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Expert opinion presented to the 16th Session of the Fiqh Academy of India held at Jamia Islamia darul Uloom Muhazzabpur Azamghar near Varanasi India on 01st April 2007 by Professor Dr Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine at the Institute of Medicine University of Brunei Darussalam and Visiting Professor of Epidemiology University of Malaya
STATEMENT OF THE QUESTION
In the name of Allah-the most merciful, the most compassionate.
Man is a combination of body and soul. Infusion of soul in the body signals initiation of life and its exit from the body causes death. But then what is the soul. Holy Qur’an has called it “amr-rab”. According to some scholars the soul is something like a light which remains in the body in the same manner as bloom remains in twig. Generally death has so clear signs that any person can determine whether a person is living or dead? However, there are certain situations when even a medical expert finds it difficult to determine. Such situations generally occur in cases of poisoning or severe injury when a person goes into coma, all express signs of death are visible but in reality the person is living.
Generally it is believed that death means stopping of blood circulation by heart and, respiration by lungs. However, latest advances in medical sciences have invented such equipments which can keep blood circulation and respiration on even after heart and lungs stop functioning.
This has given birth to the concept of brain death because blood circulation and respiration of a patient can be continued by artificial means. This concept of brain death means that death does not occur due to stopping of blood circulation and respiration but due to death of brain stem. This portion of brain actually controls thought and action of the individual as well as various systems of body. If blood supply to this portion of the brain is stopped for a few minutes, say for 5 minutes, the person would die. After death of the brain, blood circulation and respiration can be continued by artificial means but this can be done only for a few hours or a few days or weeks. Such a person cannot be revived. On the contrary if heart and lungs stop functioning for a brief period, though the brain is alive then the person may be revived by providing blood circulation and respiration by artificial means. Due to these experiences, medical experts today believe that life of human is centred in brain.
Life and death of a person is very important issue in Islamic fiqh. The time of declaring a person dead is very important from fiqhi point of view. This is specially true about three aspects: firstly the issues pertaining to succession and iddat as to from what time they shall be applied; secondly the issue of organ transplantation as it has been shown that human organs remain useful only for a limited time after death of an individual, therefore, question arises that for what period of time a person, whose brain has died, should be kept on life support so that his organs may remain useful for transplantation purposes, and finally, the issue of continuance of a person on expensive life support system for indefinite period. Such an issue actually does not arise when heart and lungs starts functioning after keeping the person on life support system for some time. The issue also does arise if the person dies after some time. However, the issue really assumes significance when doctors remain hopeful about recovery but the person continues on life-support system for a very long time. Since keeping a person on life-support system is a very expensive proposition, is it permissible to remove the life-support system?
In the light of above discussion, certain questions are being put for your kind consideration. Your valuable guidance in the light of Islamic shariah is highly solicited. These questions are:
- Whether the medical theory that actual death is the death of brain is correct as per Islamic shariah or not? In other words, if a person whose brain death has occurred but whose blood circulation and respiration is being continued artificially can be declared dead as per the Islamic shariah?
- When a person’s brain stem is working but his heart and lungs stop functioning, what would be the status of such a person? Whether such a person would be considered alive or dead?
- Whether it is permissible to remove a person from artificial life-support system about whom doctors have not lost hope, nevertheless, it is certain that the person would die if removed from the life-support system? Whether such a course of action is permissible in case the relatives of the patient are not in a position to bear the expenses involved in keeping him on the life-support system like ventilator etc.?
- Whether it is permissible to remove patient from artificial life system like ventilator in case doctors have lost hope, though, it is possible to continue blood circulation and respiration for some time? What is the status, as per Islamic shariah, of taking advantage of the artificial life support system by the legal heirs of a person- whether it is obligatory, permissible or prohibited?
- What would be the time for applying legal implications arising out of death like iddat, succession, etc? Whether they shall be applied from the time of brain death, or from the time when heart and lungs stop functioning, or from the time when artificial life support system is removed?
