[These are my notes on the International Institute of Islamic Thought on-the-record fiqh forum on Organ Donation held in Herndon, VA on July 20, 2016. These notes are NOT a transcript, but a lightly edited presentation of my perception of the discussion. Responsibility for any errors in the notes is mine alone.]
Organ Donation in Islam
Ms. Lori Brigham (Washington Regional Transplant Community). WRTC is one of 58 Organ Organization donation regional communities. The Organ Procurement Transfer Network (OPTN) sets policy. The United Network for Organ Sharing (UNOS) administers the OPTN. Muslim families decline donations on religious grounds at a high rate. End stage organ failure affects many people in all groups in our society. There 120,000 people now waiting for organ transplants that could save their lives. Every day 22 of them die for lack of a donation.
Dr. Muzammil Siddiqi. (ISNA). Organ donation is an ijtihadi issue because there is no clear text in Qu’an or hadith, and, therefore, the Islamic position is a consequence of the objectives of the Shariah: to save and protect life, to protect dignity, to prevent harm, and to protect from exploitation. Most jurists have already accepted the permissibility of organ donation and the questions now left deal with rules, regulations, and guidelines. Some organs may be given in life and some at death. Is this an act of charity? Can this be stated in the will? Is spousal agreement necessary? Can the organs of dead person be given absent, or even against, the deceased’s will? Are there concerns over deformation of the body? What is the defining point of death? What of taking organs from a miscarried fetus? From an aborted fetus? What of developing fetuses for this purpose? What of sale of organs: is it disliked or prohibited? If someone cannot afford treatment are they eligible for zakat for this purpose? Which organs are permissible to buy?
Prof. Abdulaziz Sachedina (GMU). I am still a student of Islamic bioethics. My objective is to bring new issues of bioethics to focus by using the traditional sources. How do we encourage people to overcome cultural impediments or religious misunderstandings? Field research is more important than library work, since we need to understand the concerns of the people that make them hesitate. The new issues can be accommodated well within the religious sources. The South African government encouraged me and others to do a workshop to encourage donation. We found the imams had ideas with no basis in the maqasid (higher objectives of the law). We trained the imams for three days. For example, if I give an eye will I get it back on the Day of Judgment? A mother hesitated to donate her son’s cornea lest he be without one on the Day of Judgment. I quoted her the verse that God who created you the first time can create you a second time. In Iran there is a big trade in kidneys at $15,000, but it is hard to donate a kidney when the medical care is poor. We need to move beyond jurisprudence to bioethics. Fiqh is founded on case law deduced from revelatory sources, while traditional ethics is inherited from Greek philosophical and theological tradition.
Derivation of juridical decision (hukm or fatwa) -> a search for asl (paradigm case; universal major premise “known” for purposes of the present case) -> new case far‘ (particular minor premise specifying the present instance) -> hukm = juridical decision, also fatwa (necessary conclusion about the current case).
Derivation of ethical decision (practical reason) -> search for similar precedents to provide general warrant (asl) ↔ a present case with all its particulars providing facts about the present instance (far’) –provisional conclusion about the present case, with a precaution about it being “presumably so” -> a possibility of revision through further research information on the case.
I have seen the arguments that you cannot donate to non-Muslims, but few muftis stand by such positions, usually resorting to arguments such as: “What if I save a non-Muslim’s life and then he kills me in battle?” These views are not found among American Muslims. For fetal tissue, a distinction is made between miscarriage and abortion to provide stem cells. The Durban workshop worked very well in South Africa for the imams took the message positively.
From where do Muslims get their bioethics? We say maslaha (public interest), but it is closer to equity than to utility, with a careful analysis of risk and benefit, following the principle of “no harm, no harassment.”
Dr. Imad-ad-Dean Ahmad (Minaret of Freedom Institute). Fatawa (legal opinions) are also advisory and non-binding. I don’t think the question of ownership vs. trust suffices to make distinctions between property and body parts in Islam, because in Islam everything belongs to Allah, our wealth as well as our bodies. Our bodies are a trust from Allah, but so is our wealth. In both cases the question should be: What is it that Allah wishes us to do with the trust? The concern that donation of a cornea would deprive the donor of it on the Day of Judgment overlooks the fact that, donated or not, the cornea will turn to dust and have to be recreated by Allah on the Day of Judgment in any case.
