The Critique On Inadequate Legislation For Organ Transplant in Pakistan

Critique on Inadequate Legislation for Organ Transplant in Pakistan
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Page 1 of 48
Table of Contents
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Page 2 of 48
Executive Summary
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Keeping this in mind, an attempt to further the cause of the
betterment of life in general, Organ transplantation has been a solution brought about by
medical researchers and practitioners from across the world, however, due to the legal,
ethical, moral and religious implications of this issue, more than a solution it has arisen
questions about its impact, legalization and abuse. There are some cases cited on this issue
that shows us the gravity of the need for proper legislation.
This report is focused on suggestions for framing an act pertinent to the issue of organ
transplant in Pakistan as it does not have one up till now. The Islamic viewpoints of several
Ulemas are taken into account and many of the critical issues with the terminologies are
discussed. Moreover, the legislation followed in different parts of the Islamic Ummah such
as Kuwait, Egypt and Saudi Arabia are studied and compared with laws in other Non-
Islamic jurisdictions such as Singapore and United Kingdom.
Since United Kingdom has had a lead in having laws about this issue, we¶ve tried to
critically analyze the Human Organ Transplant Act and Human Tissue Act with a view to
implementing it in our society. Finally, we conclude this report by compiling our entire
research; and we have based our suggestions for an Organ Transplantation Act in Pakistan.
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Page 3 of 48
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The quote is very true about developing countries in particular and the world in general. The
issue discussed in this critique is the one in which poor are already being exploited by the
rich thus the focus should be to provide benefit to the exploited.
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This critique rather than criticizing a law that exists aims to analyze and suggest points that
might lead to legalizing organ transplant in Pakistan. Organ transplant and its implications
are vast and diverse. Because of the development in medical sciences several issues have
emerged which need to be tested on ethical, moral and religious standards before
incorporating them into a legal framework. Therefore, this critique addresses the following
issues:
1.p hy do we need to legalize Organ Transplant?
2.p hat are the key problems that should be addressed according to Islam while
legalizing this issue?
3.p hat laws have been passed on this issue in other Islamic and non-Islamic
jurisdictions in different parts of the world?
4.p Defining key terms according to our religious, moral and ethical systems.
5.p hat changes need to be made in Human Organ Transplant Act 1989 and Human
Tissue Act of Great Britain so that it or some form of it can be implemented in
Pakistan as soon as possible? (British Laws are taken as a base since we are a
common wealth nation)
6.p Decided cases in foreign jurisdictions on the basis of their laws.
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Page 4 of 48
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Given below are few cases which are sufficient to answer this question
³Khaled Ali, a 20-year-old student at the Faculty of Education, has been suffering from
renal failure for two years. His doctors say he must receive a kidney transplant. "I just
can't spend four hours in dialysis three times a week for the rest of my life. It's time-
consuming and makes it impossible to live a normal life. I'm young and I need to work,
get married and live my life normally," Ali says in despair.´ (Source: Al-Ahram
eekly)
If the above case is not sufficient to clarify consider the following mistreatment of humanity
(taken from The Tribune)
1.p ³Chuni Lal, who belongs to Faizabad district of UP, landed in Amritsar in search of
a job some 25 years ago. He began selling tea on the roadside in the Company Bagh
area. "I lived in Jagdamba Colony and whatever I earned from making tea, I used in
gambling. I used to fill pouches of blood from people and sell them. Raju, the blood
technician at Guru Nanak Hospital, would collect these pouches from me. Those
who sold blood would be paid Rs 230 by Raju, and I would get Rs 50 for each
person." Chuni Lal even sold his own blood to Raju, whenever he needed money. He
says he has drawn 500 to 600 pouches of blood from his own body.
As per the police investigation, his tea-stall became an for kidney racketeers
who lured unsuspecting young boys or poor people to sell their kidneys. Chuni Lal
was the co-conspirator in such deals. Several people reportedly died during kidney
extraction and he cremated these bodies as µunclaimed¶ in Durgiana Temple. As per
the temple records his name comes at least 20 times. However, during police
interrogation, Chuni Lal confessed that he had performed scores of such cremations.
He even used to keep a record in a notebook of all the people who came to sell their
blood to him.´
2.p ³The case study of Raju of Moradabad is hair-raising. He was forced to leave his
widowed mother and young sister back in the village in search of a job. hen he
arrived at Delhi railway station, he was befriended by one Salim. "He persuaded me
to sell one of my kidneys for Rs 50,000. I got carried away, as I badly needed money
to support my mother and sister. I was brought to Amritsar. Here, in Kakkar
Hospital, one Dr Jayant operated upon me. In the first operation, my kidney could
not be taken out. So, immediately the second operation was also conducted upon me.
That is why this huge line of stitches on my body. The recipient of my kidney was a
policeman, C B Pandey, from Nepal. After the operation, when I regained my
consciousness, I was lying in a hospital with no money and no medicines´. He is at
present in jail.´
3.p Prosecution on organ selling over the internet:
Page 5 of 48
A British woman may be the first citizen to face prosecution under the country's Human
Organ Transplants Act of 1989, which prohibits the sale or solicitation of any organ within
the country. Last month, to pay off her legal debts, the woman closed a deal over the
Internet to sell her kidney for $50,000 to an American.
These cases though happened in a foreign jurisdiction but are still an eye opener. Similar
cases are abundant in Pakistan. ith organ selling rampant, entire villages have populations
that have only one kidney (source: SIUT). These cases show us an immediate need to
legislate and implement organ transplant laws in true letter and spirit as soon as possible.
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Page 6 of 48
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Taking into consideration the vastness of this issue we have tried to narrow down the topic
by taking only those kinds of transplants that are done through live and dead donors, others
such as developing organs from aborted fetuses, developing organs from stem cells and
other genetic techniques have not been accounted for. e will not be discussing issues
related to blood transfusion as blood is regarded by some as an organ. The basis of this
critique is, as mentioned above, the Human Organ Transplant Act (referred to as HOTA)
1989 and sections 32, 33, 34 of the Human Tissue Act 2004 of Great Britain (attached in the
appendix).
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In most countries, the law on organ transplantation is poorly defined, as legislation has not
yet been created to cope with this advance in surgery. The existing framework relating to
physical assault and care of the dead has no provision for organ transplantation. It is
customary to ask the permission of the relatives, but, because organ removal must take place
immediately after death, it may be impossible to reach the relatives in time. It has been
suggested that there should be a widespread campaign to encourage persons to provide in
their wills that their organs be used for transplantation. An alternative is to provide by law
that permission is assumed unless removal has been forbidden by the individual in his
lifetime. Such laws have been passed in Denmark, France, Sweden, Austria, and Israel.
Compulsory postmortem examination, a far more extensive procedure than organ removal
for grafting, is required in most countries after unexpected death, and this compulsion is not
a matter of public concern and debate.
There would seem to be no reason why organ removal for transplantation purposes should
not also be acceptable to public opinion, provided there is a mechanism by which
individuals in their lifetime can refuse this permission. This, of course, requires an efficient
register of those who indicate their refusal; the register would be consulted before any
organs would be removed. It is important that there be public reassurance that
considerations of transplantation would not impair normal resuscitative efforts of the
potential donor.
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Transplantation has obviously raised important ethical considerations concerning the

diagnosis of death of potential donors, and, particularly, how far resuscitation should be
continued. Every effort must be made to restore the heartbeat to someone who has had a
sudden cardiac arrest or breathing to someone who cannot breathe. Artificial respiration and
massage of the heart, the standard methods of resuscitation, are continued until it is clear
Page 7 of 48
that the brain is dead. Most physicians consider that beyond this point, efforts at
resuscitation are useless.
In many countries, the question of how to diagnose brain death²that is, irreversible
destruction of the brain²has been debated by neurologists and other medical specialists.
Most of these experts agree that when the brain stem is destroyed there can be no recovery.
The brain stem controls the vital function of breathing and the reflexes of the eyes and ears,
and it transmits all information between the brain and the rest of the body. Most countries
have established strict guidelines for how brain-stem death is to be diagnosed and what
cases are to be excluded²for example, patients who have been poisoned, have been given
drugs, or have developed hypothermia. The neurological signs of brain-stem death must be
elicited by a trained clinician who is not concerned directly with the transplant operation.
These signs are re-verified after an interval, and, if there is the slightest doubt, further re-
verifications are made until the criteria are unequivocally met. The guidelines are not
seriously disputed, and there has never been a recovery in a case that fulfilled the criteria of
brain-stem death.
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Page 8 of 48
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Due to quantum leaps made by medical science in the field of genetics and surgery several
religious issues have arisen and organ transplant is one of the oldest ones and have been a
bone of contention in many Muslim countries for the past two decades. Following are the
questions that need to be addressed:
1.p Is it allowed to remove an organ from the body of a living person and transplant it
into the body of a sick person whose life depends on it?
2.p Is it permissible to remove an organ from the body of a dead person to be used to
save the life of a living person?
3.p Is a person allowed to donate his body or part of it to be used after his death in
saving the life of other people?
4.p Does Islam recognize the new definition of death that is brain stem death?
5.p If it does, is it permissible to remove from brain stem dead persons, organs for
transplant while there are signs of body functions like heart beat temperature and
breathing?
These questions have been discussed by religious scholars for many years and a
comprehensive article by Mufti Muhammad Ibn Adam, Darul Iftaa, Leicester UK (attached
in the appendix) explains the first three questions in detail.
The article discusses this issue on two basis permissibility and prohibition giving relevant
citations from the Holy Quran and the view points of different schools of thought.
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The proponents of this view justify it on the basis of the following grounds:
i.p Allah Almighty has honored human beings and a human body is sacred and
must not be tempered with. Muslim jurists have stated that in case of extreme
necessity when no other option is available, even unlawful things become
available but consuming or deriving benefit from human body even under
such a condition still remains unlawful.
ii.p The cutting of and tampering with a human body amounts to mutilation and
deformation of a divinely created body (muthla), which has clearly been
prohibited in Shariah
iii.p The human body and parts are not in our ownership in that we may fiddle
with them as we desire
iv.p It is unlawful for an individual to inflict harm upon himself or others
Page 9 of 48
v.p The principle of Islamic jurisprudence states: ³hen the evidences of
prohibition conflict with the evidences of permissibility, preference is given
to prohibition´. (Ibn Nujaym, al-Ashbah wa al-Naza¶ir).
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The proponents of this view give the following arguments:
i.p The famous principles (qawa¶id) of Islamic Jurisprudence based on the

teachings of the Qur¶an and Sunnah permit the use of unlawful things in
cases of extreme need and necessity
ii.p ith regards to the aspect of human sanctity, there are two things that need
to be taken into consideration. Firstly, Islam ordered us to honour a human
body but did not prescribe any fixed methods for it. Disgracing a human
body may change from one time to another and from one place to another.
Secondly, there are cases where Shariah overlooks the sanctity that is
attributed to the body, such as in the case of saving another human.
iii.p As for a human not owning his body is concerned, Islam permits a human in
certain situations to utilize his body.
iv.p Almost all of the scholars give permission for the transfusion and donation of
blood in cases of need and necessity (see below), then why is there a
difference in the issue of organ transplant.
The author concludes that if one acts in the view of permissibility than one should seek
forgiveness of Allah and donate something in charity.
To answer the last two questions we must look at the Islamic definition of death. According
to Sharia, a person dies when soul departs from the body. But by the present means of
scientific technology we cannot gauge this. According to Dr M A Zaki Badawi Principal,
The Muslim College, London and Chairman, The Muslim Law (Shari'ah) Council UK
(attached in the appendix)
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Page 10 of 48

