Fiqh of Organ Donation and Transplantation

Organ Donation and Transplantation

-Dr. Md. Habeeb Haris

The magnitude of the 'transplantation problem' and the organ demand - Indian scenario:

As of March 2024, India had over 300,000 patients on the waiting list for organ transplants, with at least 20 people dying each day while waiting. This is due to a shortage of organ donors, especially deceased donors, which has not kept up with increasing demand. The demand for deceased donors is substantial because many families lack suitable living donors.

In 2022, India performed over 13,300 living transplants and about 2,700 deceased donor transplants, but the number of donors only grew from 6,916 in 2014 to about 16,041 in 2022. India's organ donation rate is also low, at 0.52 per million people.

In India, living donors comprise 85% of all donors. Around 70%-75% of donors are female. Wives, mothers, and sisters have emerged as most prevalent sources of donation.

[The above figures were taken from https://www.thehindu.com/sci-tech/health/indias-poor-organ-donation-record-continues-to-cost-lives/article67161978.ece]

These figures show us how many lives are affected by this issue and why is it important for us to address the Fiqh aspects of it.

The Quran and Sunnah do not directly mention about organ transplantation. So, related Shariah topics such as ownership of the body, human dignity, prohibition of mutilation, necessity of treatment to save lives, and various Qawaid (Maxims) of Fiqh such as choosing the lesser harm to avoid greater harm, etc., are used by the Ulama to arrive at a ruling through Ijtihad. This is the reason for multiplicity of views on this and many other recent medical issues.

Types of Transplantation of organs

Transplantation of animal organs (Xenograft)

Transplantation of an organ from one place of the body into another place of the same person (Autograft)

Transplantation of organs of a living donor into recipient (Allograft)

Transplantation of the organs from a dead human donor

Transplantation of animal tissues/organs (Xenograft)

1. From Halal and Islamically slaughtered animals (goat, etc.) 
 It is permissible to use organs of such animals for transplantation or other medicinal purposes. 
 ‘There is no harm in treatment with bone if it is the bone of a goat or cow or camel or horse or any other such animal except the bone of swine.’ (Al-Fatawa Al-Hindiyyah: 5/354)

2. From Haram animals and swine 
Transplantation of their organs is not allowed normally. It's allowed only with the following conditions:

- The organ is necessarily for treatment.

- There is no halal substitute available.

- It has been prescribed by a God-fearing Muslim doctor. 

Transplantation of an organ from one place of the body into another place of the same person (Autograft)

Generally the classical jurists of all the four major schools of Fiqh (Fuqaha) have allowed it for treatment purposes when there is a medical need. (Imam Abu Yusuf’s opinion in Hanafi fiqh (see Badai us-Sanai: 5/133), Imam Ahmad (Al-Jame’ li ulum al Imam Ahmad: Hadith: 30711) and Imam Shafi (as explained by Imam Nawawi in Al-Majmou: 3/139) 

The International Islamic Fiqh Academy (IIFA) of the Organisation of Islamic Countries (OIC), Jeddah resolved, “An organ may be transplanted from one part of the body to another part of the same body, provided it is ascertained that the benefits accruing from this operation outweigh the harmful effects caused thereby; also provided that its purpose is to replace a lost organ, reshape it, restore its function, correct a defect or remove a malformation which is a source of mental anguish or physical pain.” [IIFA Resolution No. 26 (1/4)]

The Fiqh Academy of the Muslim World League (MWL), Makkah resolved, “Taking a part of the human body--a piece of skin or bone and transplanting it into another place of the body of the same person in case of necessity is allowed”. ('Makkah Fiqh Academy': 200-201)

Islamic Fiqh Academy, India also passed a similar resolution. (see 'Naye Masail aur Fiqh Academy ke faisle': 215)

Conditions for Autograft permissibility:

• The part was not amputated as a punishment in judicial amputation (Hadd or Qisas). 
• It is medically necessary and there is no other alternative. It is not allowed just for beautification purposes.
• Harm of this surgery is less than the harm caused if it is not done. 
• There is a high probability for this surgery to be successful. 
  

