In the name of Allah, Most Gracious, Most Merciful
Assalaamu `alaykum waRahmatullahi Wabarakatuh
Allah Ta’ala has made the human being the best of the creations and has granted him a lofty status. In relations to this honor, Allah Ta’ala has made it impermissible to derive any type of benefit from human parts, even if it does not cause any harm to the donor. Allama Burhan al-Din Ali bin Abi Bakr al-Marghinani in his famous treatise Al-Hidayasays:
وشعر الإنسان وعظمه طاهر وقال الشافعي نجس لأنه لا ينتفع به ولا يجوز بيعه ولنا أن عدم الانتفاع والبيع لكرامته فلا يدل على نجاسته والله أعلم (الهداية)
And human hair and bones are pure. Imam Shaf’i says [it is] impure, since benefit cannot be derived from it and it cannot be sold. Our view is that the impermissible of deriving benefit is due to it being sacred; therefore this does not give proof for it being impure. And Allah Knows Best.
Hereunder is a summarized version of Mufti Shafi’s (ra) kitab on organ transplant by Hadrat Mawlana Yusuf Ludyanwi (ra).
At the outset a few fundamental principles of Shari’a should be understood.
1. Whatever is unlawful in Shari’a is harmful to mankind, regardless of how beneficial it may seem. This harm could be physical and spiritual. At times this harm is as clear as daylight to everyone. At times it is only apparent to the experts in the field, and at times it is so hidden that only Allah is aware of its harms.
2. Allah Ta’ala has bestowed mankind with the highest status from all His creations and has made mankind superior over all others. The entire universe is made subservient to man in which man uses what is lawful for his nourishment and well being. Under certain circumstances, unlawful entities also become lawful. Also, due to this status and sanctity bestowed to man by Allah, it is also unlawful to derive any benefit from any part or limb of man.
3. The life bestowed to man is a Divine loan. To harm it or destroy it is a grave sin. Therefore, it is essential to uphold this trust and look after it. It is for this reason that it is necessary to adopt methods and treatments in which one’s life can be saved.
For the maintenance of health, the laws of Shari’a also become flexible and lenient. That is why we find leeway in wudu, prayer, fasting, etc for the sick. In fact, in order to save one’s life, a Muslim will be excused to utter words of kufr. Similarly, if a person is at the throws of death due to hunger and the only food available is pork and wine, he will be excused to consume the pork and wine to the extent that it saves his life.
How does one determine whether a situation falls under ‘necessity’?
Allama Hamawi (ra) in his commentary on al-Ashbah wa al-Naza’ir classifies five levels of necessity and some of their rulings.
1. Darurah – A person reaches such a state that if he does not indulge in an unlawful act, he will die or reach close to death. This state makes unlawful things lawful.
2. Hajah –A person reaches such a state that he will not die, but will experience extreme difficulty. It will not make unlawful entities lawful, but it will create leniency in aspects of purity, prayer, fasting, etc. For example, a person is in the state of such hunger that if he does not get something to eat, he will not die, but he will be in great difficulty. This stage does not make an unlawful thing lawful, but it gives leeway for a person not to fast.
3. Manf’ah – To be of benefit. For example a person desiring wheat bread, mutton, and fatty dishes.
4. Zeenah – Luxuries. For example a person desiring sweet dishes and sugar.
5. Fudool – Extravagance. For example expansion in eating unlawful foods and doubtful.
فالضرورة: بلوغه حدا إن لم يتناول الممنوع ،هلك أو قارب، وهذا يبيح تناول الحرام الحاجة: كالجائع الذى لو لم يجد ما يأكله لم يهلك غير أنه يكون فى جهد ومشقة، وهذا لا يبيح الحرام، ويبيح الفطر فى الصوم المنقعة: كالذى يشتهى خبز البر ولحم الغنم والطعام الدسم الزينة: كالمشتهى بحلوى والسكر الفضول: التوسع بأكل الحرام والشبهة (شرح الحموى على الاشباه والنظائر 1:252 ادارة القران والعلوم الاسلاميه)
It should be kept in mind that in Durrah in the field of medicine will only be taken into consideration with the following three conditions.
1. This patient is really sick to the extent that his life is in danger.
2. The fear of losing the life is not just an assumption, but a reliable doctor affirms it, and treatment is not available with lawful substances.
3. The doctor has conviction that the sickness will be cured through the unlawful substance.
However, there are some situations wherein the unlawful entity will remain unlawful, e.g. to kill another human to save one’s life. Shari’a has given equal rights to each human being and one’s life will not be preferred over the other.
As for Hajah (in a case where the sick person is in great difficulty but it is not life threatening), there is a difference of opinion on the issue whether unlawful substance can be used. The majority of Jurist say it is permissible when the above three conditions are met.
Aap kay masa’il aur un ka hal (9:167) Maktaba Ludhyanwi
The Jurists have taken into consideration situations of dire need, hence the famous principle of Fiqh:
الضرورات تبيح المحظورات
Necessities permit the prohibited.
المشقة تجلب التييسر
Difficulties bring easiness.
It is from the above principles, the Jurist have stated that haram entities become permissible when there is a dire need. Ibn Abidin writes:
مطلب في التداوي بالمحرم ( قوله ورده في البدائع إلخ ) قدمنا في البيع الفاسد عند قوله ولبن امرأة أن صاحب الخانية والنهاية اختارا جوازه إن علم أن فيه شفاء ولم يجد دواء غيره قال في النهاية : وفي التهذيب يجوز للعليل شرب البول والدم والميتة للتداوي إذا أخبره طبيب مسلم أن فيه شفاءه ولم يجد من المباح ما يقوم مقامه ، وإن قال الطبيب يتعجل شفاؤك به فيه وجهان ، وهل يجوز شرب العليل من الخمر للتداوي فيه وجهان ، وكذا ذكره الإمام التمرتاشي وكذا في الذخيرة وما قيل إن الاستشفاء بالحرام حرام غير مجرى على إطلاقه وأن الاستشفاء بالحرام إنما لا يجوز إذا لم يعلم أن فيه شفاء أما إن علم وليس له دواء غيره يجوز ومعنى قول ابن مسعود رضي الله عنه لم يجعل شفاؤكم فيما حرم عليكم يحتمل أن يكون قال ذلك في داء عرف له دواء غير المحرم لأنه حينئذ يستغني بالحلال عن الحرام ويجوز أن يقال تنكشف الحرمة عند الحاجة فلا يكون الشفاء بالحرام وإنما يكون بالحلال ا هـ
Some Jurists have taken into consideration various medical circumstances and have given many leeways in the time of dire need.
In the medical field, techniques have been refined and the human body is treated with much respect during surgical procedures. Organs transplant is no longer considered desecration, neither by the medical experts nor by laymen. Mufti Kifayatullah writes, “This doubt that it is unlawful to derive benefit from human parts should not remain, because it is unlawful in situations in which there is desecration of a human. In situations where there is no desecration of a human, it will be permissible. (Kifayat al-Mufti 9/143 Maktaba Haqaniyya)
In the view of the above, our humble opinion is that if a person is in a life threatening situation in which he is in need of an organ transplantation and there happens to be a organ such as kidney, lever, etc available, it will be permissible for him to accept the organ.
Nevertheless, it will not be permissible for him to donate his organs upon his death, as he is not the owner of his body and cannot do as he wishes with his body. Being able to accept an unlawful entity in time of dire need does necessitate that to donate organs is permissible. Take for example the issue of a person dying due to hunger and thirst and does not have any lawful food available to him. Shari’a has permitted for him to consume pork and wine to the extent that his life may be saved. That does not mean it will be permissible for Muslims to sell pork and wine for this reason.
Here under is the resolution of the International Islamic Fiqh Academy (al-Majma al-Fiqhi al-Islami) which took place in 28 of Rabi’ al-Thani, Jamadi al-Ula 1405.
It is permissible to take an organ from a living individual and place it in another individual who is in need of the organ to save his life or to bring into use a limb which is from the necessary limbs of human. This is not considered as desecration in relation to the person donating the organ. It is considered as helping and aiding another in time of need, which is praiseworthy action. It will be permissible with the following conditions:
1. The donor’s life is not endangered by donating the organ, as it is the principle of Shari’a that for ridding a harm, another harm which is equal or greater will not be undertaken. Also do donate a vital organ is equates to destroying one’s life, which is prohibited.
2. The donor gives the organ from his free will without any pressure put on him.
3. The sickness is such that the only way for cure is through organ transplantation.
4. There is a high probability for cure through organ transplantation.
(Taken from the Urdu translation ‘Fiqhi Faslay’ p. 157)
2. Blood, once removed from the body, is also impure and due to it being part of the human body, it also has the same honor as the rest of the human body parts. However, blood is regenerating, unlike the organs. An analogy of blood can be made with breast milk. The Jurists have ruled that it is permissible to use breast milk for medical purposes when there is a high probability of cure.
Al-Fatawa al-Hindiyya (5/355) Maktaba Rashidiyya
ولا بأس بأن يسعط الرجل بلبن المرأة ويشربه للدواء وفي شرب لبن المرأة للبالغ من غير ضرورة اختلاف المتأخرين كذا في القنية .
If a person’s condition is such that if he does not receive blood, his life is in danger or his health will deteriorate; then in such cases it will be permissible for the sick to accept blood and for a person to donate blood for the sick.
Al-Fatawa al-Hindiyya (5/355) Maktaba Rashidiyya
يجوز للعليل شرب الدم والبول وأكل الميتة للتداوي إذا أخبره طبيب مسلم أن شفاءه فيه ولم يجد من المباح ما يقوم مقامه وإن قال الطبيب يتعجل شفاؤك فيه وجهان .
And Allah knows best
Ml. Ehzaz Ajmeri,
Student Darul Iftaa
Checked and Approved by:
Mufti Ebrahim Desai