Dr. Mohamad Adam El-Sheikh (Darul Hikmah Consultancy). There are only five ahkâm (legal rulings) in Islam: fard (mandatory), mandûb (encouraged), mubâh (optional), makrûh (discouraged), and harâm (forbidden), and most actions are classified mubâh, al-hamdulillah. Organ donation is mandûb because if you do it, you will be rewarded, but if you do not you will not be punished.
Dr. Jamal Badawi (FCNA). When I ventured that donation is permissible an imam objected that if you get an organ from a sinful person it will testify against you on the Day of Judgment. Another concern is the evidence that transplanted hearts remember the preferences of the person from whom they were transplanted.
Lori Brigham. It is problematical to have this discussion at the time of sudden death. The family is in a great deal of emotional distress and this isn’t the best time to have this kind of a discussion. It is better if you can get people to sign up in advance; the family can help facilitate that gift. Wills and advance directives aren’t sitting on the nightstand and looked at later; too late to help in this conversation.
Dr. Muzammil Sddiqi. Is not just religious but emotional. People are more emotional about the body of a loved one than about money.
Prof. Abdulaziz Sachedina. Fiqh has the foundation of ethics, but the language of legality has sharp edges while the language of ethics touches the heart. We are impressed that in ninth century Baghdad al-Razi did high accuracy urinalysis in the absence of modern microscopes. But what we have done in the last sixty years is phenomenal. We have organ banks now. The notion of our bodies being ours is a modern notion. Muslims fear that people shall begin to treat their bodies as a commodity. We don’t want to lose touch of belonging to God. He put us in the world with a purpose and we need to discover that purpose. We don’t want to lose the distinction between the fatwa and the ethical advice. There are no texts in the classical sources of Hinduism and Buddhism on organ donation, but all religions are united in recommending the saving of life. Even atheism is very much humanistic and also recommends the saving of life.
Sr. Saisa Neel (RN, Masjid Muhammad). African Americans have been very resistant to donating organs. Is there still a problem with ethnicities? We get questions like “Are we being killed for our body parts?” There is also the controversy over Henrietta Lacks, whose cells were distributed around the world without even informing the family let alone obtaining their consent.
Prof. Abdulaziz Sachedina. The Shia ayatollahs were very receptive to these ideas, and Ayatollah Sistani in particular has supported the view that a reasoned decision must be made on termination of life-support and that costly postponement of imminent death is not justified. There is no moral objection in the Middle East to organ transplants; there is only government obstacles and corruption.
Dr. Ilham Altalib (Ikram).The scholars agree that brain death is death. The Qur’an says every soul (not every body) shall taste of death. We shall be resurrected and, although it will have a physical aspect, it is not the body we had. My Creator will resurrect my identity but not the same body.
Prof. Jasser Auda (International Peace College, South Africa). I consider ethical considerations integral to fiqh although I acknowledge the fuquha (jurists) are usually more literal [legalistic?]. The fatwa is an opinion; it is not a state process or a democratic process, but a trust. Neither precedents in Islamic law nor perceptions make truths. The faqih (jurist) goes back to the original sources to answer the questions put to him. These are complex issues that require hours to treat fairly. That people do not own their bodies is a major issue from the Islamic perspective. Everyone on the street in the Arab World and Africa knows the price of kidneys and livers. And in oil-rich Arab countries 90 to 100% of the organs come from migrant workers. That is why I disagree with the vast majority of scholars who hold organ donation is permissible without taking into consideration the economic circumstances especially in poor counties ruled by corrupt dictators or in war zones like Syria.