Transplantation from a Living Human Donor

Allowed if the organ is:
-Self-regenerating, such as blood and skin.
-From part of an organ that was removed due to a medical deficiency, such as the cornea of the eye that had to be removed due to another disease.
-Is not single; and removing it doesn't cause significant loss of function or risk of death, like kidneys, then donation of these organs is allowed to save the life of another human being.

Forbidden if it is:
- a vital organ, such as the heart, without which the donor cannot remain alive.
- an organ such as the cornea of the eyes, donating which deprives the donor of a primary function of his body. 
-Transplantation of genitals and gonads is not allowed.
[Al Qadhaya al Tibbiya al Muasarah: 490 and IIFA Resolution No. 26 (1/4)]

General conditions:
-Allowed only when no alternative is available.
-It should not be done for financial reasons (selling an organ), because under no circumstances should a person’s organ be sold.
-Proper consent should be taken, which should be fully voluntary and without any pressure (social, emotional, financial, family pressure, etc.).

-After transplantation of an organ, there should be no apparent unsightly changes in the body that resemble mutilation.
-There should be a good chance that the person to whom an organ is given will be benefited by the transplantation.

Mufti Taqi Usmani adds: 
Every effort should be made to find an organ donor who is a Muslim for a Muslim recipient and a Muslim's organ should not be given to a non-Muslim. (Fatawa Usmani: 4/225)
However, other scholars say that this is not an absolute condition but only desirable.

Transplantation from a Dead Human Donor

There is a difference of opinion on this too. The majority of the scholars and Fiqh bodies globally are in favour of it's permissibility.

The International Islamic Fiqh Academy (IIFA) says, "It is allowed to transplant an organ from the body of a dead person, if it is essential to keep the beneficiary alive, or if it restores a primary function of his body, provided it has been authorised by the deceased before his death or by his heirs after his death or with the permission of concerned authorities if the deceased has not been identified or has no heirs. [IIFA Resolution No. 26 (1/4)]

The Islamic Fiqh Academy, India is against it. It resolved, “If someone expressed his wish that after his death his organs may be used for transplantation purpose it cannot be considered as Wasiyat (will) according to Shariah and is invalid according to Shariah and such a wish is not to be honored.” (Islamic Fiqh Academy, India - Fiqhi Seminar in New Delhi 1-3 April 1989)

                                           Range of fatawa on transplantation of human organs

Arguments of those who Oppose human organ transplantation

-Human Dignity and Sanctity: Human body, whether living or dead, should be honoured. The Quran says,
 “We have honoured the sons of Adam and conveyed them on land and sea and provided them with good things and favoured them greatly over many We have created.” (Surah Bani Israil, 17:70) 
 The prophet Muhammad ﷺ rebuked a man who broke a bone of a corpse that he found in a cemetery. The prophet said, “Breaking the bones of a dead man is like breaking the bones of a living man (in sin).” (Abu Dawud: 3207)

-Commodification: Most of the classical Fuqaha have forbidden utilising parts of the human body so that man should not become a commodity. This is against his dignity. (for example, Al Bahr al Raiq 6/81)

-Ownership: Human being is not the owner of his body. Charity requires ownership of the things which one wants to donate, or he should be permitted to do so from the real owner. Our body is an Amanah of Allah so its organs cannot be donated or sold. 

-Prohibition of Mutilation: Separating a part of a human being from his body, which brings no bodily benefit to him, is considered as an act of mutilation.


Arguments of those who Permit human organ transplantation

-Necessity: Harvesting the organs from living or dead human donors for transplantation is allowed due to medical necessity as according to the Shariah, even the prohibited things become permissible for saving life or a critical function of a person.
The Quran says,
“But whoever is forced (by necessity), neither desiring (it) nor transgressing (its limit), there is no sin upon him.” (Surah Baqarah, 2:173)  

The Scholars also cite the famous principles of Fiqh in this - ‘Necessities permit prohibited things’. (Al-Ashbah: 8/84) and 'Difficulty requires ease'. (Ibid.)

