Introduction
One of the most exciting and complicated areas of 21st century ethical and legal research is in the intersection of Islamic Law (Fiqh) and current biomedicine. Historically, the transition from life to death was a simple observable change that took place when the person underwent an irreversible loss of heart and breathing functions. Technological advances in late 20th century medicine have created great confusion around the traditional definitions of when someone dies. With the development of machines such as ventilators and man-made medicines (vasopressors, etc.) that can keep a person alive long after the brain has suffered an irreversible injury, there are now many unanswered juristic questions about the moment of death. In conjunction with this occurred the introduction of the modality of organ transplantation as a major advancement in medical treatment for patients with organ failure. These realities place two fundamental tenets of Islamic law into competition with each other, specifically the preservation & sanctity of human life (maqasid al-shari’ah) versus the sanctity & dignity of a human body, during both life and death (hurmat al-mayyit). To navigate through the bioethical issues created by these new realities, Islamic jurisprudence relies primarily on ijtihad (independent legal reasoning) by applying legal principles, using Qur’anic verses to find precedent, and continuing consultation with medical professionals. The result is a rich tradition of open discussions that reveal how Sunni Islamic law balances between preserving the living soul by means of strictly regulated altruism and continuously upholding the trust given to mankind from Allah concerning the human body.
Defining Death: Classical Fiqh vs. Modern Medicine (Brain Death vs. Cardiac Death)
The central issue related to organ transplant procedures, according to Islamic jurisprudence, focuses exclusively upon the meaning of death. Death, in an Islamic theological context, can be defined as the metaphysical separation of soul from the physical body (mufaraqat al-ruh). Since the soul is inherently not observable, classical Muslim jurists have invariably relied upon empirical physiological signs to determine when the soul leaves the body, arriving collectively at a consensus that death occurs when there is a complete and irreversible cessation of all respiration and circulatory functions followed by the decaying of the body.
In 1968 with the release of the so-called "brain death" criteria by the Harvard Medical School Committee to define brain death as an irreversible state of coma and complete cessation of neurological function, the traditional relationship of biological and legal death became severed. Accordingly, the basis for determining brain death in Sunni Jurisprudence rests heavily upon this fundamental legal maxim: The certainty of knowledge cannot be refuted by doubts about its correctness (Al-yaqin la yazilu bis shak). This means that when there is certainty that a state exists, then that certainty can only be negated by some other form of absolute certainty. When a patient is on a ventilator and has a beating heart and is breathing, the patient is considered, in a legal sense, to still be alive (certainty of life). For more conservative scholars, to declare the patient dead based solely upon neurological criteria (considered a probabilistic method of arriving at a medical conclusion) cannot negate the empirical facts of the patient's cardiopulmonary function (certainty).
When trying to resolve the current impasse, many modern scholars are relying on the classic juristic definition of al-hayat ghayr al-mustaqirrah (unstable life). Traditionally, this legal definition applied to a fatally injured person (some may liken it to a "slaughtered person") who had exhibited some reflexive responses but had irretrievably lost all rational thought and slowly moving toward their death. Thus, by equating the death of an individual based on their absence of brain function with "unstable life," many Sunni Islamic scholars argue that while the individual in question may still be alive based on biological criteria (al-mawt al-haqiqi), they have crossed the line into being legally dead (al-mawt al-hukmi). In this intermediate stage, where a person has suffered an irreversible loss of consciousness due to severe brain damage, the legal rulings pertaining to death—such as the withdrawal of life support or the authorization of organ donation—can be validly applied, even if cardiopulmonary functions are being artificially maintained (i.e., when there is no natural heart function). This approach allows for the acceptance of brain death as a valid medical determination based on medical evidence without creating conflicts with the standards of evidence required by the classical Fiqh.
Organ Donation from Deceased Donors and the Sanctity of the Corpse
Jurists must balance the paramount need to retrieve organs from a deceased person against the prohibition on defiling a dead body when determining whether to retrieve organs from a deceased or brain-dead individual. In Islam, physical dignity (Karama) is essential to the human body. The prophetic tradition (Hadith) stating that breaking the bone of a dead person is akin to breaking the bone of a living person serves as the foundation of the principle of Hurmat Al-mayyit (the sanctity of the dead).
While this principle has been established, one of the highest objectives of Shariah is to save human life (Ihya Al-nafs), as evidenced by the following verse of the Quran (Surah Al-ma'idah 5:32): "Whoever saves a life, it is as if he saved all of humanity." Because Jurists invoke the broad legal principle of Al-darurat tubih al-mahzurat ("the necessities allow for the prohibited") and the legal principle of choosing the lesser of two harms when justifying deceased organ donation, the retrieval of organs from a deceased person's body is permissible. In the scenario where an individual requires an organ to prevent imminent death due to organ failure, the violation of the physical integrity of a corpse is considered a lesser harm when compared with the harm resulting from the loss of a living human life.
Historically, the four classical Sunni schools of thought (Hanafi, Maliki, Shafi’i, and Hanbali) differ on how the human body may be used. This creates a foundation for modern argumentation on this issue: all contemporary scholars from all four camps now largely agree that organ donation after death is permissible if performed under strict criteria, including: 1) that an explicit agreement exists (usually in writing) for organ donation from the deceased via their will (Wasiyyah), or in the absence of a will from the next of kin; and 2) that the procedure be performed with the utmost respect for the deceased and their body so as to prepare the body according to Islamic funeral practices (ghusl and janazah) with no unnecessary disfigurement.
Organ Donation from Living Donors and the Absolute Ban on Commercialization
Organ donation from living to living (for instance, transplanting a single kidney, or a lobe of a liver) circumvents ethical-legal debate caused by the procedure of brain death, yet raises complex theological questions in regards to ownership of the body and whether harm can be inflicted on oneself through their own actions.