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The Muslim law council of UK has decided that the death of brain stem cells results in the
death of a person. Following are the decisions formed by the above mentioned council in the
light of its discussions with doctors and specialists:
If the heart stops beating it can be restarted through massaging (CPR) and electric shocks
with in four or five minutes. However, after the death of brain stem it is not possible to
revive it (with present technology) and if there is certain movement is left it cannot be
considered as a sign of life because even after being hanged or beheading person continues
to have a pulse and there are some signs of life.
To conclude this discussion on Islamic permissibility of organ transplant we must look at

laws in other jurisdictions both Islamic and non Islamic which are followed in the next
section.
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Page 11 of 48

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Several Muslim countries are ahead of Pakistan as far as legislation of organ transplant laws
is concerned.

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p p"pp'12pis the law that regulates kidney transplant operations in Kuwait. This law
allows the transplant of donated kidneys as long as it does not cause detriment to the life of
the donor.
In Kuwait, the sale of human organs is allowed in strict legal sense as long as it is done by a
contract and follows all the 3
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Kuwaiti civil code does not explicitly state anything about this type of contract. But for the
contract to be lawful, the general rules that govern the contract of sale state that for any
contract to be valid the subject and the reason of contract should be both lawful. The subject
is the organ being sold which is impermissible in under most conditions in Islamic sharia
which is the source of civil legislation in Kuwait. So to conclude, if two persons enter into
such a contract it is illegal and impermissible.
However, if the sharia permits, in case of dire necessity and such selling of organs in that
specific case becomes permissible in sharia than this contract follows the same rules as the
contract of sale in accordance with the Kuwaiti civil code.
This dispute was resolved by a fatwa by AD HOC ADMINISTRATION OF THE MINISTRY OF

AQFS AND ISLAMIC AFFAIRS which passed fatwa no. 455/85 on the sale of human organs.
This fatwa states that
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Page 12 of 48
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(Source: Medical Jurisprudence Third Symposium on "The Islamic Vision of Some Medical
Practices" Held from 18-21 April, 1987 A.D. SALE OF HUMAN ORGANS IN THE
BALANCE OF LEGITIMACY by Mr. Muhammad Yehia Ahmad Abul-Fotouh, Legal
Advisor, Ministry of public Health, Kuwait)
This statement clearly states that sale of organs is impermissible, though donation is not, in
case of dire need and no donor being found a contract of sale is allowed which should not
harm the donor of the organ in any case and a fair price should be paid for it.
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Several flaws can be found in these arguments:
1.p hat is the method of determining the ³dire necessity´ which makes a contract of
sale legal? As every person needing an organ transplant is in dire need of it.
2.p Doesn¶t this provision make a useful tool for oil rich sheiks to exploit the needy?
Exploitation of the poor is done by rich Arabs in countries like Pakistan,
Bangladesh, India and Sri Lanka.
3.p ho and how will the fair price if the organ be determined?
4.p Is this law applicable to Kuwaiti nationals who purchase organs from abroad, South
Asia to be specific, as they are the major reasons for organ trafficking?
p
There are no transplant laws in Egypt except a law that legalizes cornea transplant. Two
draft laws were presented to the parliament one by the ministry of health and other by MP
Mamdouh Fouda and Mansoura University professors A heated debate has marked the two
bills since their inception, however. The definition of clinical death is the largest bone of
contention among religious scholars and medical doctors. The committee, along with
several religious scholars, is now in the process of studying the draft laws, and will prepare
a final draft to be publicly discussed by parliament.
Though no law on any other organ transplant (except cornea) exists in Egypt fatwas have
been given by the grand mufti of Egypt on this issue. Sheikh Hassan Ma¶mun (The Grand
Mufti of Egypt) sanctioned corneal transplants from cadavers of unidentified persons and
from those who agree to donate after their death (No. 1087, April 14th, 1959; ibid., p.2552).
His successor, Sheikh Huraidi extended the fatwa to other organs in 1966 (No. 993; ibid.,
vol 6, pp.2278 82).
Sheikh Khatir, then Grand Mufti of Egypt, issued a fatwa allowing harvesting of skin from
unidentified corpses in 1973 (ibid., vol. 7, 2505 7).
Page 13 of 48
Grand Mufti Jad al-Haq sanctioned donation of organs from the living provided no harm is
done and provided the gift is made freely in good faith, for the sake of God and care of
mankind. He also sanctioned taking organs from cadavers provided there is a legal testament
or consent of the relatives. In case of unidentified corpses, an order from the Magistrate
should be obtained prior to harvesting organs (No. 1323, December 5, 1979; ibid., vol.10,
pp. 3702 15).
(Source: Islamic voice, monthly, Vol. 12-07 No: 139)
pp
Saudi Arabia has legalized the organ transplants and the first ever uterus transplant was
performed in the kingdom successfully.
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(Source: By Rick eiss ashington Post Staff riter Thursday, March 7, 2002)
Saudi ulemas have long approved organ transplant through fatwas given on different
occasions. The Saudi Grand Ulema Fatwa No. 99, 1982 addressed the subject of auto grafts
(a tissue or organ that is transplanted from one part to another of the same body) which were
unanimously sanctioned. It also sanctioned, by majority, donation of organs both by the
living and by the dead by legal testament or consent of relatives (Majallat al-Majma¶, 1987,
vol.1, p.37).
The subject of brain death was not addressed in any of these fatwas but discussed for the
first time in the Second International Conference of Islamic Jurists held in Jeddah, in 1985.
No decree was passed then, until further studies and consultations had been done. In the
Third International Conference of Islamic Jurists held in Amman in 1986, the historical
Resolution No.5 was passed by majority, which equated brain death to cardiac and
respiratory death (Jeddah Fiqh Academy, 11988, p.34). This 1986 decree paved the way for
extension of organ transplant projects previously limited to living donors. Campaigns for
organ donations from brain dead persons were launched both in Saudi Arabia and Kuwait.
The Islamic League conference of Jurists, (Makkah, December 1987) decree No.2, 10th
Session, did not equate cardiac death with brain death. In fact it did not recognise brain
death as death. However, it sanctioned all the previous fatwas on organ transplantation. This
decree has received little attention in the media, and the authorities in Saudi Arabia seem to
ignore it. Cardiac and kidney transplants from brain dead individuals continue without any
hindrance from the jurists.
Page 14 of 48
The most detailed fatwa on organ transplantation was that of the Fourth International
Conference of Islamic jurists held in Jeddah, February 1988 (Resolution No.1). It endorsed
all previous fatwas on organ transplantation, clearly rejecting any trading or trafficking in
organs and stressed the principle of altruism.ibid, pp.558).
(Source: Islamic voice, monthly, Vol. 12-07 No: 139)
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Page 15 of 48

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Almost all non Muslim countries have passed laws to legalize organ transplant keeping in
view the disastrous affects of not legalizing the issue and rampant practice of human organ
trafficking which is still going on in many countries including Pakistan.
p
Singapore has legalized organ transplant and made it compulsory for all non Muslims
though it has given several leverages to Muslims of Singapore. The fatwa committee of
Singapore has given its verdict on the issue. According to the fatwa issued by the Fatwa
Committee of the Islamic Religious Council of Singapore (MUIS), kidney donation and
transplantation are allowed by sharia, on the basis of emergency (saving of lives). The fatwa
is known by Muslims around the world because it has been issued by many fatwa
institutions in the Islamic countries such as Lujnah Fatwa Al-Azhar, Darul Ifta' (Egypt),
Darul Ifta' (Saudi Arabia), Fatwa Committees of States (Malaysia) and Fatwa Committees
of other Muslim countries. However, all the ulema agree that the kidney transplant
procedure has to be properly administered and must not go against the tenets of Islam.
The Singaporean HOTA 1987 is in accordance with the above mentioned fatwa and focuses
on simplifying the issue for Muslims. A law has been proposed for the Muslims which
allows the kidneys of Muslim Singaporeans and Permanent Residents between the ages of
21 and 60 to be removed upon death caused by accidents, unless they have opted out of the
law (in writing) during their lifetime. The kidneys are removed for the purpose of
transplantation to save the lives of kidney failure patients. However, the consent of the two
must be obtained prior to the removal of the kidneys.
(Source: MKAC - Muslim Kidney Action Committee)
º p p
In United Kingdom two laws govern this issue
1.p Human Organ Transplant Act 1989