Al Binaya, the commentary on the famous Hanafi fiqh text 'Al Hidayah' states, "Drinking blood, urine and eating dead meat for medication and treatment is allowed if a Muslim physician states that his cure lies in it and he finds no lawful medicine which can substitute it." (Al-Binaya: 12/271)

-Organ harvesting is not mutilation or dishonouring: Surgical procedures for organ harvesting do not come under mutilation of human body as there is no disfigurement or disrespect involved in it. It is a professionally performed surgical procedure.
Moreover, it is known from various fiqh examples that even disrespect of honourable things is permitted for saving a life if needed. (Vide Khulasatul Fatawa: 4/361)

-Human dignity: If someone donates a part of his body to others, neither does he feel dishonoured nor do the other people feel so; rather he is more respected in the society. That is why prominent leaders and celebrities of the society bequeath to donate their body parts and this is considered as a virtuous, altruistic and humane act. 

-Sale of human organs is prohibited: Even those scholars who permit transplantation do not allow sale of organs so there is no question of reducing the human body to a commodity.

-Benefit to humanity: Transplantation is a source of removing pain and suffering from human beings and has individual, collective and social benefits. It is a great example of sympathy and sacrifice.

-Ownership and Utilisation of human parts: Blood donation and transfusion from other human beings has been almost agreed upon as permissible in Shariah. If absolute utilisation of any part of the body is regarded to be an act of dishonour or crossing the limits of ownership, it should be unlawful too, as blood is also a part of the body. Moreover, we do not absolutely own our wealth too. It is also an Amanah of Allah but giving it to others is not considered as infringing upon the ownership of Allah. 

The early Fuqaha prohibited utilisation of human organs because in their time, utilisation of human organs was considered to be an act of insult, desecration and objectification. Such methods were also not invented in that age so that organs of the human body could be utilised gently and gracefully. (These arguments have been summarised from 'Jadeed Tibbi Masail' of Mufti Abubakar Qasmi)

When Can A Doctor Refuse Treating A Patient

When is Abstaining from Treating a Patient Not Allowed for a Doctor:

a. It is not allowed for a doctor, who is working in a hospital, to not treat the patients coming to that hospital. For, by working there, he has accepted the responsibility of treating the patients of that hospital.

b. If a doctor runs a private clinic in a locality that is far away from other clinics and hospitals, it is necessary for him to take care of the needs of the patients of that area. He cannot ignore them without a proper Sharae'e excuse.

c. Similarly, in exceptional conditions such as wars, epidemic diseases, etc, it is not allowed for any doctor to abstain from treatment. In such cases, it is obligatory for all the doctors to continue their duties.

d. It will be compulsory for a doctor to extend first aid to a person lying on the road in an emergency condition.

It is not allowed for a doctor to abstain from treating patients in the conditions mentioned above; otherwise he will be accountable before God.

When is It Allowed for a Doctor to Refuse or Stop Treating a Patient:

1) If the patient does not follow the instructions of the doctor.

2) The patient consulted another doctor without recommendation of the previous one.

3) The doctor works under another person or he is busy in an emergency case.

4) It will bring harm or difficulty to the doctor if he treats the patient. If this harm or loss is negligible in comparison with the suffering of the patient, it will be necessary for him to treat the patient.

5) The doctor is busy treating another patient and he cannot leave that patient because of his critical condition.

6) The doctor himself is ill or he cannot reach the place where the patient is.

7) The patient can arrange another doctor who can provide him with medical treatment.

Saving a Person in a Life-Threatening Condition is Obligatory:

If a patient is about to die, it is necessary to provide him with the necessary initial medical treatment and save him. If a person protects a life, he earns the reward of this verse: “And whoever saves one life - it is as if he had saved the entire mankind.” (Surah Ma’idah: 32) This is also an act of cooperating in virtue. Such deeds have been encouraged in the Quran and Hadith.