According to Islamic theology (Sunni), human beings do not have complete ownership over their physical body. Rather, the human body is an Amanah (a divine trust from Allah) and every human being is a Mustakhlaf (a steward/trustee) of that body. Since the body belongs to Allah ultimately, a person cannot destroy, mutilate or sell it at will; hence, the living organ donation process is governed by the commanding legal maxims of La Darar wa la Dirar (there must be no harm inflicted, or retaliated). Thus, it is prohibited for the living donor to donate a vital (e.g. heart) or singular organ and considered an act of suicide, which is strictly prohibited. For an organ to be donated, it has to be non-vital or a paired organ and the living donor must have a reputable medical opinion (experts) that the procedure will not cause the donor to have debilitation/terminal injury (Darar).
The universal baseline of Mustakhlaf prohibits the sale of human organs or Bay' al-‘A'da' as it is established that the body is not owned by the individual and therefore cannot be commoditized or sold. This prohibition is also a reflection of the greater Islamic vision of protecting the respect and honour of human beings, working against the exploitation of vulnerable individuals by the rich in the market for human organs on a worldwide basis.
There is a degree of debate within mainstream scholarly arguments around the permissibility of granting a non-related living donor a gift of appreciation (Ikramiyya) as an additional form of recognition. Historical arguments from Sheikh Yusuf al-Qaradawi illustrate that whilst the sale of an organ is absolutely forbidden under Islamic law, a recipient may offer a token/gift of money as an expression of appreciation to the donor without a contractual obligation to do so. In contrast to this view, the general consensus of Sunni scholars (led by the late Grand Imam of Al-Azhar, Sheikh Muhammad Sayyid Tantawi) has firmly rejected this position supported by the global Fiqh councils on grounds that an Ikramiyya would provide a vehicle for organ trafficking due to the potential of creating a loophole for the unlawful sale of organs. Organ donation, therefore, must remain an altruistic act of selflessness (ithar) and ongoing charity (sadaqah jariyah), extended without the expectation of a material benefit.
Resolutions of Global Jurisprudential Councils
The relationship between traditional legal theory and modern health care is primarily framed through the major fatwas and opinions of international Islamic legal councils. Although there generally is agreement (Ijma') concerning whether organ donation is permissible in principle, there are fine differences in opinion with regard to the legality of brain death.
The International Islamic Fiqh Academy (IIFA, OIC), in Jeddah issued two resolutions regarding organ donation (1986 / 1988):
• Position on Brain Death: IIFA accepts the definition of brain death as the legal definition of death and permits withdrawal of life support for those patients who meet the brain death criteria.
• Position on Organ Donation: IIFA allows for the recovery of organs from the living and deceased, provided that certain strict conditions and criteria are met, including donor consent and prohibition of any profit from the sale of organs.
The Islamic Fiqh Council of the Muslim World League (MWL), in Makkah also issued two opinions for organ donation:
• Position on Brain Death: MWL does not accept brain death as a terminal condition and considers brain death to be separate from full biological/cardiac death; consequently, there are no legal implications (e.g. for inheritance) until the heart stops beating.
• Position on Organ Donation: MWL permits the recovery of organs from a brain dead patient and organ donation from a living person; thus separating the legal nature of organ donation from the biological nature of death.
Al-Azhar University Islamic Research Academy in Egypt (1959/2010)
• Position on Brain Death: Left to Medical Science. Successive Grand Muftis, including Sheikh Tantawi, have declared that the definition of the end of life has a default medical meaning (using neurological criteria to identify the end of life).
• Position on Organ Donation: Permitted. The initial 1959 fatwa permitting corneal transplants has been reaffirmed by subsequent rulings. Supported new Egyptian law about the use of deceased organs from patients who previously were declared brain-dead.
UK Muslim Law Council (Sharia Councils) (1995)
• Position on Brain Death: Accepted. Recognizes brain stem death as the end of life from the prospective of organ donation.
• Position on Organ Donation: Permitted. Urges Muslims to hold donor cards & allows next of kin to provide consent for organ donation. The comparative analysis indicates a major commonality; Jurists have varied opinions regarding the brain death of an individual, yet there is a consensus regarding the act of harvesting organs from the deceased patient. The majority opinions of the IIFA and Al Azhar include the concept of neurological death as part of the Islamic legal definition, thereby permitting cadaveric organ donation. On the other hand, the MWL, the Fiqh Council of North America (FCNA 2018) have a more cautious view regarding whole-brain definitions, and also allow for organ donation; they refer to DCD to meet the requirements of classical fiqh to establish cardiopulmonary death.
Conclusion
A jurisprudential examination of brain death and organ donation in Sunni Islamic law illustrates a legal system that is flexible and humane as well as efficient. Sunni Islamic bioethics refuses to discard historically and scripturally based norms, in response to the disruptiveness of modern biotechnological advances. As a result, Sharia employs sophisticated legal maxims (such as giving priority to certainty; offering alternatives; avoiding harm; and preventing exploitation) to facilitate the establishment of a well-defined middle ground (wasatiyyah). The general Sunni view of the human body is that it should be treated with sanctity because it represents a divine trust; thus, it should not be treated as property or exploited in any way. At the same time, the body is best respected by allowing it to fulfill the Quran's command for human life to be preserved. While there are still many scholarly discussions about the definition of neurological death and what constitutes "unstable life," there appears to be an overwhelming global consensus that organ donation should be seen as both a selfless act and a form of continuous charity. By placing strict limits on these types of activities, through informed consent; banning all commercial activities; and ensuring that dignity of the deceased is protected, Islamic law is able to uphold the esteem of those who have died while still maintaining the greatest level of protection for those who continue to live.
