-Ashbah wa al-Naza'ir)
c) As for a human not owning his body is concerned, Islam permits a human in certain situations to utilize his body. It is similar to the wealth which Allah Almighty has given a human, and he is permitted to utilize it (in a correct manner) and give it as a gift.
If an individual is drowning or is in the midst of a burning flame, it is totally permissible to go and save him and put yourself in danger. Similarly, it will be permissible to donate your organ in order to save the life of a fellow human being.
d) Almost all of the scholars give permission for the transfusion and donation of blood in cases of need and necessity (see the article on blood transfusion), then why is there a difference in the issue of organ transplant. The surgical procedure of transplantation ensures that one does not go through unnecessary mutilation of one's body. It is similar to surgical treatment that is carried out on a living person for medication purposes.
In view of the above (according to this group of scholars), it will be permissible to transplant and donate organs in order to save another person's life. However, this is subject to certain terms and conditions.
The international Islamic fiqh academy (Majma' al-Fiqh al-Islami) which consists of a number of major scholars from around the globe researched this issue in February 1988, and after extensive research, issued the following verdicts:
Note, that the resolutions of the Islamic fiqh academy have been published in Arabic and translated in a number of languages. Below is the original Arabic text and its translation in English:
الحمد لله والصلاة والسلام على رسول الله صلى الله عليه وسلم أما بعد
فإن مجلس مجمع الفقه الإسلامي المنعقد في دورة مؤتمره الرابع بجدة في المملكة العربية السعودية من 18-23 جمادى الآخرة 1408هـ،الموافق 6-11 فبراير 1988م بعد اطلاعه على الأبحاث الفقهية والطبية الواردة إلى المجمع بخصوص موضوع "انتفاع الإنسان بأعضاء جسم إنسان آخر حيًا أو ميتًا" . وفي ضوء المناقشات التي وجهت الأنظار إلى أن هذا الموضوع أمر واقع فرضه التقدم العلمي والطبي، وظهرت نتائجه الإيجابية المفيدة والمشوبة في كثير من الأحيان بالأضرار النفسية والاجتماعية الناجمة عن ممارسته دون الضوابط والقيود الشرعية التي تصان بها كرامة الإنسان، ومع مراعاة مقاصد الشريعة الإسلامية الكفيلة بتحقيق كل ما هو خير ومصلحة غالبة للفرد والجماعة، والداعية إلى التعاون والتراحم والإيثار.
وبعد حصر هذا الموضوع في النقاط التي يتحرر فيها محل البحث وتنضبط تقسيماته وصوره وحالاته التي يختلف الحكم تبعًا لها. قرر ما يلي: من حيث الأحكام الشرعية: أولاً: يجوز نقل العضو من مكان من جسم الإنسان إلى مكان آخر من جسمه، مع مراعاة التأكد من أن النفع المتوقع من هذه العملية أرجح من الضرر المترتب عليها، وبشرط أن يكون ذلك لإيجاد عضو مفقود أو لإعادة شكله أو وظيفته المعهودة له، أو لإصلاح عيب أو إزالة دمامة تسبب للشخص أذى نفسيًا أو عضويًا.
ثانيًا: يجوز نقل العضو من جسم إنسان إلى جسم إنسان آخر، إن كان هذا العضو يتجدد تلقائيًا، كالدم والجلد، ويراعى في ذلك اشتراط كون الباذل كامل الأهلية، وتحقق الشروط الشرعية المعتبرة.
ثالثًا: تجوز الاستفادة من جزء من العضو الذي استؤصل من الجسم لعلة مرضية لشخص آخر، كأخذ قرنية العين لإنسان ما عند استئصال العين لعلة مرضية.
رابعًا: يحرم نقل عضو تتوقف عليه الحياة كالقلب من إنسان حي إلى إنسان آخر.
خامسًا: يحرم نقل عضو من إنسان حي يعطل زواله وظيفة أساسية في حياته وإن لم تتوقف سلامة أصل الحياة عليها كنقل قرنية العينين كلتيهما، أما إن كان النقل يعطل جزءًا من وظيفة أساسية فهو محل بحث ونظر كما يأتي في الفقرة الثامنة.
سادسًا: يجوز نقل عضو من ميت إلى حي تتوقف حياته على ذلك العضو، أو تتوقف سلامة وظيفة أساسية فيه على ذلك. بشرط أن يأذن الميت أو ورثته بعد موته، أو بشرط موافقة ولي المسلمين إن كان المتوفى مجهول الهوية أو لا ورثة له.