The jurists of Islam are in agreement that protecting a person who is on the verge of death is obligatory (Wajib). For instance, if a person has food, and another person is dying of hunger, it will be compulsory to provide the hungry man with food. Similarly, if a person sees a blind man going towards a well and about to fall in it, it will be incumbent upon him to protect the blind man if he is able to do so. If there are other people too, and any of them protects him, it will be sufficient on behalf of all. If none of them protects him, all of them will be considered sinful. 

The Messenger of Allahصلى الله عليه وسلم said, “There are three persons whom Allah will neither talk to nor look at, nor purify from (the sins), and they will have a painful punishment. One of them is a man with extra water on a journey but he didn't share it with the other needy travellers.” (Bukhari: 2672)

In the light of these reports and the texts of the jurists, if a person requires immediate treatment, it is compulsory for those who know the treatment to treat him. If any of them provided the treatment, it would be sufficient from all; otherwise all of them would be sinners.

Will the Doctor be Penalised for Abstaining from Treating the Patient

Will the doctor be penalised for refusing to treat the patient despite the ability to do so?
There are two opinions in this regard:

1. The majority of the jurists from the Hanafi, Shafi’i, and according to one narration, the Hanbali schools are of the opinion that there is no penalty on him, the doctor did not directly or indirectly contribute to the patient’s death. However, he will be sinful.

2. The second opinion is that the doctor will be penalised. This is the view of the Maliki and Hanbali School. Imam Al-Nawawi and some others are of this opinion. 

 The ruling of International Islamic Fiqh Academy, Jeddah is that the physician becomes liable for the harm that the patient encounters if he refrained from performing his medical duty in emergency cases. (Resolution No. 142 (8/15)

(Adapted from Mufti Abu Bakar Jaber Qasmi’s book ‘Islamic Guidance on Contemporary Medical Issues’)

Islamic Rulings on Abortion, Foetal Reduction and the Issue of Excess Fertilized Eggs

Summary of Rulings on Abortion, Foetal Reduction and the Issue of Excess Fertilized Eggs

[compiled by Dr. Md. Habeeb Haris]


First of all it should be clear that Abortion of any pregnancy is not allowed without a valid Shara’i reason.

Abortion Before Ensoulment (120 Days of Conception)

It is permissible only if there is a valid shara’i reason- which may be of two types: 


First is related to the foetus itself. For example, significant foetal anomalies, hereditary diseases, etc., are the reasons on account of which abortion is permissible.

However, this same ruling cannot be applied to the situation after ensoulment (120 days of conception).

Second type are those which pertain to the mother. For example, there is a risk to her life due to the pregnancy or delivery, or she cannot look after the child because of her mental or physical disability/ disease and there is no other person in the family who can take care of the child, or she has got pregnant by rape. In all these cases abortion is permitted before ensoulment.

Abortion After Ensoulment (120 Days of Conception)


If the health of the woman deteriorates badly or the expert doctors say that the mother would die if abortion is not done, then it would be allowed to get it aborted even after 120 days of pregnancy, to save the life of the woman. There is a rule that major harm should be avoided in comparison with lesser harm. Here, loss of the life of the woman is a major harm and abortion of the foetus is a minor harm. Following this rule, abortion would be allowed to save the health and life of the mother. (from ‘Jadeed Tibbi Masail’ of Mufti Abu Bakar Qasmi)

Foetal Reduction in Multiple Pregnancy


Reduction of excess foetuses in multiple pregnancy also comes under abortion. But continuation of these multiple foetuses may lead to miscarriage, resulting in the death of all the foetuses or permanent disabilities for them. So, the scholars have said that this constitutes a legitimate Shara’i excuse that allows her to abort the foetuses that exceed the expected number, such as two, or as decided by specialist doctors. So it will be allowed because of the medical need. However, the doctors should make all efforts to avoid fertilising multiple eggs more than the necessary number to prevent/minimise the need of foetal reduction later.
(see https://www.islamweb.net/ar/fatwa/123806/حكم-إسقاط-الأجنة-الزائدة-في-عملية-التلقيح-الصناعي )

