Organization for Islamic Learning

Brain Death and Organ Retrieval

by Professor Abdulaziz Sachedina

Abstract

Traditionally Islamic jurisprudence defines death as complete cessation of the heart or respiration. However, a further dimension has been added to this formulation of death in view of the modern medical technology that can intervene to prolong life through the life-support system in the case where all functions of the brain have ceased. This development has given rise to the question whether brain death can be recognized as a valid formulation of death without first defining the criteria of life in Islam. Can innate integration of vegetative functions without cognition in a brain dead person be used as the necessary and sufficient condition of life? What are the social and moral implications of recognizing brain death as a right criterion for death in Muslim society?

Although the Muslim scripture, the Qur'an, contains various death themes that add significantly to our insight into the meaning of death, the concept is left undefined and always portrayed in close relationship with the concepts of life, creation, and resurrection. The Qur'an seems to be more concerned to determine the nature of death. Thus, in speaking about the agonies of death suffered by the wicked ones it uses the crucial term nafs, which means `person' and not simply a thing or an existing entity. To quote the Qur'an:

Every person (nafs) shall taste of death; and We try you with evil and good for a testing, then unto Us you shall be returned. ( Q.21:35-6)

In other words, the Qur'an says that it is a person who has to taste death, and not his physical existence separate from his soul. It is a person who ceases to exist when death occurs. Death is the termination of an individual comprehensive being, capable of believing and disbelieving, and not simply a living organism. Even though later orthodox Islam came to accept the mind- body dualism, the Qur'an by using the term nafs, seems to be rejecting the idea that some entity, like the soul, leaves the body at the time of death. Life does not end with death. In the same way that a person does not cease to exist in sleep, so also he does not cease to exist in death. And in the same way that a person comes back to life when walking from sleep, so also will he be revived at the great awakening on the Day of Judgement. Hence, Islam views death merely as a stage in human existence. Physical death should not be feared as an evil. One should, however, worry about the agonies of spiritual death caused by living a life of moral corruption. That sinful life is not worth living.

The mystery of life and death is resolved in the Qur'an by linking it to the working of human conscience and its ability to maintain a healthy status of human spiritual-moral existence with faith in God. Once that necessary equilibrium between faith and work in life is lost, then a state of human being's death has set in. It is this death that should cause anxiety in human beings. Human efforts should be concerned with the revival of human conscience which will lead to a meaningful life. Does it mean that human body should be simply neglected? No, not at all. It simply means that human death must be viewed as secondary to the spiritual and moral quality of life. This religious evaluation of death is reflected in Muslim cultural attitudes to life and death. In general, Muslim public does not view, for instance, a persistent vegetative state of an individual as life. Life in Muslim culture has a set of criteria which must be fulfilled in order for the patients, their families and society in general to regard a person living. These include a person's ability to make decisions and execute them through his own conscious and cognitive competence. In the absence of such competence close family members or religious and lay leaders in the community assume the guardianship to protect the person's rights. The principle of equity and public good for society in Islam allow the leaders of community act as surrogate decision makers in cases when the person due to mental or any related incompetency is unable to assume that responsibility.

Significantly, in the case of a patient in the vegetative state ethical deliberations in Islam are not only concerned with determining the value of the patient's life. The principle of public good (maslaha) demands that an individual's life must be weighed in the scale of general well estate of those who are horizontally related to the patient. End of life decisions require to take into consideration an individual's interpersonal relationship with his own family and society in general. If active medical intervention in the case of a severely brain-damaged patient leads to further suffering of the patient and those related to him in society, then the ethical judgement cannot ignore the ensuing general harm, including the rising cost of prolonging such life for the entire society.

It is for this reason that Muslim jurists, the Ulema, have adopted the view that it is permissible for the patient in an irreversible vegetative state, either through a prior living will or his immediate family or supreme legal authority (hakim al-shar`), to refuse any treatment that simply prolongs the patient's miserable condition. The point is explicitly made clear that in the eyes of Muslim public it is pointless and even degrading to intervene medically in the nature's course towards an imminent death. On the basis of the religious and moral duty of rejection of harm, if it is reasonably determined, at least by three consultant physicians that pursuing a particular course of treatment is proportionally more harmful than allowing the nature to take its course, then it is obligatory to stop the treatment.

At the same time, to protect the individual's right to life, the Islamic law empowers Muslim courts to determine each case of terminal illness whether it deserves the essential treatment that would put financial and emotional burdens on the family and society. Although the court takes into account the suffering and welfare of the family, there is no justification in Islam to end a human life merely because of the family's and patient's suffering. Nevertheless, it must weigh financial and related demands imposed on the state's resources to provide medical care to needier patients who have a better chance of recovery. Based on its presuppositions about the communitarian ethics the primary obligation of the Islamic court is to ensure the safety and welfare of the individual in the context of the society as a whole. This conceptual and cultural understanding of death in Islam is important to keep in mind as we consider the legal and ethical deliberations that were undertaken by Muslim legist in providing the criteria to determine death. Their decisions were not deduced solely on the basis of what we would call normative sources like the Qur'an and the Tradition, the Sunna; they also took into account cultural understanding of the nature of life and death in the community. In Muslim culture, until recently when modern medical technology admitted the distinction between cessation of cerebral function and cardiorespiratory function, the pronouncement of death was based upon the criteria provided by the vitality of mutually dependent organic system of human body. The terms cerebral death and brain death are neologisms in Muslim societies which continue to see death as the cessation of vital functions in a single organ system rather than a part of the organ. Having said this, the question arises whether the Islamic legal tradition provides any criteria to determine when a person can be regarded as dead.

The Traditional Criteria and Modern Medicine

Until recently, determination of death in Muslim culture was not enigmatic at all. In general, Islamic law has depended upon the opinions of scientific experts and professionals who have used the pragmatic but traditional criteria for death routinely observed in patients. According to the traditional criterion, the life ends with the permanent cessation of respiration and of circulation. In other words, Muslim jurists regarded complete cessation of heartbeat as a sufficient criterion to declare a person legally dead. The problem arose when modern medical technology acquired the ability to keep the signs of life through respiratory support in a brainstem dead patient. The patients were regarded alive in accord with the traditional definition of death. It is important to add a footnote here that the paternalistic and authoritarian style of medical care in the Islamic world, usually limited to medical professional and the sponsoring government agencies, has not allowed for necessary debate involving legal and religious communities on the issue of when to call patients dead.

There are two interrelated reasons that have prompted countries like Iran and Saudi Arabia to reconsider the stance on brain death criteria in the case of patients with irreversible brain damage while the cardiovascular system continues to function by means of new techniques of intensive care:

Until recently, health policies in the Muslim countries generally reflected insensitivity to the public's moral and cultural sensitivities connected with death. The authoritarianism of medical profession in Muslim societies is abundantly clear in the following decision that was imposed as a government policy in Saudi Arabia under the rubric of Religious Aspect of Organ Transplant:

(1) The Purport of the Senior Ulama Commission's Decision No: 99 dated 6-11-1402 (AH)/25-08-1982: The board unanimously resolved the permissibility to remove an organ, or a part thereof from a Muslim or a Dhimmi living person and graft it onto him, should the need arise, should there be no risk in the removal and should the transplantation seem likely successful.