2.p Human Tissue Act 2004
p 6

The Human Organ Transplant Act of 1989 is a miniature act considering the intensity,
urgency and whole wide range of issues that are to be addressed under the act. Among the
seven sections outlined in the act, just five of them talks about the matters concerning the
issue itself while the rest are more of judicial requirements i.e. the jurisdiction and the title.
It is surprising that the legislators overlooked pretty serious matters of grave intensity while
drafting the Act.
Page 16 of 48
The Act basically prohibits commercial dealings in human organs intended for transplanting
and it restricts the transplanting of such organs between persons who are not genetically
related; and other related supplementary matters.
At first we should analyze what is the simplistic jest of the various sections in the act.
The first sections essentially talks about the prohibition of commercial dealings in human
organs. The Act further puts restrictions on the source of organs i.e. restriction on
transplants between persons not genetically related. hile the third section concerns about
information to be recorded regarding the transplant operations; it is followed by the section
about offence by the corporate bodies and finally by prosecution. The last two concerns for
Northern Ireland and the title and the name of the Act respectively.
The first section affectively forbade the trade of human organs for money. A truly
humanitarian need should not be put on the test of money. It opens the rays of hope for the
destitute to which the treatment should be same regardless of the monetary value of their
lives. A lord and a commoner are put in the same shoes concerning the organ transplant
according to the spirit of the section 1. It also address to the obvious cost of transplant such
as removing, transporting and preserving the organ. Moreover, there are also effective
restrictions on advertisement for buying or selling of organs. Even contacting others so as to
induce someone in order to intimate him by money to sell his organ is also prohibited.
However, the loophole which probably would defy all the above prohibitions and
restrictions of exchange of money for organs comes in the subsection 3(b), which states ¶
any expenses or loss of earnings incurred by a person so far as reasonably and directly
attributable to his supplying an organ from his body¶, is allowed. This would negate the
whole purpose of restrictions on getting money for the supply of organ. The person who is
supplying the organ as an article of trade would present his case that he is justifying
receiving money as a compensation for giving the organ.
Another serious flaw of this section is that it puts the whole burden on the person in need of
the organ, as mentioned in the various subsections and clauses of the section1. It is not a
witty assumption that a person may give advertisement for the availability of an organ.
In the section it is also prohibited for an unincorporated body or a corporation to enter in the
business of organ transplant. This clause is very vague. One should try to understand that an
intermediary is required in the case of donation of an organ whose need may not be in the
same vicinity as of the donor. Does the clause prohibit only the businesses which do such an
act for money or does the clause also prohibits the non profit organizations in facilitating the
procedure of organ transplant?
Though the law itself admits the practice of indulging in the trade of organs and profiting on
the humanitarian needs as an offence of great magnitude but the penalty offered to such
profiteers does not match their heinous crimes. A penalty of imprisonment up to three
months or a fine does not match the agony of the patients who suffer either from forced
donation of organs and unavailability of organs due of insufficient funds.
Page 17 of 48
The section 2 holds guilty of an offence if a person removes the organ from living person
and transplants to another if the persons are not genetically related. The subsection 2 defines
who would constitute genetically related people. This provision helps to curtail illegal
business in the human organs. Moreover, it is medically preferred if the donor is a close
relative since it carries a greater chance of a successful transplant.
The subsection 3 overrides the prohibition of usage of organs of unrelated persons, by the
discretion of superior authority of Secretary of State. The secretary of State would also
reimburse the money to meet the cost of the authority. In addition there is a proviso for
formulating regulations concerning payment in exchange of organ and the waiver of the
restriction on organs from relatives.
The section though instructs the usage of organs that the relatives of the person in need
provide, but the exception where the rule could be overruled as mentioned in the above
paragraph is very convoluted. The role of the µauthority¶ is not mentioned anywhere in this
subsection save where the Secretary of State reimburses it for the costs incurred. But the
where does the costs incur? Similarly, the role of the Secretary of State is very confusing
and uncomprehending. Over that the subsection 7 gives the power of forming regulations
concerning the exceptions to the rules in the section 2, is also baffling. One could not
understand why the respected lawmakers did not provide regulations and rules at the time of
drafting the Act. This not only provides excuse for the offenders but it also show the
weakness of the Act.
The person in this section is guilty if he removes organs from one person and/ or transplants
it to another person who is not related genetically. The question arises here who would be
that person? ould he be the doctor and surgeon; and if they then will it end there or would
it encompass all those who supported in the operation such as nurses and support staff.
Similarly, what if an organ is removed from a dead person, will there be any punishment?
According to the section 3 it would not constitute as an offence.
The section 3 provides regulation for information about the transplants. The Secretary of
State may through regulation require reporting all matters concerning the organ transplants.
The regulation would come into force after the prior approval from the parliament. The
section also provides penalties and imprisonment for negligence in reporting or misleading
information.
Again it is amusing that there is a section in the meager Act which provides power to the
Secretary of State to form regulations. But what a power that he has to get it approved from
the parliament.
The section 4 is about the offences by body corporate Interestingly it would be considered
as an offence on the behalf of the concerned management of the corporation if something
constitutes as an offence under this Act. Does it make sense except making the Act verbose!
The section 1 had already taken account the offence on the account of corporations.
Moreover the punishments for the offence is also not specified which makes the section 4
more of a piece of information in itself rather than a law.
Page 18 of 48
Section 5 provides the authority by which someone tried under the Act would be trialed. It
shows that there is hesitance on part of the judiciary to put the on trial under this act, which
would result in delaying justice.
The parliament should reconsider the Act and make amendments and insert additional
sections which are concerning more of a current issues and problems. The original Act not
only shows lack of motivation but also unawareness on the issues and problems related to
the Human Organ transplantation. If proper and thorough legislation is not drafted and
enforced, which not only addresses the issues and problems whether ethical, social, moral or
religious, and have provisions for future breakthroughs, the gross irregularities in this sector
and unethical and immoral practices would continue unabated.
p 6
Only three of the relevant sections from the Human Tissue Act (HTA) are taken relating to
Organ Transplant. Starting with section 32 which talks the prohibition of commercial
dealings in human materials for transplantation, this is a very general section practically
prohibiting any sale or attempts to sell, any purchase or attempts to purchase human
material by any person. Sub-section 2 even prohibits publishing advertisements with such
offers by anyone. However, strange is sub-section 3, which negates all the emphasis build-
up by allowing a person designated by the authority to engage in all the prohibitions in the
previous two sub-sections. This goes to show the bias within the law, which probably can be
used as per the whims of the rich and powerful people and would suppress the poor under
the earlier sub-sections.
The remaining sub-sections deal with penalties imposed and instances where payment of
money or money¶s worth would not be considered a reward under this section. Also, the
section ends with various definitions, which are in fact needed to understand the section in
the proper light.
Section 33 deals with restrictions on transplants involving a live donor. This section
prohibits the dealing in human organs of living persons. Here again, however, the Secretary
of State is given enormous powers to allow the transplantations in certain exceptions. This
power might be misused favoring some privileged on the expense of the deserving.
Section 34 talks about the information about transplant operations. There are various sub-
sections dealing with the true declaration of the statements regarding the person donating an
organ under section 33. Of crucial importance is sub-section 3 where emphasis is on
keeping records of all such materials donated and the persons involved.
Critically speaking, these sections touch on the issue of organ transplantation albeit they do
not constitute a comprehensive legislation covering different aspects of this issue.
p
Page 19 of 48
pp p p2! p

Although the Sindh Institute of Urology and Transplant (SIUT) has been a pioneer in
preparing a draft of the organ transplant law in 1992, today, fifteen years down the line, the
legislation has not been approved by the parliament. In order to maintain confidentiality of
the matters, the draft is not openly available for the general public as yet. One can argue that
since this issue is quite complicated, it is prone to giving rise to apprehensions in the minds
of many and the governments didn¶t want to lose their vote bank due to that since quite a lot
of votes have been religiously motivated.
p An important, but quite often overlooked, fact is that the avoidance to approve
legislation doesn¶t stop the rampant and widespread organ trafficking in the country,
especially within the poorer class which is exploited by filthy rich foreigners and
which cannot defend their rights. In formulating legislation for Pakistan, the law
makers need to shed light on this issue and solution to this can involve various
measures. One of the possible measures could be the restriction on the donor as well
as recipient to be Pakistani nationals barring all these foreigners legally to involve
into organ trafficking.
p The law passed on organ transplant must have provisions for organ banks located
throughout the whole country especially around civil hospitals of various cities.
Strict regulation of these banks can help public immensely but care should be taken
that these preserved organ are not used illegitimately and serve the rich and poor
alike as equality among human is also an Islamic principle often ignored easily by
many Muslims when it comes to making money.
p Yet another issue is of whether in the Pakistani context, you can have the Kuwait-
like law in which contracts of sale of organs can be made and fair price determined,
or, as under Human Organ Transplant Act and Human Tissue Act of UK, any kind
of reward against the sale of organs being prohibited. As hindsight suggests, in
Pakistan, any kind of monetary reward on this issue would most likely lead to
exploitation of the people and earnings for many, however, the necessary costs
incurred in the transplantation, preparation and storage may be charged, which can
have an upper limit fixed on it by the legislation.
p The idea promulgated by the HOTA and HTA with the Secretary of State acting as
an authority to decide on exceptions to the rule and give different leverages to
certain persons doesn¶t quite fit in the Pakistani framework where corruption is
widespread and the authority is probable to abuse its powers. Instead, a select
council should be formed acting as the final authority on this issue consisting of
people from several walks of life: doctors, welfare organizations, lawyers and quite
importantly, Ulemas.
Page 20 of 48
p In negation to HTA, in Pakistan, living donor transplant should be allowed, for
instance, a person should be allowed to donate one of the kidneys while he stays
alive with only one kidney. Also, as per the HOTA, organ transplant should be
restricted to genetically related people. This would in turn help with countering the
issue of organ trafficking.
p As in Singapore, the system of donor cards can also be introduced in Pakistan where
a person by virtue of having registered has a donor card, which would lead to getting
precedence over other individuals in case he needs an organ. The two issues with
this system would be whether the organs of the persons be allowed to be taken out
and stored in organ banks and if so, whether these organs can be used for
transplantation in other people, after already imposing the restriction on genetically-
related organ donation.
p Cloning is a field where developments have been quite fast-paced and organ
development from embryos is now no more a myth but a reality. In the future,
Pakistan would also be facing critical decision-making points regarding this new
development¶s acceptability. Thus, the legislation should have a provision, at least
stating the timeframe for making the appropriate laws as the prospect would demand
in the future.
p One more issue getting common is cyber donations and dealings over the internet.
The most important role of the legislation here is the need to outline the jurisdictions
applied and possibly chalk out various provisions in collaboration with other
countries, otherwise it would be difficult to impose laws and making of such laws
would serve no purpose.
p
To conclude, law on organ transplant must be passed and implemented as soon as possible
and it should cover the issue in its entirety. However, formation is only half job done, to
prevent rampant practices of trafficking and abuses the law needs to be implemented in
letter and spirit. The parliament should keep on debating on the issue and modifications be
made as soon as a new discovery is made in this regard.
u p! pp p ppp p p p pp p
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Page 21 of 48
p " p
p http://weekly.ahram.org.eg/1999/420/fe2.htm
p http://www.bbc.co.uk/health/donation/nonflashjourney_religions.shtml
p http://www.dailytimes.com.pk/default.asp?page=story_17-11-2003_pg7_28
p http://www.dawn.com/2004/08/29/nat13.htm
p http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890031_en_2.htm#mdiv7
p http://www.opsi.gov.uk/acts/acts2004/40030--c.htm#32
p http://www.islamset.com/bioethics/vision/fiq_legal.html
p http://www.islamicvoice.com/july.98/dialogue.htm#ORG
p http://www.mkac.org/kidney_law3.html
p http://www.themodernreligion.com/misc/hh/organ-transplant.html
Page 22 of 48

