Organ donation (4)

In the previous blog, I touched on the fact that this ruling would not be applicable to non-Muslims. This may seem discriminatory i.e. how can we cut up a non-Muslim for organs, but not a Muslim?

Ayatullah Fadlallah deals with this quite powerfully in some of his works on the topic (1), where he argues:
• There is an Islamic law of how to deal with other religions: “Enjoin on them, by what they enjoin on themselves”, and “Followers of a religion are allowed to do what they believe in”
• He considers this point to be an example of true openness in Islam, because although Islam has its laws and structure, so do other religions.
• He points to the rule of marriage: “For every people is nikah, through which they are protected from zina”, which gives legality to marriage in other religions
• Therefore, according to those who do not consider the amputation of organs something that is against their moral values, rather they consider it a normal matter (unlike Islam which places a value on the issue of respecting the dead body), it is not an issue for them

I found this the best explanation of the apparently “discriminatory” issue i.e. that there was a potential issue to cut the body of Muslims but non-Muslims. Ayatullah Muhsini’s argument is based on the fact that the narrations are clear in their reference to Muslims but not to non-Muslims.

However, care must be taken – that in reality, even if the derivation of the law seems entirely logical and non-discriminatory, the end result does seem discriminatory. This is because Muslims are net recipients of organs from non-Muslims, with a clear law not to not allow Muslims to donate to non-Muslims. Doesn’t law have to not only be fair in theory but also in practice?

I do want to note, however, that Syed Fadlallah is different from many other scholars, because he does allow organ donation to non-Muslims (as explained in later blogs) – but he considers all options and explains things in a way that is easier to understand (hence the above!).

Now in the next blog, we will focus on the reality of the situation i.e. it is not just cutting the body of a Muslim – rather, it has several effects e.g. helping other people out and potentially saving another life. Therefore, the question is – what happens to this base position?

(1) http://arabic.bayynat.org.lb/marjaa/tabaroh.htm

Organ donation (3)

In the last blog, we looked at various narrations that said that it was Haram to cut the body of a dead Muslim. Most scholars, including Ayatullah Muhsini, infer from this, that the impermissibility of organ donation (because of the requirement to cut the body of a Muslim) is the base position.

(By base position, I mean that in the absence of any other arguments, is it correct to say that it would be Haram).

One might argue that this should not be the base position, as it is not even applicable today, because these narrations refer to mutilating bodies for fun/war. However, from a hadith studies perspective, this is a difficult argument to justify, because there is no textual and direct indication of this within the narrations. The way that traditional hadith studies works, is that if there is a general statement, in the absence of any qualifier (qarina), it is generalised to consider all situations. Therefore, the ahadith in the previous blog would seem to suggest the impermissibility of cutting the body of a dead Muslim for any reason (ceteris paribus!)

Now there are exceptions to this rule already available in the Shari’a, for example, when a foetus has passed away and the mother has also passed away before birth, then it is permissible to make an incision (shaqq) on the side to remove the child. Similarly, if an individual has swallowed an item, it is permissible to retrieve it by slitting open the dead body on the condition it is to redress a legitimate claim (i.e. it was previously usurped). It is not allowed for the heirs unless it was specified in the will. However, note that this only allows an incision (shaqq) not mutiliation (qat’) due to the respect given to the dead body (1).

In the next blog, we will discuss the apparent discriminatory attitude that is inferred from these narrations with regards to obtaining organs from the dead bodies of Muslims and non-Muslims.

(1) Islamic Bio Medical Ethics, Page 178-9 where Sachedina quotes from Tavakkuli, al-Tarqi wa zar’ al-a’da’. Note that Sachedina’s work is not focussed solely on Shi’i views, and is considered to be the first and pre-eminent work on the topic