RESPONSE TO THE QUESTIONS
Summary of the response
- There is near unanimity among physicians and Muslim jurists that brain stem death is legal death even if respiration and blood circulation are maintained artificially. Brain stem death has the same effect as decapitation. Maintenance of respiration and blood circulation artificially has no net benefit in cases of brain stem death. There is disagreement about whether higher brain death can be recognized as legal death since the brain stem is still functioning and can maintain the vital functions of life for a limited time on its own or with the assistance of machines.
- A patient with an intact functioning brain stem on artificial support for respiration and blood circulation is living and cannot be declared legally dead. Recovery of respiration and blood circulation is possible. If the artificial life support has no net benefit or if there are resource constraints the matter should be referred to a qadhi for a decision.
- If a patient has brain stem death he is legally dead and artificial life support is withdrawn without any financial considerations. If the brain stem is intact artificial life support is continued if it has net benefit and the relatives can afford it. If it has no net benefit and/or the relatives cannot afford it the matter is referred to a qadhi for decision.
- A qadhi should be consulted for a decision in cases dispute between physicians and members of the family or in cases of doubts about the sincerity of the physicians or the family in asking for withdrawal of life support for a patient with an intact brain stem whose prognosis is said to be poor and in whom life support has some or no net benefit
- The legal time of death in cases not on artificial life support is the moment of complete and irreversible stoppage of respiration and blood circulation. The legal time of death in cases on artificial life support is when respiration and blood circulation stop on withdrawal of life support. For purposes of organ transplantation when artificial life support is continued, the time of death is the moment of brain stem death.
Justification
Under the purpose of preserving life, maqsad hifdh al nafs, medical treatment and other means of artificial life support are obligatory where there is life. According to the principle of custom, qa’idat al ‘aadat, only ordinary means are obligatory. The Law does not oblige physicians to try means that are futile. The purpose of preserving life may contradict the purpose of preserving wealth, maqsad hifdh al maal. Life comes before wealth in order of priorities. However expenditure on futile treatment is waste, israaf. Brain stem death fulfills the criteria of the principle of certainty, qa’idat al yaqiin, because it is irreversible and can be diagnosed definitively. Decisions on life support by physicians and family members may not be in the best interests of the patient and judicial consultation is needed for unclear cases. Withholding life support is the same as withdrawing in consequences and intentions but is psychologically more acceptable. The principles of the law that applies here is that continuation is excused where commencing is not, yughtafar fi al baqa ma la yughtafar fi al ibtidaa, and continuation is easier that starting, al baqau ashal min al ibtidaa. The principle of custom, qa’idat al ‘aadat, is also used to define what is customary medical care to distinguish it from heroic efforts that are sometimes employed in terminal illness. It is a crime to fail to provide care that is customarily accepted as appropriate. There is no obligation to institute heroic measures that are out of the ordinary.
Role of the qadhi
The Muslim community in India has to train enough ‘ulama in each city to understand issues of death and its determination and have them readily available for making legal rulings. This will close the door to evils, sadd al dhari’at, that would arise if the matter is left solely in the hands of family members and physicians who may have their own interests (sincere and not sincere) that are not in the best interests of the patient or are against the shari’at.
The qadhis are guided in their decision by ascertainment of brain stem death and futility of any further artificial life support. The qadhi should not consider financial ability in deciding on death which is a purely biological phenomenon. If the family cannot afford the cost of artificial life support the hospital will stop it. No more than 1/3 of the patient’s wealth should be used for artificial life support. Beyond this the family should not be forced into debt or into selling all the property for futile artificial life support because the welfare of the healthy members of the family has priority over life support in terminal illness.
When life support is withdrawn, the patient may or may not die. The qadhi’s role then comes in when death has to be declared if there are doubts or disputes. The usual rules of qisas do not apply to physicians who stop artificial life support if they acted within professional guidelines. However relatives who make the decision to withdraw life support may not be inheritors because they indirectly were involved in the death of the patient.