Excess Fertilized Eggs - The Fatwa of International Islamic Fiqh Academy under the OIC [Resolution No. 55 (6/6)]


First: In the light of the scientifically established possibility of preserving non-fertilized eggs for future use, only the number of eggs required each time for insemination must be fertilized to avoid the existence of surplus fertilized eggs.

Second: If a surplus of fertilized eggs exists in any way, it shall be left with- out medical care until the life of this surplus ends naturally.

Third: It is prohibited to inseminate fertilized eggs into another woman. Precautionary measures must be taken to prevent the use such fertilized eggs in this unlawful pregnancy.

Indeed, Allāh is All-Knowing.

Medical Ethics in Islamic History

-Dr. Md. Habeeb Haris 

The expression “medical ethics” was not coined until 1803, when Thomas Percival (1740–1804), a physician from Manchester, England, introduced it in his eponymous book Medical Ethics and created one of the first modern codes of medical ethics. 

However, even from the earliest times, the Muslim Physicians gave utmost importance to ethical medical practice. The Muslim health care professionals cannot restrict themselves to just the Western conception of Medical ethics. They need to fulfil the Islamic ethical requirements too to harmonise their professional lives with the wider Islamic worldview. Islamic medical history is full of writings on 'Akhlaq al Tabib' (Etiquettes for Doctors) by many well-known physicians and scholars of Islamic civilisation. Below are mentioned some examples.

1. Abu Bakr Al-Razi: He wrote a special book one thousand years ago under the title Akhlaaq al-tabeeb (Ethics of the physician). It is an epistle addressed to

some of his students. Here are some excerpts:

“A physician should be gentle with people, refrain from talking ill about them in

their absence, and keep their secrets. A person may be afflicted with a

disease which he keeps secret from the closest people to him, such as his

father, mother, and children. He hides it from those close to him and, out of

necessity, reveals it to his doctor. If the physician treats one of a man’s women

folk, girls, or boys, he should cast down his eyes and not look beyond the

afflicted part of the body.” [from WHO document on Islamic code of medical and health ethics https://applications.emro.who.int/docs/em_rc52_7_en.pdf]

"The physician’s duties to the patients: The first of which is to treat the patients kindly, not to be rude or aggressive, but should be soft-spoken, compassionate, and

behave modestly. 
The physician should inspire the patients even those who have no hope for recovery. 
To treat patients equally regardless of their wealth or social status. 
The aim of the physician should not be the money he will get after treatment, but the cure. Doctors should be even keener on treating the poor and needy than the rich and wealthy."

2. Ishaq bin Ali al-Ruhawi: One of the earliest and most thorough books on medical ethics is “Adab al-Tabib” (Practical Ethics of the Physician) by Ishaq ibn Ali al-Ruhawi, a contemporary to Abu Bakr Al-Razi and lived in the second-half of the ninth century C.E. This book was translated to English by Martin Levey in 1967.

A glance at the chapter titles in Adab al-Tabib will reveal how thorough and comprehensive this book is:
1. The loyalty and faith in which a physician must believe, and on the ethics he must follow;
2. Care of the physician’s body;
3. What the physician must avoid and beware of;
4. The directions of the physician to the patients;
5. The behavior of the patient’s visitors;

6. The simple and compound drugs, which a physician must consider;

7. What does a physician ask the patients or others;
8. The necessity for ill and healthy people to have faith in the physician;

9. The agreement that the patient must follow the instructions of the physician;

10. The behavior of the patient with his servants;
11. The behavior of the patient with his visitors;

12. The dignity of the medical profession;

13. The people must respect a physician according to his skills;

14. Peculiar incidents concerning physicians;

15. Medicine must be practiced by those who have a suitable nature and

moral character;
16. Examination of physicians for accreditation;

