Organ Donation from an Islamic Perspective

An in-depth review of the Islamic perspective on organ donation, with an historical analysis, review of evidences and summary of the preferred opinion.

20 November 2018

Read Time:  17 mins   |         

Mufti Faraz Adam


Organ Donation an Islamic Perspective

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The permissibility or otherwise of Organ Donation is a topic of much importance to Muslims

Organ Donation is a topic of much discussion. For Muslims there is significant confusion and wariness over this topic. In this article I will attempt to answer the question of the permissibility of organ donation from an Islamic perspective by considering the following points:

  1. The arguments for and against
  2. Views of scholars
  3. Distinctions between internal and external organs
  4. Conclusion

 

Arguments For and Against

Arguments Against

The key argument for scholars who prohibit organ donation are as follows:

 

1. Organ donation violates the honour granted to humans. God says:

“And verily we have honoured the children of Adam.” In another verse, God says:

“It is He, who has created for you all things that are on earth.” (Qur’an 2:29)

 

“God has created humans and granted them superiority over the rest of creation. As such, not everything that can be done with the other creation can be done with humans. The sacredness and sanctity of the human body is preserved by keeping within it what belongs to it.”

God has created creation such as animals, plants and other inanimate things for the benefit of humans. God has created humans and granted them superiority over the rest of creation. As such, not everything that can be done with the other creation can be done with humans. The sacredness and sanctity of the human body is preserved by keeping within it what belongs to it.

 

2. The human body is not owned by us. It is in trust. Therefore, we cannot trade, transfer any part of it to others.

 

3. The prophetic narrations prohibit the use of human hair for wigs. The Prophet of God (God bless him & give him peace) said: “God’s curse is on a woman who wears false hair (of humans) or arranges it for others.” (Sahih Muslim)

In the commentary of the above verse, Imam al-Nawawi writes:

“If human hair is used, then it is unlawful by consensus, whether it’s the hair of a man or woman, because of the general narrations that prohibit this. And also, it is unlawful to take benefit from the hair and all other organs of a human body due to its sanctity. The hair of a human, along with all its body-parts must be buried.” (Commentary of Sahih Muslim by Nawawi)

 

4. Even in extreme circumstances where one has no food, it is impermissible to consume human flesh. Ibn Nujaym states:

“It is impermissible for the one who is dying out of hunger to consume the food of another person who is also dying out of hunger; neither will it be permissible to consume any part of the other person’s body.” (al-Ashbah wan Naza’ir)

Commenting on this case, the famous jurist ibn Abidin (d.1252 AH) states:

“…Because the flesh of a human remains unlawful even in forceful and compelling situations.” (Hashiya ibn Abidin)

 

5. A prophetic narration states:

“Breaking the bone of a deceased is similar to breaking it in their life.” (Musannaf Ibn Abi Shayba)

Scholars prohibiting post-death organ donation quote this prophetic narration to argue that the lifeless human body cannot be tampered with and should be respected as it was respected during life.

 

Arguments For

The following arguments are in favour of those who permit organ donation:

1. Some scholars argue that the ruling rests on the notion of ‘dishonouring’. How a human body is dishonoured has not been categorically and explicitly stated in the Qur’an and Sunnah. In such scenarios where the Qur’an and Sunnah have not given guidelines on a concept, the customary and contextual realities will define what the guidelines are on a concept. In today’s context, exporting an organ from the human body does not dishonour the human figure. Rather, the donor is considered to be a hero and is praised for such an act. The surgical procedures do not leave the human body visibly deformed or repulsive. Therefore, it does not fall under the prohibition of dishonouring a human being. [1]

 

2. The following verse is oft-recited as the evidence for prohibiting organ donation:

“And We have certainly honoured the children of Adam and carried them on the land and sea and provided for them of the good things and preferred them over much of what We have created, with [definite] preference.” (Quran 17:70)

The commentaries of the above verse revolve around the following interpretations:

  • The children of Adam were honoured through cognition and intelligence
  • The children of Adam were honoured in terms of their features, stature and physique. [2]

“The verse is not definitive in its purport. However, based on one of the interpretations, the children of Adam were honoured by God through their form and figure. This honour enables man to live a life superior to the norms of beasts. However, this does not categorically prohibit donating one’s organ upon death.”

The verse is not definitive in its purport. However, based on one of the interpretations, the children of Adam were honoured by God through their form and figure. This honour enables man to live a life superior to the norms of beasts. However, this does not categorically prohibit donating one’s organ upon death.

 

3. It is argued that that those juristic texts which prohibit eating or using the flesh of humans is in the context of eating and using the flesh of those alive and in turn causing serious harm or death. Ibn Qudama who states that this ruling is due to the likelihood of severe harm and death it can cause. [3]

 

4. In regard to the prophetic narration “Breaking the bone of a deceased is similar to breaking it in their life”, the simile is not explicitly defined. In what sense is it similar? Imam al-Suyuti mentions that this was mentioned to a gravedigger who found a bone in the ground and went to snap it. [4]  Scholars of hadith have interpreted the simile in different ways; some have argued in terms of sin, others have stated that it is addressed to the living to respect the remains of the deceased as if they were alive.

 

5. Not every engagement with the human body and its organs is prohibited; alterations and tampering with the human body that fall into the remit of mutilation (Muthla) are specifically prohibited.

Qatada (God be pleased with him) narrates that the Prophet (God bless him & give him peace) used to encourage giving in charity and prevent mutilation.” (Sahih al-Bukhari)

In another prophetic narration, the Messenger of God said: “Abstain from Muthla.” (Sahih Muslim)

Mutilation from an Islamic law perspective refers to tampering with the body in a manner which changes the features of the body for the foreseeable future. It is on this principle that cosmetic surgery for beautification is prohibited. However, scholars have stated that certain surgeries and practices are permitted. A medical need permits surgery even though it results in tampering with the human body. Likewise, restorative surgeries to remove a physical defect has been permitted by contemporary scholars. [5]  So, the honouring, sanctification and preservation of the human form is not absolute. Not every tampering with the human body and form is a violation of sanctity. When there is a need to enhance or preserve life, it is permissible to carry out surgical procedures on the human body.

 

6. Mufti Radha al-Haq of South Africa argues that it is permissible to disregard the sanctity of a human body when trying to save life. He supports his argument with the statement of Imam al-Samarqandi (d.540 AH) that if a pregnant woman passes away and there is an assumption that the foetus is alive, the woman’s stomach will be cut open to save the life of the foetus. Imam al-Samarqandi mentions that the procedure is a means of preserving life and saving a life. He states that causing death by not doing anything for the foetus is worse than the apparent dishonouring of the deceased body by tampering with it. [6]

Another classical jurist, Ibn al-Humam (d.861 AH) states: “It is permissible to dishonour a deceased to save the life of a living person.” [7]  This principle was stated under the case law mentioned above relating to the death of a pregnant woman. Nevertheless, this indicates to a cost/benefit analysis where the cost of dishonouring a human person has been disregarded for the benefit of saving a life. Thus, if donating one’s organs does dishonour the deceased, it is in the context of saving a living person and should be permitted based on these analogies.

Ibn Abidin (d.1252 AH) states that surgery on a deceased person to extract misappropriated jewellery is permissible even though the sanctity of life is greater than the sanctity of wealth in Islam. He argues that the individual violated his own rights and disregarded his own sanctity.  Again, this clearly shows that the preservation and sanctification of the human body is not absolute. [8]

 

7. The deceased’s body will decay. The body is of no use to the deceased in the grave and neither is it of use in the next life. If the body can be used to benefit others upon the instruction of the deceased, it can possibly be considered as a Sadaqah Jariyah for him as mentioned by Shaykh Qardawi. Therefore, to save a life by using the organs from the deceased is fulfilling the higher objectives of Shariah to preserve life.

 

8. Those verses and texts which discuss tampering with the human body seem to relate to scenarios where such acts are done for beautification, without need or the procedure causes harm and can lead to death of the living.

 

9. The argument that the ‘human body belongs to Allah and therefore one cannot benefit others with it is a weak argument. In reality, the entire universe and everything therein belongs to Allah. Yet, Allah Himself has permitted us to trade, eat, consume, wed and benefit from the world. Just like we are allowed to benefit ourselves and others from the world within certain parameters, likewise, we can benefit ourselves and others with our bodies within certain parameters.

“The majority of the classical texts were written in a context where organs could not be transferred successfully. It was not perceivable nor surgically practical for the living to donate, let alone the deceased. This phenomenon has been a recent development which requires analysis from contemporary scholars.”

 

10. The majority of the classical texts were written in a context where organs could not be transferred successfully. It was not perceivable nor surgically practical for the living to donate, let alone the deceased. This phenomenon has been a recent development which requires analysis from contemporary scholars. In the 16th century, the Italian surgeon Gasparo Tagliacozzi, sometimes known as the father of plastic surgery, reconstructed noses and ears using skin from patients’ arms. He found that skin from a different donor usually caused the procedure to fail, observing the immune response that his successors would come to recognize as transplant rejection. In the early 1900s, European doctors attempted to save patients dying of renal failure by transplanting kidneys from various animals, including monkeys, pigs and goats. None of the recipients lived for more than a few days. In 1905, Eduard Zirm, an Austrian ophthalmologist, performed the world’s first corneal transplant, restoring the sight of a man who had been blinded in an accident. In 1912, transplant pioneer Alexis Carrell received the Nobel Prize for his work in the field. The French surgeon had developed methods for connecting blood vessels and conducted successful kidney transplants on dogs. He later worked with aviator Charles Lindbergh to invent a device for keeping organs viable outside the body, a precursor to the artificial heart. [9]

 

11. The following verse promotes the preservation of life:

“Because of that, We decreed upon the Children of Israel that whoever kills a soul unless for a soul or for corruption [done] in the land – it is as if he had slain mankind entirely. And whoever saves one – it is as if he had saved mankind entirely. And our messengers had certainly come to them with clear proofs. Then indeed many of them, [even] after that, throughout the land, were transgressors.” (Qur’an 5:32)

Imam al-Alusi (d.1270 AH) states:

This verse refers to preserving one life or saving a life from all means of destruction in any form. [10]

 

12. The Hadith states:

“There is no illness that Allah has created, except that He also has created its treatment.” (Sahih al-Bukhari)

One may deduce that organ transplant and donation is a remedy for organ failure.

 

13. Mufti Radha al-Haq argues that another way to consider organ donation is that this falls under Tadawi bil Muharram which refers to seeking remedy in something prohibited. The jurists discuss the issue of using prohibited alcohol for medical reasons. They state that it is permissible to use a prohibited substance with two conditions:

  • This is known to be a means of cure for the specific ailment
  • There is no other medication as effective as this

Considering this angle, the use of donated organs has been permitted for medical reasons. This in itself requires organ donation.

 

14. Even if this is prohibited, the need for organs and transfusions has increased to such a degree that it has become a widespread necessity. Hence, it should be permitted under the principle, “necessity permits the prohibited.”

 

15. It is permissible to remove an extra finger like a sixth finger on a hand as it is a defect. Shariah generally permits the treatment of defects. Such treatments restore the human body to its known form. If a defect can be remedied by removing a limb on the human body, a fortiori, a defective organ can be replaced to restore the human body to its optimality.

“Scholars are generally divided into two opinions, with the majority opining that organ donation upon death is conditionally permissible.”

Views of Scholars

Scholars are generally divided into the following two opinions, with the majority opining that organ donation upon death is conditionally permissible:

  1. Unconditionally impermissible
  2. Conditionally permissible

Historical Fatwas

A summary of the main Fataawa on the issue of Organ Donation throughout the Muslim world.

Some of the resolutions and Fatawa on this issue:

The international Islamic Fiqh Academy (Majma’ al-Fiqh al-Islami) which consists of a number of major scholars from around the globe researched this issue in February 1988, and after extensive research, issued the following verdicts: [11]

“Organs from the deceased can be transplanted to a patient, where the life of the recipient depends on the transplant, or if the continuation of the basic bodily functions of the recipient depends on the transplant. This is however, dependent on the deceased’s consent, or that of his next-of-kin after his death, or by the decision of the leaders of the Muslim community, should the deceased be unidentified, or does not have any next-of-kin.”

“It is permissible to transfer whole or part of organs from a deceased to another person, if the need for such a transplant is critical. Live organ donation is also allowed if the recipient is in urgent need of the organ.”

Highest Council of Scholars in Saudi Arabia [12]

“It is permissible to transfer whole or part of organs from a deceased to another person, if the need for such a transplant is critical. Live organ donation is also allowed if the recipient is in urgent need of the organ.”

 

Fatwa of the previous Mufti of Egypt, Dr Muhammad Syed Tantawi

“Live organ donations are permissible by consensus of jurists, whether the recipient be his relative or a stranger, as long as such a donation is considered to be of benefit by a trusted doctor…Taking organs from the body of a dead person to transplant to someone who needs it, whether to save his life or to cure him, is permissible, and this ruling is [also] based on consensus of jurists.”

 

Fatwa Committee of Kuwait [13]

“If an organ to be transplanted is taken from a deceased person, the ruling is that such a transplant is permissible, no matter whether the intention for the transplant by the donor was made in the form of a will by the deceased or otherwise. This is based on exigency (darurah), such as saving a life, that transforms what is originally forbidden into a state of permissibility. Thus, organ transplants are permissible, as long as there is an urgent need for it.

If the donor is still alive and taking the organ is detrimental to his life, such as taking his heart and lungs, then it is forbidden, no matter whether the donor allows it or otherwise. If the organ or body part that is to be transplanted does not affect the donor’s life, that is, the donor can continue living without it, then the ruling depends on several factors. If not having the organ will physically harm the donor, or prevent him from fulfilling his obligations, for example, donating a hand or leg, then it is not allowed.

In the case where the life of the donor is not affected by the donation, such as that of kidneys, teeth or blood, a transplant is not permissible if it is done without the consent of the donor. [It is] permissible if it is done with the consent of the donor and if the rate of success of such an operation is high.”

 

Fatwa of Dr Yusuf Al-Qardawi [14]

“Someone who wishes to alleviate another human’s suffering, such as kidney disease, by donating one of his healthy kidneys, is allowed to do so in Islamic law. [I]n fact, it is considered to be a good act and the donor will be duly rewarded. This is based on a Prophetic tradition in which the Prophet p.b.u.h. is reported to have said that those who show kindness on earth will receive God’s mercy and kindness. On this, I am of the opinion that there is no prohibition from donating an organ or body part to someone who needs it to cure him/her, and to replace his/her non-functioning organ, such as the kidney or heart etc. with the intent of giving charity. And this is considered to be a continual (jariyah) donation, and the rewards for the donor continues to be accrued for as long as there are those who benefit from it.

 

Fatwa of The National Fatwa Council of Malaysia [15]

“Cadaveric transplant of the eye and heart is permissible if the following conditions are observed:

  • In the case of extreme need and exigency, in which the life of the receiver depends on that organ, and there is sufficient evidence that the transplant process will be successful.
  • In the case of heart transplantation, the death of the donor must be determined before the transplant can be performed. Proper action must be undertaken to ensure that there is no killing and trading of organs involved.”

Even though the organs sanctioned in this fatwa are only the eye and heart, other organs may also be included.

 

Fatwas issued by the Islamic Religious Council of Singapore (MUIS)

The MUIS Fatwa Committee has issued several fatwas on this since 1973. In 1973, the fatwa stated that a pledge (in the form of a will) to donate one’s kidneys to a kidney patient is not permissible. This decision was based on the consideration that one does not own one’s body, including one’s kidneys, or other organs, and thus does not have the right to donate his/her kidneys. In addition, there was not enough information then on the seriousness of the kidney problem, and whether there was another way to cure it. Furthermore, the advancements in medical sciences and technology at that point were not reassuring as to the success of such transplants in curing the medical problem.

The fatwa above was reviewed in 1986. In that year, the Fatwa Committee issued a fatwa which permits organ transplantation out of dire necessity, that is to save human lives. The decision was in line with the position adopted by many other fiqh councils and internationally-accepted scholars. It is also based on a legal maxim in Islamic jurisprudence which states that “exigencies (darurah) changes the forbidden into permissible”. There had also been a vast improvement in medical knowledge which showed an increase in the success rate of organ transplants in treating patients with organ failure.

Several additional fatwas on organ donations were also issued by the Fatwa Committee. The 1995 fatwa allows transplanting corneas, on the basis of alleviating the suffering of eye patients. In 2003 and 2004, the Committee ruled that donating the heart and liver is permissible (mubah), as the case is for donating kidneys.

The Committee also ruled that any two male witnesses are sufficient for a pledge. Thus, the pledger no longer needs the next-of-kin to be witnesses. These fatwas are in line with that of the common consensus (jumhur) of contemporary scholars and international fiqh councils, such as those quoted above.

 

Distinction between internal and external body parts

From a Shariah perspective in light of the principles mentioned by contemporary scholars, organs and external body parts can be divided into the following categories:

 

1. Organs essential for survival e.g. the heart

All such organs can be donated.

 

2. Organs which remove suffering, hardship and difficulty but are not essential for survival e.g. a kidney, an eye.

One may live without these organs but will not have a life. Life loses its essence for people when any body part is missing. All such organs can be donated as they benefit others.

 

3. External body parts which are essential for survival e.g. the head

Such body parts can be donated after death.

 

4. External body parts which remove suffering, hardship and difficulty e.g. the hand.

Such body parts can be donated too. Life loses its essence without such body parts.

 

Conclusion

Humans are sanctified and an honoured creation of God. Developments in surgical procedures have allowed us to help and enhance human life by replacing failing organs with alternative organs. When organ donation is a viable and effective route to help others with organ failures and illnesses, the honour of the deceased body should be disregarded and overlooked in order to benefit the living. In fact, as some scholars have argued, the benefit one’s organs can give to others shows the value of these organs and the nobleness of the deceased. It can be argued that surrendering one’s organs to assist the ailing living is a very honourable gift. Further, the organs are valued by their continuous use as opposed to letting them decay and rot. In line with many global bodies and scholars from across the world, and especially the research of the Islamic Fiqh Academy, my personal inclination is that it is permissible to offer one’s organs for donation. The specific organs will depend on the need and medical advice. This is subject to the consent of the deceased before his death, or by his heirs after his death, or by the authorities in charge of the Muslims if the identity of the deceased is unknown or he has no heirs.

And Allah alone knows best

References

 

[1] Mufti Khalid Saifullah, Jadid Fiqhi Masa’il, Karachi: ZamZam Publishers

[2] وَلَقَدْ كَرَّمْنا بَنِي آدَمَ وَحَمَلْناهُمْ فِي الْبَرِّ وَالْبَحْرِ وَرَزَقْناهُمْ مِنَ الطَّيِّباتِ وَفَضَّلْناهُمْ عَلى كَثِيرٍ مِمَّنْ خَلَقْنا تَفْضِيلاً (70)

فِيهِ ثَلَاثُ مَسَائِلَ «2»: الْأُولَى- قوله تعالى: (وَلَقَدْ كَرَّمْنا بَنِي آدَمَ) لَمَّا ذَكَرَ مِنَ التَّرْهِيبِ مَا ذَكَرَ بَيَّنَ النِّعْمَةَ عَلَيْهِمْ أَيْضًا.” كَرَّمْنا” تَضْعِيفُ كَرَمَ، أَيْ جَعَلْنَا لَهُمْ كَرَمًا أَيْ شَرَفًا وَفَضْلًا. وَهَذَا هُوَ كَرَمُ نَفْيِ النُّقْصَانِ لَا كَرَمَ الْمَالِ. وَهَذِهِ الْكَرَامَةُ يَدْخُلُ فِيهَا خَلْقُهُمْ عَلَى هَذِهِ الْهَيْئَةِ فِي امْتِدَادِ الْقَامَةِ وَحُسْنِ الصُّورَةِ، وَحَمْلُهُمْ فِي الْبَرِّ وَالْبَحْرِ مِمَّا لَا يَصِحُّ لِحَيَوَانٍ سِوَى بَنِي آدَمَ أَنْ يَكُونَ يَتَحَمَّلُ بِإِرَادَتِهِ وَقَصْدِهِ وَتَدْبِيرِهِ. وَتَخْصِيصِهِمْ بِمَا خَصَّهُمْ بِهِ مِنَ الْمَطَاعِمِ وَالْمَشَارِبِ وَالْمَلَابِسِ، وَهَذَا لَا يَتَّسِعُ فِيهِ حَيَوَانٌ اتِّسَاعَ بَنِي آدَمَ، لِأَنَّهُمْ يَكْسِبُونَ الْمَالَ خَاصَّةً دُونَ الْحَيَوَانِ، وَيَلْبَسُونَ الثِّيَابَ وَيَأْكُلُونَ الْمُرَكَّبَاتِ مِنَ الْأَطْعِمَةِ. وَغَايَةُ كُلِّ حَيَوَانٍ يَأْكُلُ لَحْمًا نيئا أو طعاما غير

مُرَكَّبٍ. وَحَكَى الطَّبَرِيُّ عَنْ جَمَاعَةٍ أَنَّ التَّفْضِيلَ هُوَ أَنْ يَأْكُلَ بِيَدِهِ وَسَائِرُ الْحَيَوَانِ بِالْفَمِ. وَرُوِيَ عَنِ ابْنِ عَبَّاسٍ، ذَكَرَهُ الْمَهْدَوِيُّ وَالنَّحَّاسُ، وَهُوَ قَوْلُ الْكَلْبِيِّ وَمُقَاتِلٍ، ذَكَرَهُ الْمَاوَرْدِيُّ. وَقَالَ الضَّحَّاكُ: كَرَّمَهُمْ بِالنُّطْقِ وَالتَّمْيِيزِ. عَطَاءٌ: كَرَّمَهُمْ بِتَعْدِيلِ الْقَامَةِ وَامْتِدَادِهَا. يَمَانٍ: بِحُسْنِ الصُّورَةِ. مُحَمَّدُ بْنُ كَعْبٍ: بِأَنْ جَعَلَ مُحَمَّدًا صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ مِنْهُمْ. وَقِيلَ أَكْرَمَ الرِّجَالَ بِاللِّحَى وَالنِّسَاءَ بِالذَّوَائِبِ. وَقَالَ مُحَمَّدُ بْنُ جَرِيرٍ الطَّبَرِيُّ: بِتَسْلِيطِهِمْ عَلَى سَائِرِ الْخَلْقِ، وَتَسْخِيرِ سَائِرِ الْخَلْقِ لَهُمْ. وَقِيلَ: بِالْكَلَامِ وَالْخَطِّ. وَقِيلَ: بِالْفَهْمِ وَالتَّمْيِيزِ. وَالصَّحِيحُ الَّذِي يُعَوَّلُ عَلَيْهِ أَنَّ التَّفْضِيلَ إِنَّمَا كَانَ بِالْعَقْلِ الَّذِي هُوَ عُمْدَةُ التَّكْلِيفِ،. وَبِهِ يُعْرَفُ اللَّهُ وَيُفْهَمُ كَلَامُهُ، وَيُوصَلُ إِلَى نَعِيمِهِ وَتَصْدِيقِ رُسُلِهِ، إِلَّا أَنَّهُ لَمَّا لَمْ يَنْهَضْ بِكُلِّ الْمُرَادِ مِنَ الْعَبْدِ بُعِثَتِ الرُّسُلُ وَأُنْزِلَتِ الْكُتُبُ. فَمِثَالُ الشَّرْعِ الشَّمْسُ، وَمِثَالُ الْعَقْلِ الْعَيْنُ، فَإِذَا فُتِحَتْ وَكَانَتْ سَلِيمَةً رَأَتِ الشَّمْسَ وَأَدْرَكَتْ تَفَاصِيلَ الْأَشْيَاءِ. وَمَا تَقَدَّمَ مِنَ الْأَقْوَالِ بَعْضُهُ أَقْوَى مِنْ بَعْضٍ. وَقَدْ جَعَلَ اللَّهُ فِي بَعْضِ الْحَيَوَانِ خِصَالًا يَفْضُلُ بِهَا ابْنَ آدَمَ أَيْضًا، كَجَرْيِ الْفَرَسِ وَسَمْعِهِ وَإِبْصَارِهِ، وَقُوَّةِ الْفِيلِ وَشَجَاعَةِ الْأَسَدِ وَكَرَمِ الدِّيكِ. وَإِنَّمَا التَّكْرِيمُ وَالتَّفْضِيلُ بِالْعَقْلِ كَمَا بَيَّنَّاهُ. وَاللَّهُ أَعْلَمُ. (تفسير القرطبي)

[3] Mufti Khalid Saifullah, Jadid Fiqhi Masa’il, Karachi: ZamZam Publishers

[4] Hashiyah Sindhi ala Sunan ibn Majah

[5] Mufti Taqi Uthmani, Takmilah Fath al-Mulhim, Damascus: Dar al-Qalam

[6]  وَلَو أَن حَامِلا مَاتَت وَفِي بَطنهَا ولد يضطرب فَإِن كَانَ غَالب الظَّن أَنه ولد حَيّ وَهُوَ فِي مُدَّة يعِيش غَالِبا فَإِنَّهُ يشق بَطنهَا لِأَن فِيهِ إحْيَاء الْآدَمِيّ بترك تَعْظِيم الْآدَمِيّ وَترك التَّعْظِيم أَهْون من مُبَاشرَة سَبَب الْمَوْت (تحفة الفقهاء ج 3 ص 345)

[7] وَفِي التَّجْنِيسِ مِنْ عَلَامَةِ النَّوَازِلِ امْرَأَةٌ حَامِلٌ مَاتَتْ وَاضْطَرَبَ فِي بَطْنِهَا شَيْءٌ وَكَانَ رَأْيُهُمْ أَنَّهُ وَلَدٌ حَيٌّ شُقَّ بَطْنُهَا ، فَرْقٌ بَيْنَ هَذَا وَبَيْنَ مَا إذَا ابْتَلَعَ الرَّجُلُ دُرَّةً فَمَاتَ وَلَمْ يَدَعْ مَالًا عَلَيْهِ الْقِيمَةُ وَلَا يُشَقُّ بَطْنُهُ لِأَنَّ فِي الْمَسْأَلَةِ الْأُولَى إبْطَالَ حُرْمَةِ الْمَيِّتِ لِصِيَانَةِ حُرْمَةِ الْحَيِّ فَيَجُوزُ .

أَمَّا فِي الْمَسْأَلَةِ الثَّانِيَةِ إبْطَالُ حُرْمَةِ الْأَعْلَى وَهُوَ الْآدَمِيُّ لِصِيَانَةِ حُرْمَةِ الْأَدْنَى وَهُوَ الْمَالُ ، وَلَا كَذَلِكَ فِي الْمَسْأَلَةِ الْأُولَى انْتَهَى .

وَتَوْضِيحُهُ الِاتِّفَاقُ عَلَى أَنَّ حُرْمَةَ الْمُسْلِمِ مَيِّتًا كَحُرْمَتِهِ حَيًّا ، وَلَا يُشَقُّ بَطْنُهُ حَيًّا لَوْ ابْتَلَعَهَا إذَا لَمْ يَخْرُجْ مَعَ الْفَضَلَاتِ فَكَذَا مَيِّتًا ، بِخِلَافِ شَقِّ بَطْنِهَا لِإِخْرَاجِ الْوَلَدِ إذَا عُلِمَتْ حَيَاتُهُ .

وَفِي الِاخْتِيَارِ جُعِلَ عَدَمُ شِقِّ بَطْنِهِ عَنْ مُحَمَّدٍ .

ثُمَّ قَالَ : وَرَوَى الْجُرْجَانِيُّ عَنْ أَصْحَابِنَا أَنَّهُ لَا يُشَقُّ لِأَنَّ حَقَّ الْآدَمِيّ مُقَدَّمٌ عَلَى حَقِّ اللَّهِ تَعَالَى وَمُقَدَّمٌ عَلَى حَقِّ الظَّالِمِ الْمُتَعَدِّي انْتَهَى .

وَهَذَا أَوْلَى .

وَالْجَوَابُ مَا قَدَّمْنَا أَنَّ ذَلِكَ الِاحْتِرَامَ يَزُولُ بِتَعَدِّيهِ . (فتح القدير ج 3 ص 431)

[8] ولو بلع مال غيره ومات هل يشق قولان والأولى نعم..لأنه وإن كان حرمة الآدمي أعلى من صيانة المال لكنه أزال احترامه بتعديه (حاشية ابن عابدين ج 2 ص 238)

[9] https://www.history.com/news/organ-transplants-a-brief-history

[10] وَمَنْ أَحْياها أي تسبب لبقاء نفس واحدة موصوفة بعدم ما ذكر من القتل والفساد إما بنهي قاتلها عن قتلها أو استنقاذها من سائر أسباب الهلكة بوجه من الوجوه فَكَأَنَّما أَحْيَا النَّاسَ جَمِيعاً (روح المعاني ج 3 ص 288)

[11] The decision of the Islamic Fiqh Academy in its Fourth meeting in Jeddah on 11 February 1988. Please see page 58 of “Majma’ Al-Fiqh al-Islami: Qararat Wa Tausiyat, 1985-1988

[12] Decision of the scholars in the Highest Council of Scholars in Riyadh, Saudi Arabia. Please see decision no. 99, 6 Zulqaedah 1402H.

[13] Decision no. 132 issued by the Fatwa Committee of Kuwait in 1979

[14] Dr. Yusuf Al-Qardawi, “Fataawa Mu’asarah”, third edition

[15] The declaration made on The First Meeting of the National Fatwa Council of Malaysia for Islamic Affairs on the 23-24th of June 1970

About The Author

Mufti Faraz Adam
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