Islamic Center of Southern California

The Arguments of Islamic Law Rulings on Recent Medical Issues

Topic Fifteen

The Conflict between Secular Law or Administrative Instruction and Islamic Law in Health Practice

Definition and Describing the Bases of Human Organ Sale

Following the success of human organ transplant operations, and in light of their legitimacy, the question has been raised as to the legitimate manner of obtaining organs for such operations from people who give their organs to save the life of a person or a damaged function of his body. That manner should be defined so that human beings would not turn into barbarians who kidnap each other.

This subject is part of another important one, which is "the ruling on human organ transplants." But that subject has not been addressed by the IOMS, on the belief that it has been already discussed by trustworthy committees and academies of Islamic jurisprudence (fiqh). Thus, the recommendations of the third seminar in 1987, which discussed the topic of "Organ Donation and Sale," say:

In light of the legal position taken by jurisprudence (fiqh) academies and legal opinion (fatwa) committees in the Islamic World, which permit organ transplantation to patients under the circumstances and conditions stipulated by Islamic Law, the seminar discussed the subject of organ sale.

The IOMS continued to discuss the Islamic legal ruling on organ sale, devoting a seminar to study the rulings on the sale of human organs which are of a special nature, such as brain cell transplants and genital organ transplants. That was the sixth seminar in 1989.

The recommendations of the third seminar endorse resolution no.(1)d4/08/88, of the council of the Islamic Jurisprudence (fiqh) Academy in its fourth session on organ transplants, quoting the text of the resolution, which says:

First: It is permissible to transplant an organ from one location to another in the body of a person, after making sure that the benefit expected from this operation is of greater weight than the harm it causes, provided that the operation is to introduce or replace a missing organ, reshape an organ, restore its normal function, treat a defect, or remove a deformity that causes him psychological or physical harm.

Second: It is permissible to transplant an organ from the body of a human being to the body of another, if it is an auto-regenerating organ, such as blood and skin, provided that the donor is fully competent and that the relevant conditions of Islamic Law are observed.

Third: It is permissible to use a part of an organ that has been removed from another person due to a pathological failing, such as using the cornea of an individual's eye which is removed for such a reason.

Fourth: It is forbidden to transplant a vital organ, such as the heart, from one living person to another.

Fifth: It is forbidden to transplant an organ from a living person, when its removal stops a basic function in the life of that person, even when his life is not dependent on it, such as transplanting the cornea of both eyes. If the removal only affects a basic function partially, the case should be subject to consideration, as explained in the eighth paragraph.

Sixth: It is permissible to transplant an organ from a dead individual to a living one when the latter's life or a basic function of his depends on it, provided that the consent of the deseased person has been given or permission is obtained from his heirs or from the ruler of Muslims in the case of a dead person whose identity is unknown or who has no heirs.

The Legal Position Chosen by the IOMS and Its Argument

On the question of "the sale and donation of human organs," the IOMS supported the viewpoint of the majority, which forbids organ sale and permits the donation of organs and using the organs of dead people with the permission of their guardians. The recommendations of the third seminar, the Islamic View Concerning Certain Medical Practices, in 1987 include the following:

The ideal way of obtaining organs is that which is the outcome of mutual compassion among people in the form of organs from dead people donated in their wills or obtained with the consent of heirs, or from dead people whose families are unknown.

The majority also believe that it is also lawful to obtain organs through the donation of a living person to another, subject to the approved conditions and restrictions, which include that the donor suffers no harm and is not subjected to any coercion.

It is not lawful to sell organs. If, however, they cannot be obtained through free donation and can only be acquired in return for money, it is permissible to do so according to the majority of participants, who consider this a case of a prohibited thing rendered permissible due to necessity. Some scholars, however, find it unlawful. Yet, under no circumstances should the acquisition of organs, particularly when injury is involved, be allowed to become the object of competition between the rich and the poor. The state should set up a commission to control such acquisition, prevent the risks involved, and manage it in accordance with a detailed law issued for this purpose.

The Position of the Jurisprudence (fiqh) Academy

Resolution no.(1)d4/08/88, of the council of the Islamic Jurisprudence (fiqh) Academy in its fourth session expresses the same position as that of the IOMS, i.e. prohibition of any dealing in human organs that involves a conditional transaction and permission of forms that involve no such conditions. The seventh recommendations of the resolution says:

It should be understood that endorsing the permission to transplant organs under the circumstances already stated is made under the condition that it involves no organ sale, because a human being should never be subjected to a sale transaction. As for the payment of money by the beneficiary when necessary in his effort to get the needed organ or as a reward and expression of gratitude, this has to be looked into and decided upon. Islamic Center of Southern California