17. The kings may remove corruption of physicians and guide the people to proper medicine;

18. The necessity of warning against quacks who call themselves physicians;

19. Faulty habits of people, which may hurt them;

20. What a physician must observe during periods of health in order to prepare for periods of illness.
['Islamic medical ethics a thousand years ago' - Saudi Med J 2013; Vol. 34 (7)]

3. Salah Al-deen bin Yusuf: An ophthalmologist from Hama, Syria, seven

centuries ago wrote in his book Noor al-'uyoon wa jami' al-funoon, (a book

of ophthalmology) giving advice to every student of medicine studying under

him:

“You should know that this industry (profession) is a gift from God, the Most Sublime, given to the person who deserves it, as he becomes the intermediary between the

patient and the Most Glorious and Sublime Lord in seeking recovery. When it is achieved through him, he gains the ample respect of people, is glorified by

them, gains renown within his industry, wins confidence in the decisions he

makes, and receives in the Hereafter a reward from the Lord of Creation.

This is because the benefit that is extended to God’s creatures is something great,

particularly when it is a benefit to poor, helpless people. In addition, you acquire a refinement of manners and moral standards, a generous and sympathetic nature.

You should, therefore, put on the gown of purity, virtue, innocence, compassion, and mindfulness of God, the Most Sublime, particularly when you deal with female family members.

You should keep their secrets, cherish proficiency and religiousness, dedicate yourself to your work in science, renounce physical desires, keep company with scholars and learned people, attend to your patients, feel eager to give them proper treatment, and be resourceful in seeking to cure them.
Moreover, if you can assist the weak with your own money, do it.”
[from WHO document on Islamic code of medical and health ethics https://applications.emro.who.int/docs/em_rc52_7_en.pdf]

4. Ali b. Sahl Rabban Al-Tabari: The court physician of Abbasi Caliphs al-Mu'tasim and al-Mutawakkil, described the Islamic code of ethics in his book 'Firdous Al Hikma' ('The paradise of wisdom' - completed in 850 C.E., is the first ever Medical encyclopaedia written, which incorporates all the then available branches of medical science) stressing on good personal characters of the physician, the physician’s obligations towards his patients, community and colleagues.

He stated: 
“The physician should be modest, virtuous and merciful.
He should wear clean clothes, be dignified, and have well-groomed hair and beard. He should select his company to be persons of good reputation.
He should be careful of what he says and should not hesitate to ask forgiveness if he has made an error.
He should be forgiving and never seek revenge.
He should be friendly and a peacemaker.
He should avoid predicting whether a patient will live or die, only Allah knows.
He ought not loose his temper when his patient keeps asking questions, but should answer gently and compassionately.
He should treat alike the rich and the poor, the master and the servant.
God will reward him if he helps the needy.
He should be punctual and reliable.
He should not wrangle about his fees. If the patient is very ill or in an emergency, he should be thankful, no matter how much he is paid.
He should not give drugs to a pregnant woman for an abortion unless necessary for the mother's health.
He should be decent towards women and should not divulge the secrets of his patients.
He should speak no evil of reputable men of the community or be critical of any one's religious belief.
He should speak well of his colleagues.
He should not honor himself by shaming others.” 
(Al-Tabarī, Firdaws al-hikma fī al-tibb, Frankfurt am Main: Institut für Geschichte der Arabisch-Islamischen Wissenschaften, 1996, “Islamic Medicine”, 29.)

In summary, the Muslim health care professionals need to take inspiration from the Islamic conception of Medical ethics and etiquettes formulated by our great predecessors - our Fuqaha and Hukama.  

           
                                                
                    The cover page of al-Tabarī’s book Firdausu’l-Hikmat in Latin letters, published in Berlin in 1928 by M. Z. Siddqi.