By Professor Omar Hasan Kasule Sr.


The first organs involved in transplantations were the skin, the bone, the teeth, and the cornea. Later kidney, heart, lung, and liver transplants were achieved. Glandular and neurohumoral organs will be transplantable in the future. Transplantation decisions are a balance between risk and benefit. Ethical and legal problems of transplantation are temporary, they will disappear with the use of xenografts, artificial organs, and cloned organs.



Uses of textual, nass, evidence has limited success because the issues involved in transplantation are new and were not dealt with before. General Purposes of the Law, maqasid al sharia, and the General Principles of Fiqh, al qawaid al fiqhiyyat are the more appropriate tools. The main guide about transplantation is the purpose of maintaining life of the donor and the recipient. Under the principle of hardship, necessity and hardship legalize what would otherwise be objectionable or risky lowering donor risk has precedence over benefit to the recipient the complications and side-effects to the recipient must be a lesser harm than the original disease. Under the principle of injury, transplantation relieves an injury to the body in as far as is possible but its complications and side-effects should be of lesser degree than the original injury. Abuse of transplantation by abducting or assassinating people for their organs could lead to complete prohibition under the principles of dominance of public over individual interest prevention of harm has priority over getting a benefit and pre-empting evil. Under the principle of custom brain death does not fulfill the criteria of being a widespread, uniform, and predominant customary definition of death that is considered a valid custom. The successes of biotechnology in transplantation and other fields introduce a strong doubt in the irreversibility of brain death. Under the principle of certainty: existing customary definition of death should continue in force until there is compelling evidence otherwise. Selling organs could open the door to criminal commercial exploitation and may be forbidden under the purpose of maintaining life, the principle of preventing injury, the principle of closing the door to evil and the principle of motive. Protecting innocent people from criminal exploitation is a public interest that has priority over the health interests of the organ recipient. Principle of motive will have to be invoked to forbid transplantation altogether if it is abused and is commercialized for individual benefit because the purpose will no longer be noble but selfish. Matters are to be judged by the underlying motive and not the outward appearances. Other considerations in transplantation are free informed consent, respect for the dignity of the human ownership and sale of organs, taharat of the organs, sadaqat, and iithaar. The following issues have been resolved: use of animal organs, use of artificial organs, autotransplantation, transplantation from a living donor. Organs from prisoners condemned to death can be used provided there is dharuurat. The evidence for transplantation from a human donor, living or dead, is by qiyaas with permission to eat flesh of a dead person in case of dharuurat



The indications of transplantation are irreversible organ failure and sub-optimal organ function. Transplantation on the basis of preventive maintenance of organs in good condition is not allowed. The associated side effects and complications of immune suppression, infection, neoplasia, graft rejection, and drug toxicity are treated under 2 principles of the Law: hardship, mashaqqa, and injury, dharar.



The demand for organs is more than the supply. Human organs could be obtained either as voluntary gifts or voluntary sale. The donor may be living or may be dead. Living donors could be free persons or prisoners condemned to death. Harvesting organs from an individual without his or her free consent is not allowed by the law.



The customary definition of death is based on cardiac arrest, respiratory arrest, and late signs such as rigor mortis and loss of body heat due to cessation of metabolism. The modern definition is based on signs of brain death. The customary definition of death would preclude transplantation altogether because by the time a person is certified dead, the organs have already started deteriorating. Definition of death as brain death is not yet widespread and is still controversial. There is uncertainty that organs are being harvested from a living person who is thereby killed. The motive behind using brain death as a definition of death is also questionable. It could be argued that the need to harvest organs is behind the adoption of brain death as a definition of death. Under the principle of closing the door to evil, we may have to consider that using brain death as a definition of death will make it conducive to organized crime to assault people so that they are declared brain dead and their organs are legally removed.

(c) Professor Omar Hasan Kasule Sr. 2004