Page 23 of 48

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An Act to prohibit commercial dealings in human organs intended for transplanting; to

restrict the transplanting of such organs between persons who are not genetically related;
and for supplementary purposes connected with those matters.
[27th July 1989]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of
the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and
by the authority of the same, as follows:²
p
p' ²(1) A person is guilty of an offence if in Great Britain he²
(a) makes or receives any payment for the supply of, or for an offer to supply, an
organ which has been or is to be removed from a dead or living person and is
intended to be transplanted into another person whether in Great Britain or
elsewhere;
(b) seeks to find a person willing to supply for payment such an organ as is
mentioned in paragraph (a) above or offers to supply such an organ for payment;
(c) initiates or negotiates any arrangement involving the making of any payment for
the supply of, or for an offer to supply, such an organ; or
(d) takes part in the management or control of a body of persons corporate or
unincorporate whose activities consist of or include the initiation or negotiation of
such arrangements.
(2) ithout prejudice to paragraph (b) of subsection (1) above, a person is guilty of an
offence if he causes to be published or distributed, or knowingly publishes or distributes, in
Great Britain an advertisement²
(a) inviting persons to supply for payment any such organs as are mentioned in
paragraph (a) of that subsection or offering to supply any such organs for payment;
or
(b) indicating that the advertiser is willing to initiate or negotiate any such
arrangement as is mentioned in paragraph (c) of that subsection.
(3) In this section "payment" means payment in money or money's worth but does not
include any payment for defraying or reimbursing²
(a) the cost of removing, transporting or preserving the organ to be supplied; or
(b) any expenses or loss of earnings incurred by a person so far as reasonably and
directly attributable to his supplying an organ from his body.
(4) In this section "advertisement" includes any form of advertising whether to the public
generally, to any section of the public or individually to selected persons.
(5) A person guilty of an offence under subsection (1) above is liable on summary
conviction to imprisonment for a term not exceeding three months or a fine not exceeding
level 5 on the standard scale or both; and a person guilty of an offence under subsection (2)
above is liable on summary conviction to a fine not exceeding level 5 on that scale.
Page 25 of 48
pp. ²(1) Subject to subsection (3) below, a person is guilty of an offence if in Great
Britain he²
(a) removes from a living person an organ intended to be transplanted into another
person; or
(b) transplants an organ removed from a living person into another person,
unless the person into whom the organ is to be or, as the case may be, is transplanted is
genetically related to the person from whom the organ is removed.
(2) For the purposes of this section a person is genetically related to²
(a) his natural parents and children;
(b) his brothers and sisters of the whole or half blood;
(c) the brothers and sisters of the whole or half blood of either of his natural parents;
and
(d) the natural children of his brothers and sisters of the whole or half blood or of
the brothers and sisters of the whole or half blood of either of his natural parents;
but persons shall not in any particular case be treated as related in any of those ways unless
the fact of the relationship has been established by such means as are specified by
regulations made by the Secretary of State.
(3) The Secretary of State may by regulations provide that the prohibition in subsection
(1) above shall not apply in cases where²
(a) such authority as is specified in or constituted by the regulations is satisfied²
(i) that no payment has been or is to be made in contravention of section 1
above; and
(ii) that such other conditions as are specified in the regulations are satisfied;
and
(b) such other requirements as may be specified in the regulations are complied
with.
(4) The expenses of any such authority shall be defrayed by the Secretary of State out of
money provided by Parliament.
(5) A person guilty of an offence under this section is liable on summary conviction to
imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the
standard scale or both.
(6) The power to make regulations under this section shall be exercisable by statutory
instrument.
(7) Regulations under subsection (2) above shall be subject to annulment in pursuance of
a resolution of either House of Parliament; and no regulations shall be made under
subsection (3) above unless a draft of them has been laid before and approved by a
resolution of each House of Parliament.
p ²(1) The Secretary of State may make regulations requiring such persons as are
specified in the regulations to supply to such authority as is so specified such information as
may be so specified with respect to transplants that have been or are proposed to be carried
Page 26 of 48
out in Great Britain using organs removed from dead or living persons.
(2) Any such authority shall keep a record of information supplied to it in pursuance of
the regulations made under this section.
(3) Any person who without reasonable excuse fails to comply with those regulations is
guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the
standard scale; and any person who, in purported compliance with those regulations,
knowingly or recklessly supplies information which is false or misleading in a material
respect is guilty of an offence and liable on summary conviction to a fine not exceeding
level 5 on the standard scale.
(4) The power to make regulations under this section shall be exercisable by statutory
instrument subject to annulment in pursuance of a resolution of either House of Parliament.
p ²(1) here an offence under this Act committed by a body corporate is proved
to have been committed with the consent or connivance of, or to be attributable to any
neglect on the part of, any director, manager, secretary or other similar officer of the body
corporate or any person who was purporting to act in any such capacity, he as well as the
body corporate is guilty of the offence and is liable to be proceeded against and punished
accordingly.
(2) here the affairs of a body corporate are managed by its members, subsection (1)
above shall apply to the acts and defaults of a member in connection with his functions of
management as if he were a director of the body corporate.
p0 ²pNo proceedings for an offence under section 1 or 2 above shall be instituted in
England and ales except by or with the consent of the Director of Public Prosecutions.
p ²An Order in Council under paragraph 1(1)(b) of Schedule 1 to the [1974 c. 28.]
Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which
contains a statement that it is made only for purposes corresponding to the purposes of this
Act²
(a) shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmative
resolution of both Houses of Parliament); but
(b) shall be subject to annulment in pursuance of a resolution of either House of
Parliament.
p" ²(1) This Act may be cited as the Human Organ Transplants Act 1989.
(2) In this Act "organ" means any part of a human body consisting of a structured
arrangement of tissues which, if wholly removed, cannot be replicated by the body.
(3) Section 1 above shall not come into force until the day after that on which this Act is
passed and section 2(1) above shall not come into force until such day as the Secretary of
State may appoint by an order made by statutory instrument.
Page 27 of 48
(4) Except for section 6 this Act does not extend to Northern Ireland.
Page 28 of 48
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(1) A person commits an offence if he-
(a) gives or receives a reward for the supply of, or for an offer to
supply, any controlled material;
(b) seeks to find a person willing to supply any controlled material for
reward;
(c) offers to supply any controlled material for reward;
(d) initiates or negotiates any arrangement involving the giving of a
reward for the supply of, or for an offer to supply, any controlled
material;
(e) takes part in the management or control of a body of persons
corporate or unincorporate whose activities consist of or include the
initiation or negotiation of such arrangements.
(2) ithout prejudice to subsection (1)(b) and (c), a person commits an
offence if he causes to be published or distributed, or knowingly publishes or
distributes, an advertisement-
(a) inviting persons to supply, or offering to supply, any controlled

material for reward, or
(b) indicating that the advertiser is willing to initiate or negotiate any
such arrangement as is mentioned in subsection (1)(d).
(3) A person who engages in an activity to which subsection (1) or (2)
applies does not commit an offence under that subsection if he is designated
by the Authority as a person who may lawfully engage in the activity.
(4) A person guilty of an offence under subsection (1) shall be liable-
(a) on summary conviction-

(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum, or
(iii) to both;
(b) on conviction on indictment-
(i) to imprisonment for a term not exceeding 3 years, or
(ii) to a fine, or
Page 29 of 48
(iii) to both.
(5) A person guilty of an offence under subsection (2) shall be liable on
summary conviction-
(a) to imprisonment for a term not exceeding 51 weeks, or

(b) to a fine not exceeding level 5 on the standard scale, or
(c) to both.
(6) For the purposes of subsections (1) and (2), payment in money or
money's worth to the holder of a licence shall be treated as not being a reward
where-
(a) it is in consideration for transporting, removing, preparing,

preserving or storing controlled material, and
(b) its receipt by the holder of the licence is not expressly prohibited
by the terms of the licence.
(7) References in subsections (1) and (2) to reward, in relation to the supply
of any controlled material, do not include payment in money or money's
worth for defraying or reimbursing-
(a) any expenses incurred in, or in connection with, transporting,

removing, preparing, preserving or storing the material,
(b) any liability incurred in respect of-
(i) expenses incurred by a third party in, or in connection with,
any of the activities mentioned in paragraph (a), or
(ii) a payment in relation to which subsection (6) has effect, or
(c) any expenses or loss of earnings incurred by the person from
whose body the material comes so far as reasonably and directly
attributable to his supplying the material from his body.
(8) For the purposes of this section, controlled material is any material
which-
(a) consists of or includes human cells,