Dr. Jamal Badawi (St. Mary’s Univ.). Even if we are to focus on the juridical aspects, I think there is no single Islamic perspective. Imam Shafi said, “My opinion is right, but it could be wrong. My opponents are wrong, but they could be right.” The main issue from any religious respective lies first in the highest authority of the faith. The only final binding sources for Muslim are the revelatory sources, in particular the Qur’an. The Prophet’s explanation of the religion is also considered revelation of a sort, although not all traditions are of equal authenticity. On some things no two Muslims should differ, e.g., the sanctity of human life. This is partly negative (the prohibition of killing innocents), but it also has a positive side (preservation of life which may be extended to include organ donation). There is no contradiction between “your money” and “Allah’s money.” The objection to autopsy on the grounds that it is identical to mutilating the body ignores the whole history of Islamic law on the greater good. The issue of brain death is not settled, and there is a debate on the role of the brain stem, etc. Istishâb, or the issue of continuity is a presumption in Islamic law.
Imam Johari Abdul-Malik (Dar al-Hijra). For many of those who migrated to the West the bâb (door) of ijthad is closed. As an activist and an imam in the community struggling with the issues of life and death, whenever I had a call about end of life issues I had a methodology (which most do not have). Mine was to call Shaikh Hanooti who would first ask, “Are there two independent diagnoses of brain death?” If so, then he would look not only at the texts but the contexts. We need a re-education of the Muslim community through broad-based educational opportunities, including full and part time Islamic schools. We talk about wills every time anyone goes to Mecca. Talk about advanced directives then too.
Ms. Lori Brigham: Neurological death requires both brain and brain stem be dead and usually requires two physicians to make the determination. Organ donation after circulatory death is a different matter and some people have made advanced directives to be executed once the heart stops beating. They are two different definitions of death.
Dr. Imad-ad-Dean Ahmad. The Prophet (pbuh) said those with anything worth bequeathing should not let three days pass without writing a will. Yet even an impecunious person has body parts worth donating, so should we understand this hadith to mean that we must not let three days pass without writing an advanced directive?
Dr. Essam Omeish. Once we have defined clinical death, it is sound for a doctor sitting with a Muslim counselor to give counseling to the family to pull the machines. The advanced directive s always about what is the will of the patient. In the absence of the advanced directive, the questions put to the family concern: What would the patient’s wishes have been? Absent firm knowledge, you are the loved ones best placed to answer that question.
Dr. Ilham Altalib. The International Council of Jurisprudents declared that brain death is death. Allah takes the soul from the body and also when you sleep deeply. Why do we have to make the simple difficult?
Prof. Jasser Auda. The IJC is a Saudi-funded body with political considerations. The human body is a sanctuary not to be meddled with until the spirit departs. There is a difference between dead and definitely-eventually-dead.
Dr. Jamal Badawi. I am not comfortable with the use of the word rûh (spirit) in this context.
Dr. Khalid Khan (GU). With transplants the situation is often you get a transplant or you die.
Dr. Essam Omeish (INOVA Fairfax Hospital). We are at an advantage being in the US where there is advanced medical work and rigorous ethical thought. Using neurological verses circular death as an example, we can deliver information to the scholars to provide them with knowledge they can take to the lay person. Even the discussion over what defines death in Islam should not be left at an unsophisticated level. Consider the sophistication of the discussion of the beginning of life in Islam. At 21 weeks there is a heart that is beating and nourished by an umbilical cord, but by Islamic law human life [personhood] has not begun. The definition of neurological death is very well defined, and mechanically maintained circulation after that point may be compared to the start of life question. What of the situation where a patient is not completely neurologically dead, but still has a trickle of blood to the brain? In some states they would not be defined a dead, despite my opinion as a physician. It is difficult for me as a physician to see a person who has elected to be a donor to be overruled because of the failure of the family to understand the issues.