سابعًا: وينبغي ملاحظة أن الاتفاق على جواز نقل العضو في الحالات التي تم بيانها، مشروط بأن لا يتم ذلك بوساطة بيع العضو. إذ لا يجوز إخضاع أعضاء الإنسان للبيع بحال ما. أما بذل المال من المستفيد، ابتغاء الحصول على العضو المطلوب عند الضرورة أو مكافأة وتكريمًا، فمحل اجتهاد ونظر.
ثامنًا: كل ما عدا الحالات والصور المذكورة، مما يدخل في أصل الموضوع، فهو محل بحث ونظر، ويجب طرحه للدراسة والبحث في دورة قادمة، على ضوء المعطيات الطبية والأحكام الشرعية. والله أعلم.
1) It is permitted to transplant or graft an organ from one place of a person's body to another, so long as one is careful to ascertain that the benefits of this operation outweigh any harm that may result from it, and on the condition that this is done to replace something that has been lost, or to restore its appearance or regular function, or to correct some fault or disfigurement which is causing physical or psychological distress.
2) It is permitted to transplant an organ from one person's body to another, if it is an organ that can regenerate itself, such as skin and blood, provided that the donor is mature and fully understands what he is doing, and that all the other relevant shariah conditions are met.
3) It is permitted to use part of an organ that has been removed from the body because of illness, to benefit another person, such as using the cornea of an eye removed because of illness.
4) It is unlawful (haram) to transplant or use an organ on which life depends, such as taking a heart from a living person to transplant into another person.
5) It is unlawful (haram) to take an organ from a living person when doing so could impair an essential and vital function in his body, even though his life itself may not be under threat, such as removing the corneas of both eyes. However, removing organs which will lead to only partial impairment is a matter which is still under scholarly discussion, as is mentioned in resolution no. 8.
6) It is permitted to transplant an organ from a dead person to a living person when his life depends on receiving that organ, or when vital functions of his body are otherwise impaired, on the condition that permission is given either by the person before his death or by his heirs, or by the leader of the Muslims in cases where the dead person's identity is unknown or he has no heirs.
7) Care should be taken to ensure that in all of the above situations where transplantation is permitted, no buying or selling of organs is involved. It is not permitted to trade in human organs under any circumstance. However, the question of whether the beneficiary may spend money to obtain an organ he needs, or to show his appreciation, is a matter which is still under the research of the scholars.
8) Anything other than the scenarios described above is still subject to scholarly debate, and requires further detailed research in the light of medical research and shariah rulings. And Allah knows best. (See: Qararat wa tawsiyat majma' al-fiqh al-Islami, P. 59-60)
The Islamic Fiqh academy of India also discussed this issue, and one of their members who is recognised as a renowned scholar Shaykh Ubaid Allah al-As'adi (Allah preserve him) compiled a very extensive article. The following are summarized points of some of the conditions mentioned in his article (that have not been mentioned in the above resolutions):
1) There should be no other reasonable alternative available in the view of experienced medical experts
2) All efforts should be made to avoid transplanting of a non-Muslim's organ into a Muslim and vice versa. If this is not possible, only then the organ of a non-Muslim may be used.
3) Only the organs of a dead person should be used. However, if that is not possible, then only will it be permissible to use the organ of a living person.
In conclusion, the above are the two viewpoints of the contemporary scholars with regards to organ transplantation and donation. The stance of some scholars, however, is that they abstain from issuing any verdict altogether on this issue.
My respected teacher, Shaykh Mufti Taqi Usmani is one of those who are reluctant to voice their opinion. In a writing of his which I have (and I have also heard this from him verbally), he states:
"After the compilation of the book 'Islam's ruling on organ transplantation' (m, by his esteemed father, the grand Mufti of Pakistan, Mufti Muhammad Shafi, in which he strongly emphasised the impermissibility of organ transplantation, and which was also endorsed by Shaykh Taqi), I read the various arguments in favor of organ transplantation, thus it has left me hesitant and uncertain in this matter. As such, at present I abstain from issuing any verdict."
Therefore, one may follow any of the above two viewpoints, as they are both from great scholars of Islam. If one acts on the view of permissibility, then it would be advisable, as a precautionary measure, to seek forgiveness from Allah (istigfar) and donate something in charity.