(b) is, or is intended to be removed, from a human body,
(c) is intended to be used for the purpose of transplantation, and
(d) is not of a kind excepted under subsection (9).
(9) The following kinds of material are excepted-
(a) gametes,
(b) embryos, and
Page 30 of 48
(c) material which is the subject of property because of an application
of human skill.
(10) here the body of a deceased person is intended to be used to provide
material which-
(a) consists of or includes human cells, and

(b) is not of a kind excepted under subsection (9),
for use for the purpose of transplantation, the body shall be treated as
controlled material for the purposes of this section.
(11) In this section-
"advertisement" includes any form of advertising whether to the

public generally, to any section of the public or individually to
selected persons;
"reward" means any description of financial or other material
advantage.
p Restriction on transplants involving a live donor
p
(1) Subject to subsections (3) and (5), a person commits an offence
if-
(a) he removes any transplantable material from the body of a living

person intending that the material be used for the purpose of
transplantation, and
(b) when he removes the material, he knows, or might reasonably be
expected to know, that the person from whose body he removes the
material is alive.
(2) Subject to subsections (3) and (5), a person commits an offence
if-
(a) he uses for the purpose of transplantation any transplantable

material which has come from the body of a living person, and
(b) when he does so, he knows, or might reasonably be expected to
know, that the transplantable material has come from the body of a
living person.
(3) The Secretary of State may by regulations provide that
subsection (1) or (2) shall not apply in a case where-
(a) the Authority is satisfied-
Page 31 of 48
(i) that no reward has been or is to be given in contravention of section
32, and
(ii) that such other conditions as are specified in the regulations are
satisfied, and
(b) such other requirements as are specified in the regulations are
complied with.
(4) Regulations under subsection (3) shall include provision for
decisions of the Authority in relation to matters which fall to be
decided by it under the regulations to be subject, in such
circumstances as the regulations may provide, to reconsideration in
accordance with such procedure as the regulations may provide.
(5) here under subsection (3) an exception from subsection (1) or

(2) is in force, a person does not commit an offence under that
subsection if he reasonably believes that the exception applies.
(6) A person guilty of an offence under this section is liable on

summary conviction-
(a) to imprisonment for a term not exceeding 51 weeks, or

(b) to a fine not exceeding level 5 on the standard scale, or
(c) to both.
(7) In this section-
"reward" has the same meaning as in section 32;

"transplantable material" means material of a description specified by
regulations made by the Secretary of State.
p Information about transplant operations
p
(1) The Secretary of State may make regulations requiring such
persons as may be specified in the regulations to supply to such
authority as may be so specified such information as may be so
specified with respect to transplants that have been or are proposed to
be carried out using transplantable material removed from a human
body.
(2) Any such authority shall keep a record of information supplied

to it in pursuance of regulations under this section.
(3) A person commits an offence if-
Page 32 of 48
(a) he fails without reasonable excuse to comply with regulations
under this section, or
(b) in purported compliance with such regulations, he knowingly or
recklessly supplies information which is false or misleading in a
material respect.
(4) A person guilty of an offence under subsection (3)(a) is liable on
summary conviction to a fine not exceeding level 3 on the standard
scale.
(5) A person guilty of an offence under subsection (3)(b) is liable on

summary conviction to a fine not exceeding level 5 on the standard
scale.
(6) In this section, "transplantable material" has the same meaning

as in section 33.
Page 33 of 48
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In the name of Allah, Most Compassionate, Most Merciful,
The issue of organ transplant has been a matter of great debate and dispute among the great
contemporary scholars from around the globe. It has been discussed in various fiqh
seminars, and many short and detailed works have be compiled on the subject.
The majority of the Indo/Pak scholars are of the view that organ transplant is not
permissible, while, the Arab scholars and some scholars of the Indian subcontinent give its
permission under certain conditions, (details of these conditions will be mentioned further
along). No body has given a general unconditional permission for the transplantation of
organs.
It must be remarked here that this issue is contemporary and obviously it is impossible for
us to find express rulings concerning it in the classical works. As such, the views of the
contemporary scholars are based upon the general and broad guidelines of Shariah. It is
obvious that this will result in difference of opinion, thus no one opinion should be
condemned, as the intention of all the scholars is to please Allah, and live a life that is in
accordance with Shariah.
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As mentioned earlier, the majority of the Indo/Pak scholars hold the view that organ
transplantation can not be deemed permissible due to the harms and ill effects of it
overcoming the potential benefits
There view is based on the following grounds:
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High says: ³And verily we have honoured the children of Adam´ (Surah al-Isra, V.70).
As such, it is a well established principle of Shariah that all the organs of a human body,
whether one is a Muslim or a non-Muslim, are sacred and must not be tampered with. To
take benefit from any part of a human is unlawful (haram).
Allah Almighty made humans the best of creations and created everything for their benefit.
Allah Most High Says: ³It is He, who has created for you all things that are on earth.´
(Surah al-Baqarah, 2.29).
Thus, it is permissible for a human to take benefit from every creation of Allah which
includes animals (under certain conditions), plants and inanimate things. As such, it would
be unreasonable to place humans in the same category of the above things by giving
Page 34 of 48
permission to use parts and derive benefit out of their body that necessitates cutting,
chopping and amputating parts of the body. This is certainly unreasonable and unlawful on a
human body.
A very famous Hadith prevents the usage of human parts. Sayyida Asma bint Abi Bakr
(Allah be pleased with her) narrates that the Messenger of Allah (Allah bless him & give
him peace) said: ³Allah¶s curse is on a woman who wears false hair (of humans) or arranges
it for others´. (Sahih Muslim, no. 2122).
Imam Nawawi (Allah have mercy on him) writes in the explanation of this Hadith: ³If
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 his body parts must be buried´. (Commentary of Sahih Muslim by
Nawawi, p. 1600).
The Jurists (fuqaha) have stated that in the case of extreme necessity and when there is no
alternative available, even unlawful things, such as pork and alcohol, become permissible.
However, even in such a situation, consuming or deriving benefit from a human body still
remains unlawful.
It is stated in al-Fatawa al-Hindiyya: ³If a person feared death due to hunger and another
person said to him: ³Cut my hand and consume it´ or he said: ³Cut a part of me and eat it´,
it will be unlawful for him to do so. Similarly, it is impermissible for a desperate person to
cut part of his own self and eat it´. (al-Fatawa al-Hindiyya, 5/310).
Allama Ibn Abidin (Allah have mercy on him) explains: ³Because the flesh of a human
remains unlawful even in forceful situations´. (Radd al-Muhtar, 5/215)
Imam Ibn Nujaym (Allah have mercy on him) states: ³It 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 be permissible to consume any part of the other person¶s body´. (al-Ashbah wa
al-Naza¶ir, p. 124).
The Fuqaha have also stated that if one was compelled by force to kill another human, it will
not be permissible, even if his own life was in danger. (See: al-Kasani, Bada¶i al-Sana¶i,
7/177 & Ibn Qudama, al-Mugni, 9/331).
Imam al-Marghinani (Allah have mercy on him) states regarding the sanctity of a human: ³It
is unlawful to sell the hair of a human, as it is (unlawful) to take benefit out of it, for a
human is honoured and sacred, and it is not permissible to disgrace any part of a human¶s
body´. (al-Hidaya 4.39)
A human body is sacred even after his/her death. The Messenger of Allah (Allah bless him
& give him peace) said: ³Breaking the bone of a dead person is similar (in sin) to breaking
the bone of a living person´. (Sunan Abu Dawud, Sunan Ibn Majah & Musnad Ahmad).
Page 35 of 48
The great Hanafi jurist and Hadith Imam, Abu Ja¶far al-Tahawi (Allah have mercy on him)
writes in the explanation of this Hadith: ³The Hadith shows that the bone of a dead person
has the same sanctity and honour as the bone of living person´. (Mushkil al-Athar).
In another Hadith it is stated: ³Harming a believer after his death is similar to harming him
in his life´. (Musannaf of Ibn Abi Shayba).
Also, the books of classical scholars are full with examples indicating the impermissibility
of deriving benefit out of a human body due to it being honoured.
In conclusion, the human body, dead or alive has great significance. It is honoured and
sacred, and because of the sanctity that is attached to it, it will be unlawful to tamper with it,
cut parts of it or dishonour it in any way.
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Qatada (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him &
give him peace) used to encourage giving in charity and prevent Muthla´. (Sahih al-
Bukhari, 2/206)
In another Hadith, the Messenger of Allah (Allah bless him & give him peace) said:
³Abstain from Muthla´. (Sahih Muslim, 2/82).
This is also supported by the verse of the Qur¶an, where Allah Allah Almighty mentions the
words of Shaytan, when he said: ³I will mislead them and I will order them to slit the ears of
cattle, and to deface the (fair) nature created by Allah´ (4: 119).
To deface the fair nature created by Allah, both physically and spiritually, is what Shaytan
likes and orders to practise.
As far as the permissibility of blood transfusion in cases of need is concerned (See below,
for the ruling on blood transfusion and donation, which was posted earlier), it does not
necessitate the cutting of human parts or any surgical procedures on the body, rather it is
drawn and transfused by means of injection, thus it is akin to human milk that is extracted
without any surgical procedures.
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pp pIt is a trust (amanah) that has been given to us by Allah Almighty. As
such, it will be impermissible for one to sell, give or donate any organs of his body. Islam
has forbidden suicide for the same reason. There are many texts of the Qur¶an and Sunnah
that clearly determine this. Thus, it will be unlawful for one to give his organs to another.
Page 36 of 48
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Messenger of Allah (Allah bless him & give him peace) said: ³It is unlawful to inflict harm
upon your self and others, (la dharar wa la dhirar)´. (Mustadrak of al-Hakim)
The famous principle states: ³Harm can not be removed by a similar harm´ (meaning, in
order to remove harm from another individual, it is impermissible for one to harm himself)´.
(Ibn Najaym, al-Ashbah, P. 123).
Therefore, it will be impermissible for a living person to donate part of his body due to it
being harmful for him.
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In view of the above and other evidences, according to this group of scholars, it is unlawful
to transplant organs, whether it be of a living person or a dead body, and whether there is a
need or otherwise. In other words, there is no permissibility whatsoever for the
transplantation or donation of organs.
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According to almost all of the major Arab scholars and also some contemporary Indo/Pak
scholars, the transplantation and donation of human-organs would be permissible subject to
certain conditions (which will be mentioned later). This view is based on the following
grounds:
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In case of Necessity, certain prohibitions are waived, as when the life of a person
is threatened the prohibition of eating carrion or drinking wine is suspended. Allah Most
High says: ³He (Allah) has only forbidden you dead meat, and blood, and the flesh of swine,
and that on which any other name has been invoked besides that of Allah. But if one is
forced by necessity, without wilful disobedience, nor transgressing due limits, then he is
guiltless. For Allah is Most Forgiving and Most Merciful´. (Surah al-Baqarah, v. 173).
The Qur¶an also permits the utterance of disbelief (kufr) in order to save your life. Allah
Most High says: ³Anyone who, after accepting faith in Allah, utters unbelief, except under
compulsion whilst his heart remaining firm in faith«´ (Surah al-Nahl, V. 106).
The principle of Fiqh, based on the above Qur¶anic guidelines, states: ³Necessity makes
prohibition lawful´ (See: Ibn Nujaym, al-Ashbah wa al-Naza¶ir, P. 85 ).
According to Imam Shafi¶i (Allah have mercy on him), it is permissible for a person dying
out of hunger to consume the meat of another human. (See: Ibn Qudama, al-Mugni, 9/335).
Page 37 of 48
Therefore, in cases of need and necessity, impure, unlawful and Haram things become
permissible. hen a person¶s life is in danger and he is in dire need for transplantation, he is
in such a situation, thus the transplantation of organs will be permissible.
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Firstly, it is true that a human body, whether dead or alive, is honoured and respected, but
does the modern procedure violate this sanctity? Islam ordered us to honour a human body
but did not prescribe any fixed methods for it. Disgracing a human body may change from
one time to another and from one place to another.
Thus, it could be said that the current procedure of organ transplantation is not considered
dishonouring a human body. The surgery is performed in the most respectable way and it is
not considered to be disrespectful. This is the reason why many highly respected people of
the community regard donating of organs as a mark of merit, and they are not looked down
upon.
Secondly, there are cases where Shariah overlooks the sanctity that is attributed to the body,
such as in the case of saving another human.
It is stated in Tuhfat al-Fuqaha: ³If a pregnant woman died and the child in her stomach is
still alive, her stomach will be cut open in order to take the child out, for in there is saving
the live of a human, thus the sanctity of a human body will be overlooked´. (Samarqandi,
Tuhfat al-Fuqaha, 4/261 & Badai¶i al-Sana¶i).
This is also based on the juristic principle: ³If one is confronted with two evils, one should
choose the lesser of the two´ (al-Ashbah wa al-Naza¶ir).
4p&pp
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human, and he is permitted to utilize it (in a correct manner) and give it as a gift.
If an individual is drowning or is in the midst of a burning flame, it is totally permissible to