Prof. Sherine Hamdy (NYU). As a social scientist, my view is that we have to be open about the pros and the cons, and the complications. Almost all scholars have said it’s permissible, yet families are hesitant. It is not just selfishness. I know many people who needed a kidney transplant and refused out of a fear of the risks to which they would subject their beloved family members. Saying the body belongs to God is a truism that says nothing about the issue in question. The context is one in which people are oppressed by states that will kidnap and torture people because of their associations and where the rich get organ transplants at the expense of the poor. In these circumstances “our bodies belong to God” is a cry of defiance. Sh. Muh. Mutwai al-Sha`rawi said, “How can you donate something that doesn’t belong to you?” Marginalized members of the family are more likely to donate to the more prestigious members of the household. The vulnerability of poor Egyptians has only become worse under the Sisi regime. Even transplant surgeons were not convinced that this was halal (permissible). They used religious language, and they had started out motivated by saving lives, but after years and years of practice they noticed the pattern that the donors are poor men selling their kidneys to the rich. Neurological death is the exception, not the rule. It is sudden car accidents, suicide, homicide, and war that cause neurological death. For Palestinians victimized by organ theft the context is different. Context matters much more than which school of Islamic thought you follow. With the first kidney transplant in 1954 the same issues were raised in this country. What made transition possible? Media played a role, as did the desire to make meaning of a senseless death (which doesn’t arise in the Muslim context in which death already has meaning.) Rûh (spirit) is not a subject of scientific inquiry in the US. There is an epidemic of kidney and liver disease in Egypt. Otherwise healthy young working men are dying of kidney failure for unknown reasons and of liver failure (Hepatitis C) due to a side effect of injections intended to prevent an outbreak of schistosomiasis that had been predicted to be a consequence of the Aswan High Dam. There is a view that the government made us sick. People in Egypt, however, did not object to corneal transplants. There has been a historical problem of “Egyptian blindness” from the Middle Ages. There were corneal banks. Then in the 80’s there were reports of people stealing corneas from the morgue and shipping them to the Gulf States. In the Egyptian revolution snipers aimed at people and one famous activist who lost one eye pledge to give his other for the revolution. After the revolution people began to donate eyes liberally because they trusted the doctors. The attitude was “I want my eyes to continue the struggle.”
Chaplain Tahara Akmal (Reading Hospital). It is important that imams invited into organ donation conversations be educated on this these sensitive issues. When an imam’s child died from an unsuccessful heart transplant and wagging tongues blamed the parents for trying to get a healthy heart for their child. In contrast, there was positive PR when a Caucasian Muslim woman donated her kidney to a black Christian man in Jewish hospital. Surgery was originally scheduled for 9/11/2001, but was postponed. She was inspired by the verse that if any of you saves a life it shall be as if he saved an entire people. Some Muslims tried to dissuade her, but she was unmoved. The recipient lived until 2013.
Prof. Jasser Auda. This is not just an Egyptian problem. Throughout the third world children are stolen for their organs. We in the US must be clear about defining our terms and our context because, believe it or not, what happens here is very influential in the Muslim world, and we must be careful about anything that hints of being a fatwa.
Imam Johari Abdul-Malik. We must emphasize the context of anything we say.
Dr. Imad-ad-Dean Ahmad. I agree. It is sad that such warnings are necessary. Muslims are unaware that fatwas are always not only advisory, but contextual, an answer to a specific real-world (not hypothetical) question in a specific context.
Prof. Sherine Hamdy. The incorporation of the mufti into the nation-state and the mass media have changed the perception of fatwa “from the mufti’s mouth to the questioners ears” into a notion of an official policy broadcast.
Dr. Ilham Altalib. Rûh (spirit) is not nafs (soul). It has nothing to do with life and death.
Dr. Hisham Altalib. When you kill a patient, how do you certify that he is dead?
Dr. David Klassen. Euthanasia in this country does not intersect with organ transplants.
Dr. Essam Omeish. I am not in the business of killing people. With cardiopulmonary resuscitation, the criteria are clear and well-defined and there is no dispute. Neurological death not only requires no brain activity, but no blood flow to the brain. If the diagnosis is not conclusive there is no declaration of death.
Prof. Abdulaziz Sachedina. In the bioethics literature there is a distinction between passive and active euthanasia. “Being merciful” has become a euphemism for passive euthanasia. Religious leaders find harvesting of organs under these circumstances problematic.
Lori Brigham. If you have questions or concerns about the process of organ and tissue donation so they can make informed decisions, we would like to be a resource.
Dr. Muzammil Siddiqi. I would like a copy of the rules and regulations that can be a model for Islamic rules and regulations.
Prof. Jasser Auda. We appreciate the offer for we need not only context but details. Not the devil but God is in the details.
Dr. Mohammed Adam El-Sheikh. I think the procedures need to be understood. Learning there is an autopsy involved, with a draining of fluids, is problematic.
Ms. Lori Brigham. There is no autopsy unless at the requirement of the medical examiner or the family.
Dr. Mohammed Adam El-Sheikh. We need that kind of information.
Imam Johari Abdul-Malik. I understand this is on the agenda of the Fiqh Council and we need to make sure an opinion comes out on it.
Dr. Essam Omeish. We need a certification and training process.
Prof. Jasser Auda. There are many questions. Not all organs are the same; for example there are distinctions made for reproductive organs.
Dr. Jamal Badawi. It is not permitted for a mufti to give a fatwa in something in which he is not fully familiar. We can’t just throw the ball to the Fiqh Council. A specialized technical committee can work with the FC.
Dr. Ilham Altalib. Do we start from scratch? I have material I have accumulated since the artificial heart transplant in South Africa that I can share with you.
Dr. Imad-ad-Dean Ahmad. Let’s not call it a fatwa or a series of fatwas but a summary and analysis of the fiqh (jurisprudence). Instead, provide guidance and information that can be used by muftis in making fatwas responding to specific real-world questions as well as by imams in giving khutbas to their communities to get them up to speed on these issues.
Ms. Remonia Chapman (Detroit Minority Organ Tissue Transplant Education Program). We would like you to review the pamphlets we already have on religious views on transplants.
Prof. Jasser Auda. A general recommendation is inadequate. A number of issues have been rejected by the scholarly community.
Dr. Abu Baker Al-Shingieti (IIIT). There is an emerging consensus that needs to be known and when specific issues come up they can be dealt with at that time.
Prof. Jasser Auda. We also should remind people of their right to autonomy: that this is an emerging consensus that is not binding on you. In other contexts this would be a given but because of the context we need to emphasize this so that the tinge of religious authority does not erase the necessity for the individuals to make a decision based on the specifics of their own situation.
Dr. Jamal Badawi. I think we should include the dissenting voices and remind people they may follow a particular madhhab (school of jurisprudence), but need not. One famous scholar once wrote this is what I think, but if you find a better grounded opinion throw mine against the wall.
Prof. Jasser Auda. I am concerned about communal backlash when there is a general opinion.
Dr. Imad-ad-Dean Ahmad. I see the situation as analogous to the adoption issue. When I was first approached about that issue by the National Council for Adoption, it was because they were forced to place Muslim refugee children pouring into the United States into non-Muslim homes because Muslims refused to adopt n the grounds that “adoption is prohibited in Islam.” They published my article “Adoption in Islam” in the 1999 edition of the Adoption Fact Book, explaining that adoption is encouraged in Islam, only differing in three ways from the Western model (that the true lineage of the child cannot be denied or hidden, that inheritance from the foster parent is not automatic nor can inheritance from the biological parent be denied, and that marriage to an adopted child’s ex is not incestuous) after which Muslims have become more open to adoption.
Dr. Jamal Badawi. After many conferences the Fiqh Council concluded you can use calculation in the calendar. Many people rejected that but having that decision has vastly improved the situation of commonly observed Eid dates. We need to be sensitive to the masses but we cannot be driven by the masses. We should respect differing opinions and say it s up to you to choose.
Ms. Lori Brigham. I appreciate your efforts to help us build donation as a culture.
Dr. Muzammil Siddiqi. We must see that whatever we do complies with Islamic principles, federal law, and other legal issues. I see no problems in doing that as there is an emerging consensus. Blood donation is permissible; tissue donation is permissible. On the question of organs there are some issues, but we can deal with that.
Prof. Abdulaziz Sachedina. We are not a reading public. We ignore our own scholars at our own peril. Read my book Islamic Biomedical Ethics to see what Islam has left for us.
Dr. Abubaker Al-Shingieti. With your permission we shall make a summary available as a “Book in brief.”
Dr. Hisham Altalib. There is an important principle of enjoining what is good and forbidding evil. Imam Ash-Shafi in Baghadad had certain opinions which changed when he was in Yemen and then changed again in Egypt. Many young Muslims think that Muhammad deleted the customs of the jahiliyyah (the time of ignorance), but he changed only a few things. His beard and his dress were the same as those of the jahillyyah. We seek the American Islam as ash-Shafi sought the Baghadadi, Yemeni, and Egyptian Islam.
Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute