Bioethics ISSN 0269-9702

Volume 15 Number 5/6 2001

A CRITICAL APPROACH TO THE

CURRENT UNDERSTANDING OF
ISLAMIC SCHOLARS ON USING
CADAVER ORGANS WITHOUT PRIOR
PERMISSION1
SAHIN AKSOY

ABSTRACT
Chronic organ diseases and the increasing demand for organ
transplantation have become an important health care problem
within the last few decades. Campaigns and regulations to encourage
people to donate organs after their death have not met much success.
This article discusses the subject from an Islamic perspective. It begins
with some basic information on how Muslims reach legal rulings on a
particular issue, and goes on to debate contemporary thinking among
Islamic scholars on the ethical-legal issues of organ donation and organ
transplantation.
It is shown that there are two groups of scholars, one allowing organ
donation and organ transplantation, the other refusing it in any
circumstances. Both groups agree that it is fundamentally wrong to
harvest organs from cadavers without the prior permission of the
deceased or the relatives. This dogma is re-examined, and it is argued
that, under the rule of necessity and the imperative to preserve life, there
is enough moral and theological ground to allow the state to harvest
organs from the deceased without prior permission.

This article was given as an oral presentation at the IAB 5th World Congress
of Bioethics in London, 2124 September, 2000.
Blackwell Publishers Ltd. 2001, 108 Cowley Road, Oxford OX4 1JF, UK
and 350 Main Street, Malden, MA 02148, USA.

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INTRODUCTION
The problem of organ shortages
In many cases of chronic renal or liver failure and chronic heart
diseases organ transplantation represents the only way of
treatment. The demand for organs needed for transplantation
is increasing rapidly. By the fall of 1994 the waiting lists in USA
were as follows: kidneys, 26,845; livers, 3,836; hearts, 2,866;
heart/lungs, 207; lungs, 1,561; over 35,000 altogether.2 The
corresponding figures as of July 22, 1992 in UNOS National Patient
Waiting List were: kidneys, 21,120; liver, 2,183; heart, 2,257;
heart/lungs, 166; lungs, 889; around 25,000 in total.3 It is evident
that the situation is getting worse year by year. It was suggested in
1996 that, without intervention, with a 15% annual increase in
the number of individuals waiting for an organ transplant, over
65,000 could be waiting by the end of the year 2000.4 The
following years confirmed this prediction. The number waiting
was 44,000 (a 20% annual increase) in 1995,5 and is around
50,000 today.6
I will not be discussing the reasons for organ failures reasons
like excessive alcohol consumption in liver ailments, or
unhealthy diet or lack of exercise in heart diseases. The
commonly accepted view in bioethics is that we cannot make
moral judgements about the lifestyles of individuals when we
provide health care to them. My sole aim in this article is to
review current Islamic opinions on organ transplantation and
brain death, and offer an alternative to them. Before doing that it
will be useful to give some basic information on how Muslims
formulate legal opinion on a particular issue.

United Network of Organ Sharing (UNOS). 1994. Organ Procurement

Transplantation Network Annual Report: Graft and Patient Survival Rates.
Richmond.
3
C.E. Orians, R.W. Evans and N.L. Ascher. Estimates of organ specific donor
availability for the United States. Transplantation Proceedings 1993; 25: 1541.
4
K.A. Witmer and C.L. Knoppel. 1996. Organ donation: a collaborative
commitment. In Trends in Organ Transplantation. B.A.H. Williams and
Sandiford-Gutteinbeil, eds. New York. Springer Publishing Company: 319.
5
H.M. Kauffman, M.D. Ellison, and G.A. Pierce. Increasing donorrecipient
imbalance justifies xenograft research. Transplantation Proceedings 1996; 28: 849.
6
J. Harris. We should recycle the dead to help the living. The Independent,
February 19, 1999.
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The sources of islamic law

The norms and assumptions that have characterised belief and
action in Islam have their initial inspiration in two foundational
sources. The first is the Scripture itself, the message revealed by
God to the Prophet Muhammad (d.632) and recorded in the
Qur'an. The second is the exemplification of this message in the
pattern or norm derived from the Prophet's actions and
precepts, the Sunna, a large part of which is textually recorded
in collections of his sayings, called the Hadith. If one cannot find
a text from the Qur'an or Hadith with a bearing on the matter in
hand, then one turns to a third source, the general consensus
(ijma) among Islamic scholars of a particular age for the legal
ruling applicable to the situation. If a consensus on a particular
matter existed among the community of scholars and their view
was not inconsistent with the Qur'an or the Hadith and was in an
area on which these two sources were silent, that view had
validity. If all the three sources mentioned above should fail to
provide a ruling to resolve the problem in hand, jurists must
strive through deep and devout reflection to derive an
appropriate rule by logical inferences and analogy or qiyas. The
effort to apply qiyas is known as ijtihad.7
The role of the individual conscience
That said, every Muslim knows that he or she is individually
answerable before God, individually accountable for his or her
intentions and actions. Since there is no institutional authority in
orthodox Islam equivalent to the Church in Christianity, the
ultimate resource for authority for a believer is his or her own
conscience, guided by the light of the sources mentioned above.
In one hadith Prophet Muhammad is reported to have said; `Even
if the whole people has given you fatwa [juridical decisions or
rulings] you ask for fatwa to your consciousness (nafs) and to
your ``heart'' (qalb)'.8 In some circumstances therefore, whatever
ijma or ijtihad say, the individual Muslim knows that he or she is
primarily responsible for his or her own actions. This is
particularly relevant to organ transplantation since it is one of
the most private and self-decided actions. It is private and selfdecided for the individual because it is believed in Islam (as in
7
C.G. Weeramantry. 1988. Islamic Jurisprudence: An International Perspective.
London. Macmillan Press: ch. 3.
8
A. B. Hanbal. Vol.IV. hadith no: 228.

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SAHIN AKSOY

other divinely revealed religions) that `God has created the

human organs and harnessed them for man's benefit, therefore,
holds him accountable for his organs and will eventually call him
to account for wasting his health'.9
I now turn to some of the main concepts and issues related to
organ transplantation and brain death from an Islamic
perspective.
ORGAN TRANSPLANTATION AND BRAIN DEATH: AN
ISLAMIC PERSPECTIVE
The command to seek new methods of treatment
First of all, it is important to note that, in the face of illness and
disease, Muslims are encouraged to seek remedy and treatment.
In a renowned saying, the Prophet Muhammad is reported to
have said: `There is a cure for every illness, though we may not
know it yet.'10 The search for new treatment methods and
application thereof if proven successful is thus strongly
recommended. Indeed, in the full sense of the Arabic terms
used in the relevant Prophetic sayings, the seeking of treatment is
commanded rather than merely commended.11 Further,
according to some writers, seeking treatment is not only an
individual responsibility but also a collective one.12 Haylamaz says
that the Prophetic sayings imply the patients' responsibility to
seek out appropriate treatment, the state's responsibility to
establish research institutes, and the scientists' responsibility to
work co-operatively to pursue new means for treatment.
Limitations on the search for new treatments
However, there are different views as to the limits on this search for
treatments. One of the matters discussed is the acceptability or not
of treatment using haram (forbidden) or mahzu
rat (prohibited)
9

M. al-Mahdi. 1989. Donation, sale and unbequeathed possession of human

organs. In The Islamic Vision of Some Medical Practices. K. al-Mazkur, A. al-Saif, A.R.
al-Gindi, and A. Abu-Ghudda, eds. Kuwait. IOMS Publications: 2806.
10
M.I. al-Bukhari. 1958. Sahih al-Bukhar. Vol.7. Cairo. Maktabat al-Shcab.
(Kitab al-Tib)
11
A. I. Hanbal. (n.d.) Musnad Ahmad. Cairo. Dar al-Macarif Publishing
Company: III:156. A. Dawud. (n.d.) Sunan Abi Dawud. Beirut. Dar al-Fikr
Publication, 1. (Kitab al-Tib)
12
R. Haylamaz. 1993. Islam Hukukuna Gore Organ ve Doku Nakli (Organ and
Tissue Transplantation According to Islamic Law). Izmir. Isik Yayinlari: 1314.
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elements. Islamic scholars have referred to the Hadith and Sunna to

resolve this issue. In one saying, the Prophet Muhammad is
reported to have said: `God has sent both the disease and cure, and
there is a cure for every illness, [therefore] be treated [but] do not
to be treated with haram.'13 On one occasion a doctor asked the
Prophet for permission to use frog to prepare a medicine by a
doctor, but the Prophet did not allow a frog to be killed for that
purpose.14 By contrast, in another case the Prophet advised a group
of people to mix camel urine in a drink for use against an ailment,
even though it is haram to drink urine, and the patients were healed
after drinking camel milk and urine.15
The diversity of interpretations of what is permitted
These sayings and the Prophet's Sunna have been differently
interpreted by different scholars in various schools of legal
thought in Islam. Hanbali scholars decided that it is not allowed
to be treated with haram elements,16 whereas Zahiri scholars
argued it is allowed.17 The Hanafis' approach is different again.
They say that if it is certain that the result of such treatment will
be positive, then it is allowed. But if the outcome is doubtful, it
shall be forbidden.18 Notwithstanding the diversity of views on
this issue, there is a majority consensus that treatment using
haram or mahzu
rat elements is allowable under certain conditions.
The conditions are:
1
2
3
4

The illness should be of a serious nature.

There should be no alternative treatment which uses only
mubah (permitted) elements.
The doctors should be strongly (and sincerely) convinced that
the treatment in question will be effective against the disease.
Even if the treatment period is prolonged, the amount of the
questionable elements used in treatment should not exceed
the necessary minimum.19
13

A. Dawud, op. cit.: 10.

Ibid.
15
Al-Bukhari, op. cit.: 5.
16
E.M.A. Ibn Qudama. (n.d.) al Mughn. Riyad. Maktabat al-Hadithiyyah: 8:
308, 605.
17
M. Ibn Rushd. 1988. Bidayat al-Mujtahid wa Nihayatu al-Muqtasid, vol. 1.
Beirut. Dar al-Mcarifa: 476.
18
A.E.B. Kasani. 1986. Badaic l-Sanai f Tartb al-Sharaci. Beirut. Dar al-Kutub
al-ilmiyyah: 6162.
19
H. Karaman. 1988. Islamin Isiginda Gunun Meseleleri, vol. 1. Istanbul. Nesil
Publications: 242243.
14

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SAHIN AKSOY

It is worthwhile at this point to note one of the most frequently

employed maxims among Islamic legal scholars: al-daru
rat tubh
al-mahzu
rat (necessities render the prohibited permitted).20 This
maxim is of special relevance to organ transplantation. It is
evident that organ transplantation is a life saving treatment,
therefore the general rules on life saving treatments are
applicable to organ transplantation as such.
Main points in the arguments of those who refuse and those who allow
organ transplantation
Organ and tissue transplantation has been discussed by Muslim
scholars for a long time. Their views can be classified into two
groups. One group argues that organ donation is not allowed in
Islam. Their basic reasons for refusing it are:
1

Humans do not have a right of property on their body and

organs. These are given to the individual by God just for his
or her use, and therefore they cannot be donated as if they
were human property.21 However, regenerative and
renewable tissue and organs like skin, bone-marrow and
blood, are exempted from this ruling.
The body is not a human property. It is a trust held for a lifetime,
after which it is returned to the Creator. And, as such, it is
argued, the body should be returned upon death in the best
shape and condition. The Prophet Muhammad said: `Breaking a
bone of the dead is equal to breaking a bone of a living
person.'22 Some scholars concluded from this hadith that one
cannot donate one's organs either during one's life or after
one's death.23
As a general principle, Islam encourages the quest for
knowledge and innovation. This principle applies in every
walk of life, including medical research. But, it is argued, if
organ transplantation becomes widespread, the treatment of
first choice when chronic organ failures occur, this will
remove the incentive to search for alternative options, for
more `morally neutral' ways like artificial organs.24
20

V. Rispler-Chaim. 1993. Islamic Medical Ethics in the Twentieth Century.

Leiden. E.J. Brill: 29.
21
R.B. Et-Tamimi. Munaqasha. Macallet Macmaci al-Fiqhi al-Islami. IV: 4678.
(No publication date)
22
A. Dawud, op. cit., 64.
23
A.A. Adam. Munaqasha. Macallet Macmaci al-Fiqhi al-Islami. IV: 4767. (No
publication date)
24
F. Beser. Organ Nakli ve Islam. Islam Mecmuasi 1989; 76: 53.
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The other group argues that organ transplantation is acceptable

in Islam. This argument rests on two key points:
1

Organ transplantation is in many cases a life-saving

operation. Islam encourages helping others and saving lives.
The Qur'an says: `. . . if anyone kills a person not in [lawful]
retaliation for murder, or to spread mischief in the land it
would be as if he killed all mankind, and if anyone saves a life,
it would be as if he saved the life of all mankind.'25
The donation of organs is an act done out of feelings of
benevolence, of altruistic love, for mankind. God loves those
who love their fellow humans and try to mitigate the pain and
suffering of others and relieve their sorrows. The Qur'an says:
`They give their brothers preference over themselves, even
though they were [themselves] in need of that [which they
gave]. And whoever is saved from his own covetousness such
are they who will be the successful.'26

The current majority consensus on organ donation/transplantation

Taking account of the arguments and positions of both groups,
a kind of consensus is emerging that organ donation is allowed
in Islam under certain conditions. There have been many
fatwas regarding the acceptability of organ transplantation.27
However, there are a number of conditions that must be
observed:
1
2
3
4
5
6

Single organs, like heart, pancreas and liver, shall not be

donated before death.
Donation should not be harmful for the donor.
Organ transplantation should be the last chance of survival,
i.e. the recipient's life should be dependent on organ
transplantation:
Transplantation should be mostly successful, an established
and effective procedure.
The donor should donate his organ of his free will.
The recipient should also consent to the procedure.
25

Qur'an, al-Ma'idah, 5: 32.

Qur'an, al-Hashr, 59: 9.
27
D. al-Ifta al-Misriyyah. al-Fatwa al-Islamiyah. Cairo. The Supreme Islamic
Council, Ministry of Endowment, fatawa of Shaykh Hassan Ma'mun; No. 1065, 9
June 1959, 1982; 7: 2495, 2552, 22782282, 25052507. B. A. Zaid. 1988. alTashrih al-Guthmani wa l-Nagel wa al-Tca'wid al-Insani. Majallat Majmca al-Fiqh alIslami, Jeddah. Fiqh Academy and Islamic Organisation of Medical Sciences: 34.
26

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There should be no monetary transaction or financial benefit

from the procedure.

If the organ is taken from a cadaver:

8
9

The donor should be dead.

The donor should have stated in his lifetime that he wants to
donate his organs after death or, at least, should not have
indicated any fundamental objection to organ donation.
10 The relatives of the deceased should consent to and accept
the removal of the organs. If the dead body is unidentified,
the head of state's permission should be sought.
That, in summary form, is the current majority view on organ
transplantation. I shall now review the last five conditions listed
above (610) in order to find out if modifications of these
positions is possible and legitimate.
REVIEW AND CRITIQUE OF THE CURRENT MAJORITY
CONSENSUS
The exclusion of any monetary transaction or financial benefit
The principle that human organs are not an ordinary property or
commodity means that they should be donated freely in response
to altruistic feelings of brotherhood and love for one's fellow
beings. The donation of organs should not be considered as, or
ever allowed to become, a legitimate way of trading or otherwise
earning a regular living.28 However, it does not necessarily follow
that any financial transaction whatever associated with organ
donation must be considered forbidden. Islam is a robust, natural
way of life that has always anticipated and allowed exceptions that
do not infringe or damage the spirit, purpose and meaning of the
`original message'. For instance, Ibn Qudama in the 14th century
allowed the sale of an organ of a living person. Indeed, permission
to re-use the organs of the deceased is based on his ruling.29 AlMahdi, Chairman of the Neurosurgery Department at Ibn Sina
Hospital in Kuwait, writing about kidney transplants, concludes
that, until we can obtain an adequate supply of organs through
voluntary and uncompensated donation, we must countenance
the possibility of offering to donors `material recompense, on
28

M. al-Qushairi. 1972. Sahih Muslim bi-Sharh al-Nawawi. Beirut. Dar al-Fikr:

14: 191200.
29
I. Ghanem. 1982. Islamic Medical Jurisprudence. London. Isos Publications:
276.
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condition that no publicity in this respect is made'. He further

observes: `As far as the material recompense is concerned, the
Islamic Sheria has actually determined it to be half the blood
money. . . . 5000 Kuwaiti Dinars. By mere coincidence, it is the very
sum of money paid by the Health Ministry to procure a kidney
from abroad.'30 Similarly, Muhammad Sayed Tantawi, the Grand
Mufti of Egypt and a widely respected authority in Islamic
jurisprudence, has said: `Man's sale of any of his organs is lawfully
invalid and prohibited. Such sale is only permissible in the rarest
cases decided by reliable doctors when they deem a patient's life
contingent upon that sale.'31 In sum, we may say that the
condition `There should be no monetary transaction or
financial benefit from the procedure' is not absolute and can
be waived case by case.
The problem of `brain death'
One aspect of another condition that needs to be re-examined is
that, if the transplantation is from a cadaver, `the donor should
be dead'. As discussed by Bagheri32 and stated in the 3rd
International Conference of Islamic Jurists (Amman 1986), brain
death has come to be equated with cardiac and respiratory
death.33 However, this is something new and indicates a double
standard. According to Islamic understanding a human life
begins when the soul meets with the body, which is claimed to be
120 days after conception.34 Brain formation or the beginning of
electrical activity in the brain which occur well before 120 days
are not considered as deciding the beginning of life. But for
some reason, after the 1970s (which is, coincidentally, after the
first successful cadavric transplantation) Muslim scholars began
to equate brain death with death. Until then, death had
traditionally been described and defined by some accompanying
signs which are: weakening of vision, limpness of the feet,
30

Al-Mahdi, op. cit.: 286.

M.S. Tantawi. 1989. Judgment on sale or donation of human organs. In
The Islamic Vision of Some Medical Practices. K. al-Mazkur, A. al-Saif, A.R. al-Gindi,
and A. Abu-Ghudda, eds. Kuwait. IOMS Publications: 28796.
32
A. Bagheri. The Islamic Views on Brain Death. Presentation made at Multicultural Ethical Issues in Transplantation Meeting, February 2122, 1999,
Manchester.
33
3rd Conference of Islamic Jurists. Fiqh Academy Book of Decrees. Decree No.5,
Amman, October 1116, 1986.
34
M.A. Albar. 1995. When is the soul inspired? In Contemporary Topics in
Islamic Medicine. Jeddah. Saudi Publishing and Distributing House: 1316.
31

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bending of the nose, whitening of the temples and the stretching

of the face and loss of the ability to wrinkle'.35
Elsewhere, I have argued that the 120-day period after which
human life is thought to be established is based on an expedient
interpretation of the texts (intended to enable people to abort
foetuses at that late stage), and that the period should instead be
50 days.36 In the same way, I believe the effort to equate brain
death with real death is also an expedient, intended by the
authorities to enable organs to be utilised for transplantation. I
think shifting the boundaries at either end is suspect as well as
unnecessary.
The dogma of prior donor consent
Another dogma that needs to re-examined and nuanced is the
absoluteness attached to the consent of the donor or of the
donor's relatives: `Donation from people who have already died
can be used on the basis of their own signed will or authorisation
obtained from their relatives post-mortem.'37 Strictly applied, this
condition means that if there is a need for an available organ,
that organ cannot be used unless there is a donor card on the
person of the deceased person, and/or permission is obtained
from the relatives of the deceased. However, strict application of
this condition in all circumstances would appear to contradict
the important maxim we mentioned earlier, al-daru
rat tubh almahzu
rat (necessities render the prohibited permitted). That
maxim means that when there is no other way to save life,
forbidden means become permitted; this includes the removal of
organs from a cadaver. As I mentioned above, parallel to Harris'
controversial suggestion,38 Ibn Qudama allowed the re-use of the
organs of the deceased six centuries ago.39 At the First
International Conference on Islamic Medicine it was agreed that
the donation of body parts is a social obligation, of the kind
classified in Islamic law as fard kifaya (a collective duty that must
be fulfilled by a sufficient number of community members,
though not necessarily by all: the commonest example is making
35

V. Rispler-Chaim. Islamic Medical Ethics in the Twentieth Century. Journal

of Medical Ethics 1989; 5: 2038.
36
S. Aksoy. Can Islamic Texts Help to Resolve the Problem of the Moral
Status of the Prenate. Eubios Journal of Asian and International Bioethics 1998; 8:
7679.
37
Rispler-Chaim, op. cit.: 36.
38
Harris, op. cit.
39
Ghanem Isam, op. cit.: 276.
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proper funeral arrangements for Muslims and doing the funeral

prayer). This means the community is under a collective
obligation to find the right organs for transplantation in order
to preserve the lives and health of its sick members. If a sick
person dies while awaiting a transplant, the society as a whole
carries some responsibility for that. In this situation, the medical
staff in charge of the transplant procedure represent the
community as a whole. Once an organ for transplant has been
obtained, the community regards itself exempt from seeking
further cure for the recipient of the organ.40 Thus, the condition
requiring medical staff to have or obtain the permission of the
deceased person and/or his relatives prior to removal of any
organ for transplantation, cannot be applied in every case. As
Shaykh Tantawi said, it is a necessary procedure to seek
permission from the inheritors.41 In case there are not inheritors,
permission should be taken from the appropriate legal authority.
Nevertheless, seeking such permission is not a binding condition
on competent people, namely reliable doctors, if they believe
that the life of a living person is contingent upon the transfer of a
human organ from a deceased person. Where there is life-anddeath urgency, the medical procedure may be initiated on the
famous `lesser evil' principle, a universal principle whose
formulation in Islamic legal thought is: `The most harmful
detriment is removable by the less harmful one.'42
CONCLUSIONS
Muslims believe Islam to be the final divinely revealed religion,
and must therefore expect it to offer solutions to every
contemporary issue, provided its principles, ethos and tradition
are interpreted with sufficient compassion and imagination. The
scarcity of organs for transplantation is an important health care
problem in all societies, including Muslim ones. As we have
40
First International Conference on Islamic Medicine. Islamic Code of Medical
Ethics. Kuwait. January 1981: 81. In this source it is also mentioned that the
Caliph Umar b. al-Khattab accused the community, one of whose members died
of hunger, of killing him, and ordered them to pay fidya (ransom). Similarly,
the community is held responsible for the death of a person, if the community
could not provide blood or organ donation for him/her. A part of the collective
responsibility involves the provision of the minimal means of survival for all
human beings.
41
Maybe it is more crucial than the will of the deceased since he or she has
already gone and cannot benefit or be harmed by the procedure.
42
Tantawi, op. cit.: 2945.

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explained above, by applying one of the best-known legal maxims

in Islam, namely al-daru
rat tubh al-mahzu
rat (necessities render
the prohibited permitted), the legalmoral difficulties can be
negotiated relatively easily. Islam, as a way of life, seeks to balance
communitarian and individualistic principles. Islam is
individualistic in the sense that it values every individual life as
important as the whole world; it is communitarian in that it
recognises the need to sacrifice some individual liberties (which
in other traditions might be regarded as legalmoral absolutes)
for the sake of public benefit. Although Islamic law protects
individual rights, public benefit is always prioritised. This is the
reason why it is allowed (in the appropriate circumstances, even
recommended) to transfer organs from dead bodies without the
donors' permission, albeit the ideal procedure is, of course, to
obtain permission and consent of the donor and/or relatives.
Willingness to countenance the payment of financial
compensation to motivate organ donors can also be seen as an
example of the robust realism of the Islamic way. It is suggested
that if it encourages people to donate their organs and promotes
the public benefit there could be some material exchange under
the supervision of the state.
Beside these two unorthodox opinions I also tried to
emphasise in this article that the brain death criterion is a novel
but inappropriate interpretation in contemporary Islamic
jurisprudence. Although it is necessary to be open-minded and
modern-knowledge-oriented, we should err on the side of
caution and not risk the possibility of ending lives prematurely
and unjustly.
Sahin Aksoy M.D., Ph.D.
Harran University, Faculty of Medicine,
Department of Medical Ethics and History of Medicine,
Dekanlik Binasi, 63200 Sanliurfa
TURKEY
saksoy@harran.edu.tr

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