go and save him. Similarly, it will be permissible to donate your organ in order to save the
life of a fellow human being.
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pThe surgical procedure of transplantation ensures that one does not go
thorough unnecessary mutilation of his body. It is similar to surgical treatment that is carried
out on a living person for medication purposes.
In view of the above (according to this group of scholars), it will be permissible to

transplant and donate organs in order to save another person¶s life. However, this is subject
to certain terms and conditions.
Page 38 of 48
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:
Note, that the resolutions of the Islamic fiqh academy have been published in Arabic and
translated in a number of languages. Below is the original Arabic text and its translation in
English:
ÇáÍãÏ ááå æÇáÕáÇÉ æÇáÓáÇã Úáì ÑÓæá Çááå Õáì Çááå Úáíå æÓá
ÃãÇ ÈÚÏ
ÝÅä ãÌáÓ ãÌãÚ ÇáÝÞå ÇáÅÓáÇãí ÇáãäÚÞÏ Ýí ÏæÑÉ ãÄÊãÑå ÇáÑÇÈÚ ÈÌÏÉ Ýí ÇáããáßÉ
ÇáÚÑÈíÉ ÇáÓÚæÏíÉ ãä 18-23 ÌãÇÏì ÇáÂÎÑÉ 1408åÜ¡ÇáãæÇÝÞ 6-11 ÝÈÑÇíÑ 1988ã
ÈÚÏ ÇØáÇÚå Úáì ÇáÃÈÍÇË ÇáÝÞåíÉ æÇáØÈíÉ ÇáæÇÑÏÉ Åáì ÇáãÌãÚ ÈÎÕæÕ ãæÖæÚ
"ÇäÊÝÇÚ ÇáÅäÓÇä ÈÃÚÖÇÁ ÌÓã ÅäÓÇä ÂÎÑ ÍíðÇ Ãæ ãíÊðÇ"
.
æÝí ÖæÁ ÇáãäÇÞÔÇÊ ÇáÊí æÌåÊ ÇáÃäÙÇÑ Åáì Ãä åÐÇ ÇáãæÖæÚ ÃãÑ æÇÞÚ ÝÑÖå
ÇáÊÞÏã ÇáÚáãí æÇáØÈí¡ æÙåÑÊ äÊÇÆÌå ÇáÅíÌÇÈíÉ ÇáãÝíÏÉ æÇáãÔæÈÉ Ýí ßËíÑ ãä
ÇáÃÍíÇä ÈÇáÃÖÑÇÑ ÇáäÝÓíÉ æÇáÇÌÊãÇÚíÉ ÇáäÇÌãÉ Úä ããÇÑÓÊå Ïæä ÇáÖæÇÈØ
æÇáÞíæÏ ÇáÔÑÚíÉ ÇáÊí ÊÕÇä ÈåÇ ßÑÇãÉ ÇáÅäÓÇä¡ æãÚ ãÑÇÚÇÉ ãÞÇÕÏ ÇáÔÑíÚÉ
ÇáÅÓáÇãíÉ ÇáßÝíáÉ ÈÊÍÞíÞ ßá ãÇ åæ ÎíÑ æãÕáÍÉ ÛÇáÈÉ ááÝÑÏ æÇáÌãÇÚÉ¡ æÇáÏÇÚíÉ
Åáì ÇáÊÚÇæä æÇáÊÑÇÍã æÇáÅíËÇÑ.
æÈÚÏ ÍÕÑ åÐÇ ÇáãæÖæÚ Ýí ÇáäÞÇØ ÇáÊí íÊÍÑÑ ÝíåÇ ãÍá ÇáÈÍË æÊäÖÈØ ÊÞÓíãÇÊå
æÕæÑå æÍÇáÇÊå ÇáÊí íÎÊáÝ ÇáÍßã ÊÈÚðÇ áåÇ.
ÞÑÑ ãÇ íáí:
ãä ÍíË ÇáÃÍßÇã ÇáÔÑÚíÉ:
ÃæáÇð: íÌæÒ äÞá ÇáÚÖæ ãä ãßÇä ãä ÌÓã ÇáÅäÓÇä Åáì ãßÇä ÂÎÑ ãä ÌÓãå¡ ãÚ ãÑÇÚÇÉ
ÇáÊÃßÏ ãä Ãä ÇáäÝÚ ÇáãÊæÞÚ ãä åÐå ÇáÚãáíÉ ÃÑÌÍ ãä ÇáÖÑÑ ÇáãÊÑÊÈ ÚáíåÇ¡
æÈÔÑØ Ãä íßæä Ðáß áÅíÌÇÏ ÚÖæ ãÝÞæÏ Ãæ áÅÚÇÏÉ Ôßáå Ãæ æÙíÝÊå ÇáãÚåæÏÉ áå¡
Ãæ áÅÕáÇÍ ÚíÈ Ãæ ÅÒÇáÉ ÏãÇãÉ ÊÓÈÈ ááÔÎÕ ÃÐì äÝÓíðÇ Ãæ ÚÖæíðÇ.
ËÇäíðÇ: íÌæÒ äÞá ÇáÚÖæ ãä ÌÓã ÅäÓÇä Åáì ÌÓã ÅäÓÇä ÂÎÑ¡ Åä ßÇä åÐÇ ÇáÚÖæ íÊÌÏÏ
ÊáÞÇÆíðÇ¡ ßÇáÏã æÇáÌáÏ¡ æíÑÇÚì Ýí Ðáß ÇÔÊÑÇØ ßæä ÇáÈÇÐá ßÇãá ÇáÃåáíÉ¡
æÊÍÞÞ ÇáÔÑæØ ÇáÔÑÚíÉ ÇáãÚÊÈÑÉ.
ËÇáËðÇ: ÊÌæÒ ÇáÇÓÊÝÇÏÉ ãä ÌÒÁ ãä ÇáÚÖæ ÇáÐí ÇÓÊÄÕá ãä ÇáÌÓã áÚáÉ ãÑÖíÉ
áÔÎÕ ÂÎÑ¡ ßÃÎÐ ÞÑäíÉ ÇáÚíä áÅäÓÇä ãÇ ÚäÏ ÇÓÊÆÕÇá ÇáÚíä áÚáÉ ãÑÖíÉ.
Page 39 of 48
ÑÇÈÚðÇ: íÍÑã äÞá ÚÖæ ÊÊæÞÝ Úáíå ÇáÍíÇÉ ßÇáÞáÈ ãä ÅäÓÇä Íí Åáì ÅäÓÇä ÂÎÑ.
ÎÇãÓðÇ: íÍÑã äÞá ÚÖæ ãä ÅäÓÇä Íí íÚØá ÒæÇáå æÙíÝÉ ÃÓÇÓíÉ Ýí ÍíÇÊå æÅä áã
ÊÊæÞÝ ÓáÇãÉ ÃÕá ÇáÍíÇÉ ÚáíåÇ ßäÞá ÞÑäíÉ ÇáÚíäíä ßáÊíåãÇ¡ ÃãÇ Åä ßÇä ÇáäÞá
íÚØá ÌÒÁðÇ ãä æÙíÝÉ ÃÓÇÓíÉ Ýåæ ãÍá ÈÍË æäÙÑ ßãÇ íÃÊí Ýí ÇáÝÞÑÉ ÇáËÇãäÉ.
ÓÇÏÓðÇ: íÌæÒ äÞá ÚÖæ ãä ãíÊ Åáì Íí ÊÊæÞÝ ÍíÇÊå Úáì Ðáß ÇáÚÖæ¡ Ãæ ÊÊæÞÝ ÓáÇãÉ
æÙíÝÉ ÃÓÇÓíÉ Ýíå Úáì Ðáß. ÈÔÑØ Ãä íÃÐä ÇáãíÊ Ãæ æÑËÊå ÈÚÏ ãæÊå¡ Ãæ ÈÔÑØ
ãæÇÝÞÉ æáí ÇáãÓáãíä Åä ßÇä ÇáãÊæÝì ãÌåæá ÇáåæíÉ Ãæ áÇ æÑËÉ áå.
ÓÇÈÚðÇ: æíäÈÛí ãáÇÍÙÉ Ãä ÇáÇÊÝÇÞ Úáì ÌæÇÒ äÞá ÇáÚÖæ Ýí ÇáÍÇáÇÊ ÇáÊí Êã
ÈíÇäåÇ¡ ãÔÑæØ ÈÃä áÇ íÊã Ðáß ÈæÓÇØÉ ÈíÚ ÇáÚÖæ. ÅÐ áÇ íÌæÒ ÅÎÖÇÚ ÃÚÖÇÁ
ÇáÅäÓÇä ááÈíÚ ÈÍÇá ãÇ.
ÃãÇ ÈÐá ÇáãÇá ãä ÇáãÓÊÝíÏ¡ ÇÈÊÛÇÁ ÇáÍÕæá Úáì ÇáÚÖæ ÇáãØáæÈ ÚäÏ ÇáÖÑæÑÉ
Ãæ ãßÇÝÃÉ æÊßÑíãðÇ¡ ÝãÍá ÇÌÊåÇÏ æäÙÑ.
ËÇãäðÇ: ßá ãÇ ÚÏÇ ÇáÍÇáÇÊ æÇáÕæÑ ÇáãÐßæÑÉ¡ ããÇ íÏÎá Ýí ÃÕá ÇáãæÖæÚ¡ Ýåæ ãÍá
ÈÍË æäÙÑ¡ æíÌÈ ØÑÍå ááÏÑÇÓÉ æÇáÈÍË Ýí ÏæÑÉ ÞÇÏãÉ¡ Úáì ÖæÁ ÇáãÚØíÇÊ ÇáØÈíÉ
æÇáÃÍßÇã ÇáÔÑÚíÉ.
æÇááå ÃÚáã.

p/
1) It is permitted to transplant or graft an organ from one place of a person¶s body to

another, so long as one is careful to ascertain that the benefits of this operation outweigh any
harm that may result from it, and on the condition that this is done to replace something that
has been lost, or to restore its appearance or regular function, or to correct some fault or
disfigurement which is causing physical or psychological distress.
2) It is permitted to transplant an organ from one person¶s body to another, if it is an

organ that can regenerate itself, such as skin and blood, provided that the donor is mature
and fully understands what he is doing, and that all the other relevant shariah conditions are
met.
3) It is permitted to use part of an organ that has been removed from the body because of
illness to benefit another person, such as using the cornea of an eye removed because of
illness.
4) It is unlawful (haram) to transplant or use an organ on which life depends, such as

taking a heart from a living person to transplant into another person.
Page 40 of 48
5) It is unlawful (haram) to take an organ from a living person when doing so could
impair an essential and vital function in his body, even though his life itself may not be
under threat, such as removing the corneas of both eyes. However, removing organs which
will lead to only partial impairment is a matter which is still under scholarly discussion, as is
mentioned in resolution 8.
6) It is permitted to transplant an organ from a dead person to a living person when his
life depends on receiving that organ, or when vital functions of his body are otherwise
impaired, on the condition that permission is given either by the person before his death or
by his heirs, or by the leader of the Muslims in cases where the dead person¶s identity is
unknown or he has no heirs.
7) Care should be taken to ensure that in all of the above situations where transplantation
is permitted, no buying or selling of organs is involved. It is not permitted to trade in human
organs under any circumstance. However, the question of whether the beneficiary may
spend money to obtain an organ he needs, or to show his appreciation, is a matter which is
still under the research of the scholars.
8) Anything other than the scenarios described above is still subject to scholarly debate,
and requires further detailed research in the light of medical research and shariah rulings.
And Allah knows best. (See: Qararat wa tawsiyat majma¶ al-fiqh al-Islami, P. 59-60).
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49
1) There should be no other reasonable alternative availible in the view of experienced

medical experts
2) All efforts should be made to avoid transplanting of a non-Muslim¶s organ into a

Muslim and vice versa. If this is not possible, only then the organ of a non-Muslim may be
used.
3) Only the organs of a dead person should be used. However, if that is not possible, then
only will it be permissible to use the organ of a living person.
In conclusion, the above are the two viewpoints of the contemporary scholars with regards
to organ transplant and donation. The stance of some scholars, however, is that they abstain
from issuing any verdict altogether on this issue.
My respected teacher, Shaykh Mufti Taqi Usmani is one of those who are reluctant to voice
their opinion. In a writing of his which I have (and I have also heard this from him verbally),
he states:
Page 41 of 48
³After the compilation of the book µIslam¶s ruling on organ transplantation¶ (by his
esteemed father, the grand Mufti of Pakistan, Mufti Muhammad Shafi, in which he strongly
emphasised the impermissibility of organ transplantation, and which was also endorsed by
Shaykh Taqi, m), I read the various arguments in favour of organ transplantation, thus it has
left me hesitant and uncertain in this matter. As such, I now abstain from issuing any
verdict.´
Therefore, one may follow any of the above two viewpoints, as they are both from great
scholars of Islam. If one acts on the view of permissibility, then it would be advisable, as a
precautionary measure, to seek forgiveness from Allah (istigfar) and donate something in
charity.
And Allah knows best
Muhammad ibn Adam al-Kawthari, UK

www.daruliftaa.co.uk
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Aisha' narrated that the prophet (s.A.w.) said:
Page 42 of 48
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The opinion among most * (jurists) is that seeking medical treatment is either
recommended ( ) or obligatory. There are many Ahadith which encourage the
Muslims to seek medical treatment. Therefore it is up to the patient to decide whether or not
if he or she wants to undergo organ transplant.
In regards to the prohibition of violating and mutilating the dead, it has been narrated that a
man was digging a grave and he stumbled on some bones, the Prophet of Allah (s.A.w.)
said:
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(Related by Ahmad, Abu Dawud & Ibn Majah)
It is a general rule in Fiqh in which it is prohibited to violate, harm or mutilate the dead
body whether it is a Muslim or non-Muslim cadaver, as an act of revenge, showing
disrespect or doing so without any good reason. There are exceptions to this general rule
especially in the light when there is a Necessity ( ).
"The Fuqaha of the Maliki and the Hanbal schools state that it is impermissible to dissect a
dead pregnant lady in order to retrieve the baby, as it is difficult to determine whether the
baby is alive. Because of this uncertainty, it should not be a cause to violate the sanctity of
the dead. On the other hand, the Fuqaha of Shafi'i allows this dissection to be carried out.
Besides, to dissect a dead body in order to remove valuable goods is allowed according to
) (majority of scholars or the three as opposed to just one) except the
Hanbal school."
(Ad-Durr al-Mukhtar 3/246)
Nowadays, it is possible for medical authorities to determine whether the baby is alive or
not when such cases arise. The uncertainty that some Fuqaha had, is thus removed.
In Fiqh al-Islam wa Adillatuh (7/3), the author concludes:
"Based on the rulings which allows dissection on dead bodies in specific cases, therefore
any dissection or operation done on the dead body due to a significant necessity is
allowable. For example, dissection for the knowledge of medicine and dissection in order to
find the cause of death to convict criminals by which there are no other avenues to come to
the truth ( *). These are based on the Shari'ah principle of establishing justice ) in
any ruling given by the court, in order to avoid injustice ( ) from happening to the
innocent or to ensure the guilty not to escape from the punishment as a result of his crimes.
Page 43 of 48
Even though such dissections are allowed, it should be done within necessary limits without
overdoing it. Besides, the sanctity of the dead body has to be respected and handled
properly. After the investigation, bits and pieces should be gathered, the body should be
closed by suturing it up and finally shrouding the body.
It is also allowable to perform any organ transplant such as the human heart or the eye. This
must be with the condition that the donor is proven to be dead by a specialist in the field.
This is because the priority is given to the living. The success of recovering vision for a
human is a wonderful gift and is demanded by the Shara'."
In , The Permanent Committee for Legal Rulings ( ) in Saudi Arabia conclude
the following regarding dissection on dead bodies:
1.p Dissection to discover if there is a criminal act causing the death is sanctioned.
2.p Dissection to see if there is a contagious disease and to then conclude how to stop its
spread is sanctioned.
3.p Dissection for educational and training purposes is accepted.
The following is another legal ruling about organ transplant.
abillah al-Tawfiq.
M. Afifi al-Akiti,
Belfast, 18 March 1996.
The Council which consists of scholars from all the major Muslim Schools of Law in Great
Britain, together with three distinguished lawyers has considered the issue of organ
transplant and resolved that:
The medical profession is the proper authority to define the signs of death.
Current medical knowledge considers brain stem death to be a proper definition of death.
The Council accepts brain stem death as constituting the end of life for the purpose of
organ transplant.
The Council supports organ transplant as a means of alleviating pain or saving life on the
basis of the rules of Shari'ah.
Muslims may carry donor cards.
The next of kin of a dead person, in the absence of a donor card or an expressed wish of
the dead person to donate his organs, may give permission to obtain organs from the
body to save other people's lives.
Organ donation must be given freely without reward. Trading in organs is prohibited.
M A Zaki Badawi
Chairman.
Page 44 of 48

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List of the Ulama' and Scholars who participated during the consultation and then approved
the statement on Organ Transplant:
1.p Dr M A Zaki Badawi Principal, The Muslim College, London Chairman, The
Muslim Law (Shari'ah) Council UK.
2.p Dr Jamal Sulayman, Professor of Shari'ah, The Muslim College, London.
3.p Dr A A Hamid, Professor of Hadith, The Muslim College, London.
4.p Dr Fazel Milani, Professor at The International College of Islamic Sciences London.
5.p Dr S M A Shahristani, Principal, The International College of Islamic Sciences
London.
6.p Moulana Abdul Hadi Umri, General Secretary, Jamia-te-Ahl-e-Hadith (UK).
7.p Moulana Qamaruzzaman Azami, Chief Imam, North Manchester Central Mosque &
General Secretary, The orld Islamic Mission.
8.p Mufti Mohammed Yunus President, The orld Islamic Mission & Imam, oking
Mosque.
9.p Mufti Mohammed Muniruzzaman, Imam, Munir-ul-Islam Mosque, Rochdale.
10.pDr Abdul Halim, Senior Imam, The Islamic Cultural Centre and London Central
Mosque, Regent's Park London.
11.pMufti Alauddin, Head Imam, Brick Lane Central Mosque, London.
12.pMoulana Hafiz M Khalid, Head Imam, Sparkbrook Islamic Centre, Birmingham.
13.pMoulana Mumtaz Ahmed, Imam of Bradford.
14.pA A Bashiri Esq. Barrister-at-Law.
15.pR Abdullah Esq. Barrister-at-Law.
16.pDr Safia Safwat, Barrister-at-Law.
17.pMoulana M Shahid Raza, Director, Islamic Centre Leicester & Secretary, The
Muslim Law (Shari'ah) Council UK.
18.pMr S G Syedain, General Secretary, Imams & Mosques Council UK.
19.pDr. Manazir Ahsan, Director of the Islamic Foundation
Islam holds that Man consists of two essential elements, one material which is the body, the
other spiritual which is the soul. Life exists in the human body as long as the soul is joined
to it, and it ceases when the soul departs from the body.
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Thus the cessation of life means the departure of the soul from the body:
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Page 45 of 48
The soul is a mysterious thing and nobody has been able to discover its nature. Its presence
in the body results in life which is observed by the movement and the other conventional
signs of life. The departure of the soul from the body results in death, which is associated
with certain physical signs arrived at as a result of medical observations and knowledge.
The signs of death which the ancient medical doctors have listed are: lack of consciousness,
loss of body temperature, cessation of pulse and breathing, glazing of the eyes, parting of
the lips, sagging of the nose, and slackening in the muscles of the hands and feet. The heart
used to be considered as the centre of life in the body. hen it stopped completely it was
assumed that death occurred. But if it regained its functions through first aid practices life is
assumed to have returned.
The last five decades have witnessed a big leap in medical science bringing great benefits
and skills which were unthinkable before. It is now possible to transplant organs from one
body into another, which would help the recipient to continue to live.
The significance of the heart has also changed as it is no longer considered the most
important organ with regard to life and death. Medical opinion now considers the brain to be
the central and crucial part which controls the entire body and its functions.
hen it is damaged partially or totally the body will suffer either partial or total
deterioration. As a consequence of the present development in medical knowledge and skills
a number of questions have arisen. These are:
Is it allowed to remove an organ like the kidney from the body of a living person and
transplant it into the body of a sick person whose life depends on it?
Is it permissible to remove an organ from the body of a dead person to be used to save
the life of a living person?
Is a person allowed to donate his body or part of it to be used after his death in saving the
life of other people?
Does Islam recognise the new definition of death that is brain stem death?
If it does is it permissible to remove from brain stem dead persons organs for transplant
while there are signs of body functions like heart beat temperature and breathing?
Before answering these questions it is important to note the following principles of Islamic
Jurisprudence (Usul-Fiqh):
A person has the legal authority over his own body, attested by the fact that he can hire
himself for work which might be difficult or exhausting. He may also volunteer for war
which may expose him to death.
A person is forbidden from harming himself or others (It is not legitimate in Islam to
inflict harm on others or to suffer harm from them - Hadith).
In case of Necessity certain prohibitions are waived as when the life of a person is
threatened the prohibition on eating carrion or drinking wine is suspended.
Page 46 of 48
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Confronted with two evils a person is permitted to choose the lesser of the two, as in the
case of a starving person whose life could be saved by either eating carrion or stealing
from another person's food. He would be permitted to opt for the latter.
Islam made it an obligation upon the sick to seek treatment.
In the light of the above principles the Council is of the opinion that:
1. It is permissible for a living person to donate part of the body such as the kidneys to save
the life of another, provided that the organ donated would not endanger the donor's life and
that it might help the recipient.
The Prophet (s.A.w.) says,
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2. It is permissible to remove the organ of a dead person to be used to save the life of a sick
person.
3. It is permissible for a person to donate his body or parts of it to be used after death to treat
those who need transplants. So it is permissible for Muslims to carry a donor card.
4. In the absence of a donor card carried by the dead person it is sufficient to obtain the
consent of the next of kin.
5. The proper authorities will act in lieu of relations if they are not known.
Regarding brain stem death, the Council, having discussed the matter over a number of
meetings with Doctors and specialists, and having studied the safeguards instituted by the
Ministry of Health in Great Britain, went further and examined the research done by
trustworthy Muslim Doctors and noted the following:
If the heart stops beating then lack of consciousness and the cessation of breathing will
follow immediately.
If however the person is helped by massage of the heart (CPR) or through the use of electric
shock (defibrillation) within four or five minutes the heart may restart.
Page 47 of 48
If the flow of the blood to the brain ceased for more than a few seconds damage may occur,
although some of the cells will remain alive for four or five minutes. On the other hand if
the brain stem ceases to function it cannot be made to restart.
After the brain stem is dead it is possible to preserve some organs functioning for a period
from six hours to two weeks. The presence of pulse or movement after the death of the brain
stem is not a sign of life. e know that a hanged or beheaded person continues to have
pulse and movement for a brief period. But they are not considered to be alive and it would
not be possible to bring them back to life.
Based on the above the medical profession concludes that life ceases as a result of brain
stem death.
The Council is of the opinion that trustworthy Doctors are the proper and authentic authority
when it comes to defining the signs of death.
After a thorough consideration regarding medical opinion and several edicts issued by
different religious bodies, the Council arrived at the following conclusions:
After trustworthy Doctors certify that the brain stem has died organs needed to save others'
lives might be taken from the body, and then the life support machine may be switched off.
hile the Council recognises the need for benefiting from the advances of medical science
in alleviating the suffering of the sick and saving lives, it wishes to remind everyone
especially Doctors of the following points:
Human beings are the most honoured creature on earth. Their dignity in life and death must
be maintained.
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Human life is sacred. To terminate the life of one person is equivalent to the termination of
the life of all humanity. Conversely the saving of one life is regarded as the saving of all
humanity.
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- Dp(5:32)
The Council is of the opinion that human organs should be donated, and not sold. It is
prohibited to receive a price for an organ.
26 August 1995.p
Page 48 of 48

The Critique On Inadequate Legislation For Organ Transplant in Pakistan

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The Critique On Inadequate Legislation For Organ Transplant in Pakistan

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Critique on Inadequate Legislation for Organ Transplant in Pakistan

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1.p hy do we need to legalize Organ Transplant?

6.p Decided cases in foreign jurisdictions on the basis of their laws.

3.p Prosecution on organ selling over the internet:

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Transplantation has obviously raised important ethical considerations concerning the

iv.p It is unlawful for an individual to inflict harm upon himself or others

The proponents of this view give the following arguments:

i.p The famous principles (qawa¶id) of Islamic Jurisprudence based on the

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To conclude this discussion on Islamic permissibility of organ transplant we must look at

This dispute was resolved by a fatwa by AD HOC ADMINISTRATION OF THE MINISTRY OF

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Several flaws can be found in these arguments:

(Source: Islamic voice, monthly, Vol. 12-07 No: 139)

(Source: Islamic voice, monthly, Vol. 12-07 No: 139)

(Source: MKAC - Muslim Kidney Action Committee)

In United Kingdom two laws govern this issue

1.p Human Organ Transplant Act 1989

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An Act to prohibit commercial dealings in human organs intended for transplanting; to

(1) A person commits an offence if he-

(a) inviting persons to supply, or offering to supply, any controlled

(4) A person guilty of an offence under subsection (1) shall be liable-

(a) on summary conviction-

(a) to imprisonment for a term not exceeding 51 weeks, or

(a) it is in consideration for transporting, removing, preparing,

(a) any expenses incurred in, or in connection with, transporting,

(a) consists of or includes human cells,

(a) consists of or includes human cells, and

(11) In this section-

"advertisement" includes any form of advertising whether to the

(a) he removes any transplantable material from the body of a living

(a) he uses for the purpose of transplantation any transplantable

(a) the Authority is satisfied-

(5) here under subsection (3) an exception from subsection (1) or

(6) A person guilty of an offence under this section is liable on

(a) to imprisonment for a term not exceeding 51 weeks, or

"reward" has the same meaning as in section 32;

(2) Any such authority shall keep a record of information supplied

(3) A person commits an offence if-

(5) A person guilty of an offence under subsection (3)(b) is liable on

(6) In this section, "transplantable material" has the same meaning

There view is based on the following grounds:

If an individual is drowning or is in the midst of a burning flame, it is totally permissible to

In view of the above (according to this group of scholars), it will be permissible to

ãä ÍíË ÇáÃÍßÇã ÇáÔÑÚíÉ:

1) It is permitted to transplant or graft an organ from one place of a person¶s body to

2) It is permitted to transplant an organ from one person¶s body to another, if it is an

4) It is unlawful (haram) to transplant or use an organ on which life depends, such as

1) There should be no other reasonable alternative availible in the view of experienced

2) All efforts should be made to avoid transplanting of a non-Muslim¶s organ into a

And Allah knows best

Muhammad ibn Adam al-Kawthari, UK

Aisha' narrated that the prophet (s.A.w.) said:

(Related by Ahmad, Abu Dawud & Ibn Majah)

(Ad-Durr al-Mukhtar 3/246)

In Fiqh al-Islam wa Adillatuh (7/3), the author concludes:

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1.p hy do we need to legalize Organ Transplant?

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(5) here under subsection (3) an exception from subsection (1) or