In the previous blogs, we have concluded that the base position is that it is impermissible to cut the body of a dead Muslim in general. We also covered why it is allowed to cut the body of a non-Muslim because of the importance of respecting their viewpoints where it is not against the state law.
So the question in this blog is whether it is always the case that it is impermissible to cut the body of a dead Muslim.
Consider the situation of saving a Muslim life – this is a wajib act. Therefore, we have a situation where we have two rules in parallel:
1. It is wajib to respect the dead body and therefore haram to cut the dead body of a Muslim
2. It is wajib to save the life of a Muslim
These are seemingly contradictory, and therefore, you have to analyse which takes priority (based on the usuli law of “tazahum” (Shii name) or “masalih al-mursalah” (Sunni equivalent)). Clearly, you cannot do both, and therefore you have to consider which has a greater weight and based on that, choose one to determine the final law.
In many usul works, you see the example of if there is someone drowning in the river, and saving him requires breaking a door down, in order to be able to get to the person drowning before he drowns – in such a situation, it is wajib to save the drowning person, because that is more important. (1 for example provided by Syed Fadlallah)
We are therefore faced with the situation – giving the dead person respect, and saving the life of any person, it is clear that saving the life of a person takes precedence, according to Ayatullah Fadlallah.
[there is a discussion about whether any diya must be paid in this case, because you are intentionally doing something haram – but I will not go into the details of this here (2)]
A VITAL point must be drawn out here – and that is that Ayatullah Muhsini only discusses this with regards to saving a Muslim life, whilst Ayatullah Fadlallah does not make this distinction and considers it to be allowed to save the life of both a Muslim and a non-Muslim.
Many Shii scholars, including Ayatullah Seestani, consider it allowed to amputate an organ from a Muslim to save the life of a Muslim but consider it “problematic” to save the life of a non-Muslim. (3)
I have looked but have not found any detailed discussion of why this might be the case, although I have my own thoughts, which we can discuss if anyone is interested. Liyakat Takim, author of Shi’ism in America, has put forward his view on the reasoning: “In all probability, the differentiation is a anchored in classical texts on warfare where it was declared that if non-Muslims refuse to accept Islam or pay the jizya, male unbelievers may be killed. This implies that the guilt of refusing to adopt Islam deprives a non-Muslimof the right to life, and therefore, such a person deserves whatever harm may come to her/him. The moral guilt of not accepting Islam means, in the case of medical ethics, that beneficence is optional with respect to non-Muslim lives, whereas it is obligatory with respect to the lives of Muslims. The implication is that Muslim lives are more important than non-Muslim lives.” (4)
In the next blog, we will consider the discussions concerning whether it is allowed to amputate organs from a dead Muslim, for non-life-saving reasons e.g. the eye, or for research…etc.
(1) Al-tib wa al-din, lecture at the “Mustashfa al-Sharq al-Awsat” (lit. the hospital of the Middle East), in Beirut, 12/9/1995
(2) There is a discussion about whether you have to pay diyah because you are causing harm (in the same way as you pay compensation if you cause harm to someone when they are alive): some say it is absolutely wajib in all cases, others say it is not wajib in any case (because there is no diya in saving someone else’s life as it has been legislated as wajib and the rule in this case has been agreed that it is the right thing to do), and some say it is wajib if there is no will, or if there is a will – Ayatullahs Khui and Seestani for example considers diya only required if there is no will; some also discuss the importance of seeking the permission of the family/their viewpoint because their honour may be affected but others consider this irrelevant, as the family do not own the dead body, and the dead body is not inherited by its family…etc.
(3) http://www.al-islam.org/laws/contemporary/muamalat4.html; http://www.alulbayt.com/rulings/16.htm; http://www.najaf.org/english/book/2/inside/41.htm, I also emailed najaf.org directly to confirm this point, and the wording used was unambiguously clear that he did not allow the amputation of organs from a Muslim other than if the life of a Muslim depended on it.
(4) Shi’ism in